Petition — Frank Blackburn, Warden v. Irvin Thomas

| ‘Supreme Court, U.S.

80 - FILED

t.. CUT

NOV 44 1980

MICHAEL RODAK,

IN THE JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1980

FRANK BLACKBURN,

Petitioner,

versus

IRVIN THOMAS,

Respondent.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Fifth Circuit

PETITION FOR CERTIORARI

WILLIAM J. GUSTE, JR.

ATTORNEY GENERAL

STATE OF LOUISIANA

LEONARD KNAPP

DISTRICT ATTORNEY

FOURTEENTH JUDICIAL DISTRICT

BARBARA B. RUTLEDGE

ASSISTANT ATTORNEY GENERAL

Attorney of Record for Petitioner

2-3-4 LOYOLA AVE., RM. 821

NEW ORLEANS, LA 70112

(504) 568-5545

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

II.

QUESTIONS PRESENTED

Whether this Court’s decision in Ballew v. Georgia,

435 U.S. 223(1978), concerning the right to trial by

jury under the Sixth Amendment, should be ap-

plied retroactively to final judgments under col-

lateral attack pursuant to the case of Brown v.

Louisiana, U.S. __, 100 S.Ct. 2214 (1980)?

Whether the Court below could reach the merits of

appellee’s attack on the composition of the jury

which he failed to assert at trial without finding a

showing of cause and prejudice for a collateral

attack, when a lower state court performed only a

cursory review of the merits of his habeas corpus

application?

ill

TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

PP VISIONS AN VOLVED snc ciccccdcccacccces 2

eeeeeeeeeee GOOF TEE CASE cis... ccc edccc cece 4

REASONS FOR GRANTING THE WRIT

I. ONLY CASES ON DIRECT REVIEW

AND NOT FINAL JUDGMENTS

UNDER COLLATERAL ATTACK

SHOULD BE GIVEN RETROAC-

TIVE TREATMENT UNDER THE

RATIONALE OF BROWN ».

ER Ea aye 2 eS 6

ll. IF AN INDIVIDUAL RAISES HIS

CONSTITUTIONAL CLAIM IN A

FEDERAL HABEAS CORPUS PRO-

CEEDING, WHEN HE HAD FAILED

TO ASSERT THIS CLAIM AT THE

STATE TRIAL LEVEL, A FEDERAL

COURT CANNOT REVIEW THE

MERITS OF THE CLAIM UNLESS A

LOWER STATE COURT HAS DONE

MEN b ia bind inn) vase dice occa chwke ot Q

; PREVIOUS PAGE WAS BLANK |

iv

TABLE OF CONTENTS (Continued)

Page

COC LUIGI <5 chad eevee ss cle cs os aes 14

Lena OF SERVICE S36. ee 15

PEP RPAE «obs eet tide kckde ee Re he la

TABLE OF AUTHORITIES

CASES:

BALLEW v. GEORGIA, 435 U.S. 223

REO ca VEG ode Cashin seh ek kt ON i,6-8,11,12

BRADLEY v. SCHOOL BOARD OF CITY OF

RICHMOND, 416 U.S. 696 (1974) ............. 7

BROWN »v. LOUISIANA, ___ U.S. cnceeny BOO

Sad. SRP CT ot ee ey. i,6,8,9

BURCH v. LOUISIANA, 441 U.S. 130 (1979) .. 6,8,9

CASTANEDA v. PARTIDA, 430 U.S. 482 (1977) ..10

CHICOT COUNTY DRAINAGE DISTRICT v.

BAXTER STATE BANK, 308 U.S. 371(1940) ..... 7

DAVIS v. UNITED STATES, 411 U.S. 233 (1973) ..10

FRANCIS v. HENDERSON, 425 U.S. 536 (1976) ...10

FRANKS v, DELAWARE, 438 U.S. 154 (1978) .. 10,11

HOCKENBURY v. SOWDERS, 620 F.2d 111

CAPE ah SRR Fs WA es cL COE ck oc Seed 13

LINKLETTER v. WALKER, 381 U.S. 018 (1965) ....7

SMITH v, MARTIN, 290 So.2d 872 (La. 1974) .. 5,12

WAINWRIGHT v. SYKES, 433 U.S. 72 (1977) ..... 10

Vv

TABLE OF AUTHORITIES (Continued)

Page

OTHER AUTHORITIES:

LA. CODE CRIM. PR. ART. 841 ...........- 3,4,9

A PR MOOG © on dae Pee dRE dsc omerahvervene boas 5

LA: CONST. ART. 7, SEC. 41 (1921) ......ccees. 4

U.S. CONST. AMEND. VI .......--eeeeeees i,2,3,5

U.S. CONST. AMEND. XIV, SEC. 1 ......-.eeee 3

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

FRANK BLACKBURN,

Petitioner,

versus

IRVIN THOMAS,

Respondent.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Fifth Circuit

PETITION FOR CERTIORARI

MAY IT PLEASE THE COURT:

Petitioner, Frank Blackburn, prays that a writ of cer-

tiorari issue to review the judgment of the United

States Court of Appeals for the Fifth Circuit entered on

August 7, 1980, rehearing denied October 9, 1980.

2

CITATIONS TO OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit in Thomas v. Blackburn, is found in

the Appendix hereto and is reported at 623 F.2d 383.

The opinion of the District Court for the Western Dis-

trict of Louisiana which is unpublished is found in the

appendix hereto. (Docket No. 78-1399). The denial of

writs by the Louisiana Supreme Court is found in the

appendix hereto and is reported at 361 So.2d 1218

(1978). The opinion of the 14th Judicial District Court

for the State of Louisiana, which is unpublished is

found in the appendix hereto. (Docket No. 2593-72).

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on August 7, 1980, rehearing de-

nied October 9, 1980.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. CONST. Amend. VI.

“In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and dis-

3

trict wherein the crime shall have been com-

mitted, which district shall have been pre-

viously ascertained by law, and to be inform-

ed of the nature and cause of the accusation; to

be confronted with the witnesses against him;

to have compulsory process for obtaining Wit-

nesses in his favor, and to have the Assis-

tance of Counsel for his defense.”

U.S. CONST. Amend. XIV, Sec. 1.

LA.

“All persons born or naturalized in the Unit-

ed States and subject to the jurisdiction there-

of, are citizens of the United States and of the

State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without

due process of law; nor deny to any person

within its jurisdiction the equal protection of

the laws.”

CODE CRIMINAL PROCEDURE ART. 841.

“An irregularity or error cannot be availed

of after verdict unless it was objected to at the

time of occurrence. A bill of exceptions to

rulings or orders is unnecessary. It is suffi-

cient that a party, at the time the ruling or

order of the court is made or sought, makes

known to the court the action which he de-

LA.

Irvin Thomas was charged on February 28, 1972

with distribution of cocaine and heroin in violation of

4

sires the court to take, or of his objections to

the action of the court, and the grounds there-

for. The requirement of an objection shall not

apply to the court’s ruling on any written

motion.”

CONST. ART. 7, SEC. 41 (1921)

“The Legislature shall provide for the elec-

tion and drawing of competent and intelli-

gent jurors for the trial of civil and criminal

cases; provided, however, that no woman

shall be drawn for jury service unless she shall

have previously filed with the clerk of the Dis-

trict Court a written declaration of her desire

to be subject tosuch service. All cases in which

the punishment m._ not be at hard labor shall,

until otherwise provided by law, be tried by

the judge without a jury. Cases, in which the

punishment may be at hard labor, shall be

tried by a jury of five, all of whom must con-

cur to render a verdict; cases, in which the

punishment is necessarily at hard labor, by a

jury of twelve, nine of whom must concur to

render a verdict; cases in which the punish-

ment may be capital, by a jury of twelve, all of

whom must concur to render a verdict.”

STATEMENT OF THE CASE

5

La. R.S. 40:971. Inasmuch as the penalty for the offense

for which he was charged was not necessarily punish-

ment at hard labor, the law at the time provided that he

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

render a verdict.1 On November 27, 1972 he was con-

victed and sentenced to serve twenty-seven years in

the custody of the Louisiana Department of Correc-

tions from which no appeal was perfected.

