Jurisdictional Statement — Duncan v. Louisiana

DMA 1 | | 1 . 5

SUPREME COURT. vu. S J. 24 1967

IN THE

Supreme Court of the United *

OCTOBER TERM, 1967

No. 41 0

GARY DUNCAN,

Appellant,

v.

STATE OF LOUISIANA, te

Appellee.

On Appeal From the Supreme Court of Louisiana.

*

JURISDICTIONAL STATEMENT

RICHARD B. SOBOL

2209 Dryades Street,

New Orleans, Louisiana

as Attorney for Appellant

Of Counsel:

ALVIN J. BRONSTEIN,

Jackson, Mississippi,

ANTHONY G. AMSTERDAM,

Philadelphia, Pennsylvania,

DONALD JUNEAU, 3

New Orleans, Louisiana. 1

July, 1967.

INDEX C

*

ea PAGE

The Opinions Below 1

Statement of the Grounds on Which the Jurisdietion of

This Court is Invoked — 1

Question Presented by the Appeal 3

Statement of the Facts of the Case — 3

The Federal Question Presented is Substantia. 6

i The Court’s earlier refusal to apply the Sixth —

Amendment trial guarantee to the states was

_based on interpretation of the Fourteenth Amend-

ment that has long been abandoned 6

ii The right to trial by jury in criminal cases is

basic to Anglo-American W of Due Proc-

ess of Law

2. Historical antecedents of the right to trial by

jury 9

b. Recognition by this Court of the fundamental

importance of trial by jury in eriminal cases 12

e. Recognition by the states of the fundamental

importance of trial by jury in eriminal cases 14

d. Trial by jury secures the individual against

arbitrary official conduct 15

Conclusion 5 \ eS 17

Appendix A Memorandum Decision. of the Supreme

Court of Louisiana ; la

Appendix B Scope of right to trial by jury inthe. ~

Vnited States outside Louisiana — 3a

“Appendix 0 Scope of wight to trial by jury in Louisi-

ana 8 . 9a

*

—

ii Table of Authorities:

CASES: ö * 5 _ PAGE

Aguilar v. Texas, 378 U.S. 108 (1964) 7

Allen v. State, 110 Ga. App. 56, 137 8. E. 2d 711

(1964) —

Application of Gault, 87 S. Ct. 1428 (1967). —

Barnett v. United States, 376 U.S. 681 (1964) 13

Bloom v. Illinois, 87 Sup. Ct. 1846 (1967) 13

Callan v. Wilson, 127. U.S, 540 (1888) 6

Cheff v. Schnackenberg, 384 U.S. 373 (1966) 6,13

City of Greenwood v. Peacock, 384 U.S. 808 (1966) — 16

District of Columbia v. Clawans, 300 U.S. 617 (1937) 6

District of Columbia v. Colts, 282 U.S. 63 (1930) „

Estes v. United States, 381 U.S. 532 (7965) 14

Eubanks v. Louisiana, 356 U.S. 584 (1958) oe ae

Fay v. New York, 332 U.S. 261 (1947) 7, 12

Ferguson v. Georgia, 365 U.S. 570 (1961) — Oe.

Giaccio v. Pennsylvania, 382 U.S. 399 (1966)... 2

Gideon v. Wainwright, 372 U.S. 335 (1963)... 7

Hernandez v. Texas, 347 U.S. 478 (1954) 18

Hoyt v. Florida, 368 U.S. 57 (1961) 2, 14

In re Oliver, 333 U.S. 257 (1948) 7

In re Robinson, 20 D. C. 570 (Sup. Ct. D. C. 1892) 6

Irwin v. Dowd, 365 U.S. 717 (1961) —7., 12, 14

Ker v. California, 374 U.S. 233 (1963) 7

Klopfer v. North Carolina, 386 U.S. 213 (1967). 7,9

Labat v. Bennett, 365 F. 2d 698 (5th Cir. 1966) (en f

bianco), cert. denied, 386 U.S. 991 (1967) 13, 14

Malloy v. Hogan, 378 U.S. 1 (1964) 8 7

Mapp v. Ohio, 367 U.S. 643 (1961) i 7

Matoell v. Dow, 176 U.S. 581 (1900) 8 6, 7, 8, 9

Moore v. Dempsey, 261 U.S. 86 (1923) 14

Norris v. Alabama, 294 U.S. 587 (1935) 13 .

a ls FFFTCCC OKANO GLOBES LE A TR ANE ER TREN a 0 ma e tere wt

| Table of Authorities Niet |

1 } — rA.

