Petitioners Brief — Brown v. Louisiana

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‘© JAN 24 1989

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-5364

DARNELL Brown,

Petitioner,

v.

LOUISIANA,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF LOUISIANA

BRIEF FOR PETITIONER

JOHN LAWRENCE

Attorney for Petitioner

Orleans Indigent Defender Program

2700 Tulane Avenue, Room 112

New Orleans, Louisiana 70119

NuMA V. BERTEL, JR.

Director

Orleans Indigent Defender Program

ROBERT BARNARD

Head of Appeals

Orleans Indigent Defender Program

SLD

Washington, 0.C. + THIEL PRESS + (202) 638-4521

(t)

TABLE OF CONTENTS

Li.

Et MN oe sou sree aig wie cn 4 eon 1

SOs O95 Ca Fi als eo dnd Da Hideo has 1

CONSTITUTIONAL PROVISION INVOLVED.......... 2

GUSSET PRRORNON os ees is fie es 2

wictnconi es: 9ascigh BOLE ET EEE OO 2

sgh caster joys ERR ET EE ETE Oe he En 4

CON 6 55+ va ad nainln @ ON mada wea eran oe 18

TABLE OF AUTHORITIES

Cases:

Ballew v. Georgia, 435 U.S. 228, 98 S.Ct. 1029, 55 .

L.Ed. 2d 234 SROND ic Se oa ‘ae 6 % 15, 16, 17

Berger v. California, 393 U.S. $14, 89 S.Ct. 540, 21

L.Ed. 2d 508 “pegs BD Ee EON TTS Pe LD 10

Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20

L.Ed. 2d 522 cian REECE pee b2 Se eae 11,12

Burch v. Louisiana, ___ U.S. __, 99 S.Ct. 1623, 60 7

L.Ed. 2d 296 so a, NE EAS aoed SA te ts . passim

Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22

L.Ed. 2d 248 ine ng SRE EE PET ET et ee Ln x

De Stefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20

L.Ed.2d 1308 ete, GOR POE ee ee hips Cae 11, 13, 14

Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20

sereiarareaiiacnded, icnsan MERE OE eee 11, 12, 13

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9

L.Ed.2d 799 cate ten TOT Te CN iy ere nth EE 7

Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37

slctieiiciadiniuiec nod, MALO TT re ee 12, 14

Griffin v. Illinois, 361 U.S. 12, 76 S.Ct. 585, 100 L.Ed.

OE 6050 peak oink cae alae ee 7

(1)

Page

Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct.

2959, 52 1. BG. BS SOS CISTI) vk iec ce ccesecees 8,9, 10

Ivan V. v. City of New York, 407 U.S. 203, 92 S.Ct.

ROG, SE cai ee Oe ON eEE obs 6 ho ae 006k oe ee 10

Jackson v. Denno, 378 U.S. 365, 84 S.Ct. 1774, 12

SE Wee ee 6.54.5 bi od ein cou ek aw hers 7

Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16

LE. DR TEE See eA each ae be ba eee 7,9

Linkletter v. Walker, 381 U.S. 618, 85 S.Ct.-1731, 14

LB ORE TE v5 65 © a ow 66 ows ka eee ee 6,7

Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160,

RG 0. DE DR Ge eta kia a ek eh Uae ERD 8

Mullany v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44

Rc DR GO RNeOe 860.05 & C2 aes CeO Oe 9

O'Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23

me et rere we ers See 12, 18

State v. Darnell Brown, 371 So.2d 746 (La. 1979) .... 1,4, 18

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967,

BS LRA. ee LIOO As ov wk ee twee evns® passim

Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42

me ft ere ee ye oe ek ee ee 13, 14

Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148,

eS i | ee ee re eS a are 8,9,10

Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26

L.Ed. 24446 CROUOD Soe a0 03's ce CUM EOS dw viele Be 17

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20

eR oy | = 6 ere ees 10, 11, 14, 15

Statutes:

Louisiana Constitution of 1974 Article 1, Section 17....... 4

Lain. Bak PAGE ss ons 0.4 ct ew Se OR A AON ae 4

ee Rae A, ren ere ae ee ee ee 4

Lenten SS. LOG 6 oa sé eke Saabs eee Pee ee 3

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-5364

DARNELL BROWN,

Petitioner,

v.

