Petitioners Brief — Burch v. Louisiana

Ne ee ee ee

Suprame Court, U, x) 1

a FILED ‘

| DEC 27 1978

MICWAFL BODAK, JR. CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-90

DANIEL BURCH and WRESTLE, INC.,

Petitioners,

versus

STATE OF LOUISIANA,

Respondent.

On Writ of Certiorari to the

Supreme Court of Louisiana

BRIEF FOR THE PETITIONERS

JACK PEEBLES

Attorney for Petitioners

1006 Baronne Building

305 Baronne Street

New Orleans, Louisiana 70112

Telephone: (504) 525-4361

SCOFIELDS' QUALITY PRINTERS, P.O. BOX 53096, N. O., LA. 70153 - 504/822-1611

Page

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ee eee eke cade see es 2

Constitutional and Statutory Provisions In-

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I. A non-unanimous six person jury

presents a substantial threat to the

right to trial by jury, because the

reduction of the size of the voting ma-

jority required to reach a verdict toa

number below six endangers a fair

possibility for representing a cross

section of the community and en-

dangers effective group deliberation ...... 7

A. The Louisiana Panel Endangers

Adequate Jury Deliberation ........ 10

B. The Louisiana Panel Creates an

Imbalance Detrimental to the

RPT Eee OP eT eT Tee eee Tee 13

C. The Louisiana Panel Adversely

Affects Minority Representation .... 13

II. No state interest counterbalances or

justifies the substantial threat to sixth

and fourteenth amendment

guarantees resulting from. the

il

INDEX (Continued)

Page

Louisiana six person non-unanimous

CE PO csc canecsenexvessesue cueee 16

Ae ne eae PERE 4 >on ° 17

CUNO sia 0-060 6064604000400000000000000008 18

TABLE OF AUTHORITIES

Constitutional Provisions:

Constitution of the United States, Amend-

TN 6 ks ng ekh oak nate dine oman 2,6,16,17

Constitution of the United States, Amend-

ee ee hs oe ce oi i ee ore dd Seeks 2,16

Constitution of the State of Louisiana, Art. I,

NE ee a ae Se Sa re eS ea 2,3,6,17

Statutes:

ee ee en eke Siiie ar eae 2

Louisiana Statutes Annotated, Revised

a Be i Gis oho eke eee eee 3

Cases:

Apodaca v. Oregon, 406 U.S. 404 (1972) ........ 8

Ballew v. Georgia, 435 U.S. 223 (1978) ...... passim

Johnson v. Louisiana, 406 U.S. 356

OED Sy covene caehaed Onk eae eee 8,11,14,15

Miller v. California, 413 U.S. 15 ......ccccvwee 15,16

State v. Wrestle, Inc., 360 So.2d 831 (1978) .. 1,3,11

Williams v. Florida, 399 U.S. 78 (1970) ..... 5,6,8,13

iii

TABLE OF AUTHORITIES (Continued)

Page

Articles:

Asch, Effects of Group Pressure Upon the Modification

and Distortion of Judgments, in Group Dynamics

189 (2d ed. D. Cartwright & A. Zander,

Re cocks uceresscccceccess 12

Davis, et al., The Decision Processes of 6- and 12-

Person Mock Juries Assigned Unanimous and Two-

Thirds Majority Rules, 32 J. Pers. and Soc. Psy-

ee Cea cc cu ececccces secce 11

Friedman, Trial by Jury: Criteria for Convictions,

Jury Size and Type land Type II Errors, 26-2 Am.

Ss u asi sccccccccsccccccces a

Lempert, Uncovering “Nondiscernible” Differences:

Empirical Research and the Jury-Size Cases, 73

| ee 9,12,13

Nagel and Neef, Deductive Modeling to Determine

an Optimum Jury Size and Fraction Required to

Convict, 1975 Wash. U. L.Q. 933 ............0-. 9

Note, The Effect of Jury Size on the Probability of Con-

viction: An Evaluation of Williams v. Florida, 22

ES 13

Saks, Ignorance of Science Is No Excuse, 10 Trial 18

ES e secs cccce ccs cece 12

Zeisel, ... And Then There Were None: The

Diminution of the Federal Jury, 38 U.Chi.L. Rev.

