Billy Guice and Howard Claxton, Sr. v. Ray Fortenberry, Superintendent, East Carroll Parish Prison Farm,respondent-Appellee

Williams, Accord, States v. United denied, 1980), cert. Wil States,

liams v. United (1980). During 66 L.Ed.2d 60

trial, lawyer called as a witness Gonzalez’ employee of his law firm who testified Gonzalez

that Leon had told her that had no

knowledge quaalude dealings. aAs testimony, issue

result this of Leon’s squarely jury.

veracity was before This substantially the same evidence as that newly appel

claimed to discovered. own testimony—

lant does not offer Leon’s person. of a Consequently, third merely

the additional evidence would be

cumulative, and, light of the other evi trial,

dence before is not

likely produce a different result. Since met, test Martino is not we affirm the

denial of the motion new for a trial. judgments of the district court in No. No.

81-5004 and 81-5528 are

AFFIRMED. Claxton, Sr., GUICE and Howard

Billy

Petitioners-Appellants,

Ray FORTENBERRY, Superintendent, Farm, Carroll

East Parish Prison

Respondent-Appellee.

No. 80-3350. Appeals,

United States Court

Fifth Circuit.*

Nov.

* case, 9(1) Former Fifth Circuit Section of Public Law 96-452 —October Strickler, Jr.,

George M. Ann Woolhan- dler, Collins, Orleans, Michael G. New La., Thomas, Tallulah, La., Samuel peti- tioners-appellants. Caldwell, Tallulah,

James Atty., La., Dist. for respondent-appellee. GODBOLD,

Before Judge, Chief BROWN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, HATCHETT, POLITZ, AN DERSON, RANDALL, TATE, SAM D. JOHNSON, A. CLARK THOMAS WILLIAMS,** Judges. Circuit RUBIN, ALVIN B. Circuit Judge: Two black convicted of a crime in state court contend that are entitled to because, a new trial as the result of a practice many years, in effect for blacks systematically excluded from service foremen both on the prior grand that indicted and on them juries. Appealing judge’s district deni- petition al of their corpus, for habeas which was based on his review of the state record, they evidentiary court seek an hear- ** Judge James C. Hill was recused did not this case. William L. Garwood did participate disposition participate in the consideration in this decision. See, Finding g., Mayberry the state other claims is final. e. in federal court. petitioners Davis, (5th 1979); not afford proceeding did 608 F.2d Cir. hearing, (5th we remand for Wainwright, a full and fair an Pate 607 F.2d evidentiary hearing. 1979); Wainwright, Cir. Galtieri v. 1978) (en banc). 352 n.8 n I. panel A of this Court affirmed the denial police the chief and Petitioners were as (5th 1980). of relief. 633 F.2d 699 Cir. The police Tallulah, Louisiana, sistant chief case, Court banc en voted to rehear the 642 community located Madison Parish in the (5th (en 1981) banc), F.2d 98 Cir. thus vacat- part of the northeastern state. June panel opinion. the See Fifth Circuit 1979, they by were indicted a Madison Par petition rehearing Local Rule 17. The for $5,000, grand jury the ish theft of al only en banc raises the contention that each legedly their use taken for own from a petitioner’s right equal protection of the larger by police shortly sum recovered after laws, guaranteed by the fourteenth amend- robbery grocery the of a store.1 ment, systematic by was violated the exclu- by a Petitioners were convicted unani- sion grand of black from service petit jury. mous six-member A number of jury foremen. court, issues raised before the district including allegations of racial discrimina- II. commissioners, selecting tion in the the grand jury venire, petit Court, Supreme the The in Rose v. grand jury Citing Mitchell, 545, the 2993, foreman. Jackson v. 443 99 U.S. S.Ct. 61 307, Virginia, 2781, (1979), 443 99 U.S. S.Ct. 61 L.Ed.2d 739 held that racial discrimi (1979), petitioners 560 the L.Ed.2d the grand chal- nation in selection the lenged sufficiency the of the evidence of and its foreman violates the fourteenth guilt adduced in the state trial. In a requires writ- amendment and a federal court to opinion, ten the grant corpus, district denied each reversing habeas a state crim Although petitioners’ of these claims. “[Wjhere proof inal conviction. sufficient appeal comprehensive notice and a of discrimination in violation Four probable certificate of granted cause was teenth Amendment has been made out and by court, rebutted, on all issues uniformly decided district this Court has re only quired the contentions of racial discrimination conviction be aside set selecting foreman and by indictment the unconstitutionally appeal. commission were quashed.” briefed constituted be Id. at Therefore, 553, 2998, ruling the district court’s on the 99 at 61 at L.Ed.2d 747.2 giving charge purposeful facts The rise to the criminal case of discrimination was made fully reported panel opinion. by They are 633 out and was not rebutted the State.” 699, (5th 1980). portions opin- 701 n.l Cir. dissented the other majority Court, ion. A of five members of therefore, Mitchell, 545, held that federal habeas is In Rose v. available petitioners Brennan, who claim discrimination in 61 L.Ed.2d 739 Justices grand jury, Marshall, of a and assumed it agreed White and Stevens with the discriminatory expressed available redress claims of view in Part II of Justice Blackmun’s opinion Court, majority selection preme foremen. See Su- for a from which Court, Term, quotations 93 summarizing holding Harv.L.Rev. Bator, Mishkin, (1979); Blackmun, Shapi- joined only 199-209 P. P. D. by taken. Justice Jus- Wechsler, Brennan, ro & H. adopting Hart Wechsler’s The tices Marshall and while System principle Federal Courts and The Federal that claims of discrimina- (2d Supp. 1981). ed. by tion should be considered a federal habeas regardless resulting prejudice, Stewart, Burger was of Chief Justice and Justices opinion Rehnquist join that the had not satis- Powell and did not in Part II. proving fied their burden of at discrimination. U.S. at L.Ed.2d at White, Stevens, joined Stewart, Rehnquist, Justice Justice stat- 743. Justices Powell and ed, “[Although agree concurring opinions I I with Parts and II of authored Justices opinion, Powell, expressed I Court’s believe that a facie Stewart and view assumed, deciding, racial Court without discrimination in administration justice.” in “the selection at 99 S.Ct. at invidious discrimination requires only the that a L.Ed.2d at 751.3 If subse convictions aside, quent just as if the must be set aside because of taint of conviction set proved grand jury, had tainted the selec we see no reason to differenti venire.” at ate result because discrimination tion entire affect n.4, n.4, Accepting ed the foreman. as sumption hold, n.4. States ex rel. made in we See United Barks Rose Blackburn, therefore, (5th properly dale 639 F.2d district court banc); 1981) (en Mississippi, Cir. Williams v. considered the claim discrimination in the selection made recognized corpus petition defendant who had habeas filed Guiee already possi convicted no been “suffered and Claxton. prejudice,” grand as