LOUISIANA,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF LOUISIANA

BRIEF FOR PETITIONER

OPINION BELOW

The opinion of the Louisiana Supreme Court rendered

May 21, 1979 and entered on the same date, affirming

the petitioner’s conviction is located in the Appendix of

this case, reported in 371 So.2d 746 (La. 1979).

BASIS OF JURISDICTION

The petition for rehearing was denied June 25, 1979.

A petition for writ of certiorari was filed on September

1

2

17, 1979, and was granted by this court on December 10,

1979. Jurisdiction of this Court lies under 28 U.S.C.

1257(3).

CONSTITUTIONAL PROVISION INVOLVED

The sixth Amendment to the United States Constitu-

tion provides:

“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, which district

shall have been previously ascertained by law, and .

to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for obtain-

ing witnesses in his favor, and to have the Assistance

of Counsel for his defense.”

QUESTION PRESENTED

Whether the United States Supreme Court decision in

Burch v. Louisiana, _— U.S. ——, 99 S.Ct. 1623, 60

L.Ed. 2d 96 (1979), striking down a state statute allowing

convictions by nonunanimous six-person juries, is to be

applied fully retroactively, or at least on review of a State

criminal conviction not yet final at the time the Burch

decision was handed down.

STATEMENT

On July 22, 1978 at 10:00 a.m. the house located

at 2930 Florida Avenue, New Orleans, Louisiana was

allegedly broken into by the defendant. Kenella Dixon,

who lived in the other half of this double at 2932

Florida Avenue, heard some noises and called the police.

3

Following a police investigation, Darnell Brown was

apprehended.

The State of Louisiana charged petitioner with viola-

tions of Louisiana revised statutes 14:62 and 15:529.1,

relative to the offenses of simple burglary and being a

multiple offender, respectfully. A Bill of Information

was filed July 31, 1978 charging petitioner with simple

burglary. Before trial, petitioner filed a Motion to Quash

the Jury pursuant to Louisiana Code of Criminal Proce-

dure Article 532(9). The trial court denied this motion.

On August 23, 1978 defendant was tried before a six-

person jury. After a polling of the jury, the verdict was

entered 5-1, guilty as charged.

On August 30, 1978 petitioner appeared with counsel

before the trial court and argued for a Motion for a New

Trial, which was based on the illegality of the jury size.

The trial court denied this Motion. Petitioner next filed

a Motion to Quash the Multiple Bill which the State had

filed August 23, 1978. This motion was denied. Defend-

ant pled guilty as charged to a violation of Louisiana

Revised Statutes 15:529.1 (the multiple offender law).

The Court sentenced petitioner to serve 22 years at hard

labor in the custody of the Louisiana Department of

Corrections with credit for time served.

Petitioner, through his counsel, filed a Motion for

Appeal. The Louisiana Supreme Court affirmed peti-

tioner’s conviction and sentence on May 21, 1979.

Petitioner applied for a rehearing based on Assignment of

Error No. 1, which involved petitioner’s Motion to Quash

the Jury. The Louisiana Supreme Court denied this

rehearing application on June 25, 1979, thus maintaining

the Burch rule would not be applied retroactively.

4

ARGUMENT

THE UNITED STATES SUPREME COURT DECI-

SION IN BURCH vy. LOUISIANA, _— U.S. __,

99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), STRIKING

DOWN A STATE STATUTE ALLOWING CON-

VICTIONS BY A NONUNANIMOUS SIX-MEMBER

JURY, SHALL BE APPLIED RETROACTIVELY.

The bill of information in this case charged the defend-

ant, Darnell Brown, with a violation of La. R.S. 14:62,

relative to the offense of simple burglary. In Louisiana,

the right to a jury trial attaches in all criminal offenses

punishable by more than six months imprisonment.

If an offense is not necessarily punishable at hard labor,

the jury is composed of six persons. Article 1, Section

17, La. Constitution of 1974; La. Code Criminal Pro.,

Art. 779. A jury of six persons found the defendant

guilty as charged, the verdict being five to one.

In affirming defendant’s conviction by this six-person

jury, the Louisiana Supreme Court found that Assign-

ment of Error No. 1, which involved defendant’s motion

to Quash the Petit Jury on the grounds that statutory

provisions permitting less than a unanimous vote for

conviction in six-person juries violated due process rights,

dealt with a question of retroactivity. The Louisiana

Supreme Court correctly noted that the United States

Supreme Court had recently ruled that convictions by

a nonunanimous six-member jury in a state criminal trial

for a non-petty offense deprives an accused of his

constitutional right to trial by jury. Burch v. Loutsiana,

— US. _—, 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979).