ES at eee 9,13

IV

TABLE OF AUTHORITIES (Continued)

Page

Book:

H. Kalven and H. Zeisel, The American Jury (3d

era aes) eae ee ee eee eee 13

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 78-90

DANIEL BURCH and WRESTLE, INC.,

Petitioners,

versus

STATE OF LOUISIANA,

Respondent.

On Writ of Certiorari to the

Supreme Court of Louisiana

BRIEF FOR THE PETITIONERS

OPINION BELOW

The opinion of the Supreme Court of the State of

Louisiana is reported at 360 So.2d 831 (1978). A printed

copy is filed with the appendix to the petition for writ of

certiorari.

JURISDICTION

The judgment of the Louisiana Supreme Court was

entered on June 19, 1978. No application for rehearing

2

was filed. The petition for certiorari was filed less than

ninety days later.

The jurisdiction of this court is invoked under 28

U.S.C. Section 1257(3).

QUESTION PRESENTED

Whether conviction by a non-unanimous six-person

jury offends the right of persons criminally accused of

non-petty offenses to the jury trial guaranteed them by

the Sixth and Fourteenth Amendments to the United

States Constitution.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Constitution of the United States, Amendment

VI: “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, . . .”

The Constitution of the United States, Amendment

XIV, Section 1:”. . . nor shall any state deprive any per-

son of life, liberty, or property without due process of

law...”

The Constitution of the State of Louisiana, Article I,

Section 17:” ... A case in which the punishment may

be confinement at hard labor or confinement without

3

hard labor for more than six months shall be tried

before a jury of six persons, five of whom must concur

to render a verdict... .”

Louisiana Revised Statutes 14:106: “G. Whoever

commits the crime of obscenity shall be fined not less

than one hundred dollars nor more than one thousand

dollars, or imprisoned in the parish prison for not more

than one year, or both... .”

STATEMENT

Petitioners, an individual and a Louisiana corpora-

tion, were convicted on two counts each by a six-person

jury in the Criminal District Court for the Parish of

Orleans, State of Louisiana, of the crime of obscenity.

The bill of information charged violation of the State

Obscenity Statute, LSA R.S. 14:106, by showing

obscene movies through a coin-operated picture

machine in downtown New Orleans on May 24, 1977.

After the jury brought in verdicts convicting both

defendants of both counts, the jury was polled and had

found the defendant Burch guilty by a vote of 5 -1 and

the defendant Wrestle, Inc. guilty by a unanimous ver-

dict. Opinion, Louisiana Supreme Court, Appendix to

Petition for Certiorari, pps. 2a, 11a; State v. Wrestle, Inc.,

et. al., 360 So.2d 831, at 833, 837.

1 Louisiana’s Obscenity Statute was amended subsequent tothe

filing of the bill of information herein, and the pertinent part of

the penalty provision now reads: “G. Whoever commits the crime

of obscenity shall be fined not less than one hundred dollars nor

more than one thousand dollars, or imprisoned for not more than

one year with or without hard labor, or both.” As amended by Acts

1977, No. 717, Sec. 1.

+

Burch was sentenced to serve twoconsecutive seven

month terms in parish prison, suspended, and placed

on inactive probation for two years for each count, to

be served concurrently; a condition of the probation

was that he pay $1,000 to the judicial expense fund.

Wrestle, Inc., was sentenced to pay a fine of $600 on

each count. Defendants timely appealed to the

Louisiana Supreme Court.

After the trial but prior to argument on appeal this

Court decided Ballew v. Georgia, 435 U.S. 223, 98S. Ct.

1029 (1978), holding that a criminal trial in anon-petty

case to a jury of only five persons deprives the accused

of his right to trial by jury. This holding was urged by

defendants on appeal before the Louisiana Supreme

Court. That Court, holding that Defendants’ conten-

tions alleged error patent on the face of the proceedings

(Appendix, Petition for Certiorari, p. 12a), considered

on its merits the contention of the unconstitutionality

of a non-unanimous verdict by a six-person jury. The

Court held that, though the issue was close, it would

“indulgle] in the presumption of federal constitu-

tionality which must be afforded to provisions of our

state constitution ...” (Appendix, Petition for Cer-

tiorari, pps. 14a, 15a), and held that petitioners’ federal

constitutional rights had not been violated.

