Dalton Prejean v. Frank Blackburn, Warden, Louisiana State Penitentiary

Johnson, Judge, they court found had Circuit dissented The district owners. opinion. found that the “waiv- it. It also filed not met er/appeals” of the ordinance section vague. find no unconstitutionally We rulings on record before in these

error

us. is AF- judgment

For reasons these

FIRMED. PREJEAN, Petitioner-Appellant,

Dalton BLACKBURN, Warden,

Frank Penitentiary,

Respondent-Appellee.

No. 83-4548. Appeals, States Court of

United

Fifth Circuit.

Oct. Guilbeau, La., Lafayette, E.

Thomas Ste- Winter, Boger, ven L. John Charles Debe- Karlan, Plimpton, voise & Mitchell A. Mar- Hall, Olson, City, New Dalton was indicted H. York Louisi tha John grand jury charge ana on the petitioner-appellant. for first de gree urged murder. Defense counsel Stansbury, Atty., Dist. Lafa- J. Nathan pretrial suppress “any and motion to all” of La., respondent-appellee. yette, Prejean’s prior adjudications juvenile de

linquency. The trial court ruled that evi Prejean’s juvenile dence of record in admissible, and ordered the sup evidence pressed proceeding “insofar as this instant CLARK, Judge, Chief POLITZ Before concerned, no but further.” State JOHNSON, Judges. and Circuit immediately sought a writ of certiorari. Supreme The Louisiana Court denied the CLARK, Judge: Chief application, stating writ the trial prisoner Prejean, a Louisiana sen- Dalton evidentiary ruling court’s was correct un slaying the 1977 tenced to die for der state law. Trooper, appeals from the Louisiana State applica- federal court's denial of his district Lafayette The trial was transferred from corpus Finding tion of relief. habeas Parish to Ouachita Parish because of the Prejean not established a violation of pretrial publicity intense that the case had rights, we affirm his constitutional generated. three-day trial, In a bifurcated court. judgment of the district an all-white Prejean of twelve found guilty and recommended a sentence of I. AND BACKGROUND FACTS judge, death. The by trial bound PROCEDURAL HISTORY accept jury’s recommendation, law to early morning July hours of Prejean sentenced to death. Thereafter Prejean, year a seventeen old Dalton judge compiled Capital a Uniform Sen- youth, night black left a local club after a Report, tence obtained a confidential “sen- night drinking socializing in full report” tence investigation from the State neighborhood Prejean, accompa- taverns. Corrections, Department of and submitted by Joseph and nied his brother two com- Supreme both to the Louisiana Court. panions, only a short had driven distance appeal, On direct the Louisiana pulled his car he was when over capi the conviction and the affirmed Trooper for a traffic viola- Louisiana State Prejean, tal sentence. So.2d Cleveland, tropper, tion. The Donald first denied, cert. (La.1979), young asked the four men exit the vehi- (1980). Preje cle; Joseph Prejean he all but then ordered next application post- an submitted an to return to their seats. com- three court, conviction relief in the state trial Trooper plied, pushed but when Cleveland urging several new constitutional claims. Joseph up against Prejean ear and be- requested The court denied all relief. Pre him, gan Prejean Dalton with- search jean applied thereafter to the Louisiana from drew a caliber revolver under the .38 Supervisory Court for Writs and got Approach- car seat out of the car. stay applications of execution. The were concealed, gun with the Dal- Cleveland Prejean State ex rel. v. Black denied. Prejean range, ton fired two shots at close burn, (La.1981). 397 So.2d 517 striking Trooper died Cleveland. Cleveland Prejean immediately gunshot appli- from wounds to his submitted an neck young corpus men fled cation for chest. The four the scene federal habeas relief and sought a apprehended stay impending but were several hours later. execution. juve- statutory proof aggravating 1. The ruled that the ble to trial court evidence of establish factor, adjudication impeach- 13:1580(5) nile was inadmissible for citing 6 La.Rev.Stat.Ann. Roberts, citing purposes, (Harry) (1974) ment State v. 905.4(c). art. La.Code Crim.Pro.Ann. (La.1976), 331 So.2d and was inadmissi- granted tempo aggravating The federal district the instant circum- Prejean rary stay, enabling present to stance found Preje- was that previously “peace Court a an’s murder victim awas officer claim. ex rel. Pre engaged unexhausted See State in his lawful duties.” See id. art. Blackburn, (La. jean 905.4(b). 407 So.2d 1189 The verdict must be unanimous. 1981). Prejean’s fully petition exhausted (Supp. La.Code Crim.Pro.Ann. art. 905.6 1982). When, here, thus raised for consideration the federal unanimous- court eleven discrete claims of con district ly agrees death, on a sentence of its recom- deprivation. holding stitutional Without binding judge. mendation is on the trial evidentiary hearing, the district court ex judge Id. art. 905.8. The trial therefore claim, found that each lacked amined each had no choice but to sentence merit, application. dismissed Pre accordance with the recom- Blackburn, (W.D. jean F.Supp. 985 mendation. Prejean, See State v. La.1983). appeal, Prejean On now raises (La.1979). So.2d of constitutional five claims dimension: statutory capital Pursuant to Louisiana’s first, imposed that death sentence scheme, Supreme the Louisiana process due this instance violates because performs an automatic and mandato- by Supreme it affirmed ry review of each case which a death prejudicial of Court on basis nonrecord sentence assigned. has been La.Code second, information; that the execution of (Supp.1982). Crim.Pro.Ann. 905.9 art. age for a crime at committed sev Supreme Court’s jurisdiction in eighth enteen would violate an amendment questions criminal cases extends of execution; right protecting minors from law; findings the court cannot enter of third, that the Louisiana Court’s §V, 5(c)(1979). La. fact. Const. Art. inadequate proportionality Preje review of adopted court has following procedures eighth an’s sentence violated the amend satisfy “to constitutional criteria for re- ment; fourth, Prejean, youth a black view:” killing police officer, convicted of a white Review Every Guidelines. sentence of was condemned to die as a result of inten death shall be reviewed this court to discrimination; fifth, tional racial and determine if it is excessive. In determin- refusing the district court erred in grant ing whether the sentence is excessive the evidentiary hearing an claim court shall determine: prosecutor peremptory used chal (a) whether lenges deliberately imposed the sentence systematically to under the petit jury. passion, prejudice exclude from the influence of blacks We factors, any arbitrary other granted stay of execution in order to plenary enable our consideration of this (b) supports whether the evidence appeal. jury’s finding a statutory aggravating circumstance, and II. CAPITAL SENTENCING (c) whether disproportion- the sentence is IN LOUISIANA penalty ate to the imposed in similar cases, A. considering Louisiana law both the crime and the defendant. law, Under Louisiana a death sen § may imposed only 1; penal tence after the La.S.Ct.Rule 28 see La.Code Crim.Pro. ty “any mitigating circum (Supp.1982). aspect considers Ann. art. 905.9 As an beyond review,” stances” and finds “proportionality reasonable of its the court performs doubt that the murder was at attended at a minimum a district-widecom- statutorily “aggravating least one defined parison imposed sentences § 4; see, circumstance.” La.Code Crim.Pro.Ann. “similar” cases. La.S.Ct.Rule 28 (West (Elmo Supp.1982); Patrick) Sonnier, arts. e.g., 905.3—5 State v. Culberth, (La.1980). (La.1979). So.2d So.2d (a) the death penalty CLAIM Whenever is im- THE DUE PROCESS III. posed, judge shall expeditious- the trial conducting appellate review Pre its ly complete and file the record a sentence, the Louisiana jean’s (see Capital Report Uniform Sentence received, considered, and two used “B”). Appendix The trial reports that had been sub postsentence upon attorney, call the district defense judge. Neither the to it the trial mitted department proba- counsel and the investigation report, confidential parole Department tion compiled by employee provide any Corrections to information Corrections, nor the Uni Department report. complete needed to Report, compiled by Capital Sentence form (b) judge The trial shall a sen- cause himself, judge was admitted the trial investigation tence to be conducted that, affirming Prejean contends trial. report to be attached the uni- partial dependence on sentence in the death report. form The in- inherently postsentence re unreliable two vestigation inquire shall into the de- Court denied ports, prior delinquent fendant’s and criminal objec law. him due activity, family situation and back- yet separate related rests on two tion education, ground, economic and em- first, the court’s