In May, 1978, Thomas filed a writ of habeas corpus

maintaining that the five member jury deprived him of

his rights guaranteed by the Sixth Amendment of the

United States Constitution. Upon denial of his writ in

the State district court and subsequent denial by the

Louisiana Supreme Court on September 1, 1978, he

filed his writ of habeas corpus in the United States Dis-

trict Court for the Western District of Louisiana.

The United States District Court, having found de-

fense counsel had legitimate cause for having failed to

object to the size of the jury and that petitioner had

been prejudiced, vacated the judgment of conviction

and sentence imposed upon Thomas by the Four-

teenth Judicial District Court, Parish of Calcasieu. The

United States District Court’s opinion was appealed

and on August 7, 1980, United States Court of Appeals

1 The penalty provided for imprisonment at hard labor for not

more than thirty years or a fine of not more than $15,000 or both

and a five man jury was proper when the penalty provision

authorized a fine and did not necessarily require imprisonment at

hard labor. State v. Martin, 290 So.2d 872 (La. 1974).

6

for the Fifth Circuit issued an opinion affirming the

United States District Court’s opinion granting the

writ. On October 9, 1980 a rehearing was denied.

ARGUMENT

REASONS FOR GRANTING THE WRIT

I. Only Cases On Direct Review And Not

Final Judgments Under Collateral Attack

Should Be Given Retroactive Treatment

Under The Rationale Of Brown v. Louisiana.

The United States Court of Appeals for the Fifth Cir-

cuit held that the retroactivity rationale set forth by

this Court in Brown v. Louisiana, U.S. ,100S.Ct.

2214 (1980) is applicable to cases which are on direct re-

view as well as to final judgments under collateral

attack. However, in the case of Brown v. Louisiana, supra,

four justices supported the retroactive application of

Burch v. Louisiana, 441 U.S. 130 (1979) to both cases on

direct review and to final judgments under collateral

attack; two justices stated that only cases on direct re-

view should be treated retroactively, and three jus-

tices dissented to the retroactive application entirely.

Thus, the decision of the Court below was not in line

with the plurality of this Court, in that five justices

appear to have failed to support the application of Brown

v. Louisiana, supra, to final judgments under collateral

attack. Accordingly, the case of Ballew v. Georgia, 435

*%

7

U.S. 223 (1978) should not be given retroactive appli-

cation to a final judgment under collateral attack.

Additionally, by concluding that under the Brown

rationale, supra, Ballew v. Georgia, should be given retro-

active application in the case at bar, the court below in

effect is treating cases which are under direct review

and those in which a final judgment is under collateral

attack synonymously. Prior decisions of this Court dis-

courage this type of application. Bradley v. School Board of

City of Richmond, 416 U.S. 696 (1974). Chicot County Drain-

age District v. Baxter State Bank, 308 U.S. 371 (1940). Link-

letter v. Walker, 381 U.S. 618 (1965).

In the case of Bradley v. School Board of Richmond, supra,

this Court declared:

“This court in the past has recognized a dis-

tinction between the application of achange of

law that takes place while acase is on direct re-

view on the one hand, and its effect ona final

judgment under collateral attack on the other

hand.”

In Chicot County Drainage District v. Baxter State Bank,

supra, this Court suggested that the effect of a subse-

quent ruling of invalidity on a prior final judgment

under collateral attack is subject to no fixed “principle

of absolute retroactive invalidity” but depends upon

consideration of “particular relations . . . and particu-

lar conduct.”

After considering the cases mentioned above, it is

evident that the manner in which the Court below ap-

plied Brown v. Louisiana, supra, to the case in point was

erroneous, in that it disregarded the distinction be-

tween cases under direct review and final judgments

under collateral attack.

We must admit that we have no statistics on the

number of prisoners who will be effected by a retroac-

tive application of Ballew. However, we do know at this

time there is pending in the United States Court of

Appeals for the Fifth Circuit the case of Ulysses Smith v.

Blackburn, Docket No. 79-3451, and in the United States

District Court for the Eastern District of Louisiana,

Clarence Williams v. Blackburn, Docket No. 79-3622 and in

the United States District Court for the Western Dis-

trict of Louisiana, McArthur Davis v. Blackburn, Docket

No. 79-0930, which all are collateral attacks on convic-

tions by five man juries. There may be other cases

pending or persons incarcerated by conviction of a five

member jury of which we are not aware.

While the extent of persons affected by a retroactive

application of Ballew v. Georgia is not clear, the ruling in

the case at bar should be applicable to habeas corpus de-

cisions relying upon Burch v. Louisiana, supra. As seen by

the decision of the Court of Appeal the instant case re-

lies upon Brown v. Louisiana, supra, which applied Burch

retroactively to a direct appeal. There are undoubtedly

a substantial number of persons now incarcerated by a

verdict of 5 out of 6 jurors who may raise the issue by a

9

collateral attack. Thus, it would appear the resolution

of the issue in the case at bar will be significant to more

than those convicted by five member juries for it

should be applicable to those bringing collateral attacks

under Burch.

In summary, the United States Court of Appeals for

the Fifth Circuit’s application of Brown v. Louisiana, supra,

to the case at bar, and its synonymous treatment of

cases under direct review and final judgments under

collateral attack is in direct conflict with prior deci-

sions of this Court, compelling the granting of a Writ of

Certiorari.

II. If An Individual Raises His Constitu-

tional Claim In A Federal Habeas Corpus

Proceeding When He Had Failed To

Assert This Claim At The State Trial

Level, A Federal Court Cannot Review

The Merits Of The Claim Unless A Low-

er State Court Has Done So.

The Louisiana Code of Criminal Procedure Article

841 provides that an irregularity or error cannot be

availed of after verdict unless it is objected to at the

time of occurrence.

In the case at bar, the appellee has clearly breached

the above-mentioned procedural rule in that his chal-

lenge to the constitutionality of the five-man jury did

-%

10

not materialize until he filed for a writ of habeas

corpus.

It is respectfully submitted that in the absence of

“cause” and “prejudice”, the Court below erred by re-

viewing the merits and concluding that the appellee

may properly raise in a Federal Habeas Corpus pro-

ceeding his Constitutional claim when he had failed to

assert this same allegation at the State trial level. Wain-

wright v. Sykes, 433 U.S. 72 (1977), Davis v. United States,

411 U.S. 233 (1973), Francis v. Henderson, 425 U.S. 536

(1976).

Relying on the cases of Castaneda v. Partida, 430 U.S.

482 (1977) and Franks v. Delaware, 438 U.S. 154 (1978),

the Court below concluded that it could reach the

merits since the State court had.

It is our contention that Castaneda v. Partida, supra, and

Franks v. Delaware, supra, are not applicable to the case in

point since the State courts did not actually review the

merits.

In Castaneda, the Court in a footnote found they were

free toconsider the merits since the Texas court had. It

must be noted while Partida did not raise his claim of

discrimination in the grand jury selection prior to trial,

he did present the issue on a motion for new trial in the

State District Court. There was a hearing and denial on

the merits and then consideration of the merits in the

Texas Court of Criminal Appeals.

u

11

Similarly in Franks v. Delaware, supra, in a motion for

new trial Franks reurged his objection to admission of

evidence and stated he “should have been allowed to

impeach the affidavit used in the Search Warrant to

show purposeful misrepresentation of information

contained therein.” The motion was denied and on

appeal the conviction and sentence affirmed by the

Supreme Court of Delaware holding that in accord-

ance with the majority rule no attack upon the veracity

of a warrant affidavit could be made. In the United

States Supreme Court respondent argued waiver of

the challenge to the veracity of the affidavit as not

timely, but the Court held since the Supreme Court of

Delaware, as this highest state court disposed of the

claim on the merits, the federal question was open to

review.

In the instant case petitioner did not attack the size of

the trial jury at the time of trial and he did not perfect

an appeal. Six years later in an application for habeas

corpus based on Ballew v. Georgia, 435 U.S. 223 (1978) he

raised the issue of the invalidity of the jury. The writ

was denied with cursory reasons by the trial judge?

2 The opinion of the Louisiana district court denying Thomas’

petition for habeas corpus reads in its entirety:

Defendant was tried and convicted in 1972 for distribu-

tion of cocaine and heroin. He was tried by a five-member

jury.

