Respondents Brief — Burch v. Louisiana

IN THE

Supreme Court of the United States

OCTOBEK TERM, 1978

—_—_—_ es

No. 78-90 :

DANIEL BURCH and WRESTLE, ING

Petitioners,

versus

STATE OF LOUISIANA,

Kespondent,

On Writ of Certiorari to the

Supreme Court of Louisiana

BRIEF OF STATE OF LOUISIANA, RESPONDENT

WILLIAM J. GUSTE, JR.,

ATTORNEY GENERAL Ol

LOUISIANA

HARRY F. CONNICK,

DISTRICT ATTORNEY (©)

ORLEANS PARISH

LOUISE KORNS,

ASSISTANT DISTRICI ALTORNEY

OF ORLEANS PARISH

Criminal Courts Building

2700 Tulane Avenue

New Orleans, Louisiana 70119

Telephone: (504) 822-2414

—

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TABLE OF CONTENTS

Page

5 de ee. ef \.” 1

ARGUMENT:

EGET IID so cccccccsveresecs vecees 3

Il The Five Out Of Six Verdict Is Con-

POC POPTTTCET CULT TTT ee 3

tees Skene 6 08404608 6000000808000 08-4% 8

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TABLE OF AUTHORITIES

Cases:

Apodaca v. Oregon, 406 U.S. 404 (1972) ......4.5- 5,8

Ballew v. Georgia, 435 U.S. 223 (1978) ...... 2,4,7,8,9

Colgrove v. Battin, 413 U.S. 149 (1973) ...... 06 7,11

Johnson v. Louisiana, 406 U.S. 356 (1972) ....... 3,5,6,

9,13,14

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

Williams v. Florida, 399 U.S. 78 (1970) ...... 05 3,4,5,

7,8,9,14

Constitutional Provisions:

Article 1, Section 17, Louisiana Constitution

Cee en awed e see coees 2,4

Sixth Amendment, U.S. Constitution .... 2,4,5,7,15

TABLE OF AUTHORITIES (Continued)

Fourteenth Amendment, U.S. Constitution

Statutes:

Article 106, La. Crim. Code, La R.S. 14:106

La. Code of Crim. Proc., Art. 779, as amended ....

Other Authorities:

Berman & Coppock, Outcomes Of Six- and

Twelve-Member Jury Trials: An Analysis

Of 128 Civil Cases In The State Of

Washington, 48 Wash.L.Rev. 593 (1973)

Bogue & Frik, The Six Man Jury, 17

I EP RAOTE? Socvccscseccsccces

Comment, Defendant’s Right To A Jury Trial

— Is Six Enough?, 59 Ky.L.J. 996 (1971) .

Croake, Memorandum On The Advisibility

And Constitutionality Of Six Man Juries

and 5/6 Verdicts In Civil Cases, 44 N.Y.

NE

Devitt, The Six Man Jury In Federal Court, 53

ae eg | ee ere eee eee

Hargrave, The Declaration Of Rights Of The

Louisiana Constitution Of 1974, 35

ae. 2, OO, ©. SOO (1974) 2... ec cccee

Kalven & Zeisel, The American Jury, 56-58,

ee

Page

2 2,7,15

»12,13

ill

TABLE OF AUTHORITIES (Continued)

Kessler, An Empirical Study Of Six- and

Twelve-Member Jury Decision-Making

Processes, 6 U.Mich.J.L. Reform 712(1973) ....

Lempert, Uncovering “Non-discernible”

Differences: Emphirical Research And The

Jury-Size Cases, 73 Mich.L.Rev. 644 (1975)

Mills, Six-Member And Twelve-Member

Juries: An Emphirical Study Of Trial

Results, 6 U.Mich.].L. Reform 671 (1973) ...

Nagel & Neef, Deductive Modeling To Deter-

mine An Optimum Jury Size And Fraction

Required To Convict, 1975 Wash.U.L.Q.