considera grounds: status, ployment rele- other reports it to conduct of both enabled tion concerning vant matters the defend- arbitrariness, appellate review of the sealed, report ant. This shall be ex- and overall excessiveness proportionality, cept provided below. upon informa the verdict based of (c) Defense counsel and at- the district known; which had not about tion torney copy furnished a shall be second, considering the confi and completed Capital Report Sentence and investigation report dential investigation report, of the sentence relied on information that never and days shall be afforded seven to file proc in the forum of the adversarial tested opposition a written to their factual ess.2 opposition If the suf- contents. shows grounds, ficient the court shall conduct Reports A. Two Postsentence hearing contradictory to resolve After had sentenced by the substantial factual issues raised taken, appeal and an had been eases, reports. opposition, In all if judge trial submitted to Su- any, reports. shall be attached sentencing reports. two preme Court The § 3; La.S.Ct.Rule 28 see La.Code Crim.Pro. procedure Court re- (Supp.1982). Ann. art. 905.9 reports and the two ceived considered —the Capital 1. The Re- Sentence Capital Report and the Uniform Sentence Uniform port investigation report— confidential governed is judge In the the trial com instant pro- the Rule Rule 28. Section three of piled apparently the UCSR with the assist vides, pertinent part: counsel, ance of the defense the district attorney, agent depart of the Capital and an state 3. Uniform Sentence Section probation parole.3 ment of The Report; Investigation Report. UCSR Sentence eighth duty Prejean’s argument of its 2. It should be noted that amendment such as to consti- tute a due pro- violation of law. amendment's due born of fourteenth clause, eighth cess not amendment’s cruel record, The with 3. UCSR that is included punishment argument unusual clause. This attached, objections defense is not in counsel’s on the court’s focuses not whether respects all at- identical UCSR that was arbitrary proscribed by review enabled result investigation tached to the confidential sentence amendment, eighth but rather whether report and in a to the submitted in the administration the court committed error judge’s envelope. portion trial of the sealed The Prejean's intelligence range inferior 2. The noted Sentence Investi- Confidential gation Report background, his and deficient educational record, details con- employment and certain investigation The confidential sentence Cleveland, cerning Trooper the murder vic- report prepared by probation the same juvenile report The listed three of- tim. parole agent Depart- of the Louisiana Prejean previously had fenses for which prepared “part ment of who Corrections A” committed, indicating report moreover of the The been UCSR. first recited a chronology Prejean’s juvenile record, in- psychological per- tests had been two cluding Prejean’s escapes three from custo- Prejean during juvenile these formed on theft, dy, burglaries, two one a “false fire- commitments, explanation and that an offense, truancy charges, arms” and the in the the results was contained confiden- degree first murder of a taxicab driver investigation report. tial sentence during committed the course of an armed judge’s UCSR furthermore contained the robbery. In an effort to furnish details opinion that the had not been influ- record, concerning Prejean’s “adult” factors, by any arbitrary enced probation officer attached to her confiden- disproportion- probably sentence was report copy Prejean’s tial confession to ate, that, (among considering other fac- Trooper the murder of Cleveland. As not- tors) “propensities history above, sup- ed this confession had been offender,” appropriate. the sentence was pressed from the criminal trial. Prejean’s copy counsel received a investigation confidential sentence objections UCSR4 and submitted written to report Prejean’s history” considered “social it, alleging that “the conclusion and certain great detail. Some measure of the infor- specific portions of the uniform sen mation contained in the confidential re- tencing report patently are in error.”5 port’s Prejean’s discussion of history social I, R. counsel attached gleaned can be from the exhibits that de- objections pages to the the last four fense counsel submitted as attachments to confessing statement to the objections example, to the UCSR. For crime. The full confession was included in investigation the confidential sentence re- investigation the confidential sentence re port excerpts psychiatric contained three port; it had been excluded from the performed 1972, 1974, evaluations pretrial of a suppress. virtue motion to submitted, 1976. Defense counsel himself objections, Counsel also attached to his as objections as to his attachments to the “exhibits,” several documents that traced UCSR, the full text of the latter two evalu- Prejean’s wayward through course however, part, ations. For the most agent’s Louisiana Division of Probation and Parole. investigation confidential sentence D) record, report (part only Prejean’s can be found in the submitted to counsel. See note su- I, Apparently judge State R. 188. pra. the trial edited and retranscribed the three sections of the UCSR that were initially completed by par- judge only 5. The trial noted in the UCSR that probation parole agent. ties and the statutory mitigating Preje- two circumstances— UCSR, edited and retranscribed version of the youth presented an’s and his intoxication —were D", accompanied by judge's "part the trial jury. opposition, Prejean’s to the In the written pursuant filed in the record to Rule 28. argued statutory counsel that two additional unedited version was attached to the confiden- mitigating support circumstances found in the investigation report tial sentence and both were retardation, Prejean's record: borderline mental public. Despite sealed to the the differences in 905.5(b); disadvantaged art. and the and dis- UCSR’s, apparent the two it is that both the character, turbed environment that molded his UCSR that is in the record as well as the UCSR 905.5(h). urged art. Counsel also that the trial envelope contained in the sealed were before judge prosecutorial ploy had overlooked one Supreme Court of Louisiana for considera- played jury's passion preju- that had to the tion. dice. Counsel moreover asserted the trial judge indicating erred in that a black had been It cannot be determined which version of the represented petit jury. UCSR, it, on the or whether both versions of were Supreme agent’s personal ob- cess. Id. Presnell Court report consists Prejean’s reviewing impressions piece allow a court to refused to servations social environ- life and immediate family together elements of a crime different impressions and ob- personal These charged. ment. formally one Presnell from the agent’s only found can servations indictment, no notice either had report. investigation confidential elsewhere, jury, to the or instructions relying rape that the state was on his Pre not reflect whether The record does supply bodily injury element child to copy furnished a jean’s counsel was ever kidnapping make his of that investigation necessary to postsentence the confidential a, repre Despite not offense. the fact report.6 Prejean’s counsel has child copy. might not furnished a parts support sented that he was of the record argued Prejean elements, has not Supreme The State various Court held report’s right object to the waived the that the defendant was entitled to have the v. Flori generally contents. See Gardner jury conclude that each element be found 349, 361-62, da, 97 S.Ct. 430 U.S. single actually charged part as offense (1977); Estelle v. 51 L.Ed.2d 393 and instructed. Williams, 96 S.Ct. reports in The Court’s use of the review- (1976). We, therefore, pre L.Ed.2d ing Prejean’s death sentence did not violate judge performed his the trial sume principles established Gardner copy of the sentence duty and furnished The Louisiana Presnell. report counsel as investigation precisely affirmed conviction on Court’s required charge proof that was before the none, rule, and, reported since the Court jury. Prejean, 242- So.2d to the Louisi that counsel did submit (La.1979). partly It did so on the basis any objections Supreme Court ana reviewing the evidence and the verdict report’s contents. work, jury. phase In this of its considered what was IV. jury. separately considered It also Florida, Prejean relies on Gardner v. statutory review that conducted broader 1197, L.Ed.2d 393 430 U.S. imposition capital punish- considered the (1977) Georgia, and Presnell v. ment on this defendant as it related to (1978) sup- penalty other similar cases which the process argument. port for his due Gard- imposed and in which it had been had been a Florida was de- ner held that defendant withheld. the trial nied due of law when in