SUMMARY OF ARGUMENT

The decision of the Louisiana Supreme Court up-

holding the validity of the Louisiana six person non-

5

unanimous jury in serious criminal cases is in error,

because such a jury substantially endangers the con-

stitutional requisites for juries set forth in Williams v.

Florida, 399 U.S. 78 (1970) and Ballew v. Georgia, 435 U.S.

223 (1978).

In Ballew, this Court listed several “concerns” which

militated against the constitutional validity of the five

member unanimous jury in Georgia. Among those con-

cerns were that a jury that small, even though requir-

ing aunanimous verdict, did not assure a fair possibility

for representing a cross section of the community and

endangered effective group deliberation. Further, a

jury that small created an imbalance detrimental tothe

defense.

The constitutional invalidity of a five member panel

cannot be cured by adding another person to the jury as

long as that sixth member's vote is not required in

order to return a verdict. The combination of non-

unanimity and reduced panel size violates the original

theories leading to findings that the deviations from

the traditional twelve member unanimous model were

justified.

These conclusions are compelled both by social

science data compiled since Williams v. Florida was decid-

ed in 1970 and by common sense. An example of sucha

common sense conclusion is that adefendant’s chances

for a hung jury under the Louisiana system are less

than under the Georgia system condemned in Ballew,

6

because whereas Georgia required all five jurors to

concur Louisiana requires only that five of six jurors

agree.

No state interest counterbalances or justifies the

threat to the right to a jury trial inherent in the

Louisiana non-unanimous reduced panel model. All six

jurors must still be paid and the money saved by short-

ened jury deliberation periods and fewer retrials

resulting from fewer hung juries does not justify the

threat to the sixth amendment right toa trial by jury.

ARGUMENT

Prior to 1974 Louisiana law provided for ajury of five

for lesser felonies, with a requirement for a unan-

imous verdict. The law then was substantially similar

to the Georgia jury provision invalidated earlier this

year by this Court in Ballew v. Georgia, 435 U.S. 223, 98

S. Ct. 1029 (1978). The new 1974 Louisiana constitu-

tion changed this requirement by adding a sixth juror,

though requiring that only five must concur to render a

verdict. Article I, Section 17. It is submitted that the

principles and considerations which caused this Court

to invalidate the Georgia jury provision in Ballew apply

with equal if not greater force to the Louisiana provi-

sion for a non-unanimous six-person jury.

In Williams v. Florida, 399 U.S.78,90S. Ct. 1893 (1970)

this Court held that a six-man jury did not violate Sixth

Amendment rights, because such a jury should

7

probably be large enough to promote group delibera-

tion and should provide a fair possibility for obtaining a

representative cross-section of the community. The

Court stated:

“But we find little reason to think that these

goals are in any meaningful senseless likely to

be achieved when the jury numbers six, than

when it numbers twelve — particularly if the re-

quirement of unanimity is retained.” (emphasis add-

ed)

90 S. Ct. 1893, at 1906

In Louisiana, since unanimity is not required ina six-

man jury, the question arises as to whether the goals

mentioned by this Court will be met by permitting con-

viction upon the agreement of five of the six jurors.

A Non-Unanimous Six Person Jury Presents

A Substantial Threat To The Right To Trial

By Jury, Because The Reduction Of The Size

Of The Voting Majority Required To Reach A

Verdict To A Number Below Six Endangers A

Fair Possibility For Representing A Cross

Section Of The Community And Endangers

Effective Group Deliberation.

This Court has held that criminal convictions are

constitutionally permissible when rendered by both

eee

8

non-unanimous twelve person juries, Johnson ov.

Louisiana, 406 U.S. 356 (1972); Apodaca v. Oregon, 406 U.S.

404 (1972), and six-person unanimous juries, Williams

v. Florida, 399 U.S. 78 (1970), yet invalid when rendered

by unanimous five person juries, Ballew v. Georgia, 435

U.S. 223 (1978). It is submitted that the invalidity of a

five person unanimous panel cannot be cured by adding

another person to the jury without insuring that the

contributions of the additional member will be

manifested in the final verdict that emerges from the

deliberative process.

