Appellees Brief — Taylor v. Louisiana

i

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INDEX

TABLE OF AUTHORITIES ..............

SUMMARY OF ARGUMENT .............

I.

II.

ITI.

Louisiana’s general exemption from

jury service granted to women by

Article 7, Section 41, of the Constitu-

tion of the State of Louisiana and Ar-

ticle 402 of the Louisiana Code of

Criminal Procedure does not violate

the Sixth and Fourteenth Amendments

of the United States Constitution ....

Appellant, a male, has no standing to

challenge the constitutionality of the

general exemption granted to women

from jury service by Louisiana law, as

he is not a member of the allegedly ex-

cluded class, nor should his conviction

be set aside without a showing on his

part of some possibility of harm or

RN sc i ia ieee sd visas

The State of Louisiana requests this

court, should it rule against the State,

to not apply its ruling retroactively

because of the tremendous hardship it

would place on the criminal justice sys-

Se ek WI, sg Serres cons

ah Es ers

CERTIFICATE OF SERVICE ............

23

23

li

TABLES OF AUTHORITIES

CASES: | Page

Apodaca v. Oregon, 406 U.S. 399, 404

Pete 6 ka i aa cs seeks “peak 6,32

Ballard v. United States, 329 U.S. 187

CR i sn ks Citerreck ei ieee 7, 18; 19

Carter v. Jury Commission, 396 U. 8. 320

Bc, ) Me RP Pays ae ores 4; 8

Duncan v. Louisiana, 391 U.S. 145 (1968) ... 5, 10

Fay v. People of the State of New York,

Bee hs he ARE? os bch ok cee eis 14

Frontiero v. Richardson, 411 U.S. 677

CRD os ne 6 ae a Kk a ee 11, 12

Hoyt v. Florida, 368 U.S. 57 (1961) 4, 10, 16, 17, 21

Labine v. Vincent, 401 U.S. 582 (1971) ...... 13

Leighton v. Goodman, 311 F. Supp. 1181

CUP coc bi coh ed chek cs woes Pan 15

Peters v. Kiff, 407 U.S. 493

CEPte ho vi evades veberccs 5, 7, 8, 18, 19, 20, 22

Rawlins v. Georgia, 201 U. S. 638 (1906) .... 9

Reed v. Reed, 404 U.S. 71 (1971) .......... il,

Smith v. Texas, 311 U. S. 128, 189 (1941) .. 7, 19

State v. Edwards, 287 So.2d 518 (1973) .... © 3

Williams v. Florida, 399 U.S. 78 (1970) .... 6,

Zelechower v. Younger, 424 F. 2d 1256 |

CORTE ices ee ee : 9

eee

iii

CASES: ; Page

~CONSTITUTIONS:

Sixth Amendment to the Constitution

Or te tthe EROS... sve Se knee se 1; 32.

Fourteenth Amendment to the Constitution

Cr Ge TIRE TUE oo ca Sig ks oo 1, 5, 6, 22

La. Const. Art. VII, Sec. 41 ............ 1; 2, 3; 16,23

La. Const. (effective Jan. 1, 1975)

BM Fr ok hi ok Seka re ceases 15, 16

FEDERAL STATUTES:.

Pas ee 9 - Baa eae eee Wiesee emer cr es 8, 20

18 Stat B86, 8 UBC £44 2.6 see, as

STATE STATUTES: | |

La. Code’ of Crim. Proc. Art. 402 ....,.1, 2, 3, 16, 23

ap pee

FOO MAN Be tet Ss.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No. 73-5744

BILLY J. TAYLOR

Appellant

-V-

STATE OF LOUISIANA

Appellee

' Appeal from the Supreme Court

‘of the State of Louisiana

ORIGINAL BRIEF ON THE MERITS ON BEHALF

~OF THE STATE OF LOUISIANA, APPELLEE

I

LOUISIANA’S GENERAL EXEMPTION FROM JURY

SERVICE GRANTED TO WOMEN BY ARTICLE 7,

SECTION 41, OF THE CONSTITUTION OF THE STATE

OF LOUISIANA AND ARTICLE 402 OF THE LOUISI-

ANA CODE OF CRIMINAL PROCEDURE DOES NOT

VIOLATE THE SIXTH AND FOURTEENTH AMEND-

MENTS OF THE UNITED STATES CONSTITUTION.