After so noting, the Louisiana Supreme Court stated:

“the question presented in this assignment is whether

Burch, supra, is to be applied retroactively. We think

not.” State v. Darnell Brown, 371 So.2d 746, at 748

(La. 1979).

3

This ruling fails to note the criteria set-up by the

United States Supreme Court concerning the issue of

retroactivity. Upon considering the circumstances of a

particular situation, a Court may determine whether an

overruling decision should be given:

1) purely prospective effect, so as not even to apply

it in the case in which it is announced;

2) limited retroactive effect, so that the new mule will

govern the rights of the parties to the overruling

case itself, but the old rule will govern the rights

of parties to all other pending litigation as well as

litigation terminated by “‘final’’! judgment;

3) limited retroactive effect, so that the new rule will

govern the rights of the parties to the overruling

case and the right of parties to other cases which

were pending when the overruling case was de-

cided, but the old rule will govern the rights of

Parties to cases terminated by a “final” judgment

prior to the time the overruling case was decided;

4) general retroactive effect, so that the new rule will

apply even where “final” judgments had been

obtained at the time the overruling case was

decided as well as to apply in the case in which

it is announced and in other cases pending at the

time of the announcement of the new rule.

Defendant strongly contends that the rule announced

in Burch fits in the fourth category; or, at least, the third

category. A three-step thought process points to this

conclusion. First, an overview of the jurisprudence of

1“Final” here, and throughout this brief, refers to a judgment

as to which the ordinary methods of review, such as appeal or

certiorari, have already been exhausted or the right to utilize them

has expired through passage of time.

6

retroactivity supplies necessary background on relevant

issues.2_ Second, the Burch rule, which concerns the right

of an accused to trial by jury under the Sixth and Four-

teenth Amendments, necessitates a detailed analysis of

how the United States Supreme Court has treated the

retroactive issue in past Sixth Amendment right to jury

trial rulings. Finally, the criteria discovered in steps one

and two must apply to the present situation. Throughout

this process, basic questions and problems of past prac-

tices regarding this retroactivity issue crop up. Such

manifestations deserve special discussion. The resultant

conclusion leads to full retroactive effect of the Burch

rule; or, at least to limited retroactive effect, so that the

Burch rule will govern defendant’s rights in the present

case, since his case was pending when Burch was decided.

In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731,

14 L.Ed.2d 601 (1965), the United States Supreme

Court rendered its first decision holding a previous

constitutional ruling not to be wholly retroactive. The

Court held the Mapp exclusionary rule was inapplicable

to cases in which the conviction had become final before

the date Mapp was handed down. Since this Case, signifi-

cant evolution in the Court’s thinking on the subject

has occurred, but all questions relating to the scope and

application of the concept, it is fair to say, have not as

yet been settled. Nonretroactivity has not met with

uniform acceptance; a shifting minority of the Court’s

members have expressed opposition to or at least reserva-

tions about the doctrine.

For a detailed discussion of relevant cases, see Ten Years of

Nonretroactivity: A Critique and Proposal, 61 Va. L.R. 1557

(1975), and Supreme Court Dectsion-Retroactivity, 22 L.Ed.2d

821 (1969).

7

In Linkletter, the Court began to identify the factors

relevant to determining whether a particular decision

should be given retroactive effect. The Court noted

it must look to the prior -history of the new rule in

question, its purpose and effect, and whether retroactive

operation will further or retard its operation. Also, the

Court discussed three then-recent law-changing decisions

which had been given full retroactivity, Griffin v. Illinois,

361 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 89 (1956); Gideon

v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d

799 (1963); and Jackson v. Denno, 378 U.S. 368, 84

S.Ct. 1774, 12 L.Ed.2d 908 (1964). The Court referred

to a factor that was to occupy a central role in the

development of standards for determining retroactivity.

In the above three cases, the legal principle established

went to the fairness of the trial—the very integrity of

the fact-finding process. The Court did not find this

consideration applicable in Linkletter even though the

case rule had already been applied to cases on direct

review.

In holding new rules pertaining to custodial interroga-

tion were not retroactively applicable in Johnson v. New

Jersey, 384 U.S. 719, 16 L.Ed.2d 882, 86 S.Ct. 1772

(1966), the Court noted that whether a constitutional

rule did or did not enhance the reliability of the fact-

finding process at trial was necessarily a matter of degree.

