Respondents Brief — Brown v. Louisiana

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IN THE Elichaer RODAK, JR., CLERR

Supreme Court of the United brates : ‘

OCTOBER TERM, 1979

No. 79-5364

DARNELL BROWN,

Petitioner,

versus

STATE OF LOUISIANA,

Respondent.

On Writ of Certiorari to the

Supreme Court of Louisiana

BRIEF OF STATE OF LOUISIANA,

RESPONDENT

William J. Guste, Jr.

Attorney General of Louisiana

Harry F. Connick

District Attorney of

Orleans Parish

Louise Korns

Assistant District Attorney

of Orleans Parish

Thomas Chester

Assistant District Attorney

of Orleans Parish

Criminal Courts Building

2700 Tulane Avenue

New Orleans, LA 70119

Telephone: (504) 822-2414

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

TABLE OF CONTENTS

Page

Seasemment OF CG CRE 65 i ois Bee Hee e TNE 1

PROO OTE 6. 0.0. «0 bn oie bis ened dd ieanesevecvvesonses 4

I. The Law of Retroactivity in General ..... 4

II. Purpose of Burch v. Louisiana .......... 13

III. Reliance on the Pre-existing Standard .... 20

IV. The Impact on the Administration of

Oa i 2 es cl cathe bane t emacs eels 24

NE 5 28 Vales a eA RES cd app Pac reOe) decncs vend 29

CE asic Bh eu W AMES adarnnencnccd 31

ROUSE) Fah e Hop boe ch obtwhh lids cccdexe 32

TABLE OF AUTHORITIES

Adams v. Illinois, 495 U.S. 278 (1972) .......... 19,28

Apodaca v. Oregon, 406 U.S. 404 (1972) .. 15,16,21,22

Arsenault v. Massachusetts, 393 U.S. 6 (1968) ....9,18

Baldwin v. New York, 399 U.S. 66 (1970) ... .14,21,22

Ballew v. Georgia, 435 U.S. 223 (1978) ......... 16,22

Barber v. Page, 390 U.S. 719 (1968) ............... 23

Benton v. Maryland, 395 U.S. 784 (1969) .......... 6

Berger v. California, 393 U.S. 314 (1968) ......... 9,23

Bloom v. Illinois, 391 U.S. 194 (1968) ........... 9,19

Bruton v. United States, 391 U.S. 123 (1968) ...... 9,23

TABLE OF AUTHORITIES (Continued)

Page

Burch v. Louisiana, ___U.S. ___, 99 S.Ct. 1623

eg, BEAT eo OEM RRls ASG iB OMS Dae Ra 16,17,20,21

Chicot County Drainage District v. Baxter State Bank,

SOE WHS OO ERO si own c Chke wees eve kacevs 5

Chimel v. California, 395 U.S. 752 (1969) ......... 10

Coleman v. Alabama, 399 U.S. 1 (1970) ...... 19,28,29

Daniel v. Louisiana, 419 U.S. 31 (1975) ........ ats 17

Desist v. United States, 394 U.S. 244 (1969) ......... 9

DeStefano v. Woods, 392 U.S. 631 (1968) ... 9,12,15,19

Duncan v. Louisiana, 391 U.S. 145

CRORE or ie chek kv daavedan 9,13,15,19,21,22

Escobedo v. Illinois, 378 U.S. 378 (1964) ........ 7,8,19

Fuller v. Alaska, 393 U.S. 80 (1968) .............5. 9

Furman v. Georgia, 408 U.S. 238 (1972) ........... 6

Gideon v. Wainwright, 372 U.S. 335 (1963) ....... 6,18

Gilbert v. California, 388 U.S. 263 (1967) ........ 8,19

Gosa v. Mayden, 413 U.S. 655 (1973) ...... .11,19,28

Great Northern Railway v. Sunburst Oil and Refining

C., 287 U.S.. 358. (1932) - 2... ec icences ccuses 5

Griffin v. California, 380 U.S. 609 (1965) .... .6,19,29

Griffin v. Illinois, 351 U.S. 12 (1956) ........ 2.005. 6

Grosso v. United States, 390 U.S. 62 (1968) ......... 11

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

(RUFF). si bn nalts deciad bed Sad 12,18,30

iii

TABLE OF AUTHORITIES (Continued) pao,

In re Winship, 397 U.S. 358 (1970) .............. 12

Ivan v. City of New York, 407 U.S. 203 (1972) ..... 12

Jackson v. Denno, 378 U.S. 368 (1964) ......... 6,9,18

Johnson v. Louisiana, 406 U.S. 356 (1972) ... .15,21,23

Johnson v. New Jersey, 384 U.S. 719

Se ae ++ 7,14,17,19,21,30

Katz v. United States, 389 U.S. 347 (1967) .......... a

Lee v. Florida, 392 U.S. 378 (1968) .......... 0.005. 9

Linkletter v. Walker, 381 U.S. 618 (1965) ......... 5,29

McConnell v. Rhay, 393 U.S. 3 (1968) ............. Q

Mackey v. United States, 401 U.S. 667 (1971) ..... 11,30

Mapp v. Ohio, 367 U.S. 643 (1961) .... ........ 5,29

Marchetti v. United States, 290 U.S. 39 (1968) ....... 11

Miranda v. Arizona, 384 U.S. 436 (1966) ...... 7,8,19

Mullaney v. Wilber, 421 U.S. 684 (1975) .......... 12

O'Callahan v. Parker, 395 U.S. 258 (1969) ... 11,19,20

Pointer v. Texas, 380 U.S. 400 (1965) ............. 23

Roberts v. Russel, 392 U.S. 293 (1968) ............ 23

Robinson v. Georgia, 435 U.S. 991 (1978) ......... 16

Robinson v. Neil, 409 U.S. 505 (1973) ..........0.. 6

Stovall v. Denno, 388 U.S. 293 (1967) ....... .8,19,30

Taylor v. Louisiana, 419 U.S. 293 (1975) .......... 17

TABLE OF AUTHORITIES (Continued)

Page

Tehan v. United States ex rel. Shott, 382 U.S. 406

CUM nin saad cble Ph eee cee ceee a ah ad .6,19,29

United States v. United States Coin and Currency, 401

Rs FRR AROOUD Dba vAwis che We COW Sed 6,11

United States v. Wade, 388 U.S. 218 (1967) ....... 8,19

Waller v. Florida, 397 U.S. 387 (1970) .........00e0 6

Williams v. Florida, 399 U.S. 78 (1970) . .13,15,16,21,22

Williams v. United States, 401 U.S. 646 (1971) ....10,30

Witherspoon v. Illinois, 391 U.S. 510 (1968) ......... 9

Sot. SON WHS EL ON EE a ans bok sv dbecoasaveevee, 2

La. Code Crim. Pro. Art. 775 (West Supp

POPE Sa ieeda rl rear iae een les dee coches 27,28

La. Code Crim. Pro. Art. 779(A) (West Supp

SOTO P since SEVEN bd, AIS AGT S Ses bie 0s nner 3

La. Code Crim. Pro. Art. 782 (West Supp

RIT EE rai cinatribln bite cd thane cba cdses 440.40,0% 3

La. Code Crim. Pro. Art. 782(A) (West Supp

See eile abs baler ee Ce eos eS us br bso ak eh 3,4

La. Code Crim. Pro. Art. 812 (West Supp

BOOT? sivcvigs LASIK EA ebe LRARAL sobs s: 6 anes 27

La. R.S. 14:28 (West 1974) ........... cc cece eee 25

La. RS. 24:32 (Went 1076). o. avec ciccccccccccces 25

La. R.S. 14:34 (West Supp. 1979) ............... 25

La.