SRO AEC A A PANIED TIEN A a me de

Article 7, Section 41, of the Louisiana Constitution

provides as follows:

“The legislature shall provide for the election

and drawing of competent and intelligent 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 District Court a written

declaration of her desire to be subject to such

service. All cases in which punishment may be

by hard labor shall be tried by a jury of five,

all of whom must concur 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 punishment may be capital, by a jury of

twelve, all of whom must concur to render a

verdict.”

Article 402 of the Code of Criminal Procedure

further provides:

“A woman shall not be selected for jury service

~ unless she has previously filed with the Clerk of

Court of the Parish in which she resides a writ-

ten declaration of her desire to be subject to jury

service.”

Neither the Louisiana Constitution nor the Code

of Criminal Procedure purports to exclude women from

jury service, but rather accords them the privilege to

_ serve without imposing the duty to do so. Women may

waive this exemption by simply filing with the Clerk

3

of the Parish in which they reside a written declaration

of their desire to serve.

Appellant does not contend any discriminatory

practices by any jury commissioners or state officials.

The Louisiana Supreme Court, in its decision be-

low (App. p. 16-17), held as it consistently has held

that Louisiana exemption for women is neither irration-

al nor discriminatory. In State v. Edwards, 287 So:

2d 518 (1973), the Louisiana Supreme Court stated:

“{1, 2] Women were not excluded from jury

service by the jury commissioners or by law. The

effect of our law is to permit them to serve if

they volunteer for service; they cannot be com-

pelled to serve otherwise. La. Const. art. VII,

Paragraph 41; La. Code Crim. Proce. art. 402.

This Court has consistently held that Louisi-

ana’s: constitutional and statutory provisions,

requiring women to file with the clerk of court

of the parish in which they reside a written dec-

laration of their desire to be subject to jury

service before they can be selected, impair no

federal constitutional right. State v. Womack,

283 So. 2d 708 (La. 1973) ; State v. Taylor, 282

So. 2d 491 (La. 1973) ; State v. Roberts, 278 So.

2d 56 (La. 1973) ; State v. Enloe, 276 So. 2d 283

(La. 1973); State v. Washington, 272 So. 2d

355 (La. 1973) ; State v. Daniels, 262 La. 475,

263 So. 2d 859 (1972) ; State v. Curry, 262 La.

280, 263 So. 24 36 (1972) ; State v. Amphy, 259

“La. 161, 249 So. 2d 560 (1971) ; State v. Mill-

sap, 258 La. 883, 248 So. 2d 324 (1971) ; State

4

v. Sinclair, 258 La. 84, 245 So. 2d 365 (1971) ;

State v. Pratt, 255 La. 919, 233 So. 2d 883

(1970) ; State v. Comeaux, 252 La. 481, 211 So.

2d 620 (1968) ; State v. Dees, 252 La. 4384, 211

So. 2d 318 (1968) ; State v. Reese, 250 La. 151,

194 So. 2d 729 (1967) ; State v. Clifton, 247 La.

495, 172 So. 2d 657 (1965). (Emphasis added.)

In its decisions upholding the constitutional and

codal provisions granting women a general exemption

from jury service, the Louisiana Supreme Court has

folowed the authority of this court in Hoyt v. State of

Florida, 368 U.S. 57, 82 S. Ct. 159 (1961). The court

in that case dealt with a Florida statute which was

almost identical to the Louisiana provisions in the case

at bar.

“The jury law primarily in question is Fla.

Stat., 159, § 40:01 (1), F.S.A. This Act, which

requires that grand and petit jurors be taken

from ‘male and female’ citizens of the State

possessed of certain qualifications, contains the

following proyiso:

‘provided, however, that the name of no fe-

male person shall be taken for jury service

unless said person has registered with the

clerk of the circuit court her desire to be

placed on the jury list.’

Showing that since the enactment of the statute

only a minimal number of women has so regis-

tered, appellant challenges the constitutionality |

of the statute both on its face and as applied

5

in this case. For reasons now to follow, we decide

that both contentions must be rejected.”

In upholding the constitutionality of the Florida

statute, this court said:

“Manifestly, Florida’s § 40.01(1) does not pur-

port to exclude women from state jury service.

Rather the statute ‘gives to women the privilege

to serve, but does not impose service as a duty.”

