1. SUMMARY: Petr contends that Sup. Ct. Del. erred in reversing resp\u27s conviction on the ground that admission of testimony of a prosecution witness violated resp\u27s rights under the Confrontation Clause of the Sixth Amendment

Unknown,

The SG has submitted a reply, 10/30/85, arguing that resps\u27 contentions concerning employees hired after 1965 are irrelevant, because the SG seeks review only of the ruling that Title VII provides no remedy for post-1965 failure to remedy racial disparities in wages paid to employees hired before 1965

ISU ReD: Research and eData

Illinois State UniversityISU ReD: Research and eDataBazemore v. Friday, 478 U.S. 385 (1986) U.S. Supreme Court papers, Justice Blackmun11-2-198511-02-1985 Preliminary MemorandumUnknownLaw clerk, US Supreme CourtFollow this and additional works at: http://ir.library.illinoisstate.edu/bazemorevfridayPart of the Criminal Law CommonsThis Certiorari Material is brought to you for free and open access by the U.S. Supreme Court papers, Justice Blackmun at ISU ReD: Research andeData. It has been accepted for inclusion in Bazemore v. Friday, 478 U.S. 385 (1986) by an authorized administrator of ISU ReD: Research and eData.For more information, please contact ISUReD@ilstu.edu.Recommended CitationPreliminary Memorandum, Bazemore V. Friday, 478 U.S. 385 (1986). Box 367, Harry A. Blackmun Papers, Manuscript Division,Library of Congress, Washington, D.C.( No. 85-93, Bazemore v. Friday, and No. 85-428, United States v. Friday. The SG has submitted a reply, 10/30/85, arguing that resps' contentions concerning employees hired after 1965 are irrelevant, because the SG seeks review only of the ruling that Title VII provides no remedy for post-1965 failure to remedy racial dispar-ities in wages paid to employees hired before 1965. For the reasons discussed in the bench memo, I agree that cert should be granted on this issue (Question J). I also agree that cert should be denied on the county chairmen issue (Question 4). Although I think petrs are probably correct that General Building Contractors v. Pennsylvania should not be extended to Title VII actions, this case does not involve a simple delega-tion, as petrs suggest. Instead, the decisions below seem to turn on the special way in which the agricultural extension serv-ice was set up, vesting county officials from the outset with authority to select chairmen. I recommend granting cert on the remaining t~ree issues: Statistical evidence (Question 2). The distinction drawn in the pool memo between this case and the decisions of the CADC and CA2 seems overly technical. The CADC and CA2 have pretty clearly held that a Title VII plaintiff has no burden to refute alterna-tive explanations for disparate impact until the defendant pro-vides some evidence that the omitted variable is potentially im-portant. See Segar v. Smith, 738 F.2d 1249, 1277 (CADC 1984) ("SI"nce DEA has presented no admissible evidence that black agents are more likely than white agents to lack a second year of r requisite experience 1 Ola inti ff.S I failure to aCCOUnt for th i 8 variable does not dilure the force oE their statistical analysis .... ");Guardians Assoc. v. Civil Service Comm'n, 630 F.2d 79, 88 n. 7 (CA2 1980) ("To accept such unsupported possibilitif;!s, and require the plaintiffs to refuste every circumstance that could explain the disparate impact shown by the statistics, would cre-ate an onerous burden of pr0of , far in excess of the 'f'i tle VII standard as intepreted by the Supreme rourt. "). 'T'he approach taken by the DC and the rA4 in this case is difficult to recon-cile with these statements. This dispute concPrns more than the factual findings in this case; it concerns what sort of statisti-cal showing may properly be demanded of 'l'itle VTT plainti.ffs , absent some sort of countervailing statistical evi~ence. On the other hand, because of. the technical distinction not-ed in the pool memo, the split in the circuits is not sharp, and pqrhaps this issue should be allowed to pl"rcolate lonqer . The 4-H Clubs (Question 3). Limiting Green to schools makes no sense. The CA4's holding to the contrary clearly is of broad legal imp0rtance , and I don ' t think thi.s Court should deny cert Rirnply because the present SG does not care ahout de facto dis-crimination against BJacks. Class action certification (Question 5). The BG is correct that rJenjal of class certifir:ation did not matter below , where the Govt was pressing for the same re l tef as the private plain-tiffs. But thP R~ now opposes cert o n every issue except that of continuing aalary disparity. ConaequPntly , if. t he Court grants CP-rt on the county chairmen iFHlue or the statistica l issue (both ~ of which involve post-1965 hires), the class action question will no longer be moot. The 4-H Club issue is different, since there the plaintiffs appear to be seeking only injunctive relief, and class status may thus be unimportant. Still, without class sta-tus petrs may not have standing to seek injunctive relief as broad as they do. (Unfortunately, the complaint is not included in the Petn App, and the briefs oo not make clear exactly what relief petrs sought in DC.) On the "merits" of the class certi-fication issue, oetrs seem correct the courts below erred in ways sufficiently important to warrant cert. No. 85-93: Grant, limited to questions 1. , 2, 3 and 5. No. 85-428: Grant and consolidate with 85-93. DS 11/2/85 