ble because the III. cause, and, says only probable on the ulti innocence, guilt mate issue of the of trier A constitutional basis for relief from already that de fact had determined proved merely by is discrimination not sus guilty beyond fendant was reasonable picion outcry. prerequisites or loud for 553, 2998, at 61 doubt. 443 U.S. at relief from allegedly federal discrimina Nevertheless, “[bjecause L.Ed.2d at tory of a selection were estab on basis race of in Partida, 482, lished Castaneda v. 430 U.S. of a . . . selection of members 1272, 97 51 S.Ct. L.Ed.2d 498 at our strikes the fundamental values of petitioner (1) must: 'establish judicial system society and as a our whole group against whom discrimination is as- right equal ... a criminal defendant’s to recognizable, class, serted is a distinct sin- protection the law has of been denied when treatment; gled (2) out prove for different he indicted a from which degree underrepresentation by com- group purposefully a members of racial paring proportion group 556, have been excluded.” Id. at 99 at S.Ct. proportion total to the to called 3000, Therefore, at 749. his L.Ed.2d serve, foremen, significant here as over a regard conviction must be reversed without time; period (3) support pre- and prejudice. Id. sumption by showing thus created that the Recognizing procedure susceptible the social costs associated abuse however, 494, approach, with this or is not neutral. at the Court not- Id. 1280, 510, again ed that the defendant could be at at cited indict- S.Ct. L.Ed.2d with 563, and are approval, ed tried. costs as do exist Rose v. at “[S]uch outweighed by strong policy the Court 99 S.Ct. at 61 L.Ed.2d at 754. See recognized consistently combatting has United States ex rel. Barksdale v. Black- rights federal habeas relief should not be available to Amendment are vindicated this con- claims, redress tion, such as discrimina- text. under Prosecutions 18 U.S.C. § rare, not on do touch the fairness of have been are not under petitioner’s conviction. See also Cassell v. control of class members and the courts. Texas, 282, 298-305, actions, expensive Civil to maintain 637-40, (Jackson, (1950) L.Ed. 853-856 lengthy, have not often been used. And even J., dissenting). Burger joined Chief Justice nei- assuming type pretrial proce- some ther of these concurrences. defendant, g., open dure be to a e. would corpus petitioning for a writ of habeas 3. The added: court, procedure federal such under regardless And of the fact that alternative rights vindication federal constitutional rights remedies remain to vindicate the on turn a race to obtain writ before those class members denied chance trial. State could commence the juries, on fact serve at at at L.Ed.2d permitting challenges to unconstitutional is, been, state action defendants has the main avenue which Fourteenth burn, explained illustratively Cir. Court that a hear required 1981) ing was if “the material facts (en banc). prerequisites Once these developed adequately at the state facie has proved, have been case ” Elaborating hearing. . . . fur burden established and the shifts been adequate develop necessity ther on the for showing. state to rebut facts, the Court said a ment relevant hearing mandatory “[i]f, federal IV. to the reason not attributable inexcusa necessary support If the facts neglect petitioner, ble evidence crucial to challenge disputed, such constitutional adequate consideration of the constitu evidentiary hearing is essential to the an developed tional claim was not state hearing claim. no such resolution of the If ” hearing. . . . Id. at 83 S.Ct. at court, despite has been held in state (citation omitted).4 L.Ed.2d remedies, then a exhaustion of state federal be Townsend held to entitled to a evidentiary hearing obviously essential. hearing federal the voluntariness his If, however, petitioner has been accord though confession even he had been accord- complete opportunity ed a fair and to ad original ed state court at his trial. court, duce evidence state neither the “The state trial rendered neither petitioner put state to the nor the should law, opinion, findings conclusions of nor repetition wasteful exercise federal . . . fact. are no indicia which [TJhere court. judge ap- would indicate whether the trial power inquiry While “the on fed plied the proper law in standard federal corpus plenary,” eral habeas is v. Townsend ruling upon admissibility of the confes- Sain, 293, 312, 745, 757, 372 U.S. 83 S.Ct. 9 320, 761, sion.” Id. at 83 at 9 L.Ed.2d 770, (1963), L.Ed.2d 785 it should not be 790. at While the Court held that these employed merely to demonstrate exist its proceeding signifi- defects the state were However, ence. the facts are in “[w]here enough by cant themselves to warrant an dispute, corpus the federal court in habeas evidentiary hearing, added, “[fjurther- it evidentiary hearing must hold an if the more, a crucial fact was not disclosed.” Id. applicant habeas did not receive a full and 321, 761, at 83 at 9 L.Ed.2d at 790. evidentiary hearing fair in a state Following Townsend, the decision court.... In other words a federal eviden statute, corpus 2254(d), habeas 28 U.S.C. § tiary hearing required unless the state- was amended in 1966.5 Courts have said hearing court trier of fact has a full after uniformly merely amendment codi reliably found relevant facts.” Id. at fied Townsend criteria. Brewer v. Wil 312-313, 757, at 83 S.Ct. 9 L.Ed.2d at liams, 395-96, 387, 1232, Expressly avoiding over-particularization, 1238, (1977); 51 424 v. L.Ed.2d Harris Oli catalog the Court set of six ver, situa- (5th 1981); forth 645 327 Spinkel Cir. hearing tions which federal 582, must be Wainwright, (5th v. link 578 F.2d First, hearing required held. a federal 1978), denied, 937, Cir. cert. U.S. dispute 2064, “the merits of the factual (1979). were not S.Ct. 60 L.Ed.2d 667 See hearing. Turner, resolved in state ...” Maxwell v. 411 F.2d 805 Cir. 313, 757, 1969); 83 S.Ct. at L.Ed.2d 786. The Hughes United States ex rel. listing Corpus, 4. The also included those instances Law: Federal Habeas 83 Harv.L.Rev. (1) fact-finding 1038, procedures Sofaer, (1970); Wright . which state 1113-1145 & Fed- (2) “inadequate,” Corpus is a there substantial eral Habeas For State Prisoners: The allegation newly evidence, (3) Responsibility, Fact-Finding discovered Allocation of 895, state court (1966). determination facts was Yale L.J. “fairly supported” (4) the record and state, reason, provided for whatever had not 2, 1966, 89-711, 5. Act of November Pub.L. No. Sain, hearing. and full fair Townsend 2, 1105, amending § Stat. 28 U.S.C. 293, 313, 2254(d). § (1963). generally Developments See McMann, (2d proceeded 1966). determine the merits of the generally H.R.Rep. claim, No. 89th See we examine state court record (1966); S.Rep. Cong., 2d Sess. No. under precepts Townsend to determine Cong., Cong. 2d U.S.Code 89th Sess. hearing whether a mandatory federal was 1966, p. 3663. Townsend & Admin.News or whether provided the state court record not, however, superseded completely adequate dispensing basis for with the amendment, Supreme Court for the de hearing. federal evidentiary hearing when a federal cided mandatory corpus statute, while the habeas V. amended, merely presump as establishes indictment, After their the defendants judgment that the state court is correct tion barrage pretrial filed a motions.7 applicant establishes one of a unless addition to various claims of discrimination specific disregard number of reasons it.6 against persons, their motion “to Mata, See Sumner v. commission, quash general ve 66 L.Ed.2d 722 Because S. Ct. nire, venire and the rely court on the statu the district did not jury” charged that “blacks are tory presumption, but decided that no evi excluded dentiary hearing necessary, serving and then on the and Purge Enlarge Motion [T]he statute does not to define Wheel purport Jury and federal evidentiary manda- Sources From Which Venire Selected; Was it to state tory; set of appears merely Motion to The Grand Quash Jury Indictment rather confused burden rules proof The Ground That The Manner of Selection of guide holding the district which are courts Venire, the General Venire, The Grand Jury hearings.” such The Grand Grand Foreman Jury Jury Bator, Mishkin, P. P. D. & H. Wech- Shapiro Illegal Was Because Black Citizens Were Ex- sler, Hart and The Federal Wechsler’s Courts Judges, cluded As the Official Policy (2d Federal ed. System Etc.; eight The statute lists deficiencies possible ' for Bill Application Particulars; (rather fact-findings state than the Supplemental Motion Recuse the District six); Townsend but their relevance is to the Attorney; findings whether are to state question Motion to Disclosure [sic] Produce Evi- if Further, correct. none of the “presumed” Affecting dence Cross-Examination, Credibil- eight the shown, deficiencies effect of this Demeanor, and ity Jury’s Evaluation Of State negate judge is, not to the of the to power Witness, Material; and for Brady hearing, confusingly, call for a to but, shift to Motion to State- Suppress Any Inculpatory to the the burden show at a hear- petitioner ment; findings the state were erroneous. Motion to Act of 1975 As It Quash Amends statute unclear whether, The also leaves it CCP 778; Article [CCrP] eight one of the is established, deficiencies Motion To the Grand Indictment Quash Jury burden of facts the on all shifts to the proof the same [This to be as the appears prior state. motion to Grand eight (lack Quash Jury Indictment]; the criteria, Of three statutory jurisdiction Motion for Examination; Preliminary court; in state failure to appoint Enjoin Motion to Use the State of counsel when this Perempto- was re- constitutionally Challenges due to Exclude ry denied Blacks quired; applicant process Qualified proceedings) state the not found in Service; From Petit Jury (but change Townsend not appear Motion Petit the Venire Selected Quash Jury law). remaining The five the to sub- Beginning appear for the 17, 1979; Week September sume the Townsend six. Motion for Production of Janie Jones’ Grand Wright, 1505 n.7. See also C. A. First Jury Appearance Testimony; Miller & E. Federal Practice and Proce- Cooper, Judges Motion to Recuse of the the Sixth Judi- dure § 4265 cial District; Motion to the Jury Commission, the Quash Excluding motions and cer- continuances General Grand Venire, Venire and Jury pleadings motions, tain other procedural the Grand Jury; following record discloses that mo- pretrial Arraignment Motion to and Cancel Trial Quash were filed: tions Date. Motion to Recuse the Attorney; District Motion to the Election District At- Compel (To to Elect torney Him Which In- Compel First); Trial dictment He Will Fix For Arraignment Date; Motion Trial Quash solely hearing of their A