In this application for a writ of habeas corpus, he claims

that he was entitled to a twelve-man jury.

The law in effect at that time, Act 59 of 1971, has been

12

without having had input by the State or a hearing in

the State district court.

It is pertinent to note that when applying for a writ of

habeas corpus in Louisiana District Court, the peti-

tioner filed a standard form completed by filling in the

blanks without any reference to case law, more partic-

ularly, Ballew. The State District Court opinion merely

affirmed the information concerning the appellee’s

trial and conviction, and observed it was petitioner’s

contention “that he was entitled to a twelve-man jury.”

He rejected this contention based on State v. Martin, 290

So.2d 872 (1974) and denied the writ.

The fact that the district court did not review the

merits of petitioner’s claim in light of Ballew is con-

firmed by the writ to the Louisiana Supreme Court

wherein petitioner states, “It is respectfully submitted

that the court below erroneously interpreted petition-

er’s application; petitioner did not claim that he was en-

titled to a twelve-man jury.” It would be ludicrous to

believe that the few sentences comprising the State

District Court’s opinion on this important issue con-

stituted a review of the merits; especially since the case

which probably prompted the appellee's application for

a writ of habeas corpus, Ballew v. Georgia, supra, was

never considered by the State District Court.

interpreted to entitle a defendant to only a five-member

jury. State v. Martin, 290 So.2d 872 (La. 1974).

The application is denied. Thomas’ petition to the

Supreme Court of Louisiana for a writ of certiorari to re-

view this decision was denied without opinion.

13

The Supreme Court of Louisiana denied the writ of

habeas corpus on this critical matter without render-

ing any opinion and it certainly cannot be said this con-

stituted a review of the merits.

However, even if it is found that the State District

Court reviewed the merits, the review was cursory at

best.

In the recent case of Hockenbury v. Sowders, 620 F.2d

111, the 6th Circuit Court of Appeals held:

“... the courts’ review of the merits of the

petitioner’s claim was cursory at best. . . Con-

sequently, we conclude that the Kentucky

Supreme Court’s denial of petitioner’s claim

was substantially based on the state pro-

cedural ground, despite the cursory review of

the merits of the petitioner’s claim.”

The 6th Circuit in Hockenbury, supra, also declared the

following:

“... the Federal Court must determine

whether the petitioner’s failure to comply

with the contemporaneous objection §re-

quirement was a substantial basis of the state

court’s denial of the petitioner's claim.”

It is respectfully submitted there has not been a re-

view on the merits in the State court, particularly the

14

highest court in the state, in accordance with the stand-

ard intended by this Court. Thus, the Court below

should have considered the question of “cause and pre-

judice” to determine if petitioner in habeas corpus

could belatedly raise his attack

Since the court below reviewed the merits instead of

determining if cause and prejudice was established, a

conflict arises between the decision of the Court be-

low and prior decisions of this Court, compelling the

granting of a writ of certiorari.

CONCLUSION

For the reasons stated, it is respectfully submitted

that this petition for a writ of certiorari should be

granted to review the issues herein, or alternatively,

the case should be remanded to the United States

Court of Appeals for the Fifth Circuit to consider

whether petitioner established “cause and prejudice” to

bring a belated attack.

Respectfully submitted,

WILLIAM J. GUSTE, JR.

ATTORNEY GENERAL

STATE OF LOUISIANA

LEONARD KNAPP

DISTRICT ATTORNEY

FOURTEENTH JUDICIAL

DISTRICT

15

BARBARA B. RUTLEDGE

ASSISTANT ATTORNEY

GENERAL

BARBARA B. RUTLEDGE

ASSISTANT ATTORNEY

GENERAL

2-3-4 LOYOLA AVE., RM. 821

NEW ORLEANS, LA 70112

(504) 568-5545

Attorney of Record for

Petitioner

CERTIFICATE OF SERVICE

The undersigned hereby certifies that three copies of

the foregoing Petition for Writ of Certiorari have been

mailed, postage prepaid to the following:

Robert M. Steeg

1100 Tulane Ave.

Suite 1440

New Orleans, LA 70112

I further certify that all parties required to be served

have been served.

New Orleans, Louisiana this ___. day of November,

1980.

la

APPENDIX

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT

NO. 79-2176

IRVIN THOMAS

versus

FRANK BLACKBURN, WARDEN

LOUISIANA STATE PENITENTIARY

AUG. 7, 1980

Appeal from the United States District Court for the

Western District of Louisiana.

Before RUBIN and POLITZ, Circuit Judges, and

SMITH’, District Judge.

ALVIN B. RUBIN, Circuit Judge:

In Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55

L.Ed.2d 234 (1978), the United States Supreme Court

held that conducting a criminal trial before a jury con-

sisting of only five members deprives the defendant of

his right to trial by jury under the sixth amendment as

* Senior District Judge of the Northern District of Mississippi

sitting by designation.

2a

applied to the states by the fourteenth. This habeas

corpus petition seeks retroactive application of that de-

cision in order to invalidate Irvin Thomas’ conviction

by a five-member Louisiana jury. Concluding that

Ballew is retroactive, we affirm the district court deci-

sion according Thomas relief.

Only last month the Supreme Court considered a

similar problem. In Burch v. Louisiana, 441 U.S. 130, 99

S.Ct. 1623, 60 L.Ed.2d 96 (1979) the Court held that a

5-1 verdict convicting the defendant of a non-petty

offense violates the right to jury trial. In Brown v.

Louisiana, U.S. __, 100 S.Ct. 2214, 64 L.Ed.2d

(1980), the Court held that Burch should be ap-

plied retroactively. Four members of the Court (Jus-

tices Brennan, Stewart, Marshall and Blackmun) join-

ed in the plurality opinion. Justices Powell and Stevens

concurred in the judgment but would have limited

retroactive application to cases pending on direct re-

view at the time the new constitutional rule was an-

nounced. Thomas’ original state proceedings were

completed in 1972, so his case does not meet the re-

quirements of the concurring opinion. Nonetheless, we

conclude that the authority of the Brown decision con-

strains us to reach the same result.

The factors to be considered have been fully set forth

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

2339, 53 L.Ed.2d 306 (1977); Michigan v. Payne, 412 U.S.

47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973); Desist v. United

States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248

3a

(1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18

L.Ed.2d 1199 (1967); Johnson v. New Jersey, 384 U.S. 719,

86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); and Linkletter v.

Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601

(1965). They were all again reviewed in Brown. The

three criteria are:

(a) the purpose to be served by the new stand-

ards, (b) the extent of the reliance by law

enforcement authorities on the old stand-

ards, and (c) the effect on the administration

of justice of a retroactive application of the

new standards.

Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970,

18 L.Ed.2d 1199, 1203 (1967).

“Foremost among these factors is the purpose to be

served by the new constitutional rule.” Desist v. United

States, 394 U.S. 244, 249, 89S.Ct. 1030, 1033, 22 L.Ed.2d

248, 255 (1969) (footnote omitted). Indeed, the other

two factors are determinative “only when the purpose

of the rule in question (does) not clearly favor either

retroactivity or prospectivity.” Brown v. Louisiana,

U.S. : , 100S.Ct. 2214, 2219, 64 L.Ed.2d ;

(1980). (brackets in original.) “Where the major

purpose of new constitutional doctrine is to overcome

an aspect of the criminal trial that substantially im-

pairs its truth-finding function and so raises serious

questions about the accuracy of guilty verdicts in past

4a

trials, the new rule has been given complete retroac-

tive effect. Neither good-faith reliance by state or fed-

eral authorities on prior constitutional law or accepted

practice, nor severe impact on the administration of

justice has sufficed to require prospective application

in these circumstances.” Id. (quoting Williams v. United

States, 401 U.S. 646, 653, 91S.Ct. 1148, 1152, 28 L.Ed.2d

388, 395 (1971) (plurality opinion)).

To demonstrate that the purpose of Ballew was to

“overcome an aspect of the criminal trial that substan-

tially impairs its truth-finding function,” Brown v.