11-02-1985 Preliminary Memorandum

Illinois State UniversityISU ReD: Research and eDataDelaware v. Fensterer, 474 U.S. 15 (1985) U.S. Supreme Court papers, Justice Blackmun9-12-198509-12-1985 Preliminary MemorandumUnknownLaw clerk, US Supreme CourtFollow this and additional works at: http://ir.library.illinoisstate.edu/delawarevfenstererPart of the Criminal Law CommonsThis Certiorari Material is brought to you for free and open access by the U.S. Supreme Court papers, Justice Blackmun at ISU ReD: Research andeData. It has been accepted for inclusion in Delaware v. Fensterer, 474 U.S. 15 (1985) by an authorized administrator of ISU ReD: Research and eData.For more information, please contact ISUReD@ilstu.edu.Recommended CitationPreliminary Memorandum, Delaware v. Fensterer, 474 U.S. 15 (1985). Box 367, Harry A. Blackmun Papers, Manuscript Division,Library of Congress, Washington, D.C.I )/;-I ( ~v t;t'{ I) v. (J(t IW l {j I / J arne 09/ 12/ 85 ~ '1- , -z 'I PRELIMINARY MEMORANDUM September 30, 1985, Conference Summer List 23, Sheet 3 No . 85-214-CSY reLAWARE v . FENSTERER (convicted of mur-der) Cert to Sup. Ct. Del. (McNeilly, Horsey, Christie) State/Criminal Timely .../ 1. SUMMARY: Petr contends that Sup. Ct. Del. erred in reversing resp•s conviction on the ground that admission of tes-timony of a prosecution witness violated resp's rights under the Confrontation Clause of the Sixth Amendment. ~-csv 2. FAC'l'S AND DEC 1 S 1 ON &EL0\-7: murdering his girlfriend, Stephanie Swift. Evidence of guilt wan entirely circumstantial. The pros~'>culion•s theory ·~as that rgc r, had strangled Swift with a cat leash. To substantiate this th~-or:y, the prosecution sought to prove , among other things , that two hairs found on the leash were similar to Swift's hair arrl ~at one of these two hairs had been forcibly remov~d. To esta~­lish that the hair had been forcibly removed, the State offered ~stimony of an FBI agent , who was an expert in hair analysis. '!'he agent testified that, in his opinion, one of the hairs had been forcibly removed. He explained that there are three methods by which to determine if hair has been forcibly removed: (1) the presence of the follicular tag on the hair, f2 1 the presence of an elongated root, and (3) the presence of a sheath of skin around the root. But the agent was unable to state which method he had relied on in forming his opinion . ~he agent could not remember which of the three methods he had used to test the hair, and his notes reflected only his concli.Jsion that the hair had been forcibly removed. On cross-examination, the agent persisted in his inability to remember which method he had relied on. The defense presented its own expert in hair analysis. ~he defense expert testified that, prior to trial, the FBI agent had told him that the agent had based his conclusion on the '•fol-licular tag• method. 'I·he defense expert then stated that scien-tific authority contradicted the agent•s theory that the follicu-lar tag method indicated that hair had been forcibly removed. ~14-CSY sup. Ct. Del. reversed petr 's conviction for second-degree murder on Confrontation Clause grounds. The primary in-terest secured by the Confrontation Clause is the right of cross-examination~ See Douglas v. Alabama, 380 u.s. 415 (1965). The agent •s conclusion that a hair on the leash had been forcibly removed from the victim's head was "highly material ," and an FBl agent is likely to be a highly credible witness in the eyes of the jury. "Effective cross-examination and discrediting" of the agent ' s testimony required that the agent acknowledge the basis of his opinion. ln the absence of such acknowledgment, defense efforts to cross - examine the agent were "an exercise in futili-ty." The defense expert's testimony that the agent had informed 1 him of the method on which the agent relied was not equivalent to the agent's own acknowledgment. Since resp had been denied his right ef feet i ve ly to cross-examine a key prosecution witness, Sup. Ct. Del. had no choice but to reverse the conviction . 3. CON~ENTIONS: Petr contends that Sup. Ct. Del. erred in concluding that the Confrontation Clause requires an appellate inquiry in to effectiveness of cross - examination. Se1i!- Ohio v. R:>berts, 448 u.s. 56, 73 n.l2 (1980) {in all but "extraordinary" cases, there is no need for inquiry into effectiveness of cross-examination at prior hearing at which unavailable witness gave statement sought to be admitted at trial). Confrontation Clause values are fully safeguarded where, as here, the witness takes the stand Y- e e ca 1 i for n i a v • Green , 3 9 9 U • S . 