Also in this case, the Court refined the definition of

non-retroactivity. Disdaining any distinction between

cases on direct review and those involving convictions

‘that had become final by the date of the law-changing

decisions, the Court found that the reliance and effect

factors called for an application of the new rules only

to trials begun after the standards were announced.

Thus, Johnson moved the Court significantly beyond

Linkletter and much closer to an approach of pure

8

prospectivity through eliminating application of the

doctrine only to cases pending on direct review.

In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967,

18 L.Ed.2d 1199 (1967), the United States Supreme

Court clearly stated the considerations that affect the

judgment whether a case reversing prior doctrines in

the area of the criminal law should be applied only

prospectively :

1) the purpose to be served by the new standards;

2) the extent of the reliance by law enforcement

authorities on the old standards; and

3) the effect on the administration of justice of a

retroactive application of the new standards.

Once again, moreover, the Court in Stovall noted that

for purposes of deciding the issue of retroactivity, no

distinction was justified between final convictions and

convictions at various stages of trial and direct review.

In denying retroactive effect to new rules involving

identification at police lineups, the Court determined

the facts of reliance and burden were entitled to such

overriding significance as to make the above distinction

unsupportable. The wisdom of limiting the retroactive

application of a new rule so as to give the rule such

effect in only the case in which the mule is announced

has, however, been questioned in many dissenting and

concurring opinions. Mackey v. United States, 401 U.S.

667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan,

J-, concurring); Desist v. United States, 394 U.S. 244,

89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, 5,

dissenting); Williams v. United States, 401 U.S. 646,

91 S.Ct. 1148, 28 L.Ed.2d 388 (1971) (Marshall, J.,

concurring in part and dissenting in part); Hankerson

v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53

9

L.Ed.2d 306 (1977) (Marshall, J., concurring and Powell,

J-, concurring).

Thus, the United States Supreme Court set up the

Stovall criteria to act as guidelines to resolve the retro-

activity issue. Using these guidelines, the United States

Supreme Court has “held to the course that there is

no inflexible constitutional rule requiring in all cir-

cumstances either absolute retroactivity or complete

prospectivity for decisions construing the broad language

of the Bill of Rights.”3 Williams v. United States, 401

U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971).

This Court has noted that each constitutional rule of

criminal procedure has its own distinct functions, its own

background of precedent, and its own impact on the

administration of justice. Going further, the way in

which these factors combine must inevitably vary with

the rule involved, so as to require that the issue of retro-

activity be determined in each case by looking to the

peculiar traits of the specific rule in question. Johnson

v. New Jersey, supra.

In the latest retroactivity case, Hankerson v. North

Carolina, supra, the United States Supreme Court

followed its setting up of a hierarchy among the non-

retroactivity criteria with the foremost factor being the

purpose to be served by the new rule. In concluding the

Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44°

L.Ed.2d 508 (1975), rule, requiring States to establish

all elements of a criminal offense beyond a reasonable

doubt, should be given retroactive application, the United

3See footnote 3 of Williams v. United States, supra, for a list

of cases and sources dealing with the retroactivity issue. To list

every case where retroactivity or nonretroactivity was applied

would prove too burdensome.

10

States Supreme Court reiterated a principle previously

announced in Ivan V. v. City of New York, 407 U.S. 203,

92 S.Ct. 1951, 32 L.Ed.2d 659 (1972), and Williams v.

United States, supra:

While in deciding whether a new constitutional

rule is to be applied retroactively it is proper to

consider the state’s reliance on the old rule and the

impact of the new rule on the administration of

justice if the degree to which the new rule enhances

the integrity of the factfinding process is sufficiently

small; where the major purpose of the new consti-

tutional doctrine is to overcome an aspect of the

criminal trial that substantially impairs its truth

finding function and so raises serious questions

about the accuracy of guilty verdicts in past trials,

the new rule is given complete retroactive rw

Thus, in applying the Stovall criteria, the€ourt must

first look to the purpose of the new constitutional

doctrine. If such purpose enhances the integrity of the

factfinding process, complete retroactivity applies.*

If this issue is close, then the Court proceeds to the

remaining criteria of reliance and effect. Before applying

the criteria to the new constitutional ruling in Burch,

this new ruling requires an inquiry of how the Court has

viewed the retroactive issue in past Sixth Amendment

right to jury trial rulings. This necessity arises since the

Burch ruling originated in the Sixth Amendment right to

a jury trial.