DAC cece eae he wae ab Oboe ba 080.0 0 400.406.0008

Note, The Effect Of Jury Size On The

Probability Of Conviction: An Evaluation

Of Williams v. Florida, 22 Case W.Res.L.Rev.

eee vu Nua eb kay Mus aeeee oases

Pabst, Statistical Studies Of The Cost Of Six-

Man Versus Twelve-Man Juries, 14 Wm. &

ENE RUT: GOP GASPED seccse as deceseces vee

Powell, Reducing The Size Of Juries, 5

U.Mich.J.L. Reform 87 (1971) ........... 45.

Saks, Ignorance Of Science Is No Excuse, 10

ee Os =e. BITE) nice cvescess ave

Thompson, Six Will Do, 10 Trial 12 (Nov. -

EE EVA Vea tL ahs case oe55 8s once ees

Page

12

~ 12

iv

TABLE OF AUTHORITIES (Continued)

Page

Wiehl, The Six Man Jury, 4 Gonz.L.Rev. 35

SE abs ce eti eos exes eked sadutaveceseeen 12,13

Zeisel, Twelve Is Just, 10 Trial 13 (Nov. - Dec.

cxeincnetna noes ckrekdens rec peker nee: 11

Zeisel & Diamond, “Convincing Emphirical

Evidence” On The Six Member Jury, 41

if 2 OS Ct, rrr per Te 11

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 OF STATE OF LOUISIANA, RESPONDENT

STATEMENT OF THE CASE

By bill of information the District Attorney of

Orleans Parish jointly charged Wrestle, Inc. and Daniel

W. Burch, in the first count, with possession, exhibi-

tion, and display of hard-core sexual conduct in an un-

titled motion picture shown in booth number 9 at 4059

Tulane Avenue, New Orleans, Louisiana, on May 24,

1977, and, in the second count, with possession, exhibi-

tion, and display of hard-core sexual conduct in a mo-

tion picture entitled “Black Bobbysoxer” on the same

date. R. 1.

2

On September 27, 1977, Wrestle, Inc., and Daniel

Burch were jointly tried before a jury of six persons,

five of whom could render a verdict under Article 1,

Section 17, of the Louisiana Constitution of 1974 and

Louisiana Code of Criminal Procedure Article 779 as

amended. That same day the six person jury by a vote

of 5 to 1 found Daniel Burch guilty as charged on both

counts, and by a unanimous vote found Wrestle, Inc.,

guilty as charged on both counts. R. 10-12. Daniel

Burch was sentenced to two consecutive, suspended

seven month terms in Parish Prison and Wrestle, Inc.,

was fined $600.00 on each count. R. 14, 17.

On November 15, 1977, Daniel Burch and Wrestle,

Inc., filed a motion for appeal to the Louisiana Supreme

Court. R. 24. While their appeal was pending there this

Honorable Court on March 21, 1978, handed down its

decision in Ballew v. Georgia, 435 U.S. 223, declaring un-

constitutional under the Sixth and Fourteenth

Amendments to the United State Constitution the

Georgia law permitting trial by a five person jury, all of

whom must concur in the verdict

On their appeal before the Louisiana Supreme Court

Daniel Burch and Wrestle, Inc.,on May 16, 1978, filed a

First Supplemental Brief in which they attacked the

constitutionality of the Louisiana non-unanimous jury

of six which had tried their case, citing as authority this

Court's recent decision in Ballew v. Georgia, supra.

On June 19, 1978, the Louisiana Supreme Court ad-

dressed this federal question on its merits and decided

3

it adversely to Burch and Wrestle’s position, citing as

authority Williams v. Florida, 399 U.S. 78 (1970), and

Johnson v. Louisiana, 406 U.S. 356 (1972). State v. Wrestle,

Inc., 360 So.2d 831 (La. 1978).

Daniel Burch and Wrestle, Inc., applied to this Court

for a Writ of Certiorari, which was granted October 30,

1978.

ARGUMENT

I

Plea Of Mootness

The State of Louisiana respectfully reurges the con-

tention it made in its Opposition To Certiorari herein

that this matter is moot as far as Wrestle, Inc., is con-

cerned because Wrestle was found guilty as charged by

the trial jury of six by a unanimous vote on both counts,

and this verdict is unassailable under Williams v. Florida,

399 U.S. 78 (1970). See R. 10-12.

II

The Five Out Of Six Verdict Is

Constitutional

In the instant proceeding Daniel Burch and Wrestle,

Inc., are charged with the crime of obscenity as defined

by Article 106 of the Louisiana Criminal Code, La.R.S

14:106, for which, at the time of the instant crime, the

at

4

punishment was a fine of not less than one hundred

dollars nor more than one thousand dollars, or im-

prisonment in the parish prison for not more than one

year, or both.