Palko v. Connecticut, 302 U.S. 319 (1937) 7,12

Parker v. Gladden, 385 U.S. 363 (1966) iiss 8,14

Patton v. Mississippi, 332 U.S. 463 (1947) - 13

Patton v. United States, 281 U.S. 276 (1930) 15

Pierre v. Louisiana, 306 U. S. 354 (1939) 14

Pilkinton v. Circuit Court, 324 F. 2d 45 (Sth Cir. |

1963) —— **

Pointer v. Texas, 380 U.S. 400 (1965) a 7, 8, 9

Randel v. Beto, 354 F. 2d 497 (1965) 8

_ + Robinson v. California, 370 U.S. 660 (1962). 5 ee |

. Schowgurow v. State, 240 Md. 121, 213 A. 2d 475

(1965) 14

Sheppard v. Maxwell, 384 U. S. 333 (1966) = 14

Snyder v. Massachusetts, 291 U.S. 97 (1934) ST

State v. Duncan, 250 La. 253, 195 So. 2d 142 1,5

State v. Madison, 240 Md. 265, 213 A. 2d 880... 9-14

State v. Stewart, 89 N. Car. 563 (1883) 6

Strauder v. West Virginia, 100 U.S. 303 (1880) — 13, 14

Thompson v. Louisville, 362 U.S. 199 en

Thompson v. Utah, 170 U.S. 343 (1898) 7

Toꝛonsend v. Sain, 372 U.S. 293 (1963) — 16

Turner v. Louisiana, 379 U.S. 466 (1965) 12

United States v. Plaquemines Parish School Board, 11

Race Rel. L. Rep. 1764 (E. D. La. Aug. 26, 1966) 4

United States v. Plaquemines Parish School Board, 12

Race Rel. I. Rep, 219 (E. P. La. Oct. 21, 26, |

1966) 15

United States v. Plaquemines Parish School Board,

Civil Action No. 66-71A (E. D. La. 1 5 27,

ö 1967) 15

United States ex rel. Gerchman.v. Maroney, 355 F.

2d 302 (8rd Cir. 1966) -:

Washington v. Texas, 87 Sup. Ct. 1920 (1967 1

West v. Louisiana, 194 U.S. 258 (1904) 7;

White v..Crooke, 251 F. Supp: 401 (M. D. Ala. 1966) 1.

Whitus v. Georgia, 385 U.S. 545 (1967) 1

_ Work v. State, 2 Ohio St. 296 (Sup. Ct. ae ais

PEN

aie ‘Table of Authorities

STATUTES: „ ro

Louisiana Revised Statutes - .

Title 14, Section 2 bands 3

Title 14, Section 34.1 7 3, 15

Title 14, Section 35. 3,4

Louisiana Code of Criminal Procedure, Article

Be 2, 3, 4, 5

United States Code: Ne

Title 18, U.S. C. Section 1 4,15

Title 28, U.S.C. Section. 1257 (2) 7 2

1 Will. III and Mary II sess. 2 e. 2 (1689) 10

CONSTITUTIONAL PROVISIONS:

Constitution of the United States 8 5 '

Artiele III Section 2 11

Sixth Amendment 2, 3, 4, 5, 6, 7, 8, 9, 14, 15, 17

Fourteenth Amendment — 8, 4, 5, 6, 7, 12

Constitution of Louisiana f

Section 7, Article 41 7 . ) 3

OTHER AUTHORITIES:

Adams, Instructions of the Town of Braintree, Mas-

sachusetts on the Stamp Act, (Oetober 14, 1765) 10

III BLACKSTONE, COMMENTARIES — , 9, 10

IV BLACKSTONE, COMMENTARIES __..:. 10

I CHITTY, CRIMINAL LAW (1819) : 6

I COKE, LITTLETON . — „

COKE, THE SECOND PART OF THE INSTITUTES OF THE

LAWS OF ENGLAND, (Brooke’s 5th ed. 1797) — 10

-COMMAGER, DOCUMENTS OF AMERICAN HISTORY

(5th ed. 1949) 10

II HAWKINS, PLEAS OF THE CROWN (7th ed. 1795) 6

MAGNA CHARTA, Ch. 39 9, 10

PERRY, SOURCES OF OUR LIBERTIES (1959) 9

Resolution No. 5, Declaration and Resolves 7 the

First Continental Congress, (October 14, 1774) 10

I RUSSELL, CRIMES AND MISDEMEANORS (1819) — 6

—

: | Table of Authorities | | v

1791 (1955) 10

2 Story, CONSTITUTION OF THE UNITED STATES (2d

ed. 1851) — i 18, 19

TRR DECLARATION OF INDEPENDENCE (July 4, 1776) 11

11

THE FEDERALIST No. 83 (Hamilton)

THORPE, THE FEDERAL AND STATE CONSTITUTIONS,

COLONIAL CHARTERS, AND ‘OTHER ORGANIC

LAS ene f 11

PAGE

: Rusia, THE BIRTH OF THE BILL oF RIGHTS 1776-

IN THE

Waere Court of the Anited States

: - OCTOBER TERM, 1967

No.

GarY DUN AN,

V.

Srarꝝ or LOUISIANA; |

; Appellee.

On Appeal From the Supreme Court of Louisiana.

JURISDICTIONAL STATEMENT

THE OPINIONS BELOW

The Memorandum Decision of the Supreme Court of .

Louisiana is reported at 250 La. 253, 195 So. 2d 142, and

appears herein as Appendix A. No other written opinions

have been delivered.

—

_ STATEMENT or THE GROUNDS ON WHICH

_ THE JURISDICTION OF THIS COURT is

| INVOKED

(i) This is a criminal prosecution against the appel-

lant, Gary Duncan. Appellant was charged and convicted

in the Twenty-Fifth Judicial District Court of Louisiana

aes of simple battery in violation of Louisiana Revised Stat-

2

utes, Section 14:35. (R. 1) 1 Simple battery is defined as

a battery without a dangerous weapon. Article 779 of the

Code of Criminal Procedure of Louisiana denies a jury

trial on that charge. Appellant contended that Article 779

is invalid because it is repugnant to the Sixth and Four-

teenth Amendments to the Constitution of the United

States. The decision of the Supreme Court of Louisiana

was in favor of the validity of Article 779.