4Examples of such findings included Hankerson v. North

Carolina, supra; Ivan V. v. City of New York, supra; Witherspoon

v. Illinois, 391 U.S. 510, 88 S.Ct. 1921, 20 L.Ed.2d 1100; and

Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed. 2d 508

(1969).

11

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct.

1770, 20 L.Ed.2d 776 (1968), the United States Supreme

Court established new rules for the composition of juries

in capital cases. The Court in footnote 22, rejected the

losing party’s plea for pure prospectivity finding full

retroactivity appropriate despite considerations of

reliance and effect. The Court noted the jury selection

standards employed in violation of the new rule neces-

sarily undermined the very integrity of the process which

decided an accused’s fate.

The Court denied retroactive effect to new rules

guaranteeing the right to be tried by a jury rather than

by a judge. In DeStefano v. Woods, 392 U.S. 631, 88

S.Ct. 2093, 20 L.Ed.2d 1308 (1968), the Court noted

the values implemented by the right to jury trial would

not be served by retrying all persons convicted in the past

by procedures not consistent with the Sixth Amendment

right to jury trial. In denying the Duncan v. Louisiana,

391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968),

rule retroactive effect, the Court applied the Stovall

criteria. Duncan’s purpose for jury trials generally tends

to prevent arbitrariness and repression, but the Court

stated that not every criminal trial or any particular trial

held before a judge is unfair or that a defendant may

never be as fairly treated by a judge as he would be by

a jury. The Court found good faith reliance upon past

Court opinions to the effect that the Sixth Amendment

right to jury trial was not applicable to the States.

Finally the Court found the impact on law enforcement

and the administration of justice to be significant since

denial of jury trials had occurred in large numbers.

De Stefano also ruled that the Bloom ». Illinois, 391

U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), rule,

which extended the right to jury trial to include trials -

12

for serious criminal contempt, is not to be applied

retroactively. After noting the considerations are more

evenly balanced with regard to this rule as opposed to

the Duncan rule, the Court applied Stovall. The purpose

factor proved very close. One ground for Bloom was

the belief that contempt trials would be more fairly tried

if a jury determined guilt. Unlike the judge, the jury

will not have witnessed or suffered the alleged contempt,

nor suggested prosecution for it. The Court, however,

pointed out that the tradition of nonjury trials for

contempt was more established than .the view that

States could dispense with jury trials in normal criminal

prosecution. Thus, reliance on past cases overturned

by Bloom, was more justified. Also, the adverse effects

on administration of justice would be substantial.

The Court in Gosa v. Mayden, 413 U.S. 665, 93 S.Ct.

2926, 37 L.Ed.2d 873 (1973), held non-retroactive the

earlier decision in O'Callahan v. Parker, 395 U.S. 258,

89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), that persons

in the armed forces are entitled to a civilian trial for

offenses that are not service-connected. Applying the

Stovall criteria, a plurality opinion noted that the fact

that a new judicial rule tends incidentally to improve or

enhance the reliability of the truthfinding process does

not in itself mandate the rule’s retroactive application.

Going further, the Court emphasized retroactivity is not

required by a determination. The old standard was not

the most effective vehicle for ascertaining the truth,

or that the truth-determining process has been aided

somewhat by the new standard, or that one of several

purposes in formulating the new standard was to prevent

distortion in the process.

In concluding the purpose behind the rule enunciated

in O'Callahan does not mandate retroactivity, the Court

13

stated that although O’Callahan was critical of the

military system of justice, and stressed possible command

influence and the lack of certain procedural safeguards,

the decision there “certainly was not based on any

conviction that the court-martial lacks fundamental

integrity in its truth-determining process.” In concluding

the reliance factor favors prospectivity, the Court

absolved the military as not to be faulted for its reliance

on the law as it stood before O’Callahan and for not

anticipating a clear break with the past. Finally, the

Court concluded the effect on the administration of

justice would be substantial.