Appellant’s main contentions are that after the

decisions of this court in Duncan v. Louisiana, 391

U. S. 145 (1968), and Peters v. Kiff, 407 U.S. 493

(1972), due process of law requires that a state jury

be selected from a representative cross-section of the

community, and the general exemption granted to wom-

en by Louisiana law has denied him his Sixth Amend-

ment right to trial by a fair and impartial jury as ap-

plied to the states by the Due Process Clause of the

Fourteenth Amendment and that at soine point in time

between the Hoyt decision in 1961 and appellant’s con-

viction in 1972, the “‘sands of time have shifted beneath

its foundations” and a state may no longer grant an

exemption to women for jury service.

The State of Louisiana contends that the Sixth

Amendment right to trial by jury as applied to the

states by the Due Process Clause of the Fourteenth

Amendment does not apply the standards and policies

of the federal courts of jury venire make-up and exem-

tions to the states.

In Duncan v- Louisiana, supra, this court applied

the Sixth Amendment right to trial by jury to the

Le DIN AS iat ELLIE SDAA MDE BIE tat AO Ew FC

6

states; however, subsequent decisions have shown that

the guarantee to a jury trial does not include every

vestige of the federal concept of jury trial. In Williams

v. Florida, 399 U.S. 78, 90 S. Ct. 1893 (1970), this

court held that the twelve-man requirement is not

an indispensable component of the Sixth Amendment

jury trial as applied through the Fourteenth Amend-

ment to the states. In Apodaca v. Oregon, 406 U.S. 399,

92 S. Ct. 1628 (1972), the court held that State court

convictions by less than unanimcus juries do not vio-

late right to trial by jury specified by the Sixth Amend-

ment and made applicable to the states by the Four-

teenth Amendment.

The issue presented in the case at bar is the val-

idity of an exemption granted to women of a state by

that state on the basis of the state interest in the gen-

eral welfare of its citizens and women as the center of

home and family life. It is not a case of jury commis-

sioners systematically excluding persons because of

race or any other discriminatory reason from the jury

roles. It is a case of a state exercising its right to grant

exemptions from jury service for the good of the com-

munity based on its awareness and concern with the

social and cultural structure of its citizenry.

Appellant cites absolutely no authority for the

proposition that a state may not grant such an exemp-

tion nor one case in which an exemption granted to

citizens of a state has been held to violate the Sixth

Amendment right to jury tria! through the cross-section

of the community requirement of the Due Process

Clause of the Fourteenth Amendment.

GIRO rane gan coe

7

In his argument, appellant places great emphasis

on the decision of this court in Ballard v. United States,

329 U.S. 187 (1946). This case involved the system-

atic and intentional exclusion of women from a Federal | |

District Court jury panel. It did not involve an exemp-

tion granted to women. In fact, the court specifically

pointed out that there was no exemption provided for

women by either Congress or the state in which the

district court sat. The holding of the case rested on the

fact that the district court had not followed the scheme

of jury selection that Conzress had adopted. Reversal

was based on this court’s supervision over the admin-

istration of justice in federal courts and no mention at

all was made of any constitutional issue being pre-

sented. At page 193 the court concluded:

“We conclude that the purposeful and system-

atie exclusion of women from the panel in this

case was a departure from the scheme of jury

selection which Congress adopted and that, as

in the Thiel case, we should exercise our power

of supervision over the administration of jus-

tice in the federal courts, McNabb v. United

States, supra, to correct an error which permeat-

ed this proceeding.” (Emphasis added.)

The other authorities appellant cites, Smith v.

Texas, 311 U.S. 128 (1941), Carter v. Jury Commis-

sion, 396 U.S. 320 (1970) and Peters v. Kiff, supra,

(1972), all dealt with racial discrimination.

In Smith v. Texas, supra, Justice Black, speaking

for the court at P. 130, overturned con’Yictions based

on racial discriminations by state officials in violation

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of the constitution and laws enacted under it, referring

by footnote 4 to 18 Stat. 336, 8 U.S.C. § 44, the federal

statute prohibiting racial discrimination in jury selec-

tions. The case did not hold that a proportional segment

of each class of « community must be present on jury

panels. The case dealt with exclusion by invidious dis-

crimination, not with an exemption granted to a par-

ticular class on a rational and historic basis.

In Carter v. Jury Commission, supra, at 523, 524,

this court dealt with racial discrimination by jury

commissioners and pointed out the injurious brand

placed on Negroes by their exclusion, which contra-

venes the long-standing constitutional and statutory

prohibition against racial bias in selecting juries.