14 9 , 15 7 < 19 7 0 > ("literal right" to confront witness at trial "forms the core of the values furthered by the Confrontation Clause"), and is sub-u.s. page 4. to unlimited cross-examination, .see Davis v. Alaska, 415 (essential purpose of confrontation is to 308, 315 (1974) secure cross-examination) . By cross- examining the agent with respect to his faulty recollection and by showing that the agent formerly had disclosed the method on which he relied, defense counsel provided the jury with ample means to judge the agent's credibility and to weigh the value of his expert opinion. ln ~lifornia v. Green, the Supreme Court did leave open the possi-bility that a witness ' s lapse of memory might raise Confrontation Clause problems. But the concerns reflected in Green are not implicated by this record for Green involved admission at trial of a witness's preliminary hearing statement when the witness claimed that he could not remember the events described in that statement . Petr further contends that Sup. Ct. Del.'s holding con-flicts with a decision of CA7. In United States v . Bastanipour, 697 F.2d 170 (CA7 1982), Qert. denied, 460 u.s . 1091 (1983), CA7 ..6 held that a defendant • s confrontation right was not violated under circumstances similar to those in this case. In .&stanipour, the prosecution's expert gave an opinion, but he stated on cross-examination that he could not recall the "litera-ture spectra" on which he had based his analysis , that he had lost or destroyed the "standard spectra" he had used, and that he did not know anything about the computer program he had used in his analysis. CA7 rejected the defendant's argument that these circumstances prevented him from conducting a meaningful cross-examination. The question was one of the weight, not the admis-r>vic10nC"e>. Dcf:ens0 C"Ollnse1 war-; ahle to and cJirl conduct: pf.'f:f'ctivr> cr:oss-cxaminatjon by calling attention to the · e and failure to retajn materials. cxpert:'n Jgnoranc Pctr also points to lower court decisions holding that, in the C"ontext of: admission of prior statements , a witness's lapse of memory do~n not create Confrontation Clause problems. ~r example, in Unjted States v. Murphy, 696 F.2d 282 (CA4 1982), c:el't . __ ~~-nied, 461 u.s. 945 (1983), a witness testified before a ~ grand jury, stating that he and defendants had robbed a bank. At trial, the witness stated that he thought he had robbed the bank, ~at he could not remember who his accomplices were, and that his grand jury testimony was false . CA4 held that admission of the grand jury testimony did not violate the Confrontation Clause because the witness took the stand at trial and was subject to cross-examination. Defendants were not denied the opportunity for effective cross-examination for the witness admitted that he had an expensive heroin habit and that agents had suggested that ~ namp the defendant~ as his accomplices . S~e~e~~~~~~~~ ~ _?tate~ ex rel. Thomas v. Cuyler , 548 F. 2d 460, 462-63 (CA3 1977); State v. Gustafson, 266 N.W.2d 878, 879 (Minn. 1978). CAS has apparently adopted a "case-by-case" approach, under which it con-siders the jury's ability to weigh the credibility of the extra-judicial statement , the importance of the statement to the gov-ernment ' s case , and the eff.ectiveness of limiting instructions. See Uni ter'J States v. ~Qg~, 549 F. 2d 490 (CAS 1976), cert . de-n i ( .. (j I 4 :n lJ • $ • 9 }.8 ( 1 9 7 7) • Petr requests the Court to consolidate this [.Jetiti,.~ra with, or hold the petition pend ing decision 0. in, Q!:"..lfwau! ,, . ~ Arsdall, No. 84-1279 (cert. granted) . Van Arsdall raises the question whether a Confrontation Clause violation r~quires auto-matic reversal of conviction without consid~ration of whether or oot the error was harmless. Petr contends that Sup. Ct. Ot:::. J applied its "automatic reversal" rule and gave no consideration w the harmlessness of the error in this case. Resp contends that his Confrontation right effectively to cross-examine the agent was denied. Since the agent would not acknowledge the basis of his opinion, the defense could not force ~e agent to admit that all scientific authority contradicted his conclusion. There is a material difference between showing that the agent had a faulty memory and that he is a "bad expert." Moreover, Sup. Ct. Del. did not apply the automatic reve::sa~ rule, but rather found that the Confrontation Clause violation prejudiced petr. Sup. Ct. Del. found that the agent's concl~sion was "highly material" and that his lapse of memory prevented cross-examination with respect to the conclusion. Resp further contends that state grounds support Sup. Ct. Del.'s decision to reverse the conviction. Under Del. R.. Evid. 705, expert opinion testimony is not admissible unless the expert discloses the basis for his opinion. Resp acknowledges that the adequate and independent state ground doctrine is not directly implicated in this case since Sup. ct. Del. did not reach the evidentiary argument. Resp made the argument to Sup. page 7. (),,I and he believes that the court would reach the same Ct • ~ · • ' r~sult on this oround as it did under the Confrontation Clause. 