Article 1, Section 17, of the Louisiana Constitution

of 1974 pertinently provides that a case in which the

punishment may be confinement without hard labor

for more than six months shall be tried by a jury of six

persons, five of whom must concur to render a verdict.

Implementing this constitutional mandate, Article 779

of the Louisiana Code of Criminal Procedure states

that a defendant charged with amisdemeanor in which

the punishment may be a fine in excess of five hundred

dollars or imprisonment for more than six months shall

be tried by a jury of six, five of whom must concur to

render a verdict.

In Williams v. Florida, 399 U.S. 78 (1970), this Court

upheld the constitutionality under the Sixth and

Fourteenth Amendments of a six person jury in a state

criminal trial, pointing out that because the purpose of

the jury trial is to prevent oppression by the Govern-

ment, the essential feature of a jury lies in the inter-

position between the accused and his accuser of the

commonsense judgment of a group of laymen, and in

the community participation and shared responsibility

that results from that group’s determination of guilt or

innocence, and that the performance of this role is not

less likely to be achieved when the jury numbers six in-

stead of twelve. 399 U.S. at 100.

5

Although the opinion in Williams seemed to approve

of the unanimity requirement of the Florida six person

jury there involved, it intimated no view whether or

not the requirement of unanimity was an indispensable

element of the Sixth Amendment jury trial. See 399

U.S. at 100.

Two years later the issue of the constitutionality of

non-unanimous jury verdicts in state criminal trials

was squarely presented to this Court in Johnson v.

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

U.S. 404 (1972), involving, respectively, Louisiana’s 9

out of twelve and Oregon’s 10 out of twelve jury ver-

dicts. In Johnson and Apodaca this Court upheld the con-

stitutionality of these state majority verdicts, con-

cluding, pertinently, in Apodaca:

“As we saidin Duncan, the purpose of trial by

jury is to prevent oppression by the Govern-

ment by providing a ‘safeguard against the

corrupt or over-zealous prosecutor and

against the compliant, biased, or eccentric

judge.’ Duncan v. Louisiana, 391 U.S., at 156.

‘Given this purpose, the essential feature of a

jury obviously lies in the interposition

between the accused and his accuser of the

commonsense judgment of a group of laymen

.... Williams v. Florida, supra, at 100. A require-

ment of unanimity, however, does not materially con-

tribute to the exercise of this commonsense judgment. As

we said in Williams, a jury will come to such a

6

judgment as long as it consists of a group of

laymen representative of across section of the

community who have the duty and the oppor-

tunity to deliberate, free from outside

attempts at intimidation, on the question of a

defendant’s guilt. In terms of this function we

perceive no difference between juries re-

quired to act unanimously and those per-

mitted to convict or acquit by votes of 10 to

two or 11 to one. Requiring unanimity would

obviously produce hung juries in some

situations where nonunanimous juries will

convict or acquit. But in either case, the in-

terest of the defendant in having the judg-

ment of his peers interposed between himself

and the officers of the State who prosecute

and judge him is equally well served.” 406

U.S., at 410-411. (Emphasis added)

Mr. Justice Blackmun concurred in Johnson v. Louisiana,

stating that the majority verdict system is not in his

view constitutionally offensive when a substantial ma-

jority of the jury, such as the 75% that must concur ina

9-3 verdict, are to be convinced. 406 U.S., at 366; see

also Hargrave, The Declaration Of Rights Of The

Louisiana Constitution Of 1974, 35 La.L.Rev. 1, 56, n.

300 (1974) (“If 75 per cent concurrence (9/12) was

enough for a verdict as determined in Johnson v.

Louisiana, 406 U.S. 356 (1972), then requiring 83 per

cent concurrence (5/6) ought to be within the permissi-

ble limits of Johnson.”)