In Peters v. Kiff, supra, although a white chal-

lenged his conviction on the basis of Negroes being ex-

cluded from the jury roles, the case still dealt with the

long-standing concern through the constitution and

acts of Congress with the systematic exclusion of blacks

by state officials. This constituted an illegally-drawn

jury by reason of Congressional Act, 18 U.S.C. § 243.

The court did not say that a defendant was entitled to

a proportional cross-section of the community, but in

dicta said, referring to Williams v. Flovida, supra, that

a fair possibility for obtaining a cross section of the

community should be present. Williams, supra, spoke

of arbitrary exclusion of a particular class being for-

bidden.

All of these cases dealt with the problem of racial

discrimination by officials in selecting jury roles and

none dealt with exemptions granted to women by a state

for their benefit.

a es

9

-

Additionally, no specific holding was made in

these cases requiring a jury panel reflective of a cross-

section of the community. What was mentioned was a

fair possibility of a jury panel reflective of-a cross-

section of the community free of arbitrary exclusion.

In the case at bar, a cross-sect.on of the commun-

ity is available for jury duty. Women, as a class, are

not prohibited from service. If they choose to serve,

they may. There is no allegation nor any evidence pre-

sented that jury commissioners or state officials sys-

tematically exclude women from the roles once they

choose to serve.

The right of a state to exempt certain classes from

jury service is of long standing. In Rawlins v. Georgia,

201 U.S. 638 (1906), Justice Holmes stated at 640:

“But if the state law itself should exclude cer-

tain classes on the bona fide ground that it was

for the good of the community that their regular

work should not be interrupted, there is nothing

in the Fourteenth Amendment to prevent it. The

exemption of lawyers, ministers of the gospel,

doctors, and engineers of railroad trains, in

short substantially the exemption complained

of, is of old standing and not uncommon in the

United States. It could not be denied that the

State properly could have excluded these classes

had it seen fit, and that undeniable proposition

ends the case.”

See also Zelechower v. Younger, 424 F. 24 1256,

1259 (9th Cir. 1970).

10

The right of exemptions for women from jury

service is of long standing in both state and federal

courts. Hoyt v. Florida, supra, at 60.

Considering the above, the State of Louisiana con-

tends that after Duncan v. Louisiana, supra, the state

is still free to determine its own policy of exemptions,

even if they do not coincide with those of the federal

courts, if it meets the test stated in Hoyt v. Florida,

supra, at 61:

“Where, as here, an exemption of a class in the

community is asserted to be in substance an ex-

clusionary device, the relevant inquiry is wheth-

er the exemption itself is based on some reason-

able classification and whether the manner in

which it is exercisable rests on some rational

foundation.”

And as this court decided in Hoyt, an exemption

for women would meet this test. As Justice Harlan

pointed out at page 61, 62, :

“In neither respect can we conclude that Flor-

ida’s statute is not ‘based on some reasonable

classification,’ and that it is thus infected with

unconstitutionality. Despite the enlightened

emancipation of women from the restrictions

and protections of bygone years, and their entry

into many parts of community life formerly

considered to be reserved to men, woman is still

regarded as the center of home and family life.

We cannot say that it is constitutionally im-

permissible for a State, acting in pursuit of the

J ay ETS CSc Dnt aha

11

general welfare, to conclude that a woman

should be relieved from the civic duty of jury

service unless she herself determines that such

service is consistent with her own special respon-

sibilities.

o¢

It is true, of course, that Florida could have

limited the exemption, as some other States have

done, only to women who have family responsi-

bilities. But we cannot regard it as irrational for

a state legislature to consider preferable a broad

exemption, whether born of the State’s historic

public policy or of a determination that:it would

not be administratively feasable to decide in each

individual instance whether the family respons-

ibilities of a prospective female juror were ser-

ious enough to warrant an exemption.” (Em-

phasis added.)

Appellant alleges that since Hoyt the court has

charged its standard for examination of laws that dis-

criminate solely on the basis of sex. The cases that ap-

pellant relies on as examples of this court’s changed

attitude are Reed v. Reed, 404 U.S. 71 (1971) and

Frontiero v. Richardson, 411 U.S. 582 (1973). The

court, in both cases, recognized that the questionable

statutes were based on speed and efficiency in hand-

ling of administrative functions. This court recognized

that administrative convenience, while not completely

lacking in importance, is subordinate to high priorities

such as where there is a statutory scheme that draws

a sharp line between the sexes.

