: Court of the Nuited s OCTOBER TERM, 1936.” 9 ALBIZU CAMPOS, JUAN ANTONIO CORRET. LUIS F. VELAZQUEZ, CLEMENTE SOTO prez, ERASMO VELAZQUBZ, JULIO H. VEL- EZ, JUAN GALLARDO SANTIAGO axp PABLO ROSADO ORTIZ, Defendants-Appellants, against UNITED STATES OF AMERICA, Appellee. Prrition FoR Wit oF CenTiorant From THE UNITED fares Cincurr Count of Arrears yor THE Finst i RIEF ON BEHALF OF AMERICAN CIVIL” LIBERTIES UNION, AMIC § CURIAE. U eae _ OSMOND K. By On behalf of Amer! - ’OCTOBER TERM, 1936. No. +0 Pepro Austzu Campos, Juan ANTONIO ‘Correrser, Luis F. Aa Vetazquez, Cuemente Soto VELEZ, Erasmo VELAZQUEZ, Juwo H. Vetazquez, Juan Gaucanpo Santiaco and Pasto Rosapo Orziz, Defendants-Appellants, against Unirep Srares or AmERICA, Appellee. ————_+2>—__——_ Ow Peririon ron Wait or Certionast rnom THE UNITED Grates Cincurr Court or Arreats ror THE Furst Circuit. BRIEF ON BEHALF OF AMERICAN CIVIL LIBERTIES UNION, AMICUS CURIAE. American Civil Liberties Union is a national non-sectarian association whose purp i defend fundamental A:" 2 a purpose of this briet to revieg’ ction or innocence of the petitioners, ia question the question of whether or not ahs Gath nd: is sol lefendants fair trial before a jury impartially ch, losen. The Facts, The fucts in this case are fully set forth in th ants’ petition for the issuance of the writ of cortieveeal / The Methods by Which the Defendants Were Denied a Fair Trial. The record of this case is the record of a case which w: unfairly prescnted by the prosecution, and unfairly tri Various were the means by which a fair trial was det to these petitioners. The most flagrant, were the foll 1. The method of jury selec mitted of jury nee in ms “a vena bly to pack it against the petitioners. Suet l of jury election vitiated the fair adminis the trial below from its very te i 2. The prosecution was permitted of the case il amretheatthy administration of public ernment in our insular possess! ee b POINT I. i i ‘ial below The method of jury selection used in the tri denied the petitioners a trial by an impartial jury of their peers impartially selected. In the trial below thirty-three veniremen were found to be qualified jurors (R., 86). a In denial of the defendants’ motion to have the requisite twenty-cight juryinen drawn by lot from those thirty-three qualified venirenion (B., 89, 90), the Court permitted the clerk to make his own unsupervised selection as to which five should be cacluded from the list (R., 90, 92). Merely to describe this procedure is to make clear its vicious potentialities for prejudicial discrimination. For be it borne in mind that the jury list was made up of a mixture of Americans and Puerto Ricans (see appendix, p. 50 of defendants’ petition and brief), before whom were to be tried eight Puerto Ricans charged with insurrectionary acts against the United States government. &« What shall be said then of this procedure when it is also ‘Pointed out that its result in this particular case was exactly ae been expected,—namely, four out of sia n thus excluded by the clerk’s arbitrary Woice bore Spanish—not American names (see a) i 50 of defendants’ petit; : ippendix, ee ‘ants’ petition and brief). Bet pethe only. Tanner in which the venire li er manip ations that.pitted to the clerk below. ‘real made by the Court, in United Slates - 639, of a jury selected by such a peat “A jury so selected i eel meaning of the law, anal ae 4 - body wit Harlan in Crowley v. United States” (8 476) such action cannot be regarded a or Soe te in form; it is a bet of stance which cannot! i ‘ nf to an accused.’’ the disregarded yi a To countenance the selection of a jury in the ne pursued in this case is, we submit, ‘‘a matter of sub- stance’? so important as to strike a body blow at our system of jurisprudence and government. * For this reason alone we have felt. justified in asking” to be permitted to intercede here as amicus curiae. For it is imperative, we submit, that a writ of certiorari issue out of this Court to preserve the accuseds’ right to am im- partial jury of their peers. Such right has been inalienable” to an accused ever since the right of jury trial itself became imbedded as a keystone of the Anglo-Saxon structure of jurisprudence. ne We have noted the benediction uttered by the Cire Court below that ‘it should be remembered h spondent’s right is not one of selection, >ub rejection.’’ a Such a ‘right” of rejection borane) a i when, as in this case, its exer” jurymen MKrbial man from ae 0 his case below, without reading the 1m 3 Peri andi aiffoult to dotormine whether He Te of these defendants was for insurrection oF for murder. 