judge imposed the death sentence based Prejean, an ade was afforded presentence report in- part on confidential quate opportunity deny explain or all op- had no which the defendant formation given factual information to the deny explain. 430 U.S. at portunity to reports. in the A sufficient chal Court 364, at 1207. The Court based lenge provoke hearing. Any could fact in holding the defendant’s interest opposition required preserved in was to be reliability any information used in deter- interest in the record. The defendant’s he live or die. Id. mining whether should reliability by as defined the Gardner 359, held 97 S.Ct. at 1205. The Court at Court, the infor is not affected whether outweighed interest the state’s this imposing kept mation from the sentence information be keeping interest in secret pro- jury. at important court or Rule id. U.S. was to the R.I., UCSR, general ingredients essarily objections 132- have learned of the to the 6. In copy Prejean’s report acquiring the sentence counsel stated that "in of the confidential report itself, is, best, investigation the Court furnished report at incon- this statement Prejean's copy confession.” Id. with a of Dalton clusive. need not nec- at Because counsel (1958). fully protects support 97 S.Ct. at 1206-07 L.Ed.2d 630 In claim, reliability. special interest the defendant’s this he cites the concern and juvenile treatment offenders reflected require To that the Louisiana Su America; by juvenile systems in preme not use the information in its requirement constitutional established in sentence review violates the state’s interest Oklahoma, Eddings v. 455 U.S. having pertinent as much information as (1982) 71 L.Ed.2d 1 that sentenc- possible during available the “selection” ing capital age authorities in cases consider phase capital sentencing procedure. of a factor; mitigating as a the decline in the legiti The Louisiana has a past century half in the number of teen- understanding mate interest the back States; agers executed in the United ground persons histories of sentenced tending other evidence to demonstrate that capital punishment. This interest is not nationally internationally, both obligation conflict with the court’s to re pun- trend is toward elimination of an view decision. The court has youthful ishment for offenders. (1) obligation to consider whether the sen imposed tence was under the influence of No court has ruled that in all cases and passion, prejudice, arbitrary or other fac circumstances, under all the execution of tors; (2) supports whether the evidence those who commit offenses while finding statutory aggravating of a circum age eighteen under the constitutes cruel stance; (3) proportionality of the punishment. unusual sentence. La.Code Crim.Pro.Ann. art. opportunity Court had the to consider this (Supp.1982). carrying 905.9 out this re Oklahoma, in Eddings v. question view, explicitly the court stated that (1982), but supported finding record evidence of an grounds. decided the case on other aggravating imposi circumstance and the Eddings, the Court held that the state penalty despite tion of the death evidence improperly courts refused to consider as mitigating presented circumstances to mitigating family circumstance the violent jury. sepa 379 So.2d at 247-49. In its background youth of a who committed function, rate review it also found age murder at the of sixteen. The Court disproportionate, that the sentence was not chronological stated: age “Just as the of a considering both the crime and the defend great minor weight, is itself factor of so Id. ant. at n. 248-49 and 3. Its discussion background must the and mental and emo- reports supplemental of the two to its development youthful tional defendant discussion of the record evidence. Neither duly sentencing.” considered in reliability interest U.S. 102 S.Ct. at 877. reports information contained in the nor his interest in a review of the verdict for Nothing society’s standards of proce arbitrariness was violated decency compel more than consideration of dure. eighteen year youth mitigat old’s as a survey capital pun factor. A of state