But the Louisiana provisions complained of do

12

not rest their origin in mere matters of administrative

convenience. Instead, Louisiana is attempting only to

regulate and provide stabliity to the state s-own idea

of family life.

The Idaho provision in Reed v. Reed, supra, was a °

mandatory statute that gave men preference over wom-

en in administration of an estate. The probate court

in Idaho recognized the equality of applicants for the -

position without any determination of relative capa-

bilities in performance of the functions incident to an

administration of an estate. The presumption was con-

clusive in Reed that the father of the deceased was

more suitable than the mother to administer the estate.

Reed did not deal, with whether sex is a suspect classi-

fication. But sucha contention was brought out in

Frontiero v. Richardson, which dealt with a female

married Air Force officer challenging a federal stat-

ute that required proof of her husband’s dependency

before she could receive increased quarters allowances

and housing and medical benefits for her husband. No

such proof of dependency was required by a male serv-

ice member seeking the same allowances with respect

to his wife. There were four dissenting justices in Fron-

tiero at p. 1773, three of who expressly rejected ‘“‘that

classifications based:upen Sex, ‘like classifications based

upon race, alienage, and national origin’, are ‘inheren-

tly suspect and must therefore be subjected to close

judicial scrutiny.” The dissent pointed out that Reed

had drawn no such conclusion of sex as an inherently

suspect classification.

In the two-,above mentioned cases there was a

purely arbitrary preference in favor of males. The

0 Sy, Ea ee IA LI Sat ca

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13

preference given to women in Louisiana has its history

in the unique treatment Louisiana has afforded the

family unit without concern for administrative speed

or efficiency. Louisiana submits that the exemption giv-

en to women by the Louisiana legislature is reasonable

and has a rational connection between the preference

- given to women and the legitimate government end in

which Louisiana seeks to protect its family life.

___. This court has before recognized Louisiana’s spec- -

ial interest in protection of family life in Labine v.

Vincent, 401 U.S. 522, 91 S.Ct. 1017 (1971). In Labine,

this court upheld choices reflected in Louisiana intestate

succession that denied acknowledged illegitimate chil-

dren from claiming rights of legitimate children and

permitting acknowledged illegitimates to inherit only

to the exclusion of the states as within the power of the

state to make. The court concluded at p. 1021 that “the

power to make rules to establish, protect and strength-

en family life as well as to regulate the disposition of

property left in Louisiana by-a man dying there is

committed by the Constitution of the United States and

the people of Louisiana to the legislature of that State.”

Louisiana is exercising its rule-making powers “to

establish, protect and strengthen family life” and

whether the court thinks Louisiana’s rules are wisely

enacted does not bear on the constitutionality of the

enactments.

The State of Louisiana has a long tradition of

protection of the family founded in its civil law tra-

ditions and customs rooted in its historical French and

Spanish heritage. See Labine v. Vincent, supra.

eae he sisi aN RNASE 5 a

14

With this background and tradition of concern

for family life and the women at the center of the fam-

ily, the State of Louisiana has long granted this general

exemption to its women from jury service. Because of

the state’s closeness to its people and awareness of their

needs, this court has long left such social and policy

questions to the states.

In Pay 0. New York, 322 U. S. 261 (1947), this

court noted at 240:

“Tt would, in the light of this history, take some-

‘thing more than a judicial interpretation to

spell out of the Constitution a command to set

aside verdicts rendered by juries unleavened

by feminine influence. The contention that wom-

en should be on the jury is not based on the Con-

stitution, it is based on a changing view of the

rights and responsibilities of women in our pub-

lie life, which has progressed in all phases of

life including jury duty, but has achieved con-

stitutional compulsion on the states only in the

grant of the franchise by the Nineteenth Amend-

ment. We may insist on their inclusion on fed-

eral juries where by state law they are eligible,

but women jury service has not so become a part

of the testual or customary law of the land that

one convicted of crime must be set free by this

court if his state has lagged behind what we

personally may regard as the most desirable

practice in recognizing the rights and obliga-

tions of womanhood.