Foremen because race.” The later was held before trial also defendants filed motion recuse the judge, Judge Adams, on the motion to judges ground, the state court on the quash grand jury indictment. Evidence judges purposely part, those had ex concerning composition was introduced citizens, solely cluded because of their black commission, matters, jury and other race, serving jury from foremen and but there was no further evidence concern- being grand jury included ven ing, of, any allegedly nor mention dis- addition, they separate ires.8 filed a criminatory selection of the quash contending, motion the indictment testimony foreman. The adduced at alia, inter the manner of selection of was, however, hearing recusal expressly in- and the corporated by stipulation. At the conclu- illegal because black were citizens ex hearing, sion of the without reference to cluded. discriminatory the claim of selection of the hearing set for first motion was the grand jury foremen, Judge Adams denied judges motion to recuse of the state the motion. assigned, court. This was in accordance requirements law, with the of Louisiana motions, including Several other the mo (West La.Code Crim.Pro.Ann. art. 675 purge quash tions to wheel and to 1967), judge to a from another district. grand jury, grand jury venire and the specially designated judge presided That commission, were also considered on entirely directed at the defend- day Judge the same Adams denied ants’ judges effort to show that the all, saying only them that “the Defense has disqualified district should be because of greatly fulfilling failed the burden.”9 alleged prejudice against their per- assigned The defense error each time the Adams, sons. id. See art. judge trial Following denied a motion. dis judges district, senior of two of that position motions, all the trial was judge and the to whom the case was as- petit held six member returned signed, he testified that had never selected against a verdict Guice and Claxton.10 The a black foreman fifteen or sixteen defendants, years alleging eight grounds appointment from the time of his for er empanelling ror, until including discriminatory that indicted the defendants. Several other foreman,11 applied to the regarding witnesses testified selec- Supreme Louisiana for writ process. tion ques- witnesses Court, Supreme certiorari. The without tioned prejudices about biases or of opinion, denied the writ. junior judges. two of the dis- Following application to the federal dis trict, though subpoenaed, was not called as trict corpus, court for a writ of habeas the a Finding witness. that group there was no judge found that the state court record against which either was so biased or him enabled to resolve the merits of the prejudiced they “that would be unable to application trial,” on impartial conduct a fair the basis the record and the alone des- ignated judge orally denied the evidentiary motion. without an hearing,12 and de- (West attorney, (3) quash 8. See La.Code Crim.Pro.Ann. art. 671 trict to in- dictment, (4) quash commission, to venire, general venire and the judge’s rulings 9. The on all these motions were grand jury, (5)'to purge wheel and orally. findings regarding delivered No of facts enlarge sources which are venires select- foremen, issue, or other are ed, (6) quash venire, petit jury (7) to to transcript. stated in the record petit jury (8) substitute a different for a new trial. petit jury 10. consisted of five women and man, one two whom were black. express 12. No motion an was made for inde- application pendent evidentiary hearing. entry 11. The for a writ certiorari al- In a minute leged denying denying petitioners’ request stay trial court error in the motions to the execu- (1) judges, (2) sentences, to recuse the to recuse dis- tion their the district court stated Partida, Castaneda v. appeal, application. case In their outlined nied the or, writ 97 S.Ct. petitioners seek issuance of the L.Ed.2d alternative, request (1977): against expressly recogniz- now a hearing. class and evidentiary procedure for an able distinct a selection remand Thus,