V. THE CRUEL AND UNUSUAL provides ishment statutes us with “evi PUNISHMENT CLAIM country’s present judgment,” dence 584, 593, Georgia, Prejean contends that the Coker execution of a 2861, 2866, youth (1977), for an offense committed while he S.Ct. 53 L.Ed.2d 982 age eighteen under the concerning acceptability violates the of the death punishment cruel and penalty youthful unusual clause of the for such offenders. Of amendment, eighth transgresses thirty-nine it penalty “the death statutes now existence, evolving decency standards prohibit that mark six execution of maturing society,” Trop progress capital offenders who committed crimes Dulles, 86, 101, v. 590, age eighteen.7 Twenty-two 356 U.S. under S.Ct. while (West 16-ll-103(5)(a) (1973); Supp.1982); 7. Cal.Penal Code § 190.5 Colo.Rev.Stat. Conn. § provide negate valid penalty statutes cannot otherwise other death state unique. his then sentence because crime is mitigating to be con age factor sentencing process;8 all oth in the sidered VII. DISCRIMINATORY by Eddings to do the same. obliged ers are APPLICATION legisla judgment among state The current Prejean contends that district strongly indicates that tures thus refusing court erred to hear statistical imposed youthful punishment can on his claim that he was sen evidence offenders. to death of his race and tenced because race of his victim. claims this er REVIEW VI. PROPORTIONALITY eighth both ror violated amendment argues Prejean also right to be free from cruel and unusual a sufficient did conduct Court punishment and his fourteenth amendment Specifi proportionality review his case. right equal protection of the laws. He cally, that because the Court he contends argues proof that he tendered would to three cases9 its review dissimilar limited juries act on establish districts, the was inade from review two in imposing basis of race the death sen quate. against tence blacks who have killed a person. white court properly district argument is meritless. Louisi This rejected Prejean’s tender of statistical Article ana of Criminal Procedure Code proof evidentiary hearing. without an requires 905.9.1 degree murder to review all first Balkcom, 573, v. 660 F.2d Smith being same re cases within the district 858, (5th Cir.), F.2d modified, 671 cert. con The Louisiana viewed. 181, denied, 459 U.S. 103 S.Ct. degree relevant first murder sidered the (1982), rejected, with L.Ed.2d the court district the offense convictions where hearing, a on the out a similar attack Geor held. occurred and where trial was gia penalty proffer statute. The re procedure This satisfies constitutional predicat statistical evidence in Smith — Harris, Pulley quirements. v. See unsupported assumption that ed on the all -, 79 L.Ed.2d 29 equally variables nonracial were distribut (1984); F.2d 381 Maggio, 679 Williams throughout reported homicides in ed — banc), denied, (5th Cir.1982) (en cert. Georgia, which formed basis U.S.-, 77 L.Ed.2d 1399 analysis. aggravat held that unless Smith Blackburn, (1982); 653 F.2d Baldwin ing circumstances and all other nonracial Cir.1981), denied, (5th for, cert. variables had been accounted racial (1982). raw not be analysis data would person According mur Certainly evidentiary the first convicted of value. sufficient duty Smith, dering peace officer the line of the tender of statistical evidence (1981); 53a-46a(f)(1) (West 304(7) 29-2523(2)(d) Supp.1982); § Gen.Stat.Ann. Neb.Rev.Stat. § 9-1(b) (Smith-Hurd (1979); 200.035(6) (1979); Supp. § ch. Nev.Rev.Stat. N.H. § Ill.Ann.Stat. 2929.02(A) 1982); (Page 11(b)(5) (Supp.1979); Ann. 630:5 § § Ohio Rev.Code Rev.Stat.Ann. N.J. 37-234(a)(1) 2C:ll-3(5)(c) (West 1983-84); 1982); (Supp. Supp. Ann. § § Tenn.Code Stat.Ann. 1982). (Supp.1981); § N.M.Stat.Ann. 31-20A-6.I N.C. (1981); 15A-2000(f)(7) Gen.Stat. 42 Pa.Cons. § 9711(e)(4) (Purdon 1981); 13A-5-51(7) Stat.Ann. S.C.Code (1982); § Ariz.Rev.Stat. 8. Ala.Code § (Law. 16-3-20(C)(b)(7) Co-op. Supp. 1982-83); Ann. (Supp. § Ark.Stat. Ann. 13-703G.5 § 76-3-207(1)(e) 1982); (Supp. Code 41-1304(4) Utah Ann. (Supp.1979); § Fla.Stat.Ann. Ann. § 1982); 19.2-264.4(B)(v) (Supp.1982); § Va.Code (West 921.141(6)(g) Supp.1983); Ky.Rev.Stat. § 10.95.070(7) (Supp.1983- (Bobbs-Merrill §Ann. Wash.Rev.Code 532.025(b)(8) Supp.1982); §Ann. 84); Wyo.Stat. (Supp.1980). 6-2-102(j)(vii) (1982); § 413(g)(5) Mass. art. § Md.Ann.Code 69(b)(5) (West Supp. § Ann. ch. Gen.Laws members; 1983-84); 99-19-101(6)(g) killings family involved none Miss.Code Ann. 9. All § defendant; 565.012.3(7) (Ver- teenage none (Supp.1982); involved a result- § Mo.Ann.Stat. Supp.1983); 46-18- a death § non Mont.Code Ann. ed in sentence. for must account nonracial so as ber of homicides variables committed whites and strong to render the statistics “so that the by blacks; the number committed it permit results no other inference [would] would offer a breakdown type of they product racially but that are the of (e.g., felony murder, homicide committed discriminatory purpose.” intent or murder, etc.); acquaintance it would F.2d at 859. victim, delineate the race of the that it present would “other salient characteristics Smith requirements also relied on the of the offense and offender” which prior stated in our statistical evidence deci According Prejean, available. Spinkellink “after Wainwright, sion controlling for other (5th Cir.1978). factors” this informa- In Spink F.2d 612-16 ellink, tion would indicate that proof particularly with we said that the must estab offenders, youthful specific evidencing lish acts intentional the race of the defend- “against pe purposeful discrimination ant and the race of the victim determines titioner" on the basis of race. Id. n. imposed. the sentence Smith, (em (quoted 660 F.2d at 585 Although Prejean findings admitted the Smith)). phasis supplied in We found the incomplete, were pre- he asserted that the Spinkellink and Smith tenders in both g0 gtark wag ]iminary findings were that it merely condusory be based assumptions already clear that further refinement of wanting proof of discrimination and m of the data would not ch the conclusion against intentional racial discrimination ¡n he drew that the death ig alt particular petitioners. cases, those In both pplied currentl bei in a racially dis. n , , ,. , . (cid:127) sentencing discrepancies explama- . the ,, were n ^ * , ,, criminatory manner, particularly when iu- TT , , , , , grounds. However, « . ble on nonracial ,. involved, , -¿i ,.i , vemle defendants . are x n x dicta m bmith suggested that statistical Prejean stated that his statistics had might evidence be adduced which would gleaned been reported from all homicides compel particular the conclusion that a de by the State of Louisiana to the F.B.I. from product fendant’s conviction was the of in 1976-1980. The statistical breakdown indi tentional racial discrimination. 671 F.2d at cated that of 2527 homicides in which the It is that dicta that we treat with known, race of the victim was of those 19% now.10 *> die under the Louisiana stat following summary of de- sent?»fed ute kllled black whlle of those 81% description tailed of sought the tender he PeoP!e> sentenced to death killed whites. helpful to make is understanding Prejean focused on all homicides state- deficiencies. introduced his Memo- wide which a randum black offender was Support Corpus accused Habeas Re- killing lief with a white victim. Only the conclusion that his statistical 9% pattern evidence would homicides he establish included fell into practice imposition category; yet, of discrimination in 37% those sentenced penalty; of Louisiana’s death that the evi- to death under the current Louisiana stat- distinguish dence would between the num- ute were killing blacks convicted of whites. Zant, Spencer 10. The Eleventh Circuit in reversal was the district court’s conclusion that (1983), F.2d rehearing, vacated en banc constitutionality Georgia the facial for (11th Cir.1984), 729 F.2d 1293 reversed the dis penalty preclude statute would an attack on its grant evidentiary trict court’s refusal to an hear constitutionality applied. The district court ing on a statistical tender. There were three opinion days was rendered 10 before Smith v. bases for the court s action. The first Balkcom was modified as discussed above. The faulty was that the district court had made a panel concluded that the district court's three preclusive construction of the effect of state legaI prevented adequate analysis errors findings 2254(d under 28 U.S C. . Sec § petitioner sought present, the statisticaI data panel ond the reversed the district court s hold- proceduraI Because of the markedl different J mg petitioner strategic j . had committed a c t u j posture present (cid:127) or the case and because the c u» £(cid:127)!