In Daniel v. Louisiana, the United States Supreme

Court, per curiam, ruled the Taylor v. Loutsiana, 419

U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), rule,

that exclusion of women from jury venire deprives a

criminal defendant of his Sixth Amendment right to trial

by an impartial jury drawn from a fair cross-section of

the community, is not to be applied retroactively. After

citing DeStefano v. Woods, supra, the Court applied the

three Stovall factors. The Court found the purpose to

be served by this new standard, as in Duncan, concerned

the function played by the jury to prevent arbitrariness

and repression. The Court concluded this purpose did

not rest on the premise that every criminal trial, or any

particular trial, was necessarily unfair because it was

not conducted in accordance with the Sixth Amendment.

In Taylor, the Court stated:

“It should also be emphasized that in holding

that petit juries must be drawn from a source fairly

representative of the community we impose no

requirement that petit juries actually chosen must

mirror the community and reflect the various

distinctive groups in the population. Defendants

are not entitled to a jury of any particular compo-

14

sition [citations omitted]; but the jury wheels,

pools of names, panels or venires from which juries

are drawn must not systematically exclude distinc-

tive groups in the community and thereby fail to

be reasonably representative thereof.”

Taylor was not so much concerned with the actual

make-up of a particular jury, as with the opportunity

for women to be empaneled on a jury. Thus, not every

criminal trial or any particular trial held before a jury

whose jury venire did not discriminate against women is

unfair or any particular trial held before such a jury may

never be as fairly treated by such a jury as he would be

by a jury venire which had discriminated against women.

Thus, when dealing with a retroactive issue for rulings

arising out of the Sixth Amendment’s right to a jury

trial, the United States Supreme Court characteristically

applies the Stovall criteria. When the purpose to be

served by the new standard goes to the heart of the

truth-finding function and so raises serious questions

about the accuracy of guilty verdicts in past trials,

the Court applies the new ruling retroactively—as in

Witherspoon v. Illinois, supra. When this first criteria

presents a close issue, the Court considers the remaining

two criteria—as in DeStefano v. Woods, supra; Gosa v.

Mayden, supra; and Daniel v. Loutsiana, supra. In each

of these cases, the Court based its nonretroactive decision

on the general purpose of the right to jury trial tending

to prevent arbitrariness and repression without going

into the inner, more specific, operations of a particular

jury. The Court hinted at this more narrow consideration

in Witherspoon, stating jury-selection standards could

undermine the integrity of the guilt-determining process.

This leads to the third and final step in the thought

process which leads to a retroactive application of the

Burch ruling.

15

In the present situation, the United States Supreme

Court clearly states the purpose of its decision in Burch

v. Loutsiana, supra:

However, much the same reasons that led us in

Ballew to decide that use of a five member jury

threatenea the fairness of the proceeding and

proper role of the jury, lead us to conclude now

that conviction for a non-petty offense by only

five members of a six person jury presents a similar

threat to preservation of the substance of the jury

trial guarantee and justifies our requiring verdicts

rendered by six person juries to be unanimous.

This Burch rule greatly enhances the integrity of the

factfinding process by preserving the substance of the

jury trial and the uprightness of the guilt-determining

conduct (as was found in Witherspoon v. Illinois, supra).

This new rule raises serious questions concerning the

accuracy of guilty verdicts in past trials. The Court in

Burch relied on Ballew v. Georgia, 435 U.S. 223, 98

S.Ct. 1029, 55 L.Ed.2d 234 (1978). The Court in

Ballew held the purpose and functioning of the jury in

a criminal trial is seriously impaired to a constitutional

degree by a reduction in size below six members. In so

concluding, the Court went beyond considering only the

general purpose of jury trials of preventing arbitrariness

and repression, and delved into the more specific opera-

tions and functioning of a jury. The Court drew on five

specific concerns. First, recent empirical data suggest

that progressively smaller juries are less likely to foster

effective group deliberations. Second, the data raises

doubts about the accuracy of the results achieved by

smaller and smaller panels. Third, the data suggests the

verdicts of jury deliberation in criminal cases wil! vary

as juries become smaller; and that the variance amounts

to an imbalance to the detriment of one side, the defense.

16

Fourth, the data suggests the minority viewpoint will

adhere to his position more frequently when he has at

least one other person supporting his argument, which

foretells problems not only for jury decision making,

but also for the representation of minority groups in the

community. Fifth, several researchers have identified

methodological problems tending to mask differences

in the operation of smaller and larger juries.