TABLE OF AUTHORITIES (Continued)

R.S.

Page

14:34.1 (West Supp. 1979) ............. 25

14:38.1 (West Supp. 1979) ............. 25

14:43 (West Supp. 1979) .............. 25

14:45 (West 1974). 0.0. .cncccccccccccces 25

ROBO GUOGD TOTAD oo on.oicocs va nncencucens 25

RAGE GUOOSTOTA) 5 ors ovine ndcwascecws 25

BR ID: oo ose cisin ps nncne cepa. 25

ROBT CGE TOF I. oin o nn ces pacscccpoes 25

BORO ONE TOT) a owe on necscncnacdeees 25

14:62 (West Supp. 1979) .......... 3, 25,27

RR IE TOD on. ooo ceaddedccusmecd 3

DOGS GVGAD-WATE) oo on. csinccesneccveme« 25

14:67 (West 1974) ...........cceceaes 3,25

BADD. MORE TOTO) no oia.e sese open pnee occa 3,25

14:71 (West Supp. 1979) ............... 25

BTR: PORE: BOD ooo. ti 0.5 to eesa 009,00 25

GRA ane ROPES. 00. oon way eaersdee.ice anes 25

BESF Dae WOE onion cn coreecn nc saanes 25

hg | AE er 25

14:80 (West Supp. 1979) .............. 25

14:81 (West Supp. 1979) .............. 25

La.

TABLE OF AUTHORITIES (Continued) Page

R.S.

14:82 (West Supp. 1979) ......... eee. 25

14:84 (West Supp. 1979) ...........0.. 25

14:86 (West Supp. 1979) ......... 0.06. 25

ROT. TOON COPED w cccuueccsuses cece’ 25

14:89 (West Supp. 1979) .............. 25

14:92 (West Supp. 1979) ......... 0.4.4. 25

14:93 (West Supp. 1979) .............. 25

RAOG COPNe BUPEE anciccseacscesnsesegs 25

14:95 (West Supp. 1979) ...........05- 25

14:96 (West Supp. 1979) ......... 0045. 25

14:98 (West Supp. 1979) .............. 25

14:106 (West Supp. 1979) ............. 25

14:110 (West Supp. 1979) ............ 3,25

PELTY VGH TOPE) eee cc cis see ees ceees 25

FETUS (VG TOTES ca cece cescscsseaet 25

RATIO. 1: (WR IEE) | cae ssceccecsesees 25

LO:TE9. UME AGED cece sce ssslaveat 25

14:119.1 (West 1974) ......... cece eee 25

14:120 (West 1974) ....... cc cece eee eee 25

14:122 (West Supp. 1979) ............. 25

R4:T2S CWO TIVE) ceo Ses eC hs 25

ee ee | 7 | a a 25

La.

Vii

TABLE OF AUTHORITIES (Continued) Page

R.S.

14:126.2 (West 1974) ........... 0c eeee 20

RUN EE TPUUNO EOOMD Sock ciccctcs veces 26

14:132 (West 1974) 5.6 of 6 Meee ek 26

14:133.1 (West Supp. 1979) ............. 26

14:136 (West 1974) (fei eo ce eklec cece 26

14:140 (West Supp. 1979) .............. 26

T4141 (VOCE 1978) oi idee dco dk 26

D4:201 (West T97E) i. Shi ee eck 26

14:202 (West 1974) 2.0... ccc cece cece 26

14:207 (West 1974) ............00 cee. 26

ERDOP (WHOSE TOTS): 0.0... ois cen e nce nnsss 26

14:210 (West 1974) .....0...cceee cee 26

BREE CPOE BOE oc ccc cccccvvccs vices 26

BARES CRORE BATE) ok scr weevesdacess 26

RA PIE FT oe ches ccascnkeecs 26

14:220 (West 1974) ........cccece ceces 26

RREOE PONE L008) oi. kook von do cans. 26

ROSERS COVORE TOTES oy. sence wcces sess. 26

14:227 (West Supp. 1979) ............. 26

es) ee ee ee ee 26

BAPE LIMON SOT E) oo nce vnncncse vcens 26

14:352 (Weet 1974), o.0.0.. ied vccces coduc 26

Viii

TABLE OF AUTHORITIES (Continued)

a. R.S.

_R.S.

RS.

_R.S.

RS.

Page

34:356 (West 1976): 05 cently ieesda se 26

14:401 (West 1974) ......... ccc eee eee 26

14:402 (West 1974) ......... cece ceaee 26

14:402.1 (West Supp. 1979) ............ 26

14:511 (West Supp. 1979) ............. 26

14:512 (West Suppl. 1979) ............. 26

14:513 (West Supp. 1979) ............. 26

15:529.1 (West Supp. 1979) ........... 3,27

: IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No. 79-5364

DARNELL BROWN,

Petitioner,

versus

STATE OF LOUISIANA,

Respondent.

On Writ of Certiorari to the

Supreme Court. of Louisiana

BRIEF OF THE STATE OF LOUISIANA,

RESPONDENT |

STATEMENT OF THE CASE

On July 20, 1978 Levertes Dorsch and her daughter,

Kenella Dixon were living, respectively, at 2930 and

2932 Florida Avenue, in a double “shotgun”-type

house, located in New Orleans, Louisiana. On the

morning of July 20, Ms. Dixon drove her mother to her

job as a domestic maid, ran some errands, and returned

home at about 10:00 A.M. Upon her arrival she heard

footsteps coming from her mother’s side of the duplex

structure. Noticing that a rear window had been

broken, she called the police. Petitioner was arrested

inside Ms. Dorsch’s apartment, as he attempted to flee.

At the time of arrest, Petitioner was wearing rubber

gloves. Investigation revealed that the residence had

been ransacked, and that various items such as

cameras, a television, and a radio had been packed into

boxes and positioned at the rear door.

Consequently, on July 31, 1978 Petitioner was

charged by Bill of Information with simple burglary,

La. R.S. 14:62. Before trial, a Motion to Quash the jury

was filed, and was denied by the court. On August 23,

1978 a six-member jury was empanelled, and after due

proceedings, a verdict of guilty as charged was

returned. A poll of the jury revealed that their vote was

five guilty, one not guilty.! Thereafter, Petitioner filed

1 At the time of Petitioner’s trial, Article I, Section 17 of the

Louisiana Constitution of 1974 provided in pertinent part:

A criminal case in which the punishment may be —

shall be tried before a jury of twelve persons, all of

must concur to render a verdict. A case in which the

punishment is necessarily confinement at hard labor

shall be tried before a jury of twelve persons, ten of

whom must concur to render a verdict. A case in which

the punishment may be confinement at hard labor or

confinement without 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.

a Motion for New Trial, based on the illegality of the

jury verdict, which was denied. Subsequently, the

State filed a Bill of Information alleging that Petitioner

was a third felony offender.? At the Multiple-Offender

Hearing, the Petitioner plead guilty as charged, and

was accordingly sentenced to serve twenty-two years

at hard labor.