(cid:127)* T c c derault m railing present proof Spencer statistical v °Pm,on . Zant has been vacated’ discriminatory application penalty of the death Panel presented 11IS not on the issues here. Persuasive ground statute to the state courts. The third make-up, this, that of- and economic and Prejean deduced black educational From background vary of citizens from one dis- kill white victims have a fenders who 200% the trict to next. Such iden- characteristics being of sentenced to death greater chance views, tify parish certain with beliefs and kill vic- white white offenders who than practices. might one or That more districts Furthermore, no that he observed tims. juries produce persistently discrimi- had to offenders been sentenced white against in nate black defendants violation killing for a black victim. death duty jurors of their sworn as does not disparity was Prejean stated that the juries impaneled reflect actions of in greater youths mur- for black who even jury another district whose citizens return situations, In such a white victim. dered verdicts which cannot be so faulted. If chance says youths he black have same so, proportionality this were not review do white as receiving a death sentence of constitutionally not could be restricted to adults, has youth no been sen- while white Looking districts. at the individual statis- to under the current Louisi- tenced death compiled im- tics entire state could ana statute. properly disparage convictions rendered in- his tender also would stated fairly properly by diligent judges to racial clude nationwide statistics show juries. Thus, to test whether discriminato- sentencing youths black discrimination application ry of Louisiana’s valid pattern with found was consistent sentencing statutes been shown sta- comprise Blacks of proof strong Louisiana. 59% permit so to no tistical as currently juveniles the Unit- condemned other inference than intentional racial dis- tender, crimination, According must, ed States. to the statistical base at blacks, compared initially, to least deal with numbers within the since whites, age to boundaries of the district where the sen- reported are below of imposed. tence was Finally, Prejean of- been executed. have present expert will witnesses who fers Prejean’s tender offered no statistical ev- allegations and these statistical validate suggest this in this idence analyses refined present more detailed and impose district more inclined any inference the information rebut penalty he his because was black and may cause these sen- nonracial factors Balkcom, victim white. As Smith v. tencing disparities. and nationwide data selected for statewide study justify leap the statistical cannot contains a Prejean’s tender broad discriminatory conclusion of intent or figures. He spectrum of statistics concerning this dis- purpose Loui only on entire State of draws not previously As in our dis- trict. indicated siana, nation and even as but also on the review, supra proportionality cussion probative 1864. The value far back as § VI, degree three murder convictions first ranging far statistics relevancy of such January have been returned since challenged by properly the district were where the oc- both district offense Louisiana Code Criminal court. The curred and the district where re requires proportionality Procedure imposed. None of these resulted in a degree murder cases after of all first view improper An death sentence. inference the district within January racially discriminatory behavior imposed. La.Code the sentence was compelled be amount of ex- cannot § (West 4(b)(i) art. 905.9.1 Crim.Proc.Ann. conjecture. pert discriminatory appli Supp.1983). Proof Prejean has Regardless of the fact that likewise should cation sufficiently showing compelling made a that same district. limited to by juries in this racial discrimination Parishes, judicial district, tender, looking dis even statis- Louisiana, falls compose, individualistic. for the entire State of they are tics tricts by the political standard established short judicial take notice We tender, ty. dicta in Prejean’s although Smith. The Louisiana Code of Criminal Proce- complete dure states fact more than statistical show- that the “the victim awas ings peace engaged fireman or officer in his Spinkellink, in either or Smith lawful aggra- duties” is to be considered an purporting experts to offer that will chink vating circumstance of the crime. cracks, Article all the on its face still fails to 905.4(b). When a crime such is committed sufficiently account for nonracial variables. jury upon subjec- has little to act room Assuming Prejean’s own claims for his jury tive intents. not here was proof accurate, are his statistical evidence presented crime might with a still would not this in establish might not fall under the of- rubric of an intentionally imposed this case the death heinous, fense in especially “committed an penalty Prejean on of his race and because atrocious, or cruel manner.” La.Code Despite not because of crime. his 905.4(g). Crim.Pro. art. Offenses within string percentages sug- of statistics this category aggravating circumstances gesting possible disparity in racial subject are group’s to an individual’s or Prejean youths, of black has not subjective biases, ra- including intents suggested that the he would evidence sub- prejudice. cial Because killing mit sufficiently was refined to allow peace engaged officer while in lawful peace one inference: that for murders of objective duties application involves an duties, engaged ju- officers in lawful their sentence, the death showing, statistical ries these two districts of Louisiana rec- meet the compelling standard of Smith only, ommend death sentences or more of- Balkcom, speak specifically must to that ten, old, against blacks, young or whose Prejean’s circumstance. tender does not victims were white than for non-white vic- offer showing. to make such a Prejean suggest tims. Nor does that his Prejean’s tender told no the court expert possessed any statistics that would proof more than that the statistical would an yield presumption inference to rebut the among show those all of sentenced die jurors duly that the in this sworn to case— Louisiana, every type of murder discharge duty fairly their official —recom- youthful and blacks who blacks killed white Prejean’s mended death because crime of up disproportionate victims made num murdering peace sufficiently officer Prejean’s self-serving ber. conclusion that reprehensible, not he was black. because experts together will tie the loose ends Prejean presented any has not statistics analysis of an incomplete simply does show, suggest, or that even a white suffice to that compelling constitute indica peace defendant black or who killed a white tion of an discrimination which warrants engaged officer in lawful while duties has evidentiary hearing. insubstantiality or would receive a sentence less severe general such a tender is precisely aspect than death. It is this sort of inadequate statistical tender held peace killing crime —the aof officer —to Smith v. Balkcom. which the showing tendered statistical specific, Given the dearth relevant sta- discriminatory application speak. failed to proof tistical in these districts that showing, Prejean’s tender, Without such a expert to work would have from and Spinkel- those like offered in Smith and unspecific tender made to show intentional link, conclusory general must remain a peace racial discrimination officer kill- allegation penalty being tried, of the sort this we cannot discriminatorily punish administered fault the district court’s refusal to conduct killing persons of white blacks. hearing an evidentiary this case. aspect We focus on VIII. RACIAL DISCRIMINATION IN aggravating of nine crime because it is one JURY SELECTION expressly listed circumstances the Loui- legislature constituting siana sufficient contends that the federal impose penal- refusing grant reason for a the death district court erred State v. quash proper. the motion to hearing the claim evidentiary Prejean, seeking 379 So.2d at 243-44. blacks from systematically excluded relief, postconviction Prejean again four state Prejean’s sixth and petit jury. claim, meritorious, prof- the discrimination claim and if raised teenth amendment corpus peremptory from fered evidence that of the two relief require habeas would challenges We that State had exercised the sentence. both the conviction Lafayette proceeding Parish proceed consider to therefore (which generally La.Code Crim. subsequently was transferred to contention. See (Elmo Pat Parish), 905.1(B); State v. one had used to Ouachita been Pro.Ann. art. (La. rick) Sonnier, 1372 a The court 379 So.2d exclude black individual. state 1980). v. Es Vela 1979) (on rehearing this showing determined that was insuffi- Cf. cert. (5th Cir.1983), telle, 708 F.2d 966 entitle the claim to further cient to — denied, -, 79 consideration, 104 S.Ct. U.S. re- accordingly denied (1984). 194 L.Ed.2d lief. uneon- in the trial record are