These narrow concerns lead to one conclusion —as the

_ Jury size decreases, the reliability of the jury decreases

along with the accuracy of a guilty verdict. Thus, to

improve this accuracy the Court in Ballew struck down

five-person juries; likewise the Court in Burch struck

down nonunanimity in six-person juries. The Court, in

these two cases, recognizes the general jury trial purpose

as opposed to a judge trial; but, the Court recognizes

more specific purposes linked to the workings and

deliberations of a jury trial which need to be considered

once an accused chooses the jury trial over a judge trial.

As Ballew and Burch point out, these specific purposes

Originate in the Sixth Amendment. Thus, the first, and

foremost, criteria points toward retroactive application

in the present situation.

Although the United States Supreme Court has not

formally ruled on the retroactivity issue concerning the

rule announced in Ballew, the Court has, in effect,

applied Ballew retroactively. In Robinson v. Georgia,

435 U.S. 991 (1978), where defendant raised the jury

size issue, the United States Supreme Court vacated the

lower court’s judgment and remanded the -ase in light

of Ballew v. Georgia, supra. Since the Court is willing

to treat Ballew retroactively, then the Court must be

willing to treat Burch retroactively since Burch relied

on Ballew’s rationale.

17

The final two considerations also point towards

retroactive application of the Burch rule. Although law

enforcement authorities may have relied on authority

for nonunanimous verdicts, petitioner contends Ballew

v. Georgia. supra, and Williams v. Florida, 399 U.S. 78,

90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), clearly fore-

shadowed in holding in Burch, thus obviating any good

faith reliance. Finally, the effect on the administration

of justice would be small. The Court in Burch pointed

out only two states had previously allowed nonunani-

mous six-person juries. Within these states, the issue

raised here would be moot in all convictions rendered

by a 6-0 verdict. Also, most cases tried before six-person

juries in Louisiana usually do not merit long prison

terms. Thus, most defendants who were improperly

convicted have probably served their terms and left

prison. Unfortunately, no Louisiana State Agency

compiles statistics on the needed information. Therefore,

there is no method of accurately determining how many

prisoners this opinion will affect.

It is impossible, in the present situation, to guage the

precise effect of a retroactive ruling, but States have no

justifiable interest in convicting the innocent, or in

overriding the defendant’s right to a trier of fact who will

carefully weigh and scrupulously balance every item of

proof. In any event, if the Court must decide between

fundamental constitutional rights and administrative

convenience, surely constitutional rights should go

wrongly to jail.

Even if the Court applies the ruling in this case pros-

pectively, the petitioner here should be afforded the

benefit of the mie. There is no equitable consideration

which should impel the Court to distinguish among the

litigants whose cases serve as the vehicle to adjudication

18

of a new rule of constitutional law. Every party whose

case is involved, including those whose cases were not

final at the time of the new ruling, should be treated

alike. Thus, cases still pending on direct review should

receive full benefit of the Court’s supervening con-

stitutional decision. In the present case, petitioner’s

conviction was not yet final when the United States

Supreme Court handed down its opinion in the Burch

case. That opinion is dated April 17, 1979, whereas

the Louisiana Supreme Court didn’t affirm petitioner’s

conviction until May 21, 1979. This raises the basic

question of why should the Constitution mean one thing

to the defendant in Burch and another to the present

petitioner, particularly when both litigants are situated

similarly in all pertinent respects.

Petitioner submits the answer to this question lies in

the fact the situation in the present case points towards

full retroactivity of the rule handed down in Burch v.

Loutstana, supra. The Louisiana Supreme Court erred

in not so ruling.

CONCLUSION

It is respectfully requested that the ruling handed

down by the Louisiana Supreme Court in State v. Darnell

Brown, 371 So.2d 746 (1979), be reversed. Thus, the

rule announced in Burch v. Louisiana, supra, striking

down a state statute allowing convictions by a nonunani-

mous six-person jury, should be given full retroactive

19

effect. If this Honorable Court is unwilling to give

full retroactive effect to this ruling, it is respectfully

requested this ruling should apply to the petitioner’s

case and all cases which have not yet become final which

raise this same constitutional issue.

JOHN LAWRENCE

Attomey for Petitioner

Orleans Indigent Defender Program

2700 Tulane Avenue, Room 112

New Orleans, Louisiana 70119

(504) 821-8101

NuMA V. BERTEL, JR.

Director

Orleans Indigent Defender Program

ROBERT BARNARD

Head of Appeals

Orleans Indigent Defender Program