susceptible to abuse. question before one us is narrower whether VI. charges corpus petition, in the habeas While federal habeas record, light state court set forth Sain, Townsend v. required that, proved, demonstrate, facts if would to con L.Ed.2d 770 time, significant period a over sufficient circumstances, hearing a in certain duct underrepresentation of blacks in the selec- required is not unless the such a peti- tion of foremen to entitle alleges that, proved, petitioner facts tioners to habeas relief. to the writ. Cronnon v. entitle him Alabama, cert. de (5th Cir.), hearing concerning 587 F.2d 246 At the motion nied, 1542, 59 judges, Judge L.Ed.2d recuse the state court Adams effect, (1978). The facts the district ap before testified in that he had never together pointed court must be considered with the a as foreman.13 charges complaint addition, determine a mere in the current member of the sufficiency charges police chief, to warrant commission and former who relief, clearly life-long Parish, The state court record here was a resident of Madison that, reveals had satisfied both testified to their knowledge, appointed third facie first and elements of the black had never been foreman.14 Yes, tempted try that “the court will determine an evi- whether I’ve been it. But I still in dentiary hearing necessary.” my opinion pick I humble the one I thought job was best for the I sincerely gave transcript testimony believe that the law me 13. The Adams’ authority right subject and that discretion and reads as on follows: .the I I and would have been remissed had [sic] Murphy Bell [defense counsel]: any scruples it. I don’t used have Now, Judge, you give can us some idea what feelings against appointing fore- a black as a you utilize criteria to select a say this, man and I’ll there will be blacks you impanel Jury? after Grand as of this I there but moment the ones that Judge Adams: have felt were the ones that were best suited Well, anywhere I have never lived else but appointed. were the that were ones my except spent in all life time Tallulah Murphy Bell: college spent army and time and uh Honor, questioning your I’m not Your author- get you . when I . list . . . now said . ity, Judge. Jury » for Grand foreman? Judge Adams: Murphy Bell: exactly you doing I what I Yes, know sir. long sure that I law want to be as the Judge Adams: gives me discretion I will endeavor get Jury I I look for When Grand venire requirements my those have perform use it to fulfill that I who can the duties to badgered knowledge and not announced to be aof foreman and that is he can Jury attorney seeking problem preside who is over the . . . over . . . make the Grand oath, something problem can administer read and out of that a ex- he he can doesn’t write, he would be able to articulate what the ist. were, Murphy proceedings perfectly and I’ll be frank Bell: Well, trying if uh ... that uh .. . that if he didn’t like fact of the matter I to the was out, Attorney doing alleged you the District what was find we have never have appointed I it be known. And so uh ... look for let black citizen? qualified, good generally Judge think decent and I Adams: morals, Now, eventually I get his also. And uh that’s what of .. . we I said that- will for. look that. Murphy Bell: Murphy Bell: Well, during years your then, that, Judge. the course of on the Alright we will leave it at you person did ever find bench Alabama, qualities? had 14. See Norris those who (1935) (prima 79 L.Ed. 1074 facie Adams: positive mediately preceding While there thus evidence that the selection of the appointed no black had ever been jury La.Sup.Ct.R. venire. 4.§ grand jury, only of a inferential evidence grand jury When a court orders a be grand jury existed to show the number of empanelled, grand jury consisting venire actually during selected the rele- least names “at 20 but not more period. vant persons” one than hundred is selected from requires grand Louisiana law that a new general jury the venire. La.Code Crim. jury every empanelled be six months. La. Parish, Proc.Ann. art. 411. In Madison the (West 1967). Crim.Pro.Ann. art. 414 Code clerk consisting draws venire Therefore, during Judge Adams’ fifteen forty persons. tenure, year thirty-one foremen would have ' been selected if in article 414 had been foll Louisiana consists of owed.15 persons twelve selected or drawn the from grand jury venire. Id. art. 413. The court is, course, It conceivable fewer person first one selects from the thirty-one than different individuals were venire to serve as foreman. Id. The Yet, eleven appointed pro- as foreman. when the pertaining grand visions of Louisiana other members of law are then considered, jury probabili- selection by selected drawing random from the re ty significantly thirty-one fewer than maining thirty-nine. Id.18 slight. individuals served becomes Thus, foremen, at least until were Louisiana, general In venire is com newly chosen grand out constituted posed persons by of at least 300 selected jury jurors venire from which who had parish jury commission. La.Code Crim. during term, served prior including, of (West 408(A) Supp.1980).16 Proc.Ann. art. course, foreman, previous were exclud- jury required commission to meet at 410, 411, ed. Id. arts. 413. After every 408(C). least once six art. months. assuming adherence newly pro- then required statute, by commission is mulgated rule, Supreme grand Court meeting each called to select to supple jury jurors venire excluded who had served general ment the to delete from during preceding years. La.Sup. two persons venire names of all who have Moreover, Ct.R. § even the name jurors served as since last person aof who had served as foreman general venire.17 Id. art. 410. See by accident not deleted gen- from the Gros, 705, 707, 16 State 204 La. So.2d served, eral venire after he had he could not addition, a Louisiana Su reappointed rule, unless chance his preme name which became effective among forty potential grand jurors in requires deletion of the names general those grand who have or drawn from the served venire of 600. If a petit jurors during year period the two im- grand who had once served as juries According case of the selection of to the Madison testimony lifelong general proved, Parish part, by testimony Court, Clerk venire in residents county and various Madison Parish consisted least 600 per- officials.) commission sons. Cf. Rose v. 545, 571, 2993, 3008, regarding 17. The statute is silent manner (1979) (“[t]here 739, 759 thus was no positive general which the persons placed venire Negro that no had testimony ever served dur- According are selected. adduced testimony time”). the critical point grand with to the motion to respect quash general indictment, venire is drawn 15. The total of as- computed “big lot barrel” or wheel. suming two foremen were chosen each year, including 1978, in 1979 of plus appointment grand 18. For a review of selection proce- the foreman indicted jury, dures and the powers see Guice and Claxton. See La.Code Crim.Pro. Comment, Selected Problems of the Louisiana (West 1967). Ann. art. 414 Grand Tul.L.Rev. Jury, probability correctly for the of ten such successive selec foreman had been excused 10,000 tions is to one.21 his name auto- requisite period, would not venire, general matically to the be restored not, course, directly This is of formula of 600 group in that but would be included to the applicable selection of a randomly only if drawn from the parish Even in popula foreman. a whose gen- in the wheel for inclusion reconstituted black, forty-name grand tion was 60% instance, per- might either once a eral venire. In venire not have mirrored the venire, Moreover, population. general foremen were son was not included selected, randomly but chosen were based being his name probability against included credulous, qualifications. Even the how grand jury venire is to one. in the fifteen ever, that, it would find to believe difficult is, therefore, obviously possible, but It motivation, discriminatory absent highly unlikely repeatedly, occur that the person no black have could been prior person name of a who served on appointed thirty-one found and selec grand jury might later have been returned tions, pool composed each time from of venire, general drawn to the at random names, forty a total over the seventeen and venire, and then chosen year period persons, a half of 1240 of whom However, judge.19 thirty-one whether number, half, likely substantial differ slightly or some smaller number of black.22 served, persons had ent state context, said in We have another “[s]ta- duty a fore performed appointing of not, course, answer, of whole tistics are thirty-one sin man different times. Not ” nothing emphatic but is as zero. . . . as gle population black was ever chosen. The County United v. Hinds School States approximately of is 60% Madison Parish Board, (5th 1969). In Cir. black.20 Even if the number of different Mitchell, Supreme Rose v. Court noted actually foremen served was less than who record did disclose total repeated as a selection result during foremen number of selected the rele- persons previously, there who had served evidence, period. vant “Absent such it is significant underrepresentation was a say Negroes that the difficult to number example, blacks. if selection were For zero, foreman, appointed even statisti- group composed made at from a random out a cally significant so as to make case of persons persons, and 40% white 60% black under the of exclu- ‘rule ” Mitchell, 545, 571, five probability successive selections sion.’ Rose 2993, 3008, approximately of a white is 100 to one 61 L.Ed.2d 1981), Rose 19. Unlike the adduced testimony Jury, 2993, 3008, on later data, based concluded panel, sug- no was there was 1979 Madison Parish’s population 58% gestion Judge Adams that he looked favor- black. Consider- ably upon past experience. 21. The is calculated in scientifical- probability law holdover precluded Louisiana recognized manner of a grand juries the use formula ly improbability repeated Hamburg, or a See M. Statistical Analy- table. it is not (2d Making sis A-l surprising for Decision Table ed. did not experienced Although of five successive selec- probability often. one testified appear a white tions of person, population the state court on the motion to recuse consisting whites, blacks and judges that he had served “at least once 40% 60% 1.000 —0.9898 .0102. A .0102 probability foreman, this would not previously” patently means the result can be statisti- degree expected have occurred with of fre- likely to occur times if the event cally repeated quency. 10,000 ten such suc- times. 20. The 1970 showed that census or .0001. cessive selections 1.000-.9999 black, of whom 15,065 9,385 were making rela venire from which the the ratio about black. The The petit 62% tive de contained the names twenty-sev- number of residents has since drawn c lined. v. Madison Police en blacks white thirty-three persons. Parish Wyche 506