These facts petition corpus for federal habeas his selec- In the course relief, alleged only troverted. counsel that the in- nine prosecutor exercised process, tion prosecutor had delib- stant proceedings to challenges. Four were used peremptory peremptory erately challenges used the so result, Prejean As blacks, blacks. a Prejean exclude and that as exclude one jury, with an all-white showing tried before prevented systematic from ex- juror. Immediately after alternate black the state trial court that clusion because selected, Pre- jurors were the twelve white grant convicted him had declined to a con- panel. next quash the jean moved to support tinuance. In a memorandum in arguments on the day heard the trial court corpus petition, Prejean his habeas federal that, explained motion. Defense counsel alleged prejudice that racial is a well- venue, change in he was unable Parish, due to the life known fact of in Ouachita systematic exclu- to offer direct evidence "[o]pen, flagrant, unsophisticated, where juries: petit from sion of blacks against purposeful discrimination blacks pattern____”, quot- long time Honor, you know, we’re here has been the Your Monroe, 456 Ausberry City v. not have the records avail- I do Monroe. (W.D.La.1978) appeal dis- I me, any Lafayette F.Supp. cases able to Cir.1980). missed, (5th Preje- what 616 F.2d to look to show would have case, court to take notice required by this an invited the district is apparently discriminatory prac- “proven racially a over systematic is exclusion blacks citizenry gener- evi- tices the authorities and My prima facie period of time. offer, time, parish,” adjust ally and to at this is within dence that I can Alabama, v. Swain Attorney pre- holding of District did fact that (1965), in (4) per- four L.Ed.2d challenge black emptorily a claim All were order to allow constitutional based cause. of which sons —not for exclusion, systematic but rather jury. upon The net qualified serve on (12) upon polari- “racial a the asserted invidious is we now have twelve result parish. The zation” of the district person jury, all of which are white. Sw'ain, concluding modify declined so to quash, the motion court denied trial Prejean’s conclusory allegations and Prejean opportuni- and refused to allow vague proffer were insufficient to state claim at ty present evidence Blackburn, v. claim for relief. Following the conviction and later date. F.Supp. at 991. sentence, for a new counsel moved juror discrimina- urge did not trial but Alabama, Swain argument at that time. tion (1965), L.Ed.2d 759 required com Supreme Court set forth the appeal, the Louisiana On direct claim of ponents of valid discrimination court’s denial that the trial Court found prosecutor’s peremptory prosecutor a state use of that the exercised perempto challenges: ry challenges in the instant case to exclude