On appeal, the Louisiana Supreme Court affirmed

the conviction and sentence. State v. Brown, 371 So.2d

746, (La. 1979). Brown then petitioned this Honorable

Court for Certiorari, complaining that Burch v. Louisiana,

U.S. ___., 99 S.Ct. 1623 (1979) should be applied

retroactively to reverse his conviction. Certiorari was

granted on December 10, 1979.

Louisiana Code of Criminal Procedure Article 779 (a) provided:

A. A defendant charged with a misdemeanor in

which the punishment may be a fine in excess of five hun-

dred dollars or imprisonment for more than six months

shall be tried by a jury of six jurors, five of whom must

concur to render a verdict.

Louisiana Code of Criminal Procedure Article 782 (a) provided:

A. Cases in which punishment may be capital shall be

tried by a jury of twelve jurors, all of whom must concur

to render a verdict. Cases in which the punishment is

necessarily confinement at hard labor shall be tried by a

jury composed of twelve jurors, ten of whom must con-

cur to render a verdict. Cases in which the punishment

may be confinement at hard labor shall be tried by a jury

composed of six jurors, five of whom must concur to

render a verdict.

2 La.R.S. 15:529.1. Petitioner had been previously convicted of

felony theft on two occasions, La. R.S. 14:67; receiving stolen

things, La. R.S. 14:69; simple escape, La. R.S. 14:110; criminal

trespass, La. R.S. 14:63; and attempted simple burglary, La. R.S.

14(27)62.

ARGUMENT

The Decision of the United States Supreme

Court in Burch v. Louisiana, ___ U.S. ___., 99

S.Ct. 1623 (1979) Should be Given Prospec-

tive Application Only

Darnell Brown was charged in the _ instant

proceeding with simple burglary, as defined in Article

62 of the Louisiana Criminal Code, for which the

penalty was imprisonment in the parish prison or the

state penitentiary for no more than twelve years.

Article I, Section 17, of the Louisiana Constitution of

1974 provided that acase in which the punishment may

be in excess of six months shall be tried by a six-

member jury, five of whom must concur to render a

verdict. Article 782 of the Louisiana Code of Criminal

Procedure implemented that constitutional provision.

Petitioner was convicted by the five-to-one vote of a

six-member jury on July 20, 1978. This Honorable

Court decided Burch v. Louisiana, U.S.___,99S.Ct.

1623, on April 17, 1979. The State respectfully urges

this Honorable Court to deny retroactive application to

Burch, and affirm Petitioner’s conviction.

The Law of Retroactivity In General

The notion that judicial decisions involving

constitutional criminal procedure might be given

prospective, rather than retrospective effect, was first

specifically articulated in Lin<letter v. Walker, 381 U.S.

618 (1965).3 In Linkletter, the Court held that the

exclusionary rule announced in Mapp v. Ohiot was

inapplicable to cases in which the convictions had

become final before Mapp was decided.5 In reaching its

decision, the Court stated:

Once the premise is accepted that we are

neither required to apply, nor prohibited from

applying a decision retrospectively, we must

then weigh the merits and demerits in each

case by looking to the prior history of the rule

in question, its purpose ‘and effect, and

whether retrospective operation will further

or retard its operation.

381 U.S., at 629.

The Court determined that since the purpose of

Mapp was to deter improper police activity, this

deterrent function would not be served by retroactive

3 Prior to Linkletter, this Honorable Court had held that State

Courts might apply new rules prospectively or retroactively. See,

e.g., Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371

(1940); Great Northern Railway v. Sunburst Oil and Refining Co., 287 U.S.

358 (1932). Linkletter, differed in that it was a criminal procedure

case in which the defendant sought the benefit of a newly an-

nounced procedural rule. Further, it involved a federal con-

stitutional question; whereas earlier cases had come from State

Courts, or had involved statutory or common-law matters.

4 367 U.S. 643 (1961).

S_ Linkletter involved a Sere on collateral review. Mapp

had previously been applied to cases on direct review, by its own

terms. 3@! 'J.S., at 622.

application. The Court went on to discuss three recent

retroactive decisions,‘ and isolated the factor that

occupies a central role in the law of retroactivity: Does

the legal principle involved go to the “fairness of the

trial, the very integrity of the fact-finding process”?

381 U.S., at 639.7

In Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966)

the Court held that the Fifth Amendment rule ar-

ticulated in Griffin v. California, was to be given prospec-

tive effect. The Court characterized the privilege

against self-incrimination as safeguarding values other

than the fairness of the fact-finding process.? It

6 Jackson v. Denno, 378 U.S. 368 (1964) (right to a preliminary

determination by a judge of the voluntariness of a confession); Gi-

deon v. Wainwright, 372 U.S. 335 (1963) (right to appointed counsel

in a felony case); Griffin v. Illinois, 351 U.S. 12 (1956) (right to a free

trial transcript on appeal).

7 But see: Robinson v. Neil, 409 U.S. 505 (1973) where the court gave

retroactive effect to Benton v. Maryland, 395 U.S. 784 (1969) and

Waller v. Florida, 397 U.S. 387 (1970), which established double

jeopardy rules of the federal constitution are applicable to the

States. The Court found the Linkletter analysis inappropriate, since

Benton and Waller did not raise issues of evidence or mode of trial.

See also: Furman v. Georgia, 408 U.S. 238 (1972); United States v. United

States Coin and Currency, 401 U.S. 715 (1970).

8 Griffin v. California, 380 U.S. 609 (1965) (prohibiting adverse

comment on a defendant's failure to testify). Tehan denied

retroactivity to only those cases on collateral review, because

Griffin, by its terms, applied to cases pending on direct review at

the time of its decision. See note 5 supra.

9 “First, the basic Sn og that lie behind the privilege against

self-incrimination do not relate to protecting the innocent from

conviction, but rather to preserving the integrity of a judicial

system in which even the guilty are not to be convicted unless the

prosecution shoulder the entire load!” 382 U.S. at 414, 415.

emphasized countervailing factors: reliance of

prosecutors on the prior jurisprudence and the

profound impact on the administration of justice that

retroactivity would involve. 382 U.S., at 417.

The Court’s decision in Johnson v. New Jersey, 384 U.S.

719 (1966) denied retroactive application?® to Escobedo v.

Illinois!! and Miranda v. Arizona12 and further refined the

relevant inquiry. Arguably, the purpose of Miranda and

- Escobedo did in fact go to the “essence of the fact-finding

process.” That is, to exclude coerced, and therefore

suspect confessions, Significantly, the Court stated:

.... the question whether a constitutional

rule of criminal procedure does or does not

enhance the reliability of the fact-finding

process at crial is necessarily a matter of

degree.

....Weare thus concerned with a question of

probabilities and must take account, among

other factors, of the extent to which other

safeguards are available to protect the integri-

ty of the truth determining process at trial.

384 U.S., at 728-29.

10 The Court ruled, specifically, that Miranda and Escobedo applied

only to trials begun after the dates of those decisions. 384 U.S.., at

732. Additionally, the court rejected any distinction between cases

on direct or collateral review for the purposes of retroactivity. Id.