4. DlSCUSSlON: 1 believe that this petition is worth a g1·ant. Sup. Ct . Del. has identified a Confrontation Clause vio-lation on facts that 1 believe are substantially different from the circumstances previously identified by the Court as raising confrontation concerns. Many of the Court's Confrontation Clause decisions im·ol ve admission of a witness's prior statements under exceptions to the hearsay rule. The concerns of those cases, ti1at the defendant is being denied the right physically to con-front the witness at trial or the right to cross-examine the wit-ness at the time the statement was made, are not present in this case. 1 suppose that resp would argue that the agent's lapse of memory rendered h irn "unavailable" for cross-examination wit..~ respect to the basis of his opinion. See California v . Green, 399 u.s. at 188 (Harlan, J., concurring); State v. Lomax, 608 P.2d 959, 965-67 (Kan . 1980}. Green does suggest that, where a witness's lapse of memory "so affect[s]" the defendant's abili~· to cross-examine the witness, the Confrontation Clause may be ~alated. But the danger raised on the facts of Green related to the defendant's inability to provide the jury with means to eval-uate the credibility and reliability of the witness concerning key events described by the witness in a prior statement that incriminates the defendant and that is admitted at trial. 1 do not believe that a similar danger is presented here . 4-CSY page 8. Though petr goes too far in arguing that the Court has not shown any concern for the effectiveness of cross · t' -exam1.na 1on, 1 doubt that, under the circumstances of this case, resp was de-nied his right of cross- examination. In Douglas v. Alabama, 380 u.s. 415 (1965} , the prosecutor was permitted to impeach a wit-ness invoking his Fifth Amendment privilege by reading the wit-ness's prior unsworn confession. The case presented a Confronta-tion Clause violation because the defendant was unable to conduct any cross-examination of the witness concerning the confession because the witness refused to answer any questions. In Davis v. Alaska, 415 u.s. 308 (1974), defendant was deprived of his oonfrontation right when the TC ruled that he could not cross-examine the key prosecution witness on a prior conviction that would reveal the witness's bias. By foreclosing to defendant this critical area of inquiry, the state court had deprived the defendant of his "right of effective cross- examination." ld. at 318. In this case, the agent gave his opinion before the jury ~at was to determine guilt or innocence. The agent was subject to cross-examination that was not subject to any 1 imitation by ~e TC. His inability to acknowledge the basis of his opinion did mean that resp could not focus his attack on one particular method of identifying hair that has been forcibly removed. But, in my view, the agent's faulty memory itself provided resp with an effective means of showing the jury that the agent was an un-reliable expert. Resp's claim that Sup. Ct. Del's opinion rests on ade-quate and independent state grounds lacks merit. Sup. Ct. Del. ) page 9. explicitly rested decision on Confrontation Clause grounds . The court acknowledged that resp presented additional evidentiary arguments, but it expressly stated, "We do not address these con-tentions due to our reversal on Confrontation Clause grounds." under these circumstances, the Supreme Court will not view the state court's decision as resting on adequate and independent &ate grounds. See Michigan v . Long, 463 u. s . 1032 (1983) . I am not sure that the Court would wish to consolidate ~is case with Van Arsdall, No. 84-1279 (cert. granted). In Van ksdall, the state concedes for purposes of review the existence of a Davis v . Alaska violation . Thus, the only question present-ed in the case is whether automatic reversal is required without analyzing for harmless error. In my view, the main question pre-sented in this case is whether the state court properly found the existence of a Confrontation Clause violation. If the Court de-cides not to grant cert. in this case, however, a hold for Van ksdall seems appropriate . Sup . Ct. Del. did state that resp had been denied his right of cross - examination with respect to a material issue . But it did not expressly consider whether ' in view of all the other evidence in the case, the error was harm-less. & /,td t: / J: .; 1/ h (I il '.1 Jl If V ; / II J r /./ / / t' ~ ! ; I ,./ )}/J I) / / y t, /. ;/.1 J / f .,1 r " / Jl I/ J, 1./:/ V.fl )fl ~ ) (/a It ftf I~ t~ I /) / 

09-12-1985 Preliminary Memorandum

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09-12-1985 Preliminary Memorandum

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