[Wjhen prosecutor county, all blacks from the Ouachita Parish panel inadequate, case after whatever the circum- Swain is under pose stances, whatever the crime and whoever issue. Swain also teaches constitutional be, the defendant or the victim allegations parish-wide of historic dis responsible for Negroes the removal of crimination cannot substitute for the neces qualified jur- who have been selected as sity particularized showing that ors commissioners who prosecution engaged systematic, in the cause, challenges have survived with peremptory invidious use of challenges. Negroes the result that no ever serve on Accordingly, Prejean has failed to state a petit juries, the Fourteenth Amendment significance. claim of constitutional Swain significance claim takes on an added .... Alabama, 380 U.S. at 85 S.Ct. at ap- these circumstances it ... would 836-40; Carlton, United States v. 456 F.2d pear purpose[s] perempto- that the Gray Lucas, at v. 207-08. 710 F.2d Cf. ry challenge being perverted. are If the — 1048, (5th Cir.), denied, cert. 1061 U.S. State has not seen fit single to leave a -, 211, (1983) 77 L.Ed.2d 1453 Negro on in a criminal (holding alleged, true, that facts taken as presumption protecting prosecution failed to state a claim eighth under the may well be overcome. Zant, amendment). But Willis v. cf. Id. at (citations 85 S.Ct. at 837-38 F.2d at 1217-21 (holding that a Georgia omitted). that, The Court concluded or petitioner under a sentence of death had “pose der to the issue” of invidious racial stated a claim under Swain such as to jurors, discrimination the selection of evidentiary entitle him to an hearing); see “the prosecutor’s defendant must show the Winick, also Prosecutorial Peremptory systematic peremptory challenges use of Challenge Capital Practices in Cases: An against Negroes period over a of time.” Emperical Study and A Constitutional Id. 85 S.Ct. at 839. The burden Analysis, (1982) (suggest Mich.L.Rev. 1 placed thus extremely on the claimholder is ing that Swain’s strict rule be reevaluated onerous, vigorously and has been critic capital case). the context of the Nonetheless, ized.11 it remains a neces sary hurdle in the establishing course of IX. CONCLUSION