11 378 U.S. 478 (1964).

12 384 U.S. 436 (1966).

Additionally, the Court emphasized the disruptive

impact of retroactivity on the administration of the

criminal laws. 384 U.S., at 731. For the first time it

recognized that reliance on prior law was justified

because Escobedo and Miranda had not been

“foreshadowed” by earlier holdings. Id.

In Stovall v. Denno, 388 U.S. 293 (1967) the Court

denied retroactive application!3 to United States v. Wade

and Gilbert v. California, 14 and established the so-called

“three-pronged ” test for retroactive application:

The criteria guiding resolution of the question

implicate (a) the purpose to be served by the

new standards, (b) the extent of the reliance

by law enforcement authorities on the old

standards, and (c) the effect on the ad-

ministration of justice of a retroactive applica-

tion of the new standards. 388 U.S., at 297.

As to the first factor, the Court noted that the pur-

pose of Wade and Gilbert was to avoid unfairness by

enhancing the reliability of the fact-finding process.

However, balancing “purpose” against the “reliance”

13 The Court focused’ its attention on the time of the

constitutional violation, not on the start of the trial, as it had in

Johnson, 388 U.S. at 296.

Significantly, as in Johnson, supra, the Court refused to

distinguish cases pending on direct review from cases on collateral

review. 388 U.S. at 300, 301.

14 United States v. Wade, 388 U.S. 218 (1967) and Gilbert v.

California, 388 U.S. 263 (1967) involved the right to counsel at

pretrial line-ups.

and “effect” factors, the Court found retroactive

application inappropriate, and noted:

The extert to which a condemned practice in-

fects the integrity of the truth-determining

process at trial is a ‘question of probabilities’

. . ..Such probabilities must in turn be weigh-

ed against the prior justified reliance upon the

old standard and the impact of retroactivity on

the administration of justice. 388 U.S., at

298.15

Desist v. United States, 394 U.S. 244 (1969) denied

retroactive effect to Katz v. United States,16 since its

15 In the 1968 Term, the Court applied the Stovall balancing test

to numerous questions of constitutional criminal procedure. In

Witherspoon v. Hino, 391 U.S. 510 (1968) the Court determined

that improper jury selection could undermine the integrity of the

fact-finding process, and that this factor outweighed reliance and

effect. In Roberts v. Russell, 392 U.S. 293 (1968) the Court ruled that

Bruton v. United States, 391 U.S. 123 (1968) applied retroactively

because the prohibited procedure threatened the reliability of the

verdict. Significantly, the Court determined that Bruton should

have been anticipated after the decision in Jackson v. Denno, 378 U.S.

368 (1964).

See also: Arsenault v. Massachusetts, 393 U.S. 6 (1968) (right to

counsel at certain preliminary hearings); Berger v. California, 393

U.S. 314 (1968) (constitutional right of confrontation); McConnell

v. Rhay, 393 U.S. 3 (1968) (right to counsel at sentencing).

But C.F.: Fuller v. Alaska, 393 U.S. 80 (1968) (holding Lee v. Florida,

392 U.S. 378 (1968) to have pect’ effect since its purpose

was to encourage enforcement of federal law); DeStefano v. Woods,

392 U.S. 631 (1968) (holding Duncan v. Louisiana, 391 U.S. 145

(1968) and Bloom v. Illinois, 391 U.S. 194 (1968), involving the right

to jury trial, to be prospective only). For a detailed discussion of

DeStefano, see text at note 29, infra.

16 Katz v. United States, 389 U.S. 347 (1967) involved electronic

surveillance activities, and overruled the pre-existing rules which

turned on theories of physical intrusion.

deterrent purpose would not be served by retroactivi-

ty. Importantly, the Court ranked the first part of the

Stovall test — purpose —!as foremost among the fac-

tors to be considered:

It is to be noted also that we have relied heavi-

ly on the factors of the extent of reliance and

consequent burden on the administration of

justice only when the purpose of the rule in

question did not clearly favor either retroac-

tivity or prospectivity. 394 U.S., at 252.

Williams v. United States, 401 U.S. 646 (1971) dealt, as

did Desist, with a Fourth Amendment question. In deny-

ing retroactive application to Chimel v. California!” the

Court succinctly stated the relevant inquiry:

In both Johnson and Stovall, we frankly acknowl-

edged that ‘the extent to which a condemned

practice infects the integrity of the truth-

determining process at trial is a “question of

probabilities” ’. . .. Where we have been un-

able to conclude that the use of such a

‘condemned practice’ in past criminal trials

presents a substantial likelihood that the

results of a number of those trials were fac-

17 Chimel v. California, 395 U.S. 752 (1969) involved warrantless

searches incident to arrests.

tually incorrect, we have not accorded

retroactive effect ... 401 U.S., at 656, n7.18

The Court’s decision in Gosa v. Mayden, 413 U.S. 655

(1973) denied retroactive effect toO’Callahan v. Parker.19

That case established that military personnel are en-

titled to a civilian trial for non-service related offenses.

In a plurality opinion the court characterized the

O'Callahan principle as a “prophylactic rule” which only

“incidently” enhanced the reliability of the fact-finding

process. 413 U.S., at 680.

The Court stated:

Thus, retroactivity is not required by a deter-

mination that 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 stand-

ard, or that’one of several purposes in for-

mulating the new standard was to prevent dis-

tortion in the process. Id.

18 In Mackey v. United States, 401 U.S. 667 (1971), decided the same

day as Williams, the Court denied retroactive effect to Marchetti v.

United States, 290 U.S. 39 (1968) and Grosso v. United States, 390 U.S.

62 (1968). The Court reasoned these decisions involved protection

of the Fifth Amendment privilege, not the truth- veeking function

of the trial. But see: United States v. United States Coin and Currency, 401

U.S. 715 (1970) (holding Marchetti and Grosso retroactive to the

extent that they control conduct that cannot itself be

constitutionally punished).

19 395 U.S. 258 (1969).

In reaching its decision, the Gosa Court placed heavy

reliance on DeStefano v. Woods,2° 392 U.S. 631 (1968), -

reasoning that the validity of convictions by military

tribunals was not sufficiently in doubt to require

retroactivity. 413 U.S., at 676.

The decisions in Ivan v. City of New York, 407 U.S. 203

(1972)21 and Hankerson v. North Carolina, 432 U.S. 233

(1977),22 when read together, further sharpen the

issue before this Court. The essential question in both

cases turned on “reasonable doubt,” which the Court

characterized as a “bedrock principle” whose enforce-

ment lies “at the foundation of the administration of

our criminal law.” 432 U.S., at 241.

Ivan and Hankerson establish that:

Where the major purpose of a new con-

stitutional 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 effect. 432 U.S., at 243.

Since reasonable doubt is “substantial”, retroactivity

was determined in both cases.

20 See text at note 30, infra.

21 Holding In re Winship, 397 U.S. 358 (1970) to be retroactive.

22 Holding Mullaney v. Wilbur, 421 U.S. 684 (1975) to be retroac-

tive.

In summary, when a constitutional rule of criminal

procedure is at issue, the first inquiry should be

directed to its “major” purpose. Retroactivity is ap-

propriate if that purpose is to overcome as aspect of the

trial that “substantially” impairs the truth-finding

function and raises “serious” doubts about past ver-

dicts. However, if the rule is “prophylactic” in nature,

and only “incidently” enhances the reliability of the

trial, the three-pronged Stovall test should determine its

reach.