(1979).23 positive Because oí the absence of correct constitutional standard. The state proof of the actual number of foremen cho judge legal here no articulated standard sen, we not do now conclude Guice and petitioners’ under which he evaluated claim. case, proved prima only a facie but Claxton Although ordinarily we would assume that that the record demonstrated likelihood judge applied legal the state the correct they prove entitling could facts them standard, 314-15, id. at 83 372 U.S. S.Ct. at question to relief. We turn then to the 758, 786-787, 9 L.Ed.2d at the confused evidentiary whether a for a federal remand presentation nature of the claims to hearing required by the record. against trial court militates as- this sumption. necessity This indicates the of a VII. hearing, federal but it does not stand alone. requires hearing Townsend a federal Supreme The Court in Townsend re- also dispute when the merits factual quired hearing “[i]f, any federal for rea- by not resolved state court. Townsend son not attributable to the ne- inexcusable 293, Sain, 745, 83 v. S.Ct. glect petitioner, . . . evidence crucial to IV, (1963). supra. 770 See Part See also adequate consideration of the constitu- Mata, 539, v. Sumner U.S. S.Ct. developed tional claim was not at the state 764, (1981). peti 66 L.Ed.2d 722 While the ” 317, 759, . . . . Id. at tioners introduced substantial amount of (citation omitted). L.Ed.2d at 788 It regarding testimony allegedly discrimi fact, plain that one determinative the num- natory procedures, selection the motions actually ber of chosen made, testimony were not and the was not Adams, by Judge during not was adduced developed, in a coherent fashion. The trial proceedings. the state court The only re- judge orally challenging denied motions maining question then is whether Guice and propriety pro of the foreman selection inexcusably neglected present Claxton ceedings making any findings without piece of crucial The express evidence. Court in findings fact. This lack of does not neglect by Townsend defined inexorably require hearing, inexcusable federal may the federal reference to the bypass district court deliberate standard “reconstruct” findings Fay Noia, of the state court if the state articulated in v. expressly impliedly 822, 848, applied L.Ed.2d course, signifi- significant 23. The facts of Rose Mitchell were easier assume number cantly presented. foremen, jurors different from those here than the evidence Mitchell, positive Rose v. there was no evi- presented weight in Norris illustrates the totally dence that blacks had been excluded proof adduced Guice Claxton. position from the of foreman. The record dis- purpose determining For the whether a fed- county closed that the black evidentiary hearing required, eral is here it is Moreover, approximately the fore- perhaps noteworthy 30%. the mandate in Rose year men served two terms and were not limit- v. Mitchell directed that the case remanded ed in the number terms could serve. proceedings for “further consistent with this showing This was held insufficient to establish opinion.” 443 U.S. at prima facie case. Court contrasted the specify, L.Ed.2d at 759. The Court however, did proof Alabama, introduced in Norris evidentiary hearing whether an being 79 L.Ed. 1074 n.5, required. id. See at 592 99 S.Ct. at 3019 prima sufficient establish a facie case. n.5, J., (White, 61 L.Ed.2d at 772 n.5 dissent- presented in Norris uncontro- Court, Term, ing); Supreme 93 Harv. that, testimony verted within the memories of L.Rev. 201 n.19 witnesses, several no black had served on jury. testimony This was corroborated sev- Jury 24. Both the “Motion to Com- Quash municipal eral officers. While not mission, Venire, Jury the General the Grand percentage mentioned Rose v. Jury” Venire and Grand and the “Motion to eligible blacks in Norris was less than 8%. Jury the Grand Indictment” raised the Quash specifying jurors Without the number of actu- discriminatory issue of involved, ally foregoing held that foremen. The “Motion to Recuse” raised .“testimony itself made out facie case issue, judge desig- this but it was denied equal protection of the denial of which nated to hear motion. is, guarantees.” Constitution While it jus experts’ material facts. concluded that “if for some And failure to petitioner] previ was reason testify fully realistically regarded tifiable cannot [the rights or was ously unable to assert his as Townsend’s inexcusable default.” significance of the relevant unaware of 322, 761-62, at 83 S.Ct. at U.S. held.25 Town L,.Ed.2d should be facts” at 791.26 Sain, 317, 759, v. at send U.S. S.Ct. develop fully The failure to the material at 788. 9 L.Ed.2d facts of the number of neglect to de- of Guice Claxton actually similarly chosen was not the result velop explained by is not the crucial facts bypass. of a deliberate The state court allega- the record. There is no substantial proceeding plainly not a full and fair tion that made tactical hearing, by any exposi nor itwas followed undeveloped. choice to leave the evidence fact, tion of the facts found. the trial that, likely appears It more based on the motions, judge, ruling when on the crucial inartful and scattershot nature of the vari- alleged did not even refer to the constitu motions, the defendants their attor- ous Moreover, tional violation now at issue. neys appreciate fully not the relevance did very being whose actions were chal judge missing neglect evidence. Such lenged put to the deciding task of meaning Fay inexcusable within the not whether he had discriminated v. Noia. The Court in Townsend noted that violation of his own constitutional duties. expert “inexplicably” an witness failed to 316, 759, Cf. id. at L.Ed.2d at develop “crucially informative charac- (if fact-finding procedure, even drug terization” of the involved as a “truth though Constitution, not violative of the circumstances,” serum.” “Under appears seriously inadequate to have been held, identity Court “disclosure of the truth, drug] for ascertainment of the federal indispens- as a ‘truth serum’ was [the fair, development duty evidence).27 able of the rounded has a to take justice, apply prison- criminal do not when Fay teachings 25. While the v. Noia have challenged throughout er has the violations contexts, see, rejected g., been in several e. process proceed- state and the state has held 72, Wainwright Sykes, 433 U.S. 97 S.Ct. ings 2497, (1977) (habeas directed at the constitutional claim reas- corpus 53 L.Ed.2d 594 challenge in a serted federal habeas court. unavailable to Miranda violation when state courts refused to consider the claim because of with a state contem Sofaer, noncompliance Wright 26. See also & Federal Habeas poraneous-objection rule); Powell, Stone v. Corpus For State Prisoners: The Allocation 49 L.Ed.2d Fact-Finding Responsibility, 75 Yale L.J. (1976) (federal habeas court should not hear (1966) (“Actually, 971 n.273 this ‘failure’ prisoner challenges, resting state on the fourth testify a failure was no more than counsel to amendment when the state courts have develop through facts the relevant his witness- afforded opportunity a full litigate and fair regard es. The Court’s refusal to this failure as claims); Henderson, those Francis v. position an inexcusable default reflects its (1976) 48 L.Ed.2d 149 should not bar unintentional flaws of counsel (state prisoner timely challenge who failed development full the assertion or federal composition racial rights.”). not, indicted bring conviction, him could after his challenge in a federal habeas evidentiary In Rose v. a federal corpus proceeding), Supreme neither the though hearing had been held even the state nor this suggested Court has ever hearing. previously court had conducted such a developed standard adopted in Francis and separate not directed at the need for a While Sykes replace should bypass the deliberate evidentiary hearing, buttressing but its reasons Townsencfinquiry. standard in the Cf. Gates for federal relief the Great Writ even after Henderson, (2d court, the claim had been heard in state 1977) (en banc) (court held that Stone v. Supreme Court stated: displaced Powell inquiry, the Townsend if the necessary provides state Federal habeas review is to ensure opportunity peti an to the judici- litigate tioner to defects in the state claim), his that constitutional fourth amendment denied, procedure cert. ary’s grand very judges op- Indeed, policies state who overlooked upon cases, relied federalism, system. in those comity erate that orderly and concerns for the administration of REAVLEY, evidentiary hearing Judge, be- The need for Circuit with whom RONEY, FAY, Judges, GEE and Circuit evident when we comes even more consider join, dissenting: presented evidence limited state light Vigorous court and evaluate it in counsel Guice and Claxton unimpeded opportunity had an provisions of law state set forth Part VI were state before the to make statutory provisions above. These proof available of racial discrimination in That, never in the state record. mentioned selection of foreman. racially from a venire selected in a nondis- They requested no further criminatory parish manner where the They federal district court. no made com- black, population approximately is 60% plaint ground they appealed on that there be no racial would panel to this court. After held that their thirty-one the selection of a white foreman proof lacking, rehearing they on then unlikely is so successive times as demand evidentiary hearing for an asked which exploration. stranger at least There are they try again. could things judges on earth than ever dreamed court, adopting en banc a statistical of, but, when an event whose is occurrence model based on figures that statistically implausible repeatedly, occurs prima would establish a facie case of dis- whose rights constitutional if crimination no more than thirteen black grand jury foremen might were chosen out of the thereby prove be affected offer to thirty-one, grants request— last now their that it would not have occurred absent con- laboring justify grant by saying that violation, they stitutional should least be counsel must have failed to make their day afforded a in federal court. proof in the state court because “the presentation