In this regard, states often vary in their innova-

XEN A Pe Ht

15

tions or lack of it in developing their systems of crimin-

al justice. With this in mind, this court stated in Fay,

supra, at 295:

“We adhere to this policy of self-restraint and

will not use this great centralizing Amendment

to standardize administration of justice and

stagnate local variations in practice. The jury

system is one which has undergone great mod-

_ ifications in its long history, see People v. Dunn,

157 N.Y. 528, 52 N-E. 572, 43 L.R.A. 247, and

it is still undergoing revision and adaptation to

adjust to the tensions of time and locality.”

The Federal District Court followed this principle

recently in upholding the State of New York’s exemp-

tion for women from jury service in Leighton v. Good-

man, 311 F.Supp 1181, 1183 (1970).

Appellant quotes many statistics relating to wom-

en in his argument (p. 9-10), yet these would be better

presented to the state legislature or Congress than to

this court, for statistics cannot reveal the social and

traditional concerns of the Louisiana population.

The State of Louisiana is not unresponsive to

change or ‘the sands of time” and, in fact, in April of

1974, voted to enact a new constitution to take eifect

January 1, 1975, which does not retain an exemption

for women as in Section 41 of Article VII of the pres-

ent constitution. The new Constitution’s provision re-

specting jurors, Article v, Section 33, will read as fol-

lows: :

16 aes

“Section 33. (A) Qualifications.

A citizen of the State who has reached the age

of majority is eligible to serve as a juror within

the parish in which he is domiciled. The legis-

lature may provide additional qualifications.

(B) Exemptions.

The Supreme Court shall provide by rule for

exemption of jurors.”

The fair import of the new Constitution would

also do away with the Code of Criminal Procedure

Article 402, as all exemptions will be determined by

Supreme Court rule.

To contend that this conviction should be reversed

because Louisiana’s general exemption has been smoth-

ered by the sands of time would ignore the State of

Louisiana’s concern with, and development of, its sys-

tem of criminal justice. It has indeed responded to |

change as it felt its system of justice and citizens re-

quired, though perhaps, on this issue, slower than some

states. Yet, who can say at what point in time between

this court’s decision in Hoyt v. Florida, supra, in 1961,

and appellant’s conviction in 1972, it became too late to

meet constitutional requirements of due process?

Considering the above arguments, the State of

Louisiana contends that its general exemption of wom-

en from jury contained in its present Constitution and

Code of Criminal Procedure is reasonable and not dis-

criminatory nor violative of the right to a fair and im-

17

partial jury as applied to the states by the Due Process

Clause of the Fourteenth Amendment. As to this issue,

the number of wornen who have served on juries in the

State is irrelevant, as stated by the court in Hoyt v.

Florida, supra, at 65:

“This argument, however, is surely beside the

point. Given the reasonableness of the classifica-

tion involved in § 40.1 (1), the relative paucity

of women jurors does not carry the constitution-

al consequence appellant would have it bear.

‘Circumstances or chance may well dictate that

no persons in a certain class will serve on a

particular jury or during some particular per-

iod.’ Hernandez v. Texas, supra, at 482.”

II. 5;

APPELLANT, A MALE, HAS NO STANDING TO

CHALLENGE THE CONSTITUTIONALITY OF THE

GENERAL EXEMPTION GRANTED TO WOMEN FROM

JURY SERVICE BY LOUISIANA LAW, AS HE IS NOT

A MEMBER OF THE ALLEGEDLY EXCLUDED CLASS,

NOR SHOULD HIS CONVICTION BE SET ASIDE WITH-

OUT A SHOWING ON HIS PART OF SOME POSSI-

BILITY OF HARM OK PREJUDICE.

Appellant, who urges no prejudice or bias by the

all-male jury which convicted him, would have the

court reverse an unquestionably fair and impartial

trial on the basis that not enough members of a class

of which he is not a member, were not included in the

jury selection process. He makes no allegations that,

i

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Pi

18

had women been included, his trial would have been

. any more fair or impartial, nor that their absence

caused him any harm.

The State of Louisiana has urged this court to up-

hold its constitutional and codal exemptions. In either

ease the State contends that petitioner, a male, has no

standing to challenge this jury panel or have his con-

viction set aside on the basis that there were not enough

women on the jury roles. To allow reversals of obviously

fair and unbiasd convictions on the basis that an ex-

emption granted by: the state to some class, of which

petitioner is not a member, without even a hint of prej-

udice opens the door for any convicted defendant to

“shop” around the community for any identifiable

group who, for any reason, might not be compelled to

serve on juries — in effect, to escape conviction on a

‘technicality without the slightest consideration of

whether he has suffered any harm.