Louisiana, U.S. at __, 100 S.Ct. at 2219, 64

L.Ed.2d at ___, and to demonstrate that the Supreme

Court views the purpose of Ballew as indistinguishable

from the purpose of Burch, so that both must be given

retroactive application if either is, we need only quote

from the analysis in Brown:

We think it apparent that the rationale be-

hind the constitutional rule announced in

Burch mandates its retroactive application. Mr.

Justice Blackmun’s opinion in Ballew cata-

logued the several considerations that led the

Court to conclude that the operation of the

Jury was inhibited to a constitutionally sig-

nificant degree by reducing its size to five

members. Prominent among these concerns

was the recognition, supported by a number

of empirical studies, that a decline in jury size

5a

leads to less accurate fact-finding and greater

risk of convicting an innocent person. 435 U.S.

at 232-235 (95 S.Ct. 1029). In addition, statis-

tical and empirical data established that be-

cause of a concomitant decrease in the num-

ber of hung juries, a reduction in the size of

the jury panel in criminal cases unfairly dis-

advantages one side — the defense. Id., at 236

(98 S.Ct. 1029). Lastly, the opinion noted that

the opportunity for meaningful and appro-

priate minority representation diminishes

with the size of the jury. Id., at 236-237 (98

S.Ct. 1029).

Identical considerations underlay our deci-

sion in Burch. The threat which conviction by a

5 to 0 verdict poses to the fairness of the pro-

ceeding and the proper role of the jury is not

significantly alleviated when conviction is in-

stead obtained by the addition of a sixth, but

dissenting, ballot. When the requirement of

unanimity is abandoned, the vote of the “addi-

tional” juror is essentially superfluous. The

prosecution’s demonstrated inability to con-

vince all the jurors of the accused’s guilt cer-

tainly does nothing to allay our concern about

the reliability and accuracy of the jury’s ver-

dict. And while the addition of another juror

to the five-person panel may statistically in-

crease the representativeness of that body, re-

linquishment of the unanimity requirement

6a

removes any guarantee that the minority

voices will actually be heard.

In sum, Burch established that the concur-

rence of six jurors was constitutionally re-

quired to preserve the substance of the jury

trial right and assure the reliability of its ver-

dict. It is difficult to envision a constitutional

rule that more fundamentally implicates “the

fairness of the trial — the very integrity of the

fact-finding process.” Linkletter v. Walker, 381

U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d

601 (1965). “The basic purpose of a trial is the

determination of truth,” Tehan v. Shott, 382

U.S. 406, 416, 86 S.Ct. 459, 465, 15 L.Ed.2d

453 (1966), and it is the jury to whom we have

entrusted the responsibility for making this

determination in serious criminal cases. Any

practice that threatens the jury’s ability prop-

erly to perform that function poses a similar

threat to the truth-determining process it-

self. The rule in Burch was directed toward

elimination of just such a practice. Its pur-

pose, therefore, clearly requires retroactive

application. U.S. , 100S.Ct. at 2222,

64 L.Ed.2d at . (footnotes omitted).

The recognition that Ballew and Burch share the same

purpose mandates that Ballew also be applied retroac-

tively, regardless of good-faith reliance by the state on

the former rule or disruptive effect on the administra-

7a

tion of justice. See Williams v. United States, 401 U.S. 646,

653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388, 395 (1971)

(plurality opinion). Moreover, retroactive application

of the Ballew rule will not have a devastating impact on

the administration of the criminal law. Only two states

other than Louisiana — Georgia and Virginia — have

utilized five-person juries, and they did so only in mis-

demeanor cases. In 1974, by revision of the Louisiana

Constitution and of the state’s Code of Criminal Pro-

cedure, the five-member jury (or as it was called local-

ly, the bob-tail jury) was eliminated.

Thus in Louisiana only persons convicted prior to

1974 could attack the statute. It applied only to cases

for which a prison sentence was not-mandatory. La.

Code Crim. Pro. Ann. art. 782 (West 1966) (amended

1974). Some of those convicted by five-member juries

were no doubt not sentenced to prison and others sen-

tenced to prison have no doubt been released. The state

at oral argument could not give an estimate of the num-

ber but it did not contend that the affected group is

large. Furthermore, what the Supreme Court said in

Brown is applicabie here as well:

What little disruption to the administration of

justice results from retroactive application of

Burch “must be considered part of the price we

pay for former failures to provide fair pro-

cedures.” Adams v. Illinois, (405 U.S. 278, 92

S.Ct. 916, 31 L.Ed.2d 202) supra, at 297 (92

S.Ct. at 926) (Douglas, J., dissenting).

8a

ne ee Oe ,100S.Ct. at 2224, 64L.Ed.2d at ___.

Finally, we consider the state’s claim that Irvin

Thomas’ failure to challenge the five-member jury at

the time of his criminal trial, as required by Louisiana’s

contemporaneous objection rule, La. Code Crim. Pro.

Ann. art. 841 (West 1966) (amended 1974), should bar

him from bringing his federal constitutional claim in

this federal habeas action. The denial of habeas corpus

relief in the state courts was not based upon his viola-

tion of Louisiana’s contemporaneous objection rule but

rather was a decision on the merits,! and a federal court

can, therefore, also reach the merits of his claim for

habeas relief, without considering whether he satis-

fies the cause-and-prejudice test established by Wain-

wright v. Sykes, 433 U.S. 72, 97S.Ct. 2497, 53 L.Ed.2d 594

(1977); County Court v. Allen, 442 U.S. 140, 146-155, 99

S.Ct. 2213, 2219-23, 60 L.Ed.2d 777, 785-791 (1979);

Cannon v. Alabama, 558 F.2d 1211, 1216 n.12 (Sth Cir.

1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1281, 55

L.Ed.2d 792 (1978); see Castaneda v. Partida, 430 U.S. 482,

1 The opinion of the Louisiana district court denying Thomas’

petition for habeas corpus reads in its entirety:

Defendant was tried and convicted in 1972 for distribution of

cocaine and heroin. He was tried by a five-member jury.

In this application for a writ of habeas corpus, he claims that he

was entitled to a twelve-man jury.

The law in effect at that time, Act 59 of 1971, has been inter-

preted to entitle a defendant to only a five-member jury. Stute v.

Martin, 290 So.2d 872 (La. 1974).

The application is denied.

Thomas’ petition of the Supreme Court of Louisiana for a writ

of certiorari to review this decision was denied without opinion.

9a

486 n.4, 97 S.Ct. 1272, 1275 n.4, 51 L.Ed.2d 498, 505

n.4 (1977); see also Franks v. Delaware, 438 U.S. 154, 161-

163, 98 S.Ct. 2674, 2679-80, 57 L.Ed.2d 667, 675-677

(1978); Mullaney v. Wilbur, 421 U.S. 684, 704 n.*, 95

S.Ct. 1881, 1892 n.*, 44 L.Ed.2d 508, 523 n.* (1975)

(concurring opinion of Justice Rehnquist).

For these reasons, the decision of the trial court re-

quiring Louisiana either again to try Thomas before a

properly constituted jury or to release him is

AFFIRMED.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Office of the Clerk

October 9, 1980

Gilbert F. Ganucheau

Clerk

TO ALL PARTIES LISTED BELOW:

NO. 79-2176 IRVIN THOMAS -vs- FRANK

BLACKBURN, Warden, LOUISIANA

STATE PENITENTIARY

(CA-78- 1399)

10a

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition for rehearing, and no

member of the panel nor Judge in regular active serv-

ice on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Local Fifth Circuit Rule 16) the

petition for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

GILBERT F. GANUCHEAU,

Clerk

ls} P. Keller

Deputy Clerk

cc: Mr. Leonard Knapp, Jr.