confused nature of the the trial court.” 661 F.2d at claims to VIII. above, For the reasons stated we RE- I not evidentiary mandate an hear- the denial VERSE of the writ of habeas ing in the federal court after one has al- corpus and evidentiary REMAND for an ready been held in the state court unless hearing on question of racial discrimina- petitioner mind, my asks for it. To selecting tion in jury foreman. record before the district did not ne- application rehearing On en banc the cessitate an hearing. additional I would judgment. affirm his petitioners suggest panel’s no fault with determination that the commission was Moreover, the analysis adopted statistical improperly. Accordingly, chosen majority we re- They suggest mistaken. that prove can panel instate Part that blacks opinion, III underrepresented have been in the selection 699,707-09 (5th and, 1980), for the foremen in Madison Parish opinion, affirm, reasons stated we significant time, over a period of see Rose v. respect, judgment. the district court’s 433 U.S. REVERSED and REMANDED. (1979) (quoting L.Ed.2d 739 Castenada v. Partida, 482, 495, 1280,51 (1977)),1by L.Ed.2d adopting above, case, very judge ically As noted in this excluded from service must respondents challenged prove whose conduct three decid- elements of a facie case. validity challenge. First, ed the of that group . . . [to which he be- longs] recognizable, U.S. at 99 S.Ct. at L.Ed.2d is one distinct class, singled out for different treatment un- laws, applied der the as written or as .... Partida, Next, 1. Under Castenada degree underrepresentation must proved Finally L.Ed.2d 498 pro- claimant .... ... alleges equal protection susceptible who violation be- cedure or abuse is not supports systemat- presumption cause members of his neutral race have been discrimination .... improper appointed” grand jury have been found and proof an statistical part of their at 505. foreman.2 on the cumulative binomial model based model, Under this probability distribution. conclusion, reaching majority this put into evi- petitioners would need to necessarily assumptions. make one of two only the number of times a dence they legitimate Either assume that no rea- jury, was selected in Madison Par- son exists to choose one venireman rather percent composition, and the racial ish and, than another to serve as foreman as a non-black, percent parish in order result, the choice of a black or a non-black speci- probability that a to demonstrate foreman should occur at random. Or the suc- fied outcome —in the instant case past thirty-one assume that on each of the selection of non-black cessive proportion venires the of blacks occur. foremen —will who are as to serve as foreman as qualified person the most alleging Traditionally, in lawsuits dis- foreman, eligible are thus for service as crimination, of an out- proportion constant and is the same as the .05, occurring than one out of come is less in majority, of blacks Madison Parish. The twenty, explanation for the and no other however, justified assuming are in neither. available, result is the courts have ruled out Louisiana has decided to select from the possibility was due to the event grand jury qualified person venire the most alone have inferred that chance Thus, to serve as foreman. because the impermissible outcome was due to discrimi- qualifica- a selection of foreman is based on process. D. Bal- nation in the selection See tions, presuppose there is no reason to Cole, dus & J. Proof of Discrimi- Statistical the selection of blacks and non-blacks to 9.02, majority nation 9.03 §§ serve as foreman will occur at random. approach pool follow this and take for Moreover, there is no reason to assume that grand jury are chosen from which foremen previous thirty-one each on venires composed of blacks and population 60% proportion qualified blacks who are Parish, Louisi- 40% non-blacks of Madison eligible grand jury for selection as They probability ana. calculate that the equals proportion is constant and selections of a non-black ten successive population blacks of Madison Parish. 10,- approximately from this majority They upon then conclude that The distribution which the 000 to one. model, Judge thirty-one Adams had made selec- builds its statistical the cumulative tions, distribution, is, turn, racially discriminatory probability “absent a mo- binomial process. could on a Bernoulli A Bernoulli tivation based [a] I, course, Rather, agree Id. at at 1280. ed a new foreman. the issue in this majority petitioners petitioners appeal with the proved have is whether the have made their prima equal protection the first and third elements of out a facie case of an prior panel facie case. I said so in the by showing procedures violation that the used opinion. to select foremen have resulted in a black, is, Since both are there underrepresentation substantial of their race. therefore, [they] question “no .. . that .. . Mitchell, Rose v. 99 S.Ct. group recognizable are as a members of a (1979) (quoting L.Ed.2d 739 Castenada v. Parti- capable being singled distinct class out for da, 482, 494, 1272, 1280, different treatment under the laws.” More- (1977)). persons L.Ed.2d 498 Whether of one over, selecting grand jury fore- method of or have been selected for race another “could” certainly “proce- men in Madison Parish is plays part no service as susceptible dure that is of abuse.” Indeed, majority recog- this determination. Fortenberry, 633 F.2d Guice v. opinion nize as much at the outset of their 1981) (quoting Rose v. Cir. 545, sys- focus on whether “blacks (1979)) (cita- L.Ed.2d 739 tematically excluded from service as omitted). tion grand jury that indicted foremen both on the appeal is not whether 2. The issue in this petitioners] prior grand juries.” and on [the quali- Adams could selected one or more have 661 F.2d at persons fied black to serve as fore- any appoint- man one of times he Moreover, First, hiring characteristics. process has four unskilled labor and in possible drawing have two event can outcomes. at random for service aon Second, probability both parameters outcomes of the both Third, partic- the occurrence of a probability constant. cumulative binomial distribution ular outcome in one trial cannot affect the easily parameter rep- determined. The And, fourth, subsequent in a trial. outcome resenting the number of selected any successive outcomes occur without service, a, employment is known. Schkade, pattern. fixed C. Clark & L. See parameter representing proportion Analysis Statistical for Administrative De- of blacks and non-blacks in the eligible pop- (3d cisions 89 ed. made, ulation from which the selections are isp, easily measured.