(ii) The judgment or deeree sought to be n is

the ruling of the Supreme Court of Louisiana denying ap-

pellant's application for a writ of certiorari. (R. 31). That

ruling was issued on February 20, 1967 and entered on

March 6, 1967. No petition for rehearing was filed: The

Notice of Appeal was filed in the Twenty-Fifth Judicial

District Court of Louisiana, the court possessed of the

record, on May 15, 1967. (R. 33). On July 6, 1967, Honor-

able Joe W. Sanders, Associate Justice of the Supreme

Court of Louisiana, extended appellant’s time to docket the

appeal in this Court to July 24, 1967.

( iii) Jurisdiction of the appeal is conterita on this

Court by Title 28 of the United States Code, „Section

1257 (2).

(iv) Cases * the jurisdiction of this init

are:

Application of Gault, 87 S. Ct. 1428 (1967) ; ;

. Giaccio v. Pennsylvania, 382 U.S. 399 (1966) ;

Hoyt v. Florida, 368 U.S. 57 (1961) ;

Ferguson v. Georgia, 365 U.S. 570 (1961).

(v) The validity of Article 779. of the Louisiana

1“R.” references are to the record on appeal.

“Tr.” references are to the official gece ys By, wl

the trial court which has been filed with the record in this Court.

3

Code of Criminal Procedure is here involved. The full text

of that article is as follows:

Art. 779. Trial of Misdemeanors.

A defendant charged with a misdemeanor shall |

be tried by the Court without a jury.’

“Misdemeanors i in Louisiana are all crimes not punish-

able at hard labor. LA. Rev. Stat. 14:2 (1950). This in-

cludes at least one offense punishable by up to ten years

imprisonment. LA. REv. STAT. 14:34.1 (Cum. Supp. 1962).

In this case, the maximum sentence provided by the stat-

ute is two years imprisonment plus a 28 fine. La. REV.

STAT. 14:35 (1950).

QUESTION PRESENTED BY THE APPEAL

The following question is presented by this-appeal:

Does a state statute that denies ee e trial by

jury in a prosecution for battery, where a two year prison

term may be imposed, violate the Sixth and Fourteenth

Amendments to the United States Constitution?

STATEMENT OF THE FACTS OF THE CASE

Gary Duncan, appellant herein, is a citizen of the

United States, a Negro, and a resident of Plaquemines

Parish, Louisiana. On December 5, 1966, appellant was

charged with simple battery in a bill of information filed

in the Twenty-Fifth Judicial District Court of Louisiana.

(R. 1) In Louisiana, simple battery is a crime punishable

by a term of two years imprisonment and a fine of $300.

8 La. Rev. STAT. 14:35 (1950). Because simple battery is

not punishable by imprisonment at hard labor, the crime

. is categorized as a “misdemeanor” at state law. LA. REV.

' 2 Article 779 is consistent with Section 7, Article 41 1 of the 2

ana Constitution. The provisions of Louisiana la * trial by

jury are set forth in Appendix C. . iF

4

Srar. 14:2 (1950). Article 779 of the Code of Criminal

Procedure of Louisiana in express terms denies the =

to trial by jury in seer al cases.“

On January 25, 1967, prior to trial i in the state court,

appellant filed a Demand for Trial by Jury,” in which

he contended. that the right to trial by jury on the charge

against him was: secured by the Sixth and- Fourteenth

-Amendments to the United States Constitution. (R. 3)

The demand was rejected by the trial. judge on the author-

ity of Article 779 of the Louisiana Code of Criminal Pro-

‘cedure. (R. 7; Tr. 3) Appellant reserved a bill of excep-

tion in the manner provided by Louisiana law. (R. 5) Ap-

pellant was then tried before a judge, without a jury.

The charge against appellant was based on an inci-

dent involving his two young cousins, Bert Grant and

Bernard St. Ann, and four white boys. In the fall of 1966,

pursuant to an order for desegregation issued by the

United States District Court in New Orleans,‘ Grant and

St. Ann transferred to the previously all-white Boothville

Venice School in Plaquemines Parish. (See Tr. 11, 66, 81)

Thereafter, these boys were physically ‘assaulted, threat-

. ened and otherwise harassed by white students in the

school. (Tr. 8, 13, 27, 69) On October 18, 1966, as appel-

lant was driving home on U.S. Highway 23, near the

Boothville Venice School, he observed Grant and St. Ann

confronted by a group of white boys. (See Tr. 21) He

stopped his car and asked his cousins what was going o-

Grant replied that the white 8 wanted to * (Tr.

3 The n categorization . common law offenses as “mis-

demeanors” or “felonies” is irrelevant for oo ses of interpreting the

Sixth Amendment jury trial guarantee. n v. Wilson, 127 U.S.

540, 549 (1888). Moreover, the crime defined by La. Rev. Stat. 14:35

. (1950) is a felony under federal standards. 18 U.S.C. 8 1.

- 4United States v. Plaquemines Parish School Board, 11 Race Rel.

L. / 1764 E.D. La. Aug. 26, 1966).

5.