Ms. Barbara Rutledge

Mr. Robert M. Steeg

lla

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

IRVIN THOMAS

versus

FRANK BLACKBURN, WARDEN

LOUISIANA STATE PENITENTIARY

CIVIL ACTION NO. 781399

VERON, District Judge:

After a jury trial in the Fourteenth Judicial District

Court, Parish of Calcasieu, Louisiana, the petitioner,

Irvin Thomas, was convicted of unlawful distribution

of cocaine and heroin in violation of Louisiana Revised

Statutes 40:971(a)(1). He was sentenced to twenty-

seven years hard labor in the custody of the Louisiana

Department of Corrections and is presently in the

respondent's custody serving that sentence. Petition-

er did not appeal his conviction. He has now filed in this

court a petition for a writ of habeas corpus pursuant to

28 U.S.C. §2254.

In compliance with Louisiana law at the time! peti-

tioner was tried and convicted by a jury composed of

1. Louisiana Code of Criminal Procedure Article 782 at the time

of this petitioner's trial did permit juries of five members in cases

in which hard labor was optional. The jury had to act unanimous-

7’.

12a

five members. The United States Supreme Court re-

cently held that a five-member jury does not satisfy the

jury trial guarantee of the Sixth Amendment, as ap-

plied to the States through the Fourteenth Amend-

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

In his present petition, petitioner contends that his

conviction was obtained in violation of his federal con-

stitutional rights. Specifically, petitioner, armed with

the Ballew decision, argues that he was denied his right

to trial by jury guaranteed by the Sixth and Four-

teenth Amendments? to the United States Constitu-

tion. Petitioner’s application for a writ of habeas corpus

was denied at both the State district court? and

ly in order to convict.

Effective January 1, 1975 Article 782 was amended by the

Louisiana legislature to provide that “(c)ases in which the punish-

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

composed of six jurors, five of whom must concur to render a ver-

dict,” In Burch v. Louisiana, 365 So.2d 1236, 1264 (La. 1978), cert.

granted 47 U.S.L.W. 3301 (Oct. 31, 1978), the Louisiana Supreme

Court held that aconviction by anonunanimous six-person jury is

constitutional. On April 17, 1979 the United States Supreme

Court reversed, The Court did not resolve or discuss the retroac-

tivity-prospectivity question of Burch in its decision. We express no

opinion whatsoever on this different issue since it is not before us,

and nothing in this ruling should be so construed.

2 The Fourteenth Amendment guarantees the right of trial by

jury in all state nonpetty criminal cases. Duncan v. Louisiana, 391

U.S. 145, 159-162 (1968).

3. The State trial court in denying petitioner on June 7, 1978 a

writ of habeas corpus interpreted petitioner's claim as being that

he was entitled to a twelve-person jury. The State district court's

13a

Supreme Court? levels. Petitioner has therefore ex-

hausted his available state remedies with respect to the

question as required by 28 U.S.C. §2254(b). See generally

17 C. Wright, A. Miller & E. Cooper, Federal Practice

and Procedure §4264 (1978). The case has been sub-

mitted on briefs and the State court record.

In determining the merits of petitioner’s claim, this

court must resolve two issues: first, whether the

defendant can raise this constitutional issue for the

first time in a writ of habeas corpus never having raised

the issue at the State trial court level5 and, second,

opinion in its entirety reads:

Defendant was tried and convicted in 1972 for distribu-

tion of cocaine and heroin. He was tried by a five-member

jury.

In this application for a writ of habeas corpus, he claims

that he was entitled to a twelve-man jury.

The law in effect at that time, Act 59 of 1971, has been

interpreted to entitle a defendant to only a five-member

jury. State v. Martin, 290 So.2d 872 (La. 1974).

The application is denied.

4 The Louisiana Supreme Court unanimously denied petition-

er’s writ on September 1, 1978 without written reasons. How-

ever, an examination of petitioner's application for a writ of

habeas corpus with the Louisiana Supreme Court clearly reveals

that the same constitutional claim was there raised. The exhaus-

tion requirement “cannot turn upon whether a state appellate

court chooses to ignore in its opinion a federal constitutional claim

squarely raised in petitioner's brief in the state court.” Smith v, Dig.

mon, 434 U.S. 332, 333 (1978). The Louisiana Supreme Court

recently held in a direct appeal case that Ballew should not be ap-

plied retroactively. State v. Robinson, 301 So.2d 864 (La. 1978). (per

curiam.).

5 The record of the State Court trial was not transcribed, but the

petitioner admits in his application for a writ of habeas corpus filed

with the Louisiana Supreme Court that no challenge to the con-

stitutionality of the jury was made at the State trial court level.

l4a

whether the Ballew decision should be applied retroac-

tively. Both issues, of course must be resolved in peti-

tioner’s favor in order for the writ to issue.

I, PROCEDURAL DEFAULT

The State argues that the petitioner’s failure to raise

the issue of constitutionality of Louisiana’s five man

jury at the State trial level bars federal habeas relief on

this ground. The State relies on its procedural default

rule which provides that “(a)n irregularity or error can-

not be availed of after verdict unless it was objected to

at the time of occurrence.”® Louisiana Code of Crimi-

nal Procedure Article 841. E.g., State v. Hall, 350 So.2d

141 (La. 1977); State v. Madison, 345 So.2d 485 (La. 1977);

State v. Williams, 343 So.2d 1026 (La. 1977). This pro-

cedural rule is designed to promote judicial efficiency

6 Thomas’ procedural default here may not be covered by

Louisiana’s contemporaneous objection rule, since “an error that

is discoverable by a mere inspection of the pleadings and proceed-

ings and without inspection of the evidence” can be considered on

appeal. Louisiana Code of Criminal Procedure Article 920(2). An

error in the size of the jury is discoverable on the face of the rec-

ord and therefore can be noted ex proprio motu without formal ob-

jection or an assignment of error. State v. Smith, 367 So.2d 857 (La.

1979); State v. Nedds, 364 So.2d 588 (La. 1978). However, in these

previous cases the verdicts were returned by juries composed of

either more or less than the correct number authorized by State

statute. This is not the case here. However, the Louisiana

Supreme Court recently held in a direct appeal case that Ballew

should not be applied retroactively without any discussion of

whether the alleged error was raised at trial. State v. Robinson, 361

So.2d 864 (La. 1978). See also State v. Wrestle, Inc., 300 So.2d 831, 837

n. 9 (La. 1978).

15a

by providing an adequate opportunity for the recogni-

tion and correction of errors during trial. State v. Dupre,

339 So.2d 10 (La. 1976); State v. Charles, 326 So.2d 335

(La. 1967).

In Fay v. Noia, 372 U.S. 391 (1963), the United States

Supreme Court held that a federal court, hearing a

habeas corpus application, might consider a con-

stitutional claim not raised in State court if the peti-

tioner had not deliberately bypassed orderly state pro-

cedures. However, more recent Supreme Court deci-

sions have narrowed and modified the Fay standard.

The standard announced in Davis v. United States,” 411

U.S. 233 (1973), as extended by Francis v. Henderson,* 425

7 Davis v. United States, supra, involved a federal prisoner who had

failed to bring a constitutional challenge to grand jury composi-

tion before trial as required by Federal Rule of Criminal Pro-

cedure 12(b)(2). The prisoner then brought a proceeding pursu-

ant to 28 U.S.C. §2255 asking that the conviction be set aside be-

cause of the composition of the indicting grand jury. The Court

held that the waiver standard of Rule 16 (“the Court for cause

shown may grant relief from the waiver”) controls not only during

the criminal proceeding but also on collateral review.

8 In Francis v. Henderson, supra, the predecessor statute to

Louisiana Code of Criminal Procedure Article 535(B)(3), provid-

ing that grand jury composition issues not raised prior to trial are

waived, was in issue. A Louisiana prisoner who had not appealed

his conviction sought federal collateral relief under section 2254

on grounds that the grand jury which has indicted him was il-

legally constituted. Largely on the basis of Davis v. Linited States,

supra, the Supreme Court affirmed the denial of relief.

16a

U.S. 536 (1976), and Wainwright v. Sykes,? 433 U.S. 72

(1977), is that a prisoner may not raise in a federal

habeas proceeding a constitutional claim he did not pre-

sent to the State courts because of his failure to com-

ply with a State court procedural rule, absent some

showing of cause for his non-compliance with State

rule and a showing of actual prejudice resulting from

the failure to object. See generally 17 C. WRIGHT, A.

MILLER & E. COOPER, FEDERAL PRACTICE AND

PROCEDURE §4266 (1978); Spritzer, Criminal Waiver,

Procedural Default And The Burger Court, 126 U. PA. L. REV.