Continuous tosses of a coin is the classical example process. flip a Bernoulli A aof hiring Because unskilled labor and mak- coin answers in either heads or tails. The random selections for service chance of either head or tail on toss process should resemble a Bernoulli prior is constant. result No toss af parameters both distribution are de- subsequent fects a toss.3 Outcomes of terminable, the proba- cumulative binomial heads or tails occur random. bility distribution is often used statisti- illegal cians to demonstrate probability cumulative binomial dis- process settings. in those parameters. tribution defined two discrepancy When we examine parameter between proportion, usually rep- One the racial make-up jurors or laborers p, the letter resented indicates the pool chosen eligibles, expla- possible of either one the two nation is between two alternatives: outcomes of a Bernoulli trial. The either other procedure the selection parameter, usually represented was biased or by the the letter n, outcome was due to chance alone. If indicates the of the number trials. C. Clark Schkade, discrepancy great is to only L. so as occur Analysis & one Statistical for Ad- twenty, level, time out of (3d .05 ministrative Decisions ed. courts the disparity infer that due imper- is to an illegal Absent or use of process. missible selection See D. Baldus & impermissible criteria, employ- selection Cole, J. Statistical Proof of Discrimination ment decisions and selection for a service on 9.02, 9.03 §§ approximate venire should a Bernoulli building legal analysis its process. person on a hired will be statisti either neutral, cal model based on the black or non-black. If cumulative binomial hiring probability distribution, person or of the majority one should not premise person affect whether grand next is the selection of hired Also, black or not. if the foremen in choices made Madison Parish a resembles Ber eligible process. from the same pool They of noulli premise with- also that the race, regard out to probability p parameter .6, of value of equal choos- is to ing a black or eligible a non-black is population composed blacks,4 constant for of 60% each choice and occur should parameter random. and that the value of n 3. A familiar of example the occurrence of one non-black card is a initially drawn from deck of affecting outcome a subsequent outcome is the 52 and returned, then the of probability drawing playing successive of cards a selecting next, a black card on the draw increas- replacing deck without the selected card prior .5098, toes or 26 out of 51. The of probability to the next With draw. a standard deck selecting a .4902, non-black card becomes or 25 choosing cards, probability card, a black out of 51. or club, spade the initial draw is .5, one out two. Conversely, probability accompanying As discussed in the text initiative, jury may, investigate on its own any pattern occur without fixed and statis- attention, So, any coming matter to tically population large. mirror the its from source,” majority Webster, when the assume that absent ra- whatever Hewitt v. proportion cial discrimination the of blacks (La.App.1960), So.2d and decide for grand jury who have served as places meetings itself the times and of its statistically equivalent should be to the throughout parish, La.Code Crim.Pro. Parish, representation black in Madison (West Supp.1981). Ann. art. 435 It has the they step take a too far. power subpoena appear to witnesses to be- (West 1967). fore it. Id. art. 439 The will- comtemplate Louisiana law does not person subpoena ful failure of a under to grand jury selection of the foreman at ran- reappear grand Rather, jury before the as directed places judge dom. it in the district may contempt the foreman constitute of responsibility quali- to select the most Jury Subpoenas, fied to serve. This scheme is demon- court. In re Grand grand jury In Louisiana the selection of nire. La.Code fore Crim.Pro.Ann. arts. resembles, (West part, drawing Supp.1981); La.Sup.Ct.R. men in cards from a see 4 § Thus, returning prior (West 1981). playing previ deck without the cards to the like the card 3, supra. deck, ously yet next draw. See note The Code of drawn returned to the it requires parish possible persons population Criminal Procedure is may that a few general ineligible commission delete from the for selection as the next grand jury is, grand jury the venire from which the venire is This aberration how foréman. selected, grand jury ever, Finkelstein, statistically insignificant. and the drawn foreman M. persons (1978). of those who have served names Methods in Law 32 Quantitative general previous since the selection of the ve venires; (La.1978). variability may So.2d To increase its exist be- effectiveness, provides Louisiana law proportion tween the of blacks on ve- grand proceedings “the of the parish population. [are] nires and secrecy,” re Jury cloaked in In Grand Sub- proportion grand jury of blacks on a venire (La.1980); poenas, 387 see So.2d is, course, equal of the probability to (West Supp. art. 434 La.Code Crim.Pro.Ann. selecting black to serve aas foreman 1981), a witness called before and forbids using process. neutral selection counsel, appear with probabilities Because these will differ from Comment, generally So.2d at 1142. See Se- next, however, one venire to the the re- of the lected Problems Louisiana Grand quirement process of a Bernoulli Jury, 52 Tul.L.Rev. probability of an outcome remain constant sum, anything there is neither random throughout Only all selections is violated. grand process selecting about the thirty-one separate with p values Louisiana, any nor reason for parameter, equal proportion each to the majority indulge presupposi- thirty-one separate blacks on one of the tion the selection fore- venires, can valid statistical should, discrimination, produce men absent calculation be made. results. Louisiana random has decided to Moreover, simply there is no reason possible person choose the best from the believe, assume, majority as the that a val serve venire to as foreman. p equal ue of the proportion blacks That determination alone refutes the as- represents of Madison Parish sumption of randomness that underlies probability selecting a black all process Bernoulli and disallows inference venires. Because Louisi statistically racial discrimination test- place has ana decided selection of against the numbers the cumulative grand jury foreman in judge the district so probability binomial distribution. selected, that the most1qualified person is majority violate another tenet of a sub-population persons most for process Bernoulli assume service as a foreman exists on each value p parameter equal pro- to the jury venire. sub-population It is from this portion of blacks Madison Parish composed eligible of veniremen who are selecting same as the a black selection as p parameter foreman that for service as a foreman from pointed must be determined. We this out thirty-one grand each venires. ex in United States rel. Barksdale Black accepting majority’s Even baseless as- burn, (en 1981) sumption that all in Madison Parish banc), said, describing when we “statistics equally eligible to be selected presumptively eligible juror popu black foreman, p district aas the use of a lation, general popu rather than the equal percentage to the of blacks in the lation, provide proper starting point for parish population simply improper an use inquiry disparities into in racial the Par grand of statistics. for Selections ish [venires].”6 grand are made from the case, not population applied from the As Madison to the instant Barksdale Variability Parish. may requires petitioners exist between the the propor to show proportion of grand blacks, blacks on different tion of on thirty-one each requiring 6. The use of a whose members sub-population positions special qualifications must enabling each general traits possess them be select- be based with the comparisons testing ed is also for dis- employed racial but on with ‘the population comparisons small- group crimination in Wilkins v. employment. Univer- er of individuals who possess neces- ”); 654 sity Houston, 396 n.9 sary see also Sta- qualifications’ Dorsaneo, 1981) (quoting Hazelwood School Dist. v. Unit- tistical Evidence Discrimination Employment Litigation: States, ed n.13, 308 Selection of the Available Popula- (“statistical (1977)) n.13, 2741 tion, 768 Problems, and Sw. 29 L.J. Proposals, challenges hiring to a defendant’s practices