II. Purpose of Burch v. Louisiana —

The State submits that the purpose of the Sixth

Amendment right articulated in Burch does not man-

date retroactive application.

The jurisprudence of this Honorable Court teaches

that the purpose of trial by jury is to prevent govern-

ment oppression by providing “a safeguard against the

corrupt or overzealous prosecutor and against the

compliant, biased, or eccentric judge.”23 The jury’s es-

sential feature lies in the interposition, between the ac-

cused and his accuser, of the common-sense judgement

of a group of laymen and in the community participa-

tion and shared responsibility that results from that

group’s determination of guilt or innocence.”24 By its

nature, the right to jury trial involves the integrity of

23 Duncan v. Louisiana, 391 U.S. 145, 156 (1968)

24 Williams v. Florida, 399 U.S. 78, 100 (1970).

the fact-finding process. However, the extent to which

the condemned practice adversely affected that process

is a question of degree.25

Respondent respectfully presents that the ultimate

issue before this Honorable Court is whether the use of

nonunanimous six-member juries in the past presents

a substantial likelihood that the results of a number of

trials were factually incorrect. Respondent maintains it

does not.

This Honorable Court first considered the right to

jury trial in the state courts in. Duncan v. Louisiana, 391

U.S. 145 (1968). Duncan struck down a Louisiana

statute which provided that acrime punishable by up to

two years imprisonment was triable by the judge alone.

The Court held that because trial by jury in“ serious”26

criminal cases is “fundamental to the American scheme

of justice” and essential to due process, the Fourteenth

Amendment guarantees a state criminal defendant the

right to a jury trial in any case, which if tried in federal

court, would require a jury under the Sixth Amend-

ment. Id, at 149, 158-159. Similarly, in Bloom v. Illinois,

391 U.S. 194 (1968) the Court held that the right to

jury trial extends to trials for serious criminal con-

tempt.

25 Johnson v. New Jersey, 384 U.S. 719, 728-29 (1966).

26 Baldwin v. New York, 399 U.S. 66 (1970) held“serious” offenses

to be those punishable by more than six months imprisonment.

In Johnson v. Louisiana, 406 U.S. 356 (1971) the Court

held that the nine-to-three vote of a nonunanimous

jury is not, per se, violative of due process.”

The Court's decision in Williams v. Florida, 399 U.S. 78

(1970) held that six-member unanimous juries are not

violative of the Sixth Amendment. The purpose of trial

by jury, as noted in Duncan, is to prevent government

oppression. The jury’s essential feature lies in the

“interposition between the accused and his accuser of

the commonsense judgement of a group of laymen and

in the community participation and shared respon-

sibility that results from that group’s determination of

guilt or innocence.” 399 U.S, at 100. These purposes

can be fulfilled if the jury is of sufficient sizeto promote _

group deliberation, free from outside intimidation, and

to provide a fair possibility that a cross-section of the

community would be represented. Id.

In Apodoca v. Oregon, 406 U.S. 404 (1972) the courtup-

held a state law authorizing ten out of twelve verdicts.

The Court held that unanimity does not materially

contribute to the exercise of the “commonsense judge-

ment” identified in Williams. The judgement of the

defendant's peers will be interposed between him and

the State whether the verdict is unanimous or

nonunanimous. 406 U.S., at 412. Additionally, the

27. The trial at issue occurred before Duncan v. Louisiana, 3914).S.

145 (1968) and therefore the Sixth Amendment itself was not

involved. DeStefano v. Woods, 392 U.S. 631 (1968).

Court ruled that unanimity is not a necessary precondi-

tion for application of the “cross-section” requirement.

406 US. at 413.

In Ballew v. Georgia, 435 U.S. 223 (1978) the Court, in ©

separate opinions, held that juries composed of five

persons violate the Sixth Amendment.?* Admitting the

difficulty of drawing a line between five and six

member juries, “.... at least five members of the

Court believed that reducing a jury to five persons in

nonpetty cases raised sufficiently substantial doubts as

to the fairness of the proceeding and the proper func-

tioning of the jury. . .” State v. Burch, Va at 3

98 S.Ct., at 1038. Essentially, Ballew established that

when juries are composed of fewer tha six persons

their ability to deliberate effectively becomes

questionable, and their representative character is

doubtful.

Apodaca, Williams, and Ballew, when read together, in-

dicate that effective group deliberation, as well as com-

munity representation are functions of the absolute size

of a jury, rather than the count of its final verdict.

However, in Burch v. Louisiana, U.S. ___, 99 S.Ct.

1623 (1979) the Court held that:

28 Petitioner contends in brief that the Court has applied Ballew,

esnips citing Robinson v. Georgia, 435 U.S. 991 (1978) which

was vacated and remanded for consideration in light of Ballew.

Respondent submits that this action is not be to equated with a

finding of retroactivity. Further, that while Ballew and Burch are

similar, application of the Stovall balancing test might well yield

differing results.

.... much the same reasons that led us in

Ballew to decide that use of a five-member jury

threatened the fairness of the proceeding and

the proper role of jury, lead us to conclude

now that conviction for a nonpetty offense by

only five members of a six-person jury

presents a similar threat to preservation of the

substance of the jury trial guarantee. . . ___

U.S. at ___, 99 S.Ct., at 1628.

The Court freely admitted that its decision involved

a line-drawing process which was not wholly satisfac-

tory, but noted that lines must be drawn somewhere if

the right to jury trial is to be preserved. ____ US. at

ES O9 SE., at 1687.

For the following reasons the State submits that the

purpose of Burch does not mandate retroactivity.

First, it is clear that the involvement of the right to

jury trial is not a talisman that automatically implies

retroactivity. See e.g., Daniel v. Louisiana, 419 U.S. 31

(1975) (holding Taylor v. Louisiana, 419 U.S. 522 (1975)

to have prospective application). That is, the choice

between retroactivity and nonretroactivity in no way

turns on the “value” of the constitutional guarantee in-

volved. E.g., Johnson v. New Jersey, 348 U.S. 719, 728

(1966).

Second, Respondent suggests that while Burch

teaches that the vote of a unanimous six-member jury

is constitutionally preferrable to that of a nonunan-

imous jury, it does not stand for the proposition that

nonunanimous verdicts have been per se wrongly-

decided or unfair in the past. Although the Constitu-

tion requires demarcation lines to be drawn at some

point, the same cross-section of the community inter-

poses itself between accused and accuser whether all

members or only five concur in the final judgment.

Although a unanimous verdict may imply that a more

perfect deliberation process has occurred, the fact that

rational men disagree is not in itself equivalent to a

failure of proof.

Third, the State submits that the nonunanimous six-

member jury was not an institution that substantially im-

paired the truth finding process to such an extent that

serious doubts are raised about the accuracy of past

verdicts. See Hankerson v. North Carolina, 432 U.S., at 243.

If it had been, the question presented in Burch would

not have been as close as the Court characterized it:

“We agree with the Louisiana Supreme Court that the

question presented is a ‘close’ one.” Burch v. Louisiana,

U.S., at , 99 §.Ct., at 1625. Compare, Burch v.