The following year, in Colgrove v. Battin, 413 U.S. 149

(1973), this Court upheld the six-person jury in civil

cases, saying, pertinently:

“We had no difficulty reaching the conclu-

sion in Williams that a jury of six would

guarantee an accused the trial by jury secured

by Art. III and the Sixth Amendment.

Significantly, our determination that there

was ‘no discernible difference between the

results reached by the two different-sized

juries,” 399 U.S., at 101, drew largely upon the

results of studies of the operations of juries of

six in civil cases. Since then, much has been

written about the six-member jury, but noth-

ing that persuades us to depart from the con-

clusion reached in Williams.” 413 U.S., at 158-

159 (footnotes omitted)

This Court's recent decision in Ballew v. Georgia, 435

U.S. 223 (1978), declaring Georgia’s five member jury

invalid under the Sixth and Fourteenth Amendments,

in no way affects the principles laid down in Williams v.

Florida* that a six member jury is “large enough to

promote group deliberation, free from outside

attempts at intimidation, and to provide a fair possibili-

ty for obtaining a representative cross-section of the

community.” 399 U.S., at 100. These essential features,

2» In Ballew Mr. Justice Blackmun said, ”... we adhere to, and

+9 ye our holding in Williams v. Florida. . . .” Ballew v. Georgia, 435

o., at 239.

which this Court determined in Ballew did not exist ina

five person jury, are in no way changed, diminished, or

altered because the six member jury can render a ver-

dict of guilt or innocence by a vote of five of its

members instead of the entire six. This verdict of five

out of 6 takes place after group deliberation by a body

of individuals empaneled in a fashion approved by this

Court in Williams. As this Court held in Apodaca, a re-

quirement of unanimity does not materially contribute

to the exercise of the commonsense judgment of the

group of laymen whocomprisea jury. 406 U.S., at 410.

Justice Tate, in his opinion in the Louisiana Supreme

Court in this case upholding the constitutionality of

Louisiana’s five out of 6 jury verdict, concluded:

“The six-person jury will still presumably

engage in the longer deliberations involving

more communication that the court found

adequately enhances greater verdict reliability

and better community representation, despite

(see Johnson) the elimination of the require-

ment for unanamity in verdict.” Statev. Wrestle,

Inc., 360 So.2d 831 (1978), at 838.

REBUTTAL

In brief to this Court petitioners contend that the

decision of the Louisiana Supreme Court in this case

upholding the validity of the Louisiana six person non-

unanimous jury is erroneous “because such a jury sub-

9

stantially endangers the constitutional requisites for

juries set forth in Williams v. Florida, 399 U.S. 78 (1970)

and Ballew v. Georgia, 435 U.S. 223 (1978).” P. 5. In sup-

port of this argument petitioners rely on empirical data

referred to in Mr. Justice Blackmun’s opinion an-

nouncing the judgment of the Court in Ballew v. Geor-

gia, which struck down as too small a unanimous

Georgia jury of five.

Petitioners’ contention overlooks the fact that Mr.

Justice Blackmun’s opinion in Ballew specifically and ex-

plicitly reaffirmed this Court’s holding in Williams v.

Florida that a jury composed of six members, such as the

Louisiana jury here at issue, is sufficiently iarge to

promote adequate group deliberation, to insulate

members from outside intimidation, and to provide a

representative cross-section of the community.

Furthermore, petitioners’ theory that because five of

the 6 members of the Louisiana jury which tried them

could return a verdict of guilt or innocence (and did in

Daniel Burch’s case) the dissenting juror’s voice is

nullified, was rejected by this Court in Johnson v.

Louisiana, in which this Court said pertinently:

“We have no grounds for believing that ma-

jority jurors, aware of their responsibility and

power over the liberty of the defendant,

would simply refuse to listen to arguments

presented to them in favor of acquittal, ter-

minate discussion, and render a verdict. On

10

the contrary it is far more likely that a juror

presenting reasoned argument in favor of ac-

quittal would either have his arguments

answered or would carry enough other jurors

with him to prevent conviction. A majority

will cease discussion and outvote a minority

only after reasoned discussion has ceased to

have presuasive effect or to serve any other

purpose — when a minority, that is, continues

to insist upon acquittal without having per-

suasive reasons in support of its position. At

that juncture there is no basis for denigrating

the vote of solarge a majority of the jury or for

refusing to accept their decision as being, at

least in their minds, beyond a reasonable

doubt. Indeed, at this point, a ‘dissenting juror

should consider whether his doubt was a

reasonable one. . . (when it made) no impres-

sion upon the minds of so many men, equally

honest, equally intelligent with himself.’ Allen

v. United States, 164 U.S. 492, 501 (1896).