82, 92) ‘Appellant told his cousins to get into his car. (Tr.

26, 82, 92) At the trial, the white boys and a white on-

‘looker some distance away testified that after the Negro

_ boys went to appellant’s car, appellant slapped one of the

. white boys on the elbow. (Tr. 7, 27-28, 52, 62-63) Appel-

lant and his cousins each testified that appellant had not

slapped the boy, but had merely touched him on the arm,

as a manner of expression, while telling him that it would

be. best if he went home. (Tr. 72, 84, 92)

‘The ‘trial ‘Jaden resolved the factual dispute against

the appellant and found him guilty as charged. (R. 2)

On February 1, 1967, appellant perfected a formal bill of

exception on the jury trial issue, in accordance with state

procedure. (R. 5, 10). He was then sentenced to sixty days

in prison and a $150 fine, with the proviso that if the fine

and costs are not paid, an additional twenty day sentence

shall be served. (R. 2)

On February 6, 1967, appellant filed in the Supreme

Court of Louisiana an application for a writ of certiorari _

to review the judgment below, and specifically the ruling

of the court on appellant's demand for trial by jury. (R.

11) In the application, appellant expressly argued. that

Article 779 of the Louisiana Code of Criminal Procedure

is “unconstitutional on its face“, under the Sixth and

- Fourteenth Amendments of the United States Constitu-

tion, “insofar as it denied [appellant] the right to trial by

jury in this case.” (R. 18) On February 20, 1967, the

Supreme Court of Louisiana denied appellant’s applica-

tion for a writ of certiorari. (R. 31) The Memorandum

Decision stated: “No error of law in the ruling com-

‘plained of.” 250 La. 253, 195 So. 2d 142 (1967); Ap-

pendix ‘A. The Supreme Court of Louisiana is s the highest

court in the State of inn a

6

On Headers 21, 1967, the trial court set bond at

$1, 500, pending disposition of this matter in tle Court.

Appellant is free on bond.

THE FEDERAL QUESTION PRESENTED IS

SUBSTANTIAL

If this case had been tried in a federal court, the ap-

pellant unquestionably would have been entitled to trial

by jury. Thus, this appeal squarely raises the question

of the applicability of the jury trial -guarantee of the

Sixth Amendment to serious state criminal proceedings.

(i) This Court’s Earlier Refusal to Apply the

Sixth Amendment Jury Trial Guarantee to the

States Was Based on Interpretation of the Four-

teenth Amendment That Has Long Been Aban-

Almost seventy. years ago, in Maxwell v. Dow, 176

U.S. 581 (1900), this Court held that the Fourteenth

Amendment does not make applicable to the states the

specific guarantees of the Sixth Amendment. The Court

stated that the mandate of due process of law is satisfied

whenever a defendant is tried according to established

; © In Sodebad pratendings, this Court lies in preted the Sixth Amend-

ment jury trial guarantee to be applicable to the trial of all “crimes,”

but not to the trial of “petty offenses.” Cheff v. Liu

U.S. 373 (1966); District of Columbia v. Clawans, 300 U.S. 6175. 624

1937); District of Columbia v. Colts, 282 U.S. - 930); Callan —

ilson, 127 U.S. 540, 557 (1888). It is clear that

—— pin — Louisiana Revised 8 Statutes 14:35, is a ee and not a —

of whether the test is a maximum term of

eat cor ese pe 9 than six months (18 U.S.C. §-1; Cheff v. Schnack- °

enberg, #3 hy U.S. at 379-80), or an offense’ indictable at common

law, Columbia v. Colts, supra, 282 U.S. at 78; Callan v.

Wilson, supra, 177 U.S. at 554-57. The maximum sentence under the

statute is two years imprisonment. Moreover, battery was an indictable .

at common law. III K COMMENTARIES 121; IV Id.

offense

at *6, 26, 216-17; I CHITTY, CRIMINAL Law 138-40 (1819); I Russe,

. 760 (1815); 11 HAWEINS, OF THE

Crown 17 17 (ich ed. 1795). In jurisdictions applying the common law or

Sixth Amendment standard, a defendant charged with battery has con-

sistently been guaranteed the right to trial by jury. In Re Robinson, 20

D. C. 570, 572 (Sup. Ct. D. C. 1892); State v. Stewart, 89 N. Car. bd.

864 (1883); Work v. State, 2 Ohio St. 296 (Sup. Ct. 1858).

108

7

and uniform procedures within a state. 176 U.S. at 602

05. Accord, West v. Louisiana, 194 U.S. 258, 264 (1904).

Accordingly, in Maxwell the Court sustained the use of an

eight man jury in a state criminal proceeding, although

two years earlier, in Thompson v. Utah, 170 US. 343

(1898), the Court had held that the Sixth Amendment

_ prohibits the use of a jury of less than twelve in federal

criminal trials. The jury trial question has not since been |

considered by the Court, although in cases involving other

issues there have been statements that a jury trial in state

criminal cases is not secured by the Fourteenth Amend-

ment. See, e. g., Fay v. New York, 332 U.S. 261, 288

. 1947); Palko v. Connecticut, 302 U.S. 319, 324 (1937);

Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

In recent years, however, the Court has held applica-

ble to state criminal proceedings every guarantee of the

Sixth Amendment, except the right to trial by jury. See

Klopfer v. North Carolina, 386 U.S. 213 (1967) (speedy

trial); In re Oliver, 333 U.S. 257 (1948) (public trial and

notice of the accusation) ; Irwin v. Dowd, 366 U.S. 717

(1961) (impartial jury) ; Pointer v. Texas, 380 U.S. 400

(1965) (confrontation) ; Washington v. Texas, 87 S. Ct.

1920 (1967) (compulsory process); Gideon v. Wain-

wright, 372 U.S. 335 (1963) (right to counsel) .”

6 The applicability to state criminal proceedings of the Sixth Amend-

ment jury trial guarantee has thus never been considered in the context

of a complete denial of trial by jury. See Maxwell v. Dow, supra, 176

U.S. at 612 (Mr. Justice Harlan dissenting). :

7 These decisions are part of a broader trend toward the applica- —

tion to state criminal trials of rights sec by the Bill of Rights. See.

Ker v. California, 874 U.S. 233 (1963) (Fourth Amendment standard

of legality of searches without a warrant); Aguilar v. Texas, 378 U.S.

1964) (Fourth Amendment standard for the issuance of a search

warrant) ;. Mapp v. Ohio, 367 U.S. 643 (1961) (exclusion of illegall

. seized evidence); Malloy v. Hogan, 378 U.S. 1 (1964) (Fifth Amend-

ment protection against self-incrimination) ; Robinson v. California, 370

_ U.S. 660 (1962) (Eighth Amendment protection against cruel and un-

5 iin 324

usual punishment ton v. Circuit Court, F. 2d 45 (8th Cir.

1963) (Eighth Amendment protection against excessive bail).

8

These eases have e undermined the rationale

of Maxwell by broadly rejecting the proposition that the

guarantees of the Sixth Amendment do not apply in state

criminal proceedings. In fact, the language of the more

récent decisions suggests that all Sixth Amendment rights

are applicable in stade, Sts. In Washington: v. Texas,

supra, Mr. Chief Justice Werren, writing for eight mem-

bers of the Court, stated .

At one time, it was ought that the Sixth 1

ment had no application to state criminal proceed-

ings [citing West v. Louisiana, 194 U.S 258, 264

(1904) . That view no longer prevails, and in

recent years we have increasingly looked to the

specific guarantees of the Sixth Amendment to de-

termine whether a state criminal trial was con-

ducted with due process of maw: 5

; And i in Pointer v. Teas, * Mr. J ustice Black, for the

Court, stated:

In light of Gideon, Malloy, and other cases cited i in

those- opinions holding various provisions of the

Bill of Rights applicable to the states by virtue of

the Fourteenth Amendment, the statements made

in West and similar cases generally declaring that

the Sixth Amendment does not apply to the States |

can no longer he es as the =: 1

See Parker v. Gladden, 385° U.S. 363 (1966). In light

of these decisions rejecting | the rationale of Maxwell, it

887 S. Ct. at 1922.

9380 U,S. at 406.

10“We believe that the statements of the bailiff bo the jurors are

controlled by the command of the Sixth Amendment, made applicable

to the States through the Due Process Clause of the Fourteenth Amend-

ment. It guarantees that * accused shall enjoy the right to a

trial, by an — jury ... [and] be confronted with the witnesses

: against h

: 385 U.S. at 364 (Emphasis added).

*

9

is appropriate that the specific holding of Maxwell should

now be reconsidered by the Court.”

(ii) The Right to Trial by Jury in Criminal Cases

Is Basic to Anglo-American Concepts of Due Proc-

ess of Law nas

| a. “Historical Antecedents re the Right to Trial

by Jury

in deciding to souls specific 8 of the Bill of

Rights to state criminal proceedings, the Court has -

phasized the significance accorded these rights in’ the

* . heritage of the English law. E. g., Klopfer v, North Caro-

lina, supra, 386 U.S. at 223-26; Pointer v. Texas, supra,

380 US. at 403.05. mee

+

Trial by jury in criminal cases was recognized .as a

fundamental safeguard of individual liberties centuries

before the adoption of the American Constitution. The

right i is traceable to the earliest Saxon colonies, ? and con-

stituted one of the fundamental articles of the Magna

Charta: : N 0 f man shall be taken or imprisoned, or be

‘11 See note 6, supra. The applicability of the Sixth Amendment

j hod f trial guarantee to the states has been recognized in the lower fed-

courts as an important, but unsettled question. In Randel v. Beto,

354 F. 2d 497 (1965), the United States Court of Appeals for the Fifth

Circuit held that a habeas corpus petitioner’s claim based on applica-

tion of., the Sixth Amendment jury trial guarantee to-state proceedings

was an “important question . . . of constitutional law,” entitling peti-

tioner to a hearing. 354 F. 2d at 501. In United States, ex rel. Gerch-

man v. Maroney, 355 F. 2d 302 (3d Cir. 1966), Judge Freedman sug-

gested that past statements in this Court concerning the applicability

of the jury be arantee to the states are not... flatly decisive of

the question,” in light of the recent decisions holding other guarantees

of the Bill of Rights applicable to state proceedings. 355 F. 2d at 313.

Judge Freedman refrained from passing on the issue, because the case

was disposed of on other grounds, and because he thought it “not un-

*

likely that we may soon have an authoritative expression on the subject © ©

5

from the Supreme Court”. 355 F. 2d at 315. The other members of the

. — the question foreclosed by decisions of this- Court. 355 F.

a

12 III BLACKSTONE, op. cit. supra, at 349; PERRY, SOURCES OF Our.

LIBERTIES,.7-9 (1959).

10 ar

disseised of his freehold, or liberties... but by the lawful

judgment of his peers... .” Magna Charta, ch. 39, trans-

_ lated and quoted in Cork THE SECOND PART OF THE IN-

_ STITUTES OF THE LAWS OF ENG 45. (Brooke’s 5th ed.

1797). Blackstone described the right to trial by jury in

criminal cases as “the most transcendent privilege which

any subject can enjoy, or wish for. » III BLACKSTONE, op.

cit. supra, at 379. In his discussion’ of trial by jury,

Lord Coke stated that this “ancient” form of trial “excells

[all] others.” I Co. Lirr. *155b. The guarantee of trial

by jury in criminal cases was included in the English Bill

of Rights of 1689, which served as one of the basic

sources for. the Bill of Rights to the United States Consti-

tution. RUTLAND, THE BIRTH OF THE BILL OF RIGHTS

1776-1791 p. 19 (1955)

The right to trial by jury in criminal cases was funda-

mental to the American colonists. Indeed, Parliamentary

infringement of this right was one of the major grievances

of the colonists against British rule. E. g., John Adams,

of Braintree, Massachusetts on

the Stamp Act (October 14, 1765) 6 Resolution No. 5,

Declaration and Resolves.of the First Continental Congress

f — 1 rties of England cannot but subsist, so long as the

palladium . of trial by jury] remains sacred and inviolate; not only

from all open attacks, (which none will be ‘so hardy as to make) but,

also from all secret machinations which may sap and undermine it; by

‘introducing new and arbitrary methods of trial by justices of the peace,

eommissioners of the revenue, and courts of conscience. And however

convenient these ag 4 appear at first, (as doubtless all arbitrary powers,

well executed, are the most convenient) yet let it be in remembered, .

that delays and little inconveniences in the forms o justice, are the

price that all free nations must pay for their liberty in more substan-

tial matters; that these inroads upon this sacred bulwark of the nation

are fundamentally o opposite to the spirit of our — agree and that

though begun in t the precedent may gradually inerease and

spread, to the utter disuse of juries in questions of the ment momentous

concern.”

IV BLACKSTONE, op. cit. supra, at *349-50.

2 Will. III and Mary II, sess. 2, e. 2 (1689), para. 11.

| 15 Reprinted in CoMMAGER, DOCUMENTS OF AMERICAN HIsToRY =

(5th ed. * :

r

tion of "Rights of 1976, Sec.

been

11

‘ (October 14, 17 74); * The Declaration of 3

(July 4, 1776). v4

Between the War of Independence and the formation

of the American Union, ‘constitutions were adopted by }

eleven of the former Crown colonies. Without exception,

these documents guaranteed trial by jury in criminal cases,

after the pattern of English law.!“ The importance of

trial by jury at this period in our history is further evi-

‘denced by the fact that it is one of the few individual rights

ineluded in the body of the United States Constitution,

Art. III, Section 2. See THE FEDERALIST No. 83 (Hamil-

ton). It is the only s such ä that i is reiterated i in the

Bill of .

in his treatise on the Constitution published in 1833,

Mr. Justice Story reflected the contemporary view of the

“antiquity” and “importance of trial by jury in criminal

”

cases.

It was from very early times insisted on by our

ancestors in the parent country, as the great bul-

wark of their civil and political liberties, and

watched. with an unceasing jealousy and solicitude.

The right constitutes one of the fundamental ar-

- ticles of Magna Charta. . When our more im-

16 Reprinted in Id. at 82-83.

17 Reprinted in Id. at 100-02. :

18 See THORPE, THE FEDERAL AND a Conarrrursons, COLONIAL

CHARTERS, AND OTHER ORGANIC: „ 2594-98 (1909) (New Jersey -

Constitution of 1776); Ibid. 2623-38 (New York Constitution: of

1777); Ibid., VI, 3248-57 (Gonstitation of South Carolina of 1778);

Ibid., II, 777.85 ‘Constitution of Georgia of 1777); Ibid., VII, 3812-14

(Constitution of Virginia of 1776, See. 8) 8) z. Ibid. 3081-84 (Constitu-

tion of Pennsylvania of 1776, Sec. IX) ; Ibid, III, 1686-91 (Constitution

of Maryland of .1776, 4 * XIX); Ibid. 2787-89 (Constitution of

North Carolina of 1776, Sec. IX); Ibid., Mi, 1888-93 (Constitution of

Massachusetts of 1780, bet 1, Sec. 12); Ibid., IV, 2453-57 (Constitution

of New Hampshire of 1784, Art. I, Sec. 15); 1 Laws of the State of

Delaware, 1700-1797, App. 1981 (New a 1797) (Delaware Declara-

14). In addition, Vermont, which had not

recognized as a Crown Colony, included the jury ay —

in its Constitution of 1777. THORPE, op. cit. supra, VI, 3737

. . 5 — — — —

5 * ö 12

; mediate ancestors removed to ‘America, ‘hey

brought this great privilege with them, as their

* birthright and inheritance, as a part of that ad-

mirable common law, which had fenced round and

- interposed barriers on every side against the ap-

proaches of arbitrary power. It is now incorporated

into all our state constitutions as a fundamental

right, and the constitution of the United States.

would have been justly obnoxious to the most con-

clusive objection, if it had not recognized and con-

firmed it in the most solemn terms. *

*

The history of the right to trial by jury atid ite re-

ceptien in this country clearly establish that it is one of

5 basic rights preserved by our Constitution.

b. W by this Court of the N

Importance of Trial by Jury in Criminal Cases

This Court has given vigorous expression to the funda-

mental role of trial by jury in our system of aw. In Irin

v. Dowd, 336 U.S. 717 (1961), the Court stated:

England, from whom the Western world has large-

ly taken its concepts of individual liberty ‘and of

the dignity and worth of every man, has be-

50 queathed to us safeguards for their preservation,

the most priceless of which is that of trial by jury.

This right has become as much American as it

was once the most English. Although this Court

has said that the Fourteenth Amendment does not

demand the use of jury trials in à state's eriminal

procedure, Fay v. New York, 332 U.S. 261; Palko

v.. Connecticut, 302 U.S. 319, every state has con-

stitutionally provided trial by jury. . . . In the ulti-

mate analysis, only the jury can n strip a man of

his liberty or his life. *

See Turner v. Louisiana, 379 U. S. 466, 471-73 (1965).

192 Story, Constitution of the United ‘States. 527 * ed. 1851).

; 20366 U.S. at 721-22 (Emphasis added). ;

-o'

ä

l

0

f 13

In Cheff v. Schnackenberg, 384 U.S. 373 (1966), this

Court ruled that even in criminal contempt cases, where .

there is considerable question about the practice at com:

mon law, 1 a sentence in excess of six months, the statutory

maximum for “petty offenses“, may not be imposed by a

federal court without trial by jury. Last term, in Bloom =»

V. Illinois, the Court granted certiorari to consider whether

the rule articulated in Cheff was applicable, by virtue of

the Fourteenth Amendment, to criminal contempt proceed-

aan ‘in state courts. 2 a

: The Court has shown ite concern for the integrity of

trial by jury in a long line of decisions, dating back to

Strauder v. West Virginia, 100 U.S. 303 (1880), invali-

dating the systematic exclusion of Negroes from grand

and petit juries. E. g., Norris v. Alabama, 294 U.S. 587

(1935); Patton v. Mississippi, 332 U.S. 463 (1947); Fu-

banks v. Louisiana, 356 U.S. 584 (1958). In recent years,

this Court and the lower federal eourts have further se-

cured the common law mandate that no man be convicted

other than by a “judgment of his peers”* by insisting .

that juries in state and federal courts be. selected in a

manner that will ensure a representative cross section of

the community on venire lists. E.g., Whitus v. Georgia,

885 U.S. 545 (1967) (exclusion of Negroes) ; Hernandez

v. Texas, 347 U.S. 475 (1954) (exclusion of Mexican-

Americans).; Labat v. Bennett, 365 F. 2d 698 (5th Cir.

1966) (en banc), cert. denied, 386 U.S. 991 (1967) (ex-

clusion of wage earners); White-v. Crook, 251 F. Supp.

401. (M. D

1966) (three judge court) (exclusion of \

21 Compare Barnett v. United States, 376 U.S. 681, 701-24 (1964)

1 to Opinion of the Court), with id. at 740-51 (dissenting

opinion of Mr. Justice Goldberg).

22 18 U.S.C. 8 1.

23 No. 1070, October 1966 Term, 87 8. Ct. 1846 (1967).

_ 24 Magna Charta, ch. 39, supra.

4

14

women). * See Schowgurow v. State, 240 Md. 121, 213 A.

2d 475 (1965) (exelusion of atheists). The right of a

defendant to a jury reflecting a fair cross section of the

community has been held to apply where there is no proof

of actual prejudice to the defendant, Pierre v. Louisiana,

306 U.S. 354 (1939); Strauder v. West Virginia, supra, -

100 U.S. at 309, and where the defendant is not a member

of the class excluded, Allen u. State, 110 Ga. App. 56, 137

S.E. 2d 711 (1964); State v. Madison, 240 Md. 265, 213

A. 2d 880 (1965). See Labat v. . Bennett, supra, 365 F. 2d

at 723, n. 43.

Further, this Court has ene struck down state

court convictions, where it appeared that jurors had been

exposed to prejudicial newspaper publieity, or other in-

fluences inimical to the defendant. Parker v. Gladden,

supra (remarks of bailiff) ; Sheppard v. Maxwell, 384 U.S.

333, 362 (1966) (newspaper publicity) ; Estes v. United

States, 381 U.S. 532, 545 (1965) - (broadcasting of trial);

Irwin v. Dowd, supra (newspaper publicity) ; Moore v.

Dempsey, 261 U.S. 86 (1923) (mob domination).

It would be ironic indeed if a state were permitted

to nullify this Court’s carefully developed protections of

the jury system by substituting for trial by jury trial by

_ single judge, who cannot represent a fair cross section

of the community and who is frequently exposed to of-

ficial and unofficial influences prejudicial to the defendant. -

e. Recognition by the States of the Fundamental

Importance of Trial by Jury in Criminal Cases

It is a further measure of the importance accorded

trial by jury that in thirty-eight states a right at least

equal to that secured by the Sixth Amendment is constitu-

' tionally guaranteed; in each of these states a defendant

25 But see Hoyt v. Florida, 368 U.S. 57 (1961).

bad het

Pie nd ne ai naga 8 95

15

in a eriminal case subject to a maximum term of im-

prisonment in excess of six months cannot be convieted

without the unanimous verdict of a twelve man jury.”

See Appendix B which sets forth the scope of the right

to trial by jury in each of the states. Ten additional

states and most of New York” guarantee the right to trial

by jury in all cases in which that right is available under

the Sixth Amendment, although modifications of the re-

quirements of a twelve man jury or a unanimous verdict

are made in some cases, frequently only cases not punish-

able by more than one year imprisonment. Appendix B.

With one narrow exception, 2 Louisiana is the only juris-

diction in the United States where all right to trial by

jury is denied in a elass of cases in which the right is

guaranteed at common law and under the Sixth Amend-

ment. In Louisiana, the right is denied by statute in a

number of serious criminal cases, including at least one

' offense punishable by up to ten years imprisonment.”

d. Trial by Jury Secures the Individual Against

Arbitrary Official Conduct

The right i in a criminal proceeding to trial by a jury

fairly representative of the community is frequently a

defendant’s only protection against arbitrary official con-

duet. In this case, appellant was arrested at the height

of official opposition to court-ordered school desegregation

in Plaquemines Parish.“ The prosecution was initiated

26 In Patton v. United States, 281 U.S. 276 (1930), the Court stated

that the Sixth Amendment guarantees a twelve man jury and a unani-

“mous verdict. 281 U.S. at

The cases cited in note 5, supra, hold

that the jury trial right 3 8 8. under the Sixth Amendment in all but

“petty offenses.” See 18 1

The New York practice is set forth in Appendix B, p. 8a.

28 See note 27, supra.

29 La. Rev. STAT. 143 84.1 (Cum. Supp. 1962). The right to trial by

jury in Louisiana is summarized in Appendix C.

80 See United States v. Plaquemines Parish School Board, 12 .

Rel. L. Rep. 219 (E. D. La. Oct. 21, * ay BT ei 4

United Skates v. Plaquemines Paris 1 No.

66-71A (E.D. La. June 27, 1967) (Findings ot Fact and Conelusion of

Law, Second ‘Bepplemental Order).

16

not by the indictment of a grand jury, but by a Bill of

Information filed by the District Attorney, Leander

Perez, Jr.

At trial, appellant asserted that he had acted to pro-

tect the Negro boys from violent interference with their

exercise of federal rights and that he had acted entirely

peacefully. It is appellant’s position that the prosecution .

against him was part of the general official effort to dis-.

courage the exercise of rights under the federal court order.

On the other hand, the state contended that appellant had

actually slapped one of the boys on the elbow and had thus,

at least technically, committed a battery: Once the factual

dispute was resolved in the state’s favor on the basis of

more than “no evidence“, ! in a proceeding that had the

objective earmarks of fairness, 2 it is doubtful that other

remedies remained available for the. vindication of appel-

lant’s right. Cf. City of Greenwood v. Peacock; 384 U. 8.

808, 828-29 (1966).

“The vindication of the defendant's federal rights”,

and particularly his basic right to an impartial deter-

mination of guilt or innocence is left to the state courts

. (Id. at 828). Due process of law requires that this

determination be made 5 twelve of the defendant's peers,

and not by a a . named by the Crown. Who

might. . . imprison . .. any man that was obnoxious to.

the government, by an 5 instant declaration, that such is

their will and pleasure.” IV * op. cit. supra,

at ares

In times of + difficulty and danger, more is

to be apprehended from the violence and partiality

of judges appointed by the Crown, in suits between

the king and the subject, than. in disputes between

81 Thompson v. Louisville, 362 U.S. 199 (1960).

* Townsend v. Sain, 372 U.S. 293 (1963).

. Of Counsel:

17

one individual and another. ... T Ihe founders of

the English law have with excellent forecast con-

trived . .. that the truth of every accusation .

should afterwards be confirmed by the unanimous

suffage of twelve of [defendant's equals and neigh-

bours, indifferently chosen and superior to all sus-

picion. ?

- CONCLUSION

This appeal raises an issue of fundamental importance

to our system of criminal justice. The Court has not di-

rectly considered the applicability of the Sixth Amendment

jury trial guarantee to the states since 1900, at a time

when it was thought that none of the guarantees of the

Sixth Amendment applied in the state courts, In light of

the recent cases in this Court applying to the states all

the rights of the Sixth Amendment other than trial by

jury, and in light of the historical and contemporary ma-

terials demonstrating thé significance of trial by jury, the

issue should be reconsidered by the Court. at this time.

Respectfully submitted,

RICHARD B. SOBOL' |

2209 Dryades Street

New Orleans, Louisiana

Attorney for Appellant

ALVIN J. BRONSTEIN,

Jackson, Mississippi,

ANTHONY G. AMSTERDAM,

Philadelphia, Pennsylvania,

DoNALD JUNEAU,

New Orleans, Louisiana.

July, 1967.

83 IV BLACKSTONE, op. cit. supra *349-50;