Louisiana with e.g., Hankersonv. North Carolina, 432 U.S. 223

(1977) (burden of State to prove guilt beyond a

reasonable doubt); Arsenault v. Massachusetts, 393 U.S. 6

(1968) (right to counsel at preliminary hearing where

guilty plea entered); Jackson v. Denno, 378 U.S. 368 (1964)

(right to preliminary determination of voluntariness of

confession outside presence of the jury); Gideon v.

Wainwright, 372 U.S. 335 (1963) (right to counsel in

felony trial).

Fourth, Respondent maintains that the purpose of

Burch was to enhance the reliability of the jury verdict.

However, this Honorable Court has refused retroac-

tive application to numerous constitutional rules that

are likewise directed at the reliability of the fact-finding

process. See e.g., Gosa v. Mayden, 413 U.S. 665 (1973)

(denying retroactive application to O’Callahan v. Parker,

395 U.S. 258 (1969)). Adams v. Illinois, 405 U.S. 278

(1972) (Coleman v. Alabama, 399 U.S. 1 (1970) not

retroactive); Stovall v. Denno, 388 U.S. 293 (1967) (United

States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California,

388 U.S. 263 (1967) not retroactive). Johnson v. New

Jersey, 384 U.S. 719 (1966) (Escobedd v. Illinois, 378 U.S.

478 (1964) and Miranda v. Arizona, 384 U.S. 436 (1966)

not retroactive); Tehan v. United States ex rel Shott, 382U.S.

406 (1966) (Griffin v. California, 380 U.S. 609 (1965) not

retroactive).

As demonstrated by the above mentioned

authorities, “retroactivity is not required by a deter-

mination that the old standard was not the most effec-

tive vehicle for ascertaining truth, or that the truth

determining process was aided somewhat by the new

standard.” Gosa v. Mayden, 415 U.S., at 680.

Finally, Respondent submits that the decisions of the

Court in DeStefano v. Woods, 392. U.S. 631 (1968) and Gosa

v. Mayden, 413 U.S. 655 (1973) control the issue before

the bar. In DeStefano, the Court, per curiam, applied the

three-pronged test and denied retroactive application

to Duncan v. Louisiana,29 and Bloom v. Illinois.30 These cases

29 391 U.S. 145 (1968).

30 391 U.S. 194 (1968).

involved serious criminal convictions where no jury,

unanimous or nonunanimous, had interposed its com-

monsense deliberations between accused and accuser.

Nevertheless, the Court stated: “The values im-

plemented by the right to jury trial would not

measurably be served by requiring retrial of all per-

sons convicted in the past by procedures not consistent

with the Sixth Amendment right to jury trial.” 392

U.S., at 634.

O'Callahan, was applied prospectively despite the fact

that Petitioner, having been denied trial by jury, was

convicted by tribunal which the Court criticized as

lacking procedural safeguards and being susceptible to

improper “command influence”, 413 U.S., at 680.

The State submits that since the complete lack of a

jury is not a sufficient impairment of the fact-finding

process as to require retroactivity, then the presence of

one dissenting juror should likewise not trigger

retroactive application.

In summary, the purpose of Burch v. Louisiana does not

automatically mandate retroactive application.

Therefore, examination of the second and third com-

ponents of the Stovall test; “reliance” and “impact” are

appropriate.

III. Reliance on the Pre-existing Standard

The second prong of the Stovall test addresses the

reliance of law enforcement authorities and state

courts on the pre-existing law. The essential inquiry is

whether the State should have forseen the new con-

stitutional ruling, and changed the existing practices in

anticipation of an _ inevitable Supreme Court

pronouncement.?!

Respondent maintains that at the time of Petitoner’s

conviction the State of Louisiana was conducting trials

in good-faith reliance on existing law, and that the

State cannot be charged with having anticipated Burch

v. Louisiana.

At the time of Petitioner’s trial, Article I, Section 17

of the Louisiana Constitution of 1974 provided that a

crime punishable by more than six months imprison-

ment in the Parish jail was triable by asix member jury,

five of whom must concur to render a verdict. Articles

779(A) of the Louisiana Code of Criminal Procedure

implemented that constitutional provision.22 These

rules were enacted after, and in apparent reliance on,

this Honorable Court’s decisions in Duncan v. Louisiana,

391 U.S. 145 (1968); Baldwin v. New York, 399 U.S. 66

(1970); Williams v. Florida, 399 U.S. 78 (1970); Apodaca v.

Oregon, 406 U.S. 404 (1972), and Johnson v. Louisiana, 406

U.S. 356 (1972).

The decisions of this Honorable Court had put the

State on notice that:

31 See e.g., Johnson v. New Jersey, 384 U.S. 719; 730 (1966).

32 See note 1, supra, for text of these provisions.

I. The Constitution requires that defen-

dants charged with offenses punishable

by more than six months imprisonment

are entitled to a jury trial.33

II. Six-member juries are large enough to

accomplish the purpose of the Sixth

Amendment: prevent government op-

pression, deliberate effectively, and

represent a cross-section of the com-

munity.34

Ill. Five-member juries are violative of the

Sixth Amendment, because a demarca-

tion line must be drawn at some point;

statistical studies indicate that as jury size

diminishes, commonsense deliberation

become less likely, and the jury becomes

less representative of the community.?5

IV. Nonunanimous twelve-member juries

(83.3% vote) can prevent oppression, ex-

ercise groupcommonsense and represent

a fair cross section, just as unanimous

juries.3¢

33 Duncan v. Louisiana, 391 U.S. 145 (1968); Baldwin v. New York,

399 U.S. 66 (1970).

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

35 Ballew v. Georgia, 435 U.S. 223 (1978). Ballew was decided after

the statutory framework, at Note 1, supra, was enacted. :

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

V. The nine-to-three vote (75%) of a non-

unanimous jury is not violative of due

process.

The State submits that the jurisprudence existant at

the time of Petitioner’s conviction cannot reasonably

be interpreted as “foreshadowing” the Burch decision.

For example, in Roberts v. Russel,3® the Court applied

the three-factor Stovall test to Bruton v. United States,39

and determined that long and widespread attack on the

old rule by the lower courts “foreshadowed” Bruton.

392 U.S., at 294. In Berger v. California,4° the Court gave

retroactive effect to the confrontation-clause rule of

Barber v. Page,41 noting that Barber had been “clearly

foreshadowed if not preordained” by Pointer v. Texas.42

393 U.S., at 315.

In contrast, the converted issue in Burch had not

engendered attacks in the lower courts, nor can this

Court's decisions be said to have “clearly foreshadow-

ed” the ruling. |

Indeed, as the majority opinion in Burch states: “We

agree with the Louisiana Supreme Court that the ques-

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

38 392 U.S. 293 (1968).

39 391 U.S. 123 (1968).

40 393 US. 314 (1979).

41 390 US. 719 (1968).

42 380 U.S. 400 (1965).

tion presented is a ‘close’ one.” ____ U.S. at ___, 99

S.Ct., at 1625. Further, the Court explained:

As in Ballew, we do not pretend the ability to

discern a priori a bright line below which the

number of jurors participating in the trial or in

the verdict would not permit the jury to func-

tion in the manner required by our prior

cases.” U.S., at ___, 99 S.Ct. at 1627.