513 venires, grand previous who were as 2000 that less than ten blacks will be chosen; qualified probability to serve as foreman as the most and the is one in 200 that less than blacks grand twelve will be qualified person chosen. on the venire. facie case made if not more Only with this data can statistician de than grand thirteen blacks have served as p parameters termine the to calculate the jury foremen!8 probability choice suc non-black cessive foremen in I end this statistical discourse as the ma- simply Madison Parish. And this data is jority declaring ends theirs: the inappropri- unknown unknowable.7 ateness of They these statistics. then fall opine back to years, these “absent Thus, the majority’s calculation of an ex- racially discriminatory motivation ... [a] tremely represent small number black could have been probability selecting thirty-one consecu- appointed” grand found and jury foreman. white tive foremen does not Majority opinion 505. regard I this suggest possibility speculation as wide as their statistics from have suffered from discrimination in the justifying an additional for the exclusion blacks as foremen petitioners. I affirm judgment inap- inasmuch as it reflects use of an the district court. propriate statistical model. conse- quences majority’s decision reveal BROWN, JOHN R. Judge, Circuit with If, analysis. the error in their as in Madi- TJOFLAT, whom Judge, joins, Circuit con- Parish, thirty-one son random selections for curring dissenting part: made popu- are from a black, the probability lation 60% I concur in the result reached in 10,000 one in nine less than blacks will opinion Rubin’s all that is said with the chosen; exception is less portion than one of that contained in Part absolutely nothing quali- We know about the choosing Number of blacks chosen Probability people fications of the on these several venires in 31 random k or fewer or on the venire from which the (“k"): selections number of blacks: petitioners. came that indicted the In view of peculiar responsibilities and demands 0.0050 11 placed grand jury, on a foreman of it is 0.0135 12 nothing speculation but wild to assume that the 0.0320 13 absence of a black foreman was due to the 0.0677 14 systematic exclusion of blacks as 0.1284 15 foremen. 0.2194 16 0.3399 17 probabilities cumulative binomial com- 0.4805 18 puted to the nearest .0001 II MINITAB 0.6248 Ryan, package, see statistical T. B. Joiner & B. 0.7546 Ryan, MINITAB Student Handbook 91-101 0.8566 = (n 31) for 31 random selections 0.9262 =(p .6) percent that is 60 0.9670 follows: 0.9874 choosing Probability of blacks chosen Number 0.9960 fewer in 31 k or random 0.9990 (“k”): number of blacks: selections 0.9998 0.0000 1.0000 0.0000 0.0000 3 when level is attained the .05 case at facie 0.0000 4 to .0320 as from .0677 decreases 5 0.0000 foremen drop as of blacks selected number 0.0000 6 13. from 14 to 0.0000 7 „ 8 0.0001 9 0.0005 0.0017 expounding a statistical basis1 for VI

result achieved. INTERNATIONAL BROTHERHOOD OF WORKERS, ELECTRICAL LOCAL long, ardently urged2 Although I have 2188, Plaintiff-Appellant, development the full and use statistics in demonstrating usually ra discrimination — WESTERN comparable COMPANY, ELECTRIC cial—that method is not IN- CORPORATED, Defendant-Appellee. appropriate hence is As here. to this I analysis Judge Reavley think the in his No. 80-3523. dissent is These statistical unanswerable. by whatever name described— United States Court Appeals,

constructs — are based oh the assumed fact that choice is Fifth Circuit.* wholly determined at random chance. Unit A Here, grand jury foremen —whether 18, Nov. good, acceptable or bad reasons —are to be Rehearing and Rehearing En Banc deliberately selected as a mat- 24, 1981. Dec. ter of principled individualized choice. The Judge does not —as the statistical model

contemplates single random a —draw forty. name out of opinion

It flaws inappli- to stress this

cable improbability statistical as a basis for requiring result to the remand Federal

District ascertain all of the facts

concerning process selecting grand foremen which so sketchily far is

revealed an incomplete, inadequate,

State record. encompasses following 348, 1. This Corp., from the last Rowe v. General Motors 457 F.2d 508, opinion, 661 that reads: (5th 1972); Beto, part Cir. Brooks v. 366 F.2d (5th 1966), denied, That, Cir. cert. from venire selected in a (1967): nondiscriminatory parish 18 L.Ed.2d 135 manner in a where Figures do, speak black, approximately Courts lis- 60% Hinds, there bé no ten.” United (5th racial discrimination in States 417 F.2d 1969): selection of white foreman Cir. succes- not, unlikely course, sive times is so as to demand at least Statistics are the whole an- exploration swer, nothing emphatic [and is] an event whose occur- but is as zero. statistically implausible T.I.M.E.-D.C., rence is oc- [which] United States v. 517 F.2d repeatedly, (5th 1975); curs . . .? Liberty Cir. Smith v. Mutual Co., (5th Ins. 569 F.2d Cir. States, 2. State of Alabama v. United 1962) per aff'd curiam * case, 9(1) Former Fifth Circuit Section Public L.Ed.2d 112: Law 96-452—October discrimination, problem In the of racial sta- much, tistics tell often and Courts listen. notes choosing a .5, non-black card or one out disagree majority’s 6-7, I infra, with the as- If, however, two. the selected card is not sumption of blacks in proportion Madi- deck, returned the selection a card son Parish is the same proportion drawing: affects a subsequent eligible blacks selected as a selecting (or selecting a black card a non- grand jury foreman. card) changed. In this if a example, grand of times a strated the Code of equal to the number Criminal Procedure. was selected in Madison Par- provides The Code that “the court shall majority then use the cumulative ish. grand jury select one from the ve- probability distribution to show binomial nire to serve as foreman.” La.Code Crim. improbability selecting thir- the extreme (West 1967). contrast, By Pro.Ann. art. 413 grand jury white ty-one successive provides it then for the selection of the and conclude that “the record demonstrated grand jury other members of the at random petitioners] could the likelihood [the appoints it the sheriff to “draw indis- entitling them to prove facts relief.” 661 criminately envelope lot from containing remaining names on the grand jury The selection of foremen in grand jury venire a sufficient . . number . throughout Madison Parish and most of complete grand jury.” Louisiana has some resemblance to a Ber entrusting This scheme of the selection of process. grand jury noulli A foreman is judge, the foreman to the so that the most either black or non-black. The selection of qualified person grand jury on the venire grand foreman from one foreman, may leaving be chosen as while significantly venire does not affect the se chance, remainder of subsequent lection of a foreman from a is, light responsibilities powers venire.5 Because one fore grand jury, legitimate choice for proba man is selected from each Louisiana to make. The Louisiana bility choosing a black or non-black puissant body. plays key is a It role constant each venire. instigation prosecutions of criminal similarity process, to a Bernoulli by providing indepen- the accused with “an however, ends there. Because Louisiana cause,” probable dent determination of has to select their fore- decided Williams, (La. State v. So.2d serve, qualifications on their men based 1975) (emphasis original), prior to re- nothing there is inherent in selection of bill, turning a true see La.Code Crim.Pro. sug- a Louisiana foreman that (West 1967). Ann. arts. 443-444 In fulfill- gests randomness the racial make- so responsibilities, “grand its the Louisiana up past thirty-one foremen should

Case Details

Case Name: Billy Guice and Howard Claxton, Sr. v. Ray Fortenberry, Superintendent, East Carroll Parish Prison Farm,respondent-Appellee

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 18, 1981

Citation: 661 F.2d 496

Docket Number: 80-3350

Court Abbreviation: 5th Cir.