Appellant relies on Peters v. Kiff, supra, and Bal-

lard v. United States for this contention. However, there

is a great distinction between these cases and the ration-

ale behind them and the case at bar. Both cases involved

illegal discrimination by officials charged with jury

selection. In his brief, appellant, at page 7, quotes se-

lectively from Ballard but perhaps the entire quote is

more revealing of the issue under consideration.

“But reversible error does not depend on a show-

ing of prejudice in an individual case. The evil

lies in the admitted exclusion of an eligible class

or group in the communitv in disregard of the

prescribed standards of jury selection. The

19

systematic and intentional exclusion of women,

like the exclusion of a racial group, Smith v.

Texas, 311 U.S. 128, or an economic or social

class, Thiel v. Southern Pacific Co., supra, de-

prives the jury system of the broad base it was

designed by Congress to have in our deimocratic

society: Jt is a departure from the statutory

scheme. As well stated in United States v. Roe-

mig, 52 F. Supp. 857, 862, ‘Such action is oper-

ative to destroy the basic democracy and class-

lessness of jury personnel.’ It ‘does not accord

to the defendant the type of jury to which the

law entitles him. Jt is an administrative denial

of a right which the lawmakers have not seen

fit to withhold from, but have actually guaran-

teed to him. Cf. Kotteakos v. United States, 328

U.S. 750, 764-765. The injury is not limited to

the defendant — there is injury to the jury sys-

tem, to the law as an institution, to the com-

munity at large, and to the democratic ideal re-

flected in the processes of our courts.” (Em-

phasis added.)

What the court was concerned with in its reversal

was the Federal District Court’s intentional exclusion

of women in violation of the statutory system of jury

selection set out by congress. In addition there was a

woman involved as a defendant in the trial and a pos-

sibility of prejudice. See-Ballard, supra, at 194, 195.

Additionally, as pointed out above, Ballard was re-

versed pursuant to this court’s supervisory powers over

the administration of criminal justice in federal courts.

In Peters v. Kiff, supra, in which this court al-

RPE MESES

20

lowed a white man to challenge the constitutionality of

his jury selection because - of racial discrimination

against Negroes, the court was again faced with an il-

legal jury selecting process. The decision by a divided

court rested on the long concern for preventing racial

diserimination and the illegality of sueh diserimination

in jury trials. The holding as announced by Justice

Marshall for three members of this court stated:

“Accordingly, we hold that, whatever his race, a

eriminal defendant has standing to challenge

the system used to select his grand or petit jury,

on the ground that it arbitrarily excludes from

service the members of any race, and thereby de-

nies him due process of law. This certainly is

true in this case, where the claim is that Negroes

were systematically excluded from jury service.

For Congress has made such an exclusion a

crime. 18 U.S.C. § 243." (Emphasis added.) Pet-

ers vu. AUff, Supra, ai 2169.

In the concurring opinion of Justice White, this

central theme was even stronger:

“For me, however, the rationale and operative

language of Hill v. Texas suggest a broader

sweep; and J would implement the strong stat-

utory policy of § 248, which reflects the central

concern of the Fourteenth Amendment with raec-

tal discrimination, by permitting the petitioner

to challenge his conviction omthe grounds that

Negroes were arbitrarily excluded from the

grand jury that indicted him.” (Emphasis add-

ed.) Peters ¢. Kiff, supra, at 2170.

2]

However, in the case at bar, there are no allega-

tions that the State or its officials have attempted to

exclude women. The absence of women itself does not

earry the same effect as the absence of racial groups

and the resulting possibilities of invidious diserimina-

tion affecting the criminal jury system. The observaton

of this court in Hoyt v. Florida, supra, recognized this

at page 68.

“This case in no way resembles those involving

race or color in which the circumstances shown

were found by this court to compel a conclusion

of purposeful discriminatory exclusions from

jury service. E.g. Hernandez v. Texas, supra,

Norris v. Alabama, 294 U.S. 587; Smith v.

Texas, 311 U.S. 128; Hill v. Texas, 316 US.