7 ‘he injection of wholly unconnected, inflammatory am passion-rousing testimony of shootings, woundings, and assassinations in a trial supposedly dealing with a con- spiracy to incite insurrection against the United States government also warped we submit the true administration of justice in the trial below, and brings us to the second point which we fecl makes urgent the issuance of a writ of certiorari out of this Court. The closing of the prosecution’s case with the gory story of the killing of Colonel Riggs was but the climax in the improper presentation of evidence of a series of shootings and bloody affrays which had no relation to the alleged crime for which the defendants were being tried, and which could not help but inflame the minds of the jurors “beyond any possibility of an objective consideration of the rele- vant issues before them, * The prosecution, from the beginning to the end of its case, injected into it, over objection, evidence of one shoot- ing and killing after another by Nationalists and the in- -sular police. he bloody climax of the introduction into evidence of ‘ 8 of murders and affrays was the sickening nar- e assassination of Colonel Riggs who ‘fell w } blood flowing from his forehead.”? i &all of this have ry conspiracy ae row the ee hee the rth br _ Buen if this testimony as to ee) any relevancy at all, its ore and mw tts passion-rousing and inflammatory fen $0 § it should have been excluded.in any event bi $0 See “to obscure and suppress the truth rathe: ee it it” (See Wigmore on Evidence, sec, 1094) i to:reve _This testimony of murderous affrays and bloody assas- sinations was so ‘‘toxic in character’? (State v. Paden, 199 _ Towa 383), that “whatever materiality it may have is subor- dinate to, and merged in, its more generally objectionable and injurious character as evidence’? (Harrison y. U. S., 200 U. S. 662, 674). In Shepard vy. U. S., 290 U. 8. 96, in which the accused was charged with the murder of his wife it was unques- tionable that the wife’s statement that the defendant had. poisoned her, whose admission into evidence was urged by the prosecution, had some relevance in rebutting an at- tempt by the defense to show an intention by the deceased to commit suicide. Nevertheless, of such evidence this Court said, holding it reversible error to have admitted it (290 U. S., at pp. 103-104): from this objection (that the prose- d the trial Court to limit consi the accusatory deel § evidence of a stal to limi it ‘‘Aside, however, cution had not aske 5 eration of the testimony), must have been rejected a! mind, although the purpose thus _ brought to light upon the trial ent) did not use the declar:‘accept the declarations for yy cast upon the existence of a vital urge ‘them to the extent that they charged the to someone’ else. Discrimination so subtle is a feat beyond the compass of ordinary minds. The reverber- ating clang of those accusatory words would drown all weaker sounds. It is for ordinary minds, and not for psychoanalysts, that our rules of evidence are framed. They have their source very often in con- sideration of administrative convenience, of practical expediency and not in rules of logic. When the risk of confusion is so great as to upset the balance of ad- vantage, the evidence goes out.’ To paraphrase the language of the Court in the Shepard ease just quoted, showing its pointed applicability to the situation at bar. - It will not do to say that the jury might accept the testimony as to assassination and deeds of violence for any light that it cast upon the existence of an alleged conspiracy to overthrow the government of the United States, and reject it to the extent that it charged these particular defendants with responsibil- ity for them. Discrimination so subtle is a feat beyond the compass of ordinary minds. The clamorous uproar of these words of blood and violence would overwhelm all weaker sounds. It is for ordinary minds, and not or ps; choanalysts, that our rules of evidence They have their souree very often Y administrative convenience andas to upset the balance of a must where the air in a consp with words of bloodshed and 33 evidence goes out. wae CONCLUSION. We respectfully submit that in the trial below, the t and orderly administration of the law was flagrantly lated. The petitioners were denied their elementary of a fair trial by a jury of their peers impartially sele Wherefore, we join with the petitioners in respectfully — urging that a writ of certiorari should be issued to review — the decision of the Circuit Court of Appeals. 7 Respectfully submitted, ARTHUR GARFIELD HAYS, OSMOND K. FRAENKEL, On behalf of American Civil Liberties Union, Amicus Curiae Zana WILLIAMSON, AL Wr, of Counsel._ OCTOBER TERM, 1999, 7) we. 95D puDRO ALBIZU CAMPOS, JU JER, LUIS F. VELAZQURy, VELEZ, ERASMO VELAZOUEZ, JUD, pe ASQUEZ, JUAN GALLARDO’ SaNntiAg PABLO ROSADO ORTIZ, a Defendants-Appellants, AN ANTONIO CORRE. against UNITED STATES OF AMERICA, Appellee. On Perition yor Witt or Centriorant From tHe Unrrep. Srates Cincurr Counr or Apreats ror tHE Finst Circurr. ; BRIEF ON BEHALF OF AMERICAN CIVIL LIBERTIES UNIGN, AMICUS CURIAE. ARTHUR GARFIELD BAYS, OSMOND K. FRAENKEL, c On behalf of American Civi Liberties Union, Amicus ©