IV. Effect on the Administration of Justice

The State submits that a retroactive application of

Burch would have a devastating effect on the ad-

ministration of criminal justice in Louisiana.*3

First, Respondent takes issue with Fetitioner’s con-

tention that: “. .. . 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.” (Brief of Petitioner, page 17) Numerous

43 Nostatistics are available concerning the number of persons

currently in custody following convictions by nonunanimous

six-member juries. Internal records of the Office of the District

Attorney for Orleans Parish indicate that thirty-nine defendants

were convicted in New Orleans by six-member juries during the

period between January 1, 1979 and April 17, 1979, the date of

Burch. Whether these convictions were unanimous or

nonunanimous cannot be ascertained. See text at note 48, infra.

serious felonies have historically been triable by six-

member juries in Louisiana.‘4 Penalties range up to

44 See, e.g., La. R.S. 14:28, inciting a felony, (West 1974); La. R.S.

14:32, negligent homicide, (West 1974); La. R.S. 14:34, aggravated

battery, (West Supp. 1979); La. R.S. 14:34.1, second degree

battery, (West Supp. 1979); La. R.S. 14:38.1, mingling harmful

substances, (West Supp. 1979); La. R.S. 14:43, simple rape, (West

Supp. 1979); La. R.S. 14:45, simple kidnapping, (West 1974); La.

R.S. 14:53, arson with intent to defraud, (West 1974); La. R.S.

14:55, aggravated criminal damage to property, (West 1974); La.

R.S. 14:56, simple criminal damage to property, (West 1974); La.

R.S. 14:57, damage to property with intent to defraud, (West

1974); La. R.S. 14:58, contaminating water supplies, (West 1974);

La. R.S. 14:62, simple burglary, (West Supp. 1979); La. R.S. 14:65,

simple robbery, (West 1974); La. R.S. 14:67, theft, (West 1974); La.

R.S. 14:69, receiving stolen things, (West 1974); La. R.S. 14:71,

issuing worthless checks, (West Supp. 1979); La. R.S. 14:72,

forgery, (West 1974); La. R.S. 14:76, bigamy, (West 1974); La. R.S.

14:77, abetting bigamy, (West 1974); La. R.S. 14:78, incest, (West

1974); La. R.S. 14:80, carnal knowledge of a juvenile, (West Supp.

1979); La. R.S. 14:81, indecent behavior with juveniles, (West

Supp. 1979); La. R.S. 14:82, prostitution, (West Supp. 1979); La.

R.S. 14:84, pandering, (West Supp. 1979); La. R.S. 14:86, enticing

minors into prostitution, (West Supp. 1979); La. R.S. 14:87.4,

abortion advertising, (West 1974); La. R.S. 14:89, crime against .

nature, (West Supp. 1979); La. R.S. 14:92, contributing to the

delinquency of juveniles, (West Supp. 1979); La. R.S. 14:93, cruel-

ty to juveniles, (West Supp. 1979); La. R.S. 14:94, illegal use of |

weapons or dangerous instrumentalities, (West 1974); La. R.S.

14:95, illegal carrying of weapon, (West Supp. 1979); La. R.S.

14:96, aggravated obstruction of a highway of commerce, (West

Supp. 1979); La. R.S. 14:98, operating a vehicle while intoxicated,

(West Supp. 1979); La. R.S. 14:106, obscenity, (West Supp. 1974);

La. R.S. 14:110, simple escape; aggravated escape, (West Supp.

1979); La. R.S. 14:111, assisting escape, (West 1974); La. R.S.

14:118, public bribery , (West 1974); La. R.S. 14:118.1, bribery of

sports participants, (West 1974); La. R.S. 14:119, bribery of voters,

(West 1974); La. R.S. 14:119.1, bribery of parents of school

children, (West 1974); La. R.S. 14:120, corrupt influencing, (West

1974); La. R.S. 14:122, public intimidation, (West Supp. 1979); La.

R.S. 14:125, false swearing, (West 1974); La. R.S. 14:126.1, false

swearing for of violating public health or safety, (West

1974); La. RS. 14:126.2, false stietthite concerning Xnial of

constitutional rights, (West 1974); La. R.S. 14:131, compounding a

felony, (West 1974); La. R.S. 14:132, injuring public records, (West

1974); La. R.S. 14:133.1, obstruction of court orders, (West Supp.

1979); La. R.S. 14:138, amar payroll fraud, (West 1974); La. R.S.

14:140, public contract fraud, (West Supp. 1979); La. R.S. 14:141,

prohibited splitting of ts, fees, or commissions, (West 1974);

La. R.S. 14:201, collateral securities, unauthorized use or

withdrawal prohibited, (West 1974); La. R.S. 14:202, contractors,

misapplication of payments prohibited, (West 1974); La. R.S.

14:207, motor vehicles, alteration or removal of identifying

numbers prohibited; sale, etc. of motor vehicle with altered iden-

tifying numbers prohibited, (West 1974); La. R.S. 14:209, seals,

breaking prohibited, (West 1974); La. R.S. 14:210, taxicabs,

tampering with meter forbidden, (West 1974); La. R.S. 14:211,

timber, wilful purchase when not paid for by seller prohibited,

(West 1974); La. R.S. 14:212, timber, false statement by seller

prohibited, (West 1974); La. R.S. 14:219, removal of building or

structure from immovable property subject to a conventional

mortgage or vendor’s privilege, (West 1974); La. R.S. 14:220,

rented or leased motor vehicles; obtaining by false representation,

etc.; failure to return, (West 1974); La. R.S. 14:221, avoiding pay-

ment for telecommunication services, (West 1974); La. R.S.

14:222, possession, manufacture, sale or transfer of devices for

avoidance of payment for telecommunications service or related

offenses; seizure of devices, (West 1974); La. R.S. 14:227, iden-

tification number, personal property, alteration or removal

prohibited, (West Supp. 1979); La. R.S. 14:285, telephone com-

munjcations, improper language, harassment, (West 1974); La.

R.S. 14:351, bail, sale, etc. of real estate securing, prohibited,

(West 1974); La. R.S. 14:352, bribery of withdrawn candidates for

office prohibited, (West 1974); La. R.Sv 14:356, sheriffs, etc.,

solicitation of legal business prohibited, (West 1974); La. 14:401,

demonstrations in or near building housing a court or occupied as

residence by judge, juror, witness or court officer, (West 1974); La.

14:402, taking contraband to or from correctional institutions,

(West Supp. 1979); La. 14:402.1, taking of contraband to state

owned hospitals, (West 1974); La. R.S. 14:511, loansharking,

(West Supp. 1979); La. R.S. 14:512, aggravated loansharking,

(West Supp. 1979); La. R.S. 14:513, possession of loanshark

records, (West Supp. 1979).

terms of twelve years at hard labor.‘s In the case of

habitual felons, a conviction by a six-member jury can

ultimately result in a sentence of life imprisonment.*®

Indeed, Petitioner’s own sentence was twenty-two

years at hard labor.‘7 The logical conclusion of

Petitioner’s argument is, therefore, that those inmates

serving the longest sentences, habitual felons, are the

persons most likely to benefit from retroactive applica-

tion.