473, 508-509 (1978). The Court explicitly declined to

define the cause and prejudice standard, noting only

that it was narrower than the “deliberate bypass” test

of Fay. Wainwright v. Sykes, supra, 433 U.S. at 87. How-

ever, the Court did admonish that the standard’s appli-

cation should not be permitted to work a “miscarriage

of justice”:

The “cause” — and —“ prejudice” exception of

the Francis rule will afford an adequate guar-

antee, we think, that the rule will not prevent

a federal habeas court from adjudicating for

9 In Wainwright v. Skyes, supra, a state prisoner sought habeas

corpus on the ground that he had not understood the Miranda

warnings administered to him. At his trial the petitioner had not

challenged the admissibility of the inculpatory statements he

made after being given the warnings. The Court held that the fail-

ure tocomply with the State rule requiring contemporaneous ob-

jection to the admission of his statements barred habeas relief

since the petitioner could not show cause for his failure to object at

the time and actual prejudice.

17a

the first time the federal constitutional claim

of a defendant who in the absence of such an

adjudication will be the victim of a miscar-

riage of justice. Whatever precise content may

be given those terms by later cases, we feel

confident in holding without further elabora-

tion that they do not exist here. Respondent

has advanced no explanation whatever for his

failure to object at trial, and, as the proceed-

ing unfolded, the trial judge is certainly not to

be faulted for failing to question the admis-

sion of the confession himself. The other evi-

dence of guilt presented at trial, moreover,

was substantial to a degree that would negate

any possibility of actual prejudice resulting to

the respondent from the admission of his in-

culpatory statement.

Id. at 90-91 (footnote omitted).

The Court’s justification for enactment of such a

standard was that it would promote finality in litiga-

tion and discourage “sandbagging” on the part of de-

fense attorneys “who may take their chances on a ver-

dict of not guilty ina state trial court with the intent to

raise their constitutional claims in a federal habeas

court if their initial gamble does not pay off.” Ii. at 89.

Tactical considerations sometimes militate in favor of

delaying the raising of the claim in the hope of an ac-

quittal. If this hope does not materialize, the claim

18a

could then be used to upset an otherwise valid convic-

tion when reprosecution might well be difficult.

As additional fortification for its holding, the Court

that state procedural forfeiture rules are entitled to

greater respect than that granted by the deliberate by-

pass rule. Id. at 88-89.

The United States Supreme Court has not refined

the cause and prejudice standard since Svkes,1° and the

Fifth Circuit has not yet had the opportunity to deline-

ate clearly or dispositively those terms for our guid-

ance.!!

10 The United States Supreme Court has vacated at least two

judgments and remanded the cases for further consideration in

light of Wainwright v. Sykes, supra. Gunn v. Poulin. 434 U.S. 936 (1977);

Estelle v. McDonald, 433 U.S. 904 (1977). See also Browder v. Director,

434 U.S. 257, 259 (1978).

11 “Whether Spinkelink’s procedural default actually falls with-

in the ambit of Wainwright v. Sykes, supra, and concomitantly,

whether sufficient cause or prejudice exists in this case so as not to

bar federal habeas corpus review, are difficult yuestions on which we

need not pass. Spinkelink’s contentions regarding the exclusion of

the two veniremen must fail on the merits as a matter of law for

reasons to be discussed; the petitioner thus is not entitled to relief

on the basis of these contentions even if Wainwright v. Sykes does

not prevent him from raising them.” Spinkelink v. Wainwright, 578

F.2d 582, 592 (Sth Cir. 1978) (emphasis supplied.) See also McDonald

v. Estelle, 564 F.2d 199 (Sth Cir. 1977); St. John v. Estelle, 563 F.2d 168

(Sth Cir. 1977); Jiminez v. Estelle, 557 F.2d S06 (Sth Cir. 1977); Evans

v. Maggio, 557 F.2d 430, (Sth Cir. 1977): Loud. Estelle, 556 F.2d 1326

(1977).

19a

A) Cause

In the case at bar, no reasonable trial strategy could

have warranted defense counsel’s failure to challenge

the constitutionality of the five-member jury. The fail-

ure of court-appointed defense to raise this issue is best

presumed inadvertant. At the very least, counsel's fail-

ure to preserve this client’s position was for an excus-

able reasons — ignorance of the potential un-

constitutionality of Louisiana’s jury system. At the

time of trial, court-appointed counsel may have

assumed Louisiana’s jury system was constitutional,

since there was little indication to the contrary in the

available relevant jurisprudence.!2

In the heat of trial it is unreasonable and at time in

fact undesirable to require counsel to raise every con-

ceivable constitutional argument. The instant case is

distinguishable from previous State procedural de-

fault cases in that in the earlier cases the prevailing law

at the time of trial should have prompted defense coun-

sel’s vigorous objection and failure to so object could

there be interpreted as trial strategy. Thus, in our opin-

ion, there was legitimate cause for failing to object to

the size of the jury on Sixth Amendment grounds.

12 In Williams v. Florida, 399 U.S. 78 (1970), the use of a six-mem-

ber jury in a state criminal trial was upheld. The court in a foot-

note explicitly cautioned: “We have no occasion in this case to

determine what minimum number can still constitute a ‘jury,’ but

we do not doubt that six is above that minimum.” Id. at 91, n. 28.

ee ee ee ee

20a

b; Prejudice

While the Supreme Court did not define the term

“prejudice” in Sykes, two Justices indicated that preju-

dice was to be determined under the harmless error

test. See Sykes v. Wainwright, supra, 433 U.S. at 97-98

(White, J. concurring); 433 U.S. at 117 (Brennan, J., dis-

senting).

In Chapman v. California, 386 U.S. 18 (1967), the

Supreme Court observed that there might be some

error of constitutional magnitude that might, in a par-

ticular case, be so unimportant and insignificant as to

be harmless. An error cannot be so classified, how-

ever, unless the reviewing court is able tosay, beyond a

reasonable doubt, that there was no reasonable possi-

bility that the error might have contributed to the con-

viction. Id. at 24. Furthermore, and of utmost signifi-

cance here, the Court recognized that “there are some

constitutional rights so basic (o a fair trial that their in-

fraction can never be treated as harmless error.” Id. at

23.13“(T)rial by jury in criminal cases is fundamental to

the American scheme of justice”,'+ and in our belief an

13 For example, when the error is acoerced confession, denial of

counsel, or lack of an impartial judge, the error infects the entire

proceeding making it impossible to evaluate the effect of the error

on the jury. As a consequence, reversal is automatic with such

errors. Chapman v. California, supra, 380 U.S. at 23, n. 8. See generally

Note, Harmless Constitutional Error: A Reappraisal. 83 Harv. L. Rev. 814,

820-24 (1970).

14 Duncan v. Louisiana, 391 U.S. 145, 149 (1968).

21a

infraction or erosion of it should never be treated as

harmless error.

We are cognizant that the majority of the Court in

Sykes arguably may have intended the term “prejudice”

in some circumstances to encompass a more rigorous

test than the harmless error standard. Some have

argued “prejudice” means a serious doubt of the

defendant's guilt. E.g., Canary v. Bland, 583 F.2d 887, 894

(6th Cir. 1978) (Merritt, J., concurring); Collins v. Auger,

577 F.2d 1107, 1110-1111 (8th Cir. 1978).

This view, in sharp contrast to the harmless error

test, would require a subjective evaluation of guilt by

the reviewing court based on the overall record. While

this standard may be justified in instances such as eval-

uating the materiality of the admission of incriminat-

ing evidence or the omission of exculpatory evidence,

in our opinion this test is simply inadequate to protect

vigilantly the constitutional right to jury trial, a right

which lies at the center of our American legal system.

The application of the harmless error standard (more

precisely an exception to the harmless error standard)

in this case insures against “a miscarriage of justice.” In

choosing this standard we have given full credence to

Justice Stevens’ observation that “(m)atters such as the

competence of counsel, the procedural context in

which the asserted waiver occurred; the character of

the constitutional right at stake, and the overall fair-

22a

ness of the entire proceeding, may be more significant

than the language of the test the Court purports to

apply.” Wainwright v. Svkes, supra, 433 U.S. at 96

(Stevens, J., concurring). We conclude that the error

her2 went tothe central issue of guilt or innocence and

infected the fairness of the trial itself. In short, peti-

tioner clears the “prejudice” hurdle to our satisfaction.