valid constitutional claim. See Willis v. Zant, (11th 720 F.2d 1217-21 Cir. Prejean’s right Dalton to due process of McLaurin, 1983); United States v. 557 law was not violated Supreme when the (5th Cir.1977), cert. de Court of Louisiana utilized evidence con- F.2d 1076-77 nied, 54 tained in the uniform sentence re- (1978); United L.Ed.2d 767 States Carl port confidential investiga- sentence ton, (5th Cir.1972); see 456 F.2d report tion in the course affirming Maggio, also Sonnier v. 720 F.2d at 406- death sentence. claims for relief (1) from the sentence of death because of age crime, (2) agree

We at the time of the with district court insuffi- ciency that Prejean proportion- constitutional claim that of the Louisiana court’s review, sought hearing ality (3) develop legally is in the failure of the fed- systemat sufficient to eral corpus Prejean establish sort of habeas court to accord ic hearing exclusion of blacks that would entitle on his claims of racial discrimina- under Swain. simple him to relief fact tion in procedures selection and in the Zant, (denial certiorari). 11. See authorities cited in Willis v. A district court has deter- F.2d at 1120 n. 17. The expressed willingness Court has longer mined that the Swain rule is no viable. to reassess Swain in Abrams, (E.D.N.Y. McCray F.Supp. —York, McCray modern context. v. New 1983). -, (1983) expressly relying intensely prej- without penalty are without the death imposition of udicial the district court information been judgment merit. brought penalty the realm of the within is For the reasons set consideration? AFFIRMED. below, Prejean I has such forth believe right, right the violation and that JOHNSON, Judge, dissenting: Circuit deprived process of due Prejean law. primarily is dissent occasioned This pursuant reviewing fully ap- opinion’s majority failure statutory duty to its “to determine whether argument preciate Prejean’s due excessive,” the sentence is secondly by majority’s conclusion individually discussed reprehensible so Prejean’s crime was three review criteria of distinct analysis sole relevant statistical § “Aggravating Rule 1: the Circum- race that shows how affects would be one “Passion, (part A), Prejudice stance” persons sentencing of prosecuting B), (part Arbitrary Other Factors” police officers. who kill Sentence,” C). (part “Proportionality of the outset, correctly important it is At Throughout opinion, part “C” Dalton this case. characterize very clearly re- a borderline mental retardate. black and is can lied on information that be found jury. The an all white He was convicted investigation the confidential white, murder conviction is report. Perhaps explicit Pre- details of The Trooper. offense oc- State Louisiana jean’s past, sup- adolescent but murderous years Prejean was seventeen curred when investiga- plied the confidential sentence age. report, tion constitutes most serious trial, trial court the Louisiana State At prejudicial item of information that “any and all” of Pre- correctly suppressed Supreme Court used to facilitate juvenile jean’s prior adjudications of delin- non its discussion of the excessiveness vel so, adjudications very quency. Even those sentence: juvenile during occurred In June Dalton was arrested for of 1974 affirmatively years specifically and were Doucet, killing a taxi driver. of John Supreme Court in by the Louisiana utilized killing Dalton and was com- admitted affirming Prejean’s instant mur- opinion its Train- again mitted once to the Louisiana conviction. der In later Institute. a statement about bar, Prejean has made an In the case he and the incident Dalton stated that corpus for a of habeas application writ a cab the inten- two friends called with Preje- court. robbing to the federal district of his relief tion of the driver. One presented petition fully companions carrying gun. exhausted The an’s deprivation. quiet part claims of constitutional eleven three directed the driver to a has examined stop federal district court persuaded The of town and him to while claims, lacked found that each merit Dalton they these for an address. searched The application. gun federal taking and dismissed insisted from his com- taken withowi panion youth appeared court’s action was other district because the hearing. evidentiary holding approached Dalton be nervous.

driver, believing that and the driver own, Death reaching gun I. Sen- fired Appellate Review of his running. fleeing began tence twice and While call passerby he told an ambulance appeal may be major issue in this The Dalton had been shot. because someone thusly: Does a Louisiana framed and police himself to the later turned constitutionally protected have a defendant driver. he had killed the admitted that right to have dispose death sentence of his review clearly outweigh aggravating December 1976 