Appellant offers no evidence that majority

jurors simply ignore the reasonable doubts of

their colleagues or otherwise act irresponsibly

in casting their votes in favor of conviction,

and before we alter our own long-standing

perceptions about jury behavior and overturn

a considered legislative judgment that una-

nimity is not essential to reasoned jury ver-

dicts, we must have some basis for doing so

other than unsupported assumptions.” 406

U.S., at 361-362.

11

In the instant case the jury of six deliberated for ap-

proximately 50 minutes (from 5:35 to 6:24 p.m., R. 12)

before returning a verdict of 6-0 against Wrestle, Inc.,

on both counts, and a verdict of 5-1 against Daniel

Burch on both counts, R. 12. It is thus unrealistic to

argue that the thoughts and opinion of the lone juror

who did not join in the guilty verdict against Daniel

Burch were ignored and disregarded by his fellow

members.

In regard to petitioners’ reliance on empirical data in

support of their position, there is equally strong em-

pirical data which militate against it. As Mr. Justice

Brennan pointed out in his opinion for the Court in

Colgrove v. Battin, supra, opinion is sharply divided

among law review and other commentators concerning

the effectiveness of the six-member jury. 413 U.S., at

159-160, n. 15. In general, although the division is not

an absoiute one, the jury studies which are based on in-

formation resulting from observation of actual

criminal court proceedings — “real life”, that is, — tend

to approve of the smaller jury and the majority verdict,

whereas those grounded on deductive modeling, mock

juries, etc., are critical of the six-member group and the

non-unanimous verdict. See, among others, Nagel &

Neef, Deductive Modeling To Determine An Optimum

Jury Size And Fraction Required To Convict, 1975

Wash.U.L.Q. 933; Saks, Ignorance Of Science Is No Ex-

cuse, 10 Trial 18 (Nov. - Dec. 1974); Thompson, Six

Will Do, 10 Trial 12 (Nov. - Dec. 1974); Zeisel, Twelve

Is Just, 10 Trial 13 (Nov. - Dec. 1974); Zeisel & Dia-

mond, “Convincing Empirical Evidence” On The Six

Member Jury, 41 U.Chi.L.Rev. 281 (1974); Note, The

12

Effect Of Jury Size On The Probability Of Conviction:

An Evaluation Of Williams v. Florida, 22 Cue

W Res.L.Rev. 529 (1971); Lempert, Uncovering Non-

discernible” Differences: Empirical Research And The

Jury-Size Cases, 73 Mich.L.Rev. 644 (1975); Bogue &

Frik, The Six Man Jury, 17 S.D.L.Rev. 285 (1972);

Pabst, Statistical Studies Of The Cost Of Six-Man Ver-

sus Twelve-Man Juries, 14 Wm. & Mary L.Rev. 326

(1972); Berman & Coppock, Outcomes Of Six- and

Twelve-Member Jury Trials: An Analysis Of 128 Civil

Cases In The State Of Washington, 48 Wash.L.Rev.

593 (1973); Wiehl, The Six Man Jury, 4 Gonz.L.Rev. 35

(1968); Comment, Defendant's Right To A Jury Trial -

Is Six Enough?, 59 Ky.L.J. 996 (1971); Devitt, The Six

Man Jury In Federal Court, 53 F.R.D. 273 (1971);

Powell, Reducing The Size Of Juries, 5 U.Mich.J.L.