I]. RETROACTIVITY

In Ballew v. Georgia, supra, a unanimous Court held

that the five-member jury does not satisfy the jury trial

guarantee of the Sixth Amendment, as applied to the

States via the Fourteenth Amendment. As a threshold

matter, the Ballew decision does not establish a new

principle of law by deciding an issue of first impression

whose resolution was not clearly foreshowed.!5 The in-

stant case therefore properly presents a retro-

activity/ prospectivity question.

The Court, however, did not indicate in the opinion

itself whether Ballew should be applied retroactively.'*

15 See note 12 supra.

16 The Court vacated the judgment in Robinson v. Georgia, 435

U.S. 991 (1978), for further consideration in light of Ballew.

In some instances the Court has announced its resolution of the

retroactivity!/prospectivity question in the case announcing the

new constitutional rule. E.¢., Morissey v. Brewer, 408 U.S. 471 (1972).

In other instances the Court has given full consideration to the

retroactivity issue in a case after the law-changing decision. E.¢.,

Linkletter v. Walker, 381 U.S. 618 (1965). Sometimes the Court has

decided the matter in summary fashion without briefing or oral

23a

The question, therefore, is whether the Ballew holding

is to be applied retroactively to other defendants whose

opportunity to raise a timely objection to the jury

numerical composition had passed as of the date of the

decision in Ballew.

While the subject of retroactivity is inherently ripe

with jurisprudential overtones,” the Court has not

heretofore resolved the issue of retroactivity “on the

basis of arguments about whether judges ‘make’ law or

‘discover’ it when performing their duty of interpret-

ing the Constitution,” Linkletter v. Walker, 381 U.S. 618,

643 (1965) (Black, J., dissenting).

It is axiomatic that “the Federal Constitution has no

voice upon the subject” of retroactivity, (General North-

ern Railway v. Sunburst Oil & Refining Co., 287 U.S. 358, 364

(1962) (Cardozo, J.), and that the “Constitution neither

prohibits nor requires retroactive effect.” Linkletter v.

Walker, supra, 381 U.S. at 629. Thus, in order to assist in

weighing the various merits and demerits of applying a

new rule retroactively, the Court delineated and has

argument through a later per curiam opinion. E.g., Roberts v. Rus-

sell, 392 U.S. 293 (1968).

For excellent discussions of retroactivity generally see Beytagh,

Ten Years of Non-Retroactivity: A Critique and A Proposal, 61 Va.L.Rev.

1557 (1975); Schaefer, The Control of “Sunbursts’: Techniques of Prospec-

tive Overruling, 42 N.Y. U. L. Rev. 631 (1967).

17 Proponents of Blackstonian declaratory theory generally

would give retroactive effect to law changing decisions, while the

adherents of Austinian or realist doctrine generally would not.

24a

steadfastly adhcred!8 to three relevant factors which

should control all retroactivity decisions:

(a) the purpose to be served by the new

standards,

(b) the extent of the reliance by law enforce-

ment authorities on the old standards, and

(c) the effect on the administration of jus-

tice of a retroactive application of the new

standards.

Stovall v. Denno, 388 U.S. 293, 297 (1967).

The court later established a hierarchy among the

controlling criteria. The foremost factor “is the pur-

pose to be served by the new constitutional rule.” Desist

v. United States, 394 U.S. 224, 249 (1969). Reliance and

the administration of justice are considered only “when

the purpose of the rule in question (does) not clearly

favor either retroactivity or prospectivity.” Id. at 250.

The Supreme Court has consistently disdained any

distinction between cases on direct review and those

arising on collateral attack. Williams v. United States, 401

U.S. 646, 651-53 (1971); Desist v. United States, supra, 394

U.S. at 253; Johnson v. New Jersey, 384 U.S. 719, 732

18 These standards were first enunciated in Linkletter v. Walker,

supra. The Court has consistently relied upon these three criteria.

See, ¢.g., Adams v. Illinois, 405 U.S. 278 (1972); Desist'v. United States,

394 U.S. 244 (1969); DeStefano v. Woods, 392 U.S. 631 (1968).

25a

(1966). Therefore, the Stovall three pronged test con-

trols our retroactivity inquiry in this habeas corpus

proceeding.

If the purpose of a new constitutional rule is to guar-

antee “the very integrity of the fact finding process”

(Linkletter v. Walker, supra, 381 U.S. at 639) and thus to in-

sure the fundamental fairness of trial, retroactive

application is necessary. However, if the purpose of the

new rule is simply the prophylactic one of deterring il-

legal police activity, then prospectivity is acceptable.19

The Supreme Court's decision in Ivan v. City of New

York, 407 U.S. 203 (1972), is particularly relevant to the

case at bar. In Ivan the Court ruled that the holding in In

re Winship, 397 U.S. 358 (1970), that proof beyond a

reasonable doubt is among the essentials of due process

and fair treatment that must be afforded a juvenile

charged with an act that would constitute a crime if

committed by an adult should be afforded retroactive

effect. In so holding the Court stated:

Where the major purpose of new con-

19 For example, in Linkletter v. Walker, supra, the Supreme Court

held that the Mapp v. Ohio, 367 U.S. 643 (1961), exclusionary rule

was inapplicable tocases in which the convictions had become final

before the decision date of Mapp. largely because the deterrent

purpose of Mapp would not be served by retroactive application.

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

refused effect to the Fifth Amendment rule of Griffin v. California,

380 U.S. 699 (1965), prohibiting adverse comment on a defend-

ant’s failure to testify.

26a

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 ver-

dicts in past trials, the new rule has been given

complete retroactive effect. Neither good-

faith reliance by state or federal authorities on

prior constitutional law or accepted practice,

nor severe impact on the administration of

justice has sufficed to require prospective

application in these circumstances.” Williams v.

United States, 401 U.S. 646, 653 (1971). See

Adams v. Illinois, 405 U.S. 278, 280 (1972); Rob-

erts v. Russell, 392 U.S. 293, 295 (1968).

Ivan v. City of New York, supra, 407 U.S. at 204, See also

Hankerson v. North Carolina, 432 U.S. 233 (1977).

In like vein, Waller v. Florida, 397 U.S. 387 (1970),

which barred on double jeopardy grounds state and

municipal prosecutions, based on the same act or

offense, was given full retroactive effect in Robinson v.

Neil, 409 U.S. 505 (1973). There the Court observed:

The guarantee against double jeopardy is sig-

nificantly different from procedural guaran-

tees held in the Linkletter line of cases to have

prospective effect only. While this guarantee

like the others, is a constitutional right of the

criminal defendant, its practical result is to

27a

prevent a trial from taking place at all, rather

than to prescribe procedural rules that govern

the conduct of a trial. A number of the consti-

tutional rules applied prospectively only

under the Linkletter cases were found not to

affect the basic fairness of the earlier trial, but

to have been directed instead tocollateral pur-

poses such as the deterrence of unlawful

police conduct. . .

Id. at 509.

Just like the guarantee against double jeopardy, the

right to trial by jury is significantly different from the

procedural guarantees of the Linkletter line of cases. The

purpose of the new rule can be gleaned from the Ballew

opinion itself — to insure the basic fairness of the trial

and the reliability of the fact finding process. In light of

the revelations brought to surface by the empirical

studies on jury size analyzed by the Ballew Court, ajury

panel of less than six members inhibits the functioning

of the jury to a significant degree, thereby directly

affecting the reliability of the fact finding process it-

self.

In its examination of jury size studies, the Ballew

Court stated preliminarily that “recent empirical data

suggest that progressively smaller juries are less likely

to foster effective group deliberation” and “(a)t some

point this decline leads to inaccurate fact finding.”