Second, in many individual cases, it is impossible to

determine whether or not a jury verdict was unan-

imous. Jury polls are not mandated by law, but must be

requested by counsel.4® When counsel did request a

45 See e.g., La. R.S. 14:62, simple burglary, (West Supp. 1979).

46 La. R.S. 15:529.1

47 Appendix, page 3

48 Article 812, La. Code Crim. Pro. (West Supp. 1980) provides:

The Court shall order the clerk to poll the jury if re-

quested by the state or the defendant. It shall be within

the discretion of the court whether such poll shall be con-

ducted orally or in writing by applying the procedures of

Paragraph (1) or Paragraph (2) of this Article.

(1) Oral polling of the jury shall consist of the clerk’s

calling each juror, one at a time, by name. He shall an-

nounce to each juror the verdict returned, and ask him,

“Is this your verdict?” Upon receiving the juror’s answer

to the question, the clerk shall record the answer.

If, upon polling all of the jurors, the number of jurors

required by law to find a verdict answer “Yes”, the court

shall order the clerk to record the verdict and the jury

shall be discharged. If, upon polling all of the jurors, the

number required to find a verdict do not answer “Yes”,

the jury may be remanded for further deliberation, or the

court may declare a mistrial in accordance with Article

775.

(2) The procedure for the written polling of the jury

shall require that the clerk hand to each juror a separate

SS Ee

: 28 ees =

poll, the result was not necessarily made part of the

record.49 The reconstruction of the voting count from a

silent record would be an onerous if not impossible

task.5°

Third, Respondent submits that retroactive applica-

tion would involve not only expense and effort, but the

wholesale release of prisoners found guilty by

truthworthy evidence in conformity with previously

established standards. In Gosa v. Mayden, 413 U.S. 665,

685 (1973) the Court observed:

We must necessarily also consider the impact

of a retroactivity holding on the interests of

society when the new constitutional stand-

ard promulgated does not bring into question

the accuracy of guilt. Wholesale invalidation

piece of paper containing the name of the juror and the

words “Is this your verdict?” Fach juror shall write on the

slip of paper the words “Yes” or “No” along with his

signature. The clerk shall collect the slips of paper and

make them available for inspection by the court and

counsel, and record the results. If a sufficient number of

jurors as required by law to reach a verdict answer “yes”

the clerk shall so inform the court. Upon verification of

the results, the court Shall order the clerk to record the

verdict and order the jury discharged. If an insufficient

number required to find a verdict answer“ Yes”, the court

may remand the jury for further deliberation, or the

court may declare a mistrial in accordance with Article

775.

49 It has been the practice of some courts in Orleans Parish to

cunduct a written pall, examine the ballots, then merely note for

the record that the verdict is lawful, without disclosing the count.

The written ballots do not necessarily become part of the record.

SO C.F.: Adams v. Illinois, 405 U.S. 278 (1972) where the Court

held that Coleman v. Alabama, 399 U.S. 1 (1970) was to be given

prospective effect. In discussing the effect retroactivity might

29 ;

of convictions rendered years ago could well

mean that convicted persons would be freed

without retrial, for witnesses, . . . no longer

may be readily available, memories may have

faded, records may be incomplete or missing,

and physical evidence may have disappeared.

Society must not be made to tolerate a result

of that kind when there is nosignificant ques-

tion concerning the accuracy of the process by

which judgment was rendered or, in other

words, when essential justice is not involved.

For the above-mentioned reasons, Respondent sub-

mits that retroactive application of Burch would

seriously disrupt the administration of the criminal

laws of the State of Louisiana.

Rebuttal

In brief, Petitioner argues that if the Court denies

retroactive effect to Burch, then it should exhume the

distinctionS! between cases pending on direct review

have on the administration of justice, the Court noted:

“The task of conducting such hearings would be im-

measurably complicated by the need to construct a rec-

ord of what occurred. In Illinois, for example, no court

reporter was present at pre-Coleman preliminary hearings

and the proceedings are therefore not recorded”.

51 The Court's decisions in Linkletter v. Walker, 381 U.S. 618

(1965) and Tehan v. United States ex rel Shott, 382 U.S. 406 (1966)

applied only to cases on collateral review; cases pending on direct

review received the benefit of the newly articulated rule.

However, this result was a foregone conclusion. Both Mapp v.

Ohio, 367 U.S. 643 (1961) and Griffin v. California, 380 U.S. 609

(1965) had been specifically applied to cases on direct review

without discussion, before Linkletter was decided.

and those on collateral review. (Brief of Petitioner,

page 17, 18) Essentially, he argues that it is unfair that

Burch, a“chance beneficiary,”52 should benefit from the

Court’s decision, while Petitioner similarly situated,

does not.53

Respondent submits that it is well-settled that cases

_ on direct review and collateral review are to be treated

similarly for the purpose of the issue before the bar.

Johnson v. New Jersey, 384 U.S. 719, 732 (1966); Stovall v.

Denno, 388 U.S. 293, 300 (1967). Thecountervailing fac-

tors of “good-faith reliance” and the “impact on the ad-

ministration of justice” which mandate prospectively

as discussed above, admit no distinction. Further,

Respondent submits that distinguishing cases on the

‘basis suggested by Petitioner is not in any measure

more equitable than the settled rule. Petitioner

proposes no reason why those who have exhausted

direct appellate avenues are less deserving of newly

recognized constitutional rules than those who have

not.

52 Stovall v. Denno, 388 U.S. 293, 301 (1966).

53 Petitioner’s contention has received consistent, although

minority support throughout the jurisprudence of retroactivity.

See e.g., Hankerson v. North Carolina, 432 U.S. 233, 246 (1977) (Powell

]., concurring in the judgment); Mackey v. United States, 401 U.S. 667,

675-702 (Harlan, J., separate ame Williams v. United States, 401

U.S. 646, 665 (1971) (Marshall, J., concurring in part and dissen-

ting in part).

CONCLUSION

Respondent urges that the purpose of Burch ov.

Louisiana, __. U.S. ___,, 99 S.Ct. 1623 (1979) was to

enhance the reliability of six-member jury verdicts.

Retroactivity is inappropriate because the accuracy of

prior verdicts is not in serious doubt. A prospective

application of Burch is justified by the good-faith

reliance of the criminal justice system on the pre-

existing rules, and by the serious impact a retroactive

ruling would have on the administration of the criminal

laws of the State of Louisiana.

THOMAS CHESTER

Assistant District Attorney

for the Parish of Orleans

2700 Tulane Avenue

New Orleans, La. 70119

Telephone: (504) 822-2414

LOUISE KORNS

Assistant District Attorney

for the Parish of Orleans

2700 Tulane Avenue

New Orleans, La. 70119

Telephone: (504) 822-2414

CERTIFICATE

I certify that three copies of this brief have been

mailed to:

John Lawrence, Esq.

Orleans Parish Indigent Defender Program

2700 Tulane Avenue

New Orleans, La. 70119

THOMAS CHESTER

Assistant District Attorney

for the Parish of Orleans

2700 Tulane Avenue

New Orleans, La. 70119

Telephone: (504) 822-2414

LOUISE KORNS

Assistant District Attorney

_ for the Parish of Orleans

2700 Tulane Avenue

New Orleans, La. 70119

Telephone: (504) 822-2414

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