# Appellees Brief — Taylor v. Louisiana

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appellees Brief
- **Published:** January 1, 1975
- **Citation:** 419 U.S. 522

## Text

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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

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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,

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0362%3A4. Public record. Not legal advice.