28a

Ballew v. Georgia, supra, 435 U.S. at 232. Additionally, the

Court noted that “the data now raise doubts about the

accuracy of the results achieved by smaller and smaller

panels. Statistical studies suggest that the risk of con-

victing an innocent person rises as the size of the jury

diminishes.” Id. at 234 (parenthetical omitted). Fur-

thermore, “the data suggest that the verdicts of jury

deliberation in criminal cases will vary as juries be-

come smaller, and that the variance amounts to an im-

balance to the detriment of one side, the defense.” Id. at

236. Such empirical information leads the Court to

conclude that “the purpose and functioning of the jury

in a criminal trial is seriously impaired, and to a consti-

tutional degree, by a reduction in size to below six

members.” Id. at 239.

Thus, the purpose of the rule here in question clear-

ly favors retroactivity. While Desist v. United States, supra,

makes it clear that reliance by law enforcement and the

administration of justice factors need not be analyzed

when the purpose factor clearly militates in favor of

retroactivity, out of an abundance of caution we con-

sider these two other factors independently.

The State may have assumed Louisiana’s jury sys-

tem was constitutional just as court-appointed coun-

sel did, since there was little indication to the contrary

in the prevailing jurisprudence.2

20 See note 12 supra. This factor however does not favor pros-

pective application as strongly as a reversal of clear precedent

would. For example, DeStefano v. Woods, 392 U.S. 631, 634 (1968),

the Court reasoned that the reliance factor favored prospectivity

29a

The effect on the administration of justice of a hold-

ing of general retroactivity of Ballew would not be sig-

nificant since only Louisiana,?! Georgia, and Virginia

have utilized five-member juries. Moreover, Geor-

gia2? and Virginia? only sanctioned panels of five in

because past opinions of the Court clearly indicated that the Sixth

Amendment right to jury trial was not applicable to the States and

“che States undoubtedly relied upon in good faith” on those deci-

sions.

One could argue that the State should be held to a higher stand-

ard of good faith reliance than court-appointed defense counsel.

The reasoning would be that since only three states allowed five-

member juries (and in two of these states only misdemeanor cases

could be so tried), those states’ legislatures and Attorney General

offices should have been attuned to the potential unconstitution-

ality of their procedures. We stop short of endorsing such logic

since it is not necessary to our holding herein.

21 While Louisiana did permit juries of five members in cases in

which hard labor was optional, The State legislature amendedthe

law effective January 1, 1975 to provide for six-member juries in

these cases. See note 1 supra.

I had the privilege of sitting on the state district court bench for

nearly ten years prior to my federal court appointment and from

that experience I believe a holding of Bal!ew retroactively would

not affect a substantial number of Louisiana prisoners presently

incarcerated.

This court’s attempts at various levels tosecure statistics on the

number of Louisiana prisoners presently imprisoned pursuant to

conviction by five-member juries proved unsuccessful.

22 Ga. Const., Art. 6 §16, 31, codified as Ga. Code §2.5101

(1973), and to 1890-1891 Ga. Laws, Vol. 2, No. 278, pp. 937-938

and 1935 Ga. Laws, No. 38, p. 498. It is reasonable to assume that a

holding of Ballew retroactively would not result in the discharge of

a significant number of Georgia prisoners presently incarcerated

for misdemeanor convictions.

23 Va. Code Ann. §19.2-262 (2) (1975). It is reasonable to

assume that a holding in Ballew retroactively would not result in

30a

misdemeanor cases. Thus, a holding of Ballew retro-

actively would simply not result in the widespread

opening of state prison gates.

In summary, the application of the three prong bal-

ancing test generally supports Ballew retroactively for

the reasons stated herein.24 This court therefore holds

the discharge of a significant number of Virginia prisoners pres-

ently incarcerated for misdemeanor violations.

24 Two precedents relating to jury trials are distinguishable. De-

Stefano v. Woods, 392 U.S. 631 (1968), held that the right to trial by

jury in state criminal prosecutions which had been established in

Duncan v. Louisiana, 392 U.S. 145 (1968), and Bloom v. Illinois, 391 U.S.

194 (1968), was not retroactive. The Court in Daniel v. Louisiana,

420 U.S. 31 (1975), decided not to give retroactive effect to the de-

cision in Taylor v. Louisiana, 419 U.S. 522, (1975), invalidating dis-

crimination against women jury service. The following analysis

reproduced from Taylor when juxtaposed against our analysis of

the same three factors here speaks for itself:

In Taylor as in Duncan we were concerned generally with

the function played by the jury in our system of criminal

justice, more specifically the f:.nction of preventing arbi-

trariness and repression. In Taylor, as in Duncan, our deci-

sion 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 what we deter-

mined to be the requirements of the Sixth Amendment.

In Taylor, as in Duncan, the reliance of law enforcement

officials and state legislatures on prior decisions of this

Court, such as Hoyt v. Florida, 368 U.S. 57 (1961), instruct-

ing their criminal justice systems is clear. Here, as in Dun-

can, the requirement of retrying a significant number of

persons were Taylor to be held retroactive would do little,

if anything to vindicate the Sixth Amendment interest at

3la

that the Ballew v. Georgia decision retroactively applied

to State court convictions which had become final be-

fore rendition of the Ballew decision. Accordingly, the

judgment of conviction and sentence imposed upon

petitioner by the Fourteenth Judicial District, Parish of

Calcasieu, is vacated.

Now after having reviewed the retroactivity prece-

dents, we appreciate the assessment that the subse-

quent course of Linkletter v. Howard, supra, is “almost as

difficult to follow as the tracks of a beast of prey in

search of his intended victim.” Mackey v. United States,

401 U.S. 667, 676 (1971) (Harlan, J., dissenting.) The

court recognizes that the issues presented herein are

difficult ones of first instance, andthe court would thus

welcome appellate review.

Therefore, the State will, upon request, be granted a

suspensive appeal. In the event of appeal, we respect-

stake and would have a substantial impact on the admin-

istration of criminal justice in Louisiana and in other

States whose past procedures have not produced jury

venires that comport with the requirement enunciated in

Taylor.

Daniel v. Louisiana, supra, 420 U.S. at 32-33. See also Duncan v. Louisiana,

supra, 391 U.S. at 158. Ballew suggests that criminal trials tried with

a jury of five members is inherently less fair than trials with six

jurors and utilizing less than six jurors is clearly unconstitutional.

It would be ludicrous to suggest that petitioner in order to have

the benefit of the Ballew rule would have to demonstrate that a six-

th member of the jury would have voted for acquittal. The

Louisiana Supreme Court recently stated that the verdict return-

ed by “a jury composed of either more or less than the correct

number of jurors is null.” State v. Smith, 367 So.2d 857, 858 (1979).

fully suggest a preferential fixing in the Fifth Circuit.

In the event of the failure of the State to appeal this

ruling to the United States Court of Appeals for the

Fifth Circuit within 30 days from the date hereof or to

retry the petitioner within a reasonable time, the writ

will be sustained and the petitioner discharged from

custody. This disposition is consistent with the statu-

tory provision that the court shall “dispose of the

matter as law and justice require.” 28 U.S.C. §2243. See

generally 17 C. WRIGHT, A. MILLER & E. COOPER,

FEDERAL PRACTICE AND PROCEDURE, §4268

(1978).

THUS DONE AND SIGNED in chambers at Lake

Charles, Louisiana, this 23rd day of April, 1979.

33a

SUPREME COURT OF LOUISIANA

STATE OF LOUISIANA ex rel.

IRVIN THOMAS

versus

FRANK BLACKBURN, WARDEN,

LOUISIANA STATE PENITENTIARY

NO. 62798

Sept. 1, 1978

In re: Irvin Thomas applying for writ of certiorari

and/or supervisory writs. Parish of Calcasieu.

Denied.

34a

14TH JUDICIAL DISTRICT COURT

PARISH OF CALCASIEU

STATE OF LOUISIANA

IRVIN THOMAS

versus

FRANK BLACKBURN, WARDEN

NO. 2593-72

YELVERTON, Judge

Defendant was tried and convicted in 1972 for dis-

tribution of cocaine and heroin. He was tried by a five-

member jury.

In this application for a writ of habeas corpus, he

claims that he was entitled to a twelve-man jury.

The law in effect at that time, Act 5° of 1971, has

been interpreted to entitle a defendant to only a five-

member jury. State v. Martin, 290 So.2d 872 (La. 1974).

This application is denied.

Lake Charles, Louisiana

June 7, 1978