400; Eubanks v. Louisiana, 356 U.S. 584. There

is present here neither the unfortunate atmos-

phere of ethnic or racial prejudices which under-

lay the situations depicted in these cases, nor

the long course of discriminatory administrat-

ive practice which the statistical showing in

each of them evidenced.”

Given the situation in the case at bar, where there

is no illegal action on the part of the State in its jury

selection process, where we are dealing not with a

prohibition against a class, but with an exemption, and

not with racial discrimination, the State of Louisiana

; contends that appellant, who is not a member of the

alleged absent class, must show some possibility of harm

or prejudice to himself in order to have his conviction

reversed.

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22

It is true that after Duncan v. Louisiana, supra, a

defendant does have a right to a fair and impartial

jury trial guaranteed by the Sixth Amendment and

applied to the State through the Fourteenth Amend-

ment. Also, this court has recently spoken of the need

for a fair possibility for representation from a cross-

section of the community. Yet, this court has never ruled

that a defendant has a right to any particular class on

his jury. The principle that jury panels should reflect

a cross-section of the community is more a creature of

the due process clause than the Sixth Amendment. See

Apodaca v. Oregon, supra, at 1634 and Peters v. Niff.

The principle has developed through the possibility that

certain members of a class may suffer from the prej-

udices likely where discrimination occurs against the

class and is especially rooted in the historical struggle

against racial discrimination.

The State of Louisiana maintains that it is still

necessary for defendant to show that the absence or

exclusion of a class which depletes the cross-section of

the jury panel has some relationship to possible bias

or prejudice in the accused trial, except where the jury

panel is challenged as being illegally constituted by

purposeful racial discrimination as in Peters v. Kiff,

supra. In other cases involving classes and groups of

communities, a defendant should still be required to

show some harm or prejudice and the words of Chief

Justice Burger in his dissent in Peters v. Kiff, supra, at

2171 should still apply:

“However, in order for petitioner's conviction

to be set aside, it is not enough to show merely

that there has been some unconstitutional or un-

”

23

lawful action at the trial level. Jt must be estab-

lished that petitioners’s conviction has resulted

from the denial of federally secured rights prop-

erly asserted by him. See Alderman v. United

States, 394 U.S. 165, 171-174, 89 S.Ct. 961,

965-957, 22 L.Ed.2d 176 (1969); cf: Jones vw.

United States, 362 U.S. 257, 261, 80 S. Ct. 725,

731, 4 L..Ed.2d 697 (1960).” (Emphasis added. )

The State of Louisiana urges that the appellant’s

conviction not be reversed.

Ill.

THE STATE OF LOUISIANA REQUESTS THIS COURT,

SHOULD IT RULE AGAINST THE STATE, TO NOT AP-

PLY ITS RULING RETROACTIVELY BECAUSE OF

THE TREMENDOUS HARDSHIP IT WOULD PLACE

ON THE CRIMINAL JUSTICE SYSTEM IN THE STATE.

CONCLUSION

The constitutionality of Article VII, § 41 of the

Louisiana State Constitution and Article 402 of the

Louisiana Code of Criminal Procedure should be up-

held and the conviction of appellant should be affirmed.

ASE ee "aan

24

Respectfully submitted,

WILLIAM J. GUSTE, JR.

Attorney General *

State of Louisiana

Baton Rouge, Louisiana 70804

WALTER SMITH |

Assistant Attorney General

State of Louisiana

Baton Rouge, Louisiana 79804

WOODROW W. ERWIN

District Attorney

Twenty-Second Judicial District

P. O. Box 543

Franklinton, Louisiana 70438

JULIAN J. RODRIGUE

Assistant District Attcrney

Twenty-Second Judicial District

St. Tammany Parish Courthouse

Covington, Louisiana 70433

Attorneys for Appellee

BY Bee 4

WALTER SMITH

Louisiana Attorney General's Office

Criminal Division

1885 Wooddale Blvd.

P. O- Box 65323

Baton Rouge, Louisiana 70804

20

CERTIFICATE OF SERVICE

I, Walter Smith, Assistant Attorney General for

the State of Louisiana, counsel for appellee herein, de-

pose and say that on the .% day of he, 1974, I served

a copy of the foregoing brief on colinsél of record for

the defendant, Billy J. Taylor, appellant herein, by

mailing same herin to his post office box, P. O. Box

1029, Covington, Louisiana 70433.

All parties required to be served have been served.

FALTER SMITH _

Sworn to and subscribed

before me this .& th day