During the eight year period between Williams v.

Florida and Ballew v. Georgia, reams of social science data

had been compiled comparing and contrasting various

attributes of six and twelve person juries. In announc-

ing the judgment of the Court in Ballew, Mr. Justice

Blackmun reviewed many of the findings of this em-

pirical research. Included among these were the follow-

ing:

1. Recent empirical data suggest that as juries

become progessively smaller, they are less likely to

promote effective group deliberation, which eventually

leads to inaccurate factfinding and incorrect application

of community common sense. 98 S. Ct. at 1035.

2. Current data raise doubts about the ability of

smaller juries to determine accurate results. 98S. Ct. at

1036. For example, the risk of convicting an innocent

person increases as the size of the jury diminishes. 98S.

Ct. at 1036, noting Friedman, Trial by Jury: Criteria for

Convictions, Jury Size and Type I and Type II Errors, 26-2 Am.

Stat. 21 (April 1972) and Nagel & Neef, Deductive Model-

ing to Determine an Optimum Jury Size and Fraction Required to

Convict, 1975 Wash. U.L.Q. 933.

3. The data suggest that as juries become smaller,

there is greater variance in verdicts, amounting to an

imbalance detrimental to the defense. 98S. Ct. at 1037.

For example, the frequency of hung juries decreases

when juries are reduced in size. 98 S. Ct. at 1037, citing

Zeisel,. . . And Then There Were None: The Diminution of the

Federal Jury, 38 U.Chi. L. Rev. 710 (1971) and Lempert,

Uncovering “Nondiscernible” Differences: Empirical Research and

the Jury-Size Cases, 73 Mich. L. Rev. 643 (1975)

(hereinafter cited as Lempert).

4. Because minority representation diminishes as

jury size decreases, the Court stated that this trend

“foretells problems not only for jury decisionmaking,

but also for the representation of minority groups in

the community.” 98 S. Ct. at 1037, citing Lempert.

Mr. Justice Blackmun concluded that “(A)ny further

reduction that promotes inaccurate and possibly biased

decisionmaking, that causes untoward differences in

verdicts, and that prevents juries from truly represen-

ting their communities, attains constitutional

significance.” Ballew v. Georgia, 435 U.S. 223, 98 S. Ct.

1029, 1039 (1978).

10

The significant feature of petitioners’ case, unique

among the cases heretofore discussed, is the combina-

tion of non-unanimity and reduced panel size. It is sub-

mitted that the application of the non-unanimity

feature in the six member panel context violates the

original theories leading to the findings of permissibili-

ty of the reduced jury size and the abandonment of the

unanimity requirement. The justifications for each of

these deviations from the traditional twelve member

unanimous model are mutually exclusive, but fail when

applied in unison.

A. The Louisiana Panel Endangers Adequate Jury

Deliberation

The Court's first concern in Ballew was that a change

in the number of jurors should not affect the group’s

method or manner of discussion. 435 U.S. at 232. Ballew

concluded that six is the least possible number of jurors

necessary for effective group deliberation when the

product of the deliberative process must be a un-

animous verdict. 435 U.S. at 240. If sequestering six

jurors until unanimous agreement is reached is the

bare minimum for insuring effective and meaningful

group deliberation, abolishing the unanimity require-

ment in this context means that the lowest standard is

no longer met. This is the necessary conclusion unless

one accepts the suggestion that there is absolutely no

difference in the intensity of the debate that must per-

suade six out of six as contrasted with five out of six

jurors. This assertion is certainly contrary to a normal

11

expectation of human behavior. See: dissent of Mr.

Justice Douglas in Johnson v. Louisiana, 406 U.S. at 389.

Moreover, recent empirical studies have

demonstrated the impact the removal of the unanimity

requirement has on jury processes. A comparison of

the deliberation times between mock juries required to

act unanimously and those required to act by two-

thirds vote showed deliberation times were expedited

when unanimity was not required. Davis, et al., The

Decision Processes of 6- and 12-Person Mock Juries Assigned

Unanimous and Two-Thirds Majority Rules, 32 J. Pers. and

Soc. Psych. 1 (1975). These findings suggest that only a

limited consideration may be given to dissenting views

if those viewpoint holders are not necessary for the

group’s verdict. Id. at 12.

Empirical evidence has also shown that the keen

analysis which should be given to all viewpoints during

jury deliberation is likely to be substantially less when

an opinion is expressed by only one member of agroup

than when the same viewpoint is expressed by two

members of the group, even if the absolute group size is

doubled. Therefore, when the Louisiana Supreme

Court argues that “If 75 percent concurrence (9/12)

was enough for a verdict as determined in Johnson v.

Louisiana, 406 U.S. 356, [92 S. Ct. 1620, 32 L.Ed.2d

152] (1972), then requiring 83 percent concurrence

(5/6) ought to be within the permissible limits of John-

son,” State v, Wrestle, Inc., etal., 360 So.2d 831, 838; p. 13a,

Appendix, pet. for cert., it ignores this fact.

12

A mere comparison of percentages, with nothing

more, overlooks a fundamental distinction between the

two variations. The distinction arises because of the

psychological evidence that demonstrates the impor-

tance to the proponent of a minority viewpoint of hav-

ing at least one ally when presenting his arguments to

the majority. Lempert, Id. at 674. Beginning with the

Asch experiments reported in the 1950's (Asch, Effects of

Group Pressure Upon the Modification and Distortion of

Judgments, in Group Dynamics 189 (2d ed. D. Cartwright &

A. Zander, 1960), it has been shown that the likelihood

of a sole dissenter maintaining his or her position in the

face of asubstantial majority opposed to his view is slim

at best. See Lempert, Id. at 674-78; Saks, Ignorance of

Science Is No Excuse, 10 Trial 18, 19 (Nov.-Dec. 1974).

Even if the minority viewholder maintains a contrary

view, a grave danger exists that when faced with the

majority view, this sole dissenter will change his overt

opinion so as to avoid appearing different. When the

dissenter has at least one ally, however, “the conformi-

ty rates . . . fell off dramatically, even though the sub-

jects continued to face absolutely large majorities

against them.” Lempert, at 674. If the minority view is

held by only one out of six jurors, as opposed to two or

three out of twelve jurors, a grave danger exists that

the rationale of the minority viewpoint will not be fully

and effectively presented to the majority viewholders.

13

B. The Louisiana Panel Creates an Imbalance

Detrimental to the Defense

An additional concern expressed by Mr. Justice

Blackmun in Ballew was the danger in reducing the size

of the jury that the chance for hung juries would

decline, thus creating “an imbalance to the detriment of

one side, the defense.” 435 U.S. at 236. The data the

Court relied upon to demonstrate the lesser chance for

a hung jury that results if the number of jurors was

reduced below six even more strikingly demonstrates

the danger that occurs to an accused’s chance for a

hung jury when the requirement of unanimity is

removed from the six member panel. See Lempert, at

676-77; Zeisel, And Then There Were None: The Diminution

of the Federal Jury, 38 U.Chi. L. Rev. 710, 719-20 (1971);

Note, The Effect of Jury Size onthe Probability of Conviction; An

Evaluation of Williams v. Florida, 22 Case W. Res. 529, 547

(1971); see generally H. Kalven & H. Zeisel, The

American Jury at 453-63 (3d ed. 1966). If five out of five

does not offer sufficient protection for an accused, five

out of six offers him even less protection.

C. The Louisiana Panel Adversely Affects Minority

Representation

Finally, it is submitted that the requirement enun-

ciated in Williams v. Florida, 399 U.S. at 100, that a ver-

dict be rendered by a jury composed of a representative

cross section of the community is thwarted if non-

unanimity is permitted on the six member jury panel.

14

The Court in Ballew concluded that the opportunity for

meaningful representation of minority groups is

decreased below the constitutional minimum when the

jury is composed of only five members. 435 U.S. at 236-

37, 238; see also, opinion of Mr. Justice White con-

curring in id. at 245. If the jury’s verdict is concurred in

by only five jurors and these five members could not

render a constitutionally valid verdict if acting alone

because they do not provide a fair possibility for ob-

taining a representative cross section of the communi-

ty, the addition of a sixth non-mandatory vote on the

panel will likely not improve it. At the very least, per-

mitting non-unanimity in this context creates some

uncertainty as to whether the essential purposes

behind the cross sectional requirement are being

fulfilled or whether minority representation is merely

a meaningless and empty formality. As Mr. Justice

Stewart stated in his dissent in Johnson v. Louisiana:

For only a unanimous jury so selected [i.e., by

an impartial system] can serve to minimize

the potential bigotry of those who might con-

vict on inadequate evidence, or acquit when

evidence of guilt was clear.... The re-

quirements of unanimity and impartial selec-

tion thus complement each other in ensuring

the fair performance of the vital functions of

a criminal court jury.

406 U.S. 398

15

It should be noted that there may be no minority

representation at all on a six person jury. Mr. Justice

Blackmun pointed out that if a minority viewpoint is

shared by 10% of the community, over half of six

member juries will statistically have no minority

representation. Ballew v. Georgia, 98 S.Ct. at 1037. Thus,

even the one non-mandatory dissenter, referred to by

Mr. Justice Marshall as a““surplusage” member, Johnson

v. Louisiana, 406 U.S. at 400-01, may not be present to

try to persuade the five person majority to consider

minority views.

An additional consideration affecting the cross sec-

tional requirement in this case is the nature of the

charge, obscenity, based upon the display of films

presumptively protected by the First Amendment. In

Miller v. California, 413 U.S. 15 (1973), this Court

eliminated the requirement for national standards and

adopted the view that obscenity should be determined

by local community standards as viewed by the average

person. The purpose of this standard was stated by the

Court to be that:

“So far as material is not aimed at a deviant

group, it will be judged by its impact on an

average person, rather than a particularly

susceptible or sensitive person — or indeed a

totally insensitive one.”

413 U.S. at 33

16

The Court in Miller made clear that the lay jurors, as

ultimate factfinders, could rely upon their own ex-

perience in determining what was obscene. The

necessity for obtaining an adequate cross section of the

community is thus heightened in obscenity cases in

order to obtain amore reliable reflection of the views of

the “average person” in the community rather than

particularly susceptible or totally insensitive citizens.

For the foregoing reasons, it is submitted that the

application of the principles set forth in Ballew v. Georgia

invalidates the Louisiana six person non-unanimous

jury in serious criminal cases.

No State Interest Counterbalances Or

Justifies The Substantial Threat To Sixth

And Fourteenth Amendment Guarantees

Resulting From The Louisiana Six Person

Non-Unanimous Criminal Jury.

Mr. Justice Blackmun indicated in Ballew that evenifa

given change in the structure of the jury “inhibits the

functioning of the jury as an institution toa significant

degree,” that change may nevertheless be justifiable if

“any state interest counterbalances and justifies the

disruption so as to preserve its constitutionality.”

Ballew v. Georgia, 435 U.S. 223, at 231. No such state in-

terest exists in this case.

The only monetary savings that could occur from use

of the Louisiana six person jury would be either in the

17

area of shorter deliberation periods or in the reduction

in the number of hung juries that result in the retrying

of cases. However, as has been discussed earlier, either

one of these situations greatly endangers important

sixth amendment values. Therefore, any potential

savings that could result from the five out of six jury

verdict model are greatly outweighed and counter-

balanced by competing considerations that are essen-

tial to the proper functioning, of the jury.

CONCLUSION

This Court should declare those provisions of Article

|, Section 17 of the Louisiana Constitution of 1974

which provide for a non-unanimous jury of six

members to be in violation of the right to trial by jury

protected by the Sixth Amendment to the United

States Constitution. The convictions of petitioners

Daniel Burch and Wrestle, Inc. should be reversed and

the case remanded to the Supreme Court of the State

of Louisiana.

Respectfully submitted,

JACK PEEBLES

Attorney for Petitioners

1006 Baronne Building

305 Baronne Street

New Orleans, La. 70112

Telephone: (504) 525-4361

18

CERTIFICATE

| hereby certify that I have served three copies of the

foregoing, brief for the petitioners upon respondent

herein, the State of Louisiana, by personally handing

the copies of said brief to Louise S. Korns, Assistant

District Attorney for the Parish of Orleans, State of

Louisiana.

JACK PEEBLES