Reform 87 (1971); Mills, Six-Member And Twelve-

Member Juries: An Empirical Study Of Trial Results, 6

U.Mich.J.L. Reform 671 (1973); Kessler, An Empirical

Study Of Six- And Twelve-Member Jury Decision-

Making Processes, 6 U.Mich.J.L.Reform 712 (1973);

Croake, Memorandum On The Advisability And Con-

stitutionality Of Six Man Juries And 5/6 Verdicts In

Civil Cases, 44 N.Y. State B.J. 385 (1972).

There is no evidence that jury deliberation requires

more than six people, or that six individuals cannot ef-

fectively carry out the decision-m aking process. In f act,

some studies support the view that discussion is

stimulated and made more open by reducing the size of

13

the group, since group members are less likely to con-

sider the other members as an audience when they par-

ticipate with fewer people, whereas in larger groups

shy or tense persons tend to avoid discussion. See

Wiehl, The Six Man Jury, 4 Gonz.L.Rev. 35, 39 (1968);

Berman & Coppock, Outcomes Of Six- And Twelve-

Member Jury Trials: An Analysis Of 128 Civil Cases In

The State Of Washington, 48 Wash.L.Rev. 593, 596

(1973); Powell, Reducing The Size Of Juries, 5 U.Mich.

].L. Reform 87, 102-103 (1971).

Further, as this Court stated in Johnson v. Louisiana,

there is no evidence that majority jurors ignore the

reasonable doubts of their colleagues or otherwise act

irresponsibly in casting their votes in favor of convic-

tion. 406 U.S., at 362. And The Honorable Lloyd L.

Wiehl, Judge of the Superior Court of Yakima County,

Washington, has suggested that ”.. . five out of six

should be able to reach a verdict with as much give-and-

take as ten out of twelve.” 4 Gonz.L.Rev., at 39 (1968).

THE STATE INTEREST

It is well known that if allowed to deliberate long

enough a jury reaches a unanimous verdict in ap-

proximately 95 percent of all cases, and that in ap-

proximately 5 percent of all unanimous verdict cases

the jury hangs. See Nagel & Neef, Deductive Modeling

To Determine An Optimum Jury Size And Fraction Re-

quired To Convict, 1975 Wash.U.L.Q. 933, 934; Kalven

& Zeisel, The American Jury, 56-58, 461 (1966).

14

Although the majority jury vote actually affects the

type of verdict ultimately arrived at in only a small frac-

tion of the cases tried in this manner, the system saves

considerable time in all proceedings in which it is used

because the jury returns to the courtroom with its ver-

dict as soon as five of its members agree either to con-

vict or acquit, and the number of hung juries declines.

One of the advantages of federalism is that it permits

different jurisdictions to function in diverse ways. This

diversity should be fostered and encouraged for the

health and resiliency of our society. Further, the courts

all over this country, both criminal and civil, are becom-

ing more overworked with each passing year. Loui-

siana thus has a valid interest in maintaining its 5 out of

six jury verdict, not only because of the time this

procedure saves everyone connected with the criminal

justice process, but also, on the ground of comity, for

the reason that Louisiana’s distinctive jury system, a

product of its Latin heritage, should be maintained, and

not be sacrificed to conformity, without strong proof,

based on a long-term study of the workings of the Loui-

siana criminal district courts, that this procedure

produces unjust results.

CONCLUSION

The State of Louisiana believes that its six member

jury, five of whom can return a verdict, is con-

stitutional under Williams v. Florida and Johnson v.

Louisiana, and respectfully asks this Honorable Court to

affirm the judgment of the Supreme Court of

15

Louisiana in this case holding that the Louisiana law

which permits conviction by a non-unanimous six per-

son jury is valid under the Sixth and Fourteenth

Amendments to the United States Constitution.

WILLIAM J. GUSTE, JR.,

Attorney General of

Louisiana

HARRY F. CONNICK,

District Attorney for the

Parish of Orleans

LOUISE KORNS,

Assistant District Attorney

for the Parish of Orleans

CERTIFICATE

I certify that three copies of this Brief have been

mailed to:

Jack Peebles, Esq.

1006 Baronne Building

305 Baronne Street

New Orleans, Louisiana 70112

LOUISE KORNS

Assistant District Attorney

for the Parish of Orleans

2700 Tulane Avenue

New Orleans, LA 70119

Telephone: (504) 822-2414