# Jurisdictional Statement — Duncan v. Louisiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0167%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Jurisdictional Statement - **Published:** January 1, 1968 - **Citation:** 391 U.S. 145 ## Text 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; --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0167%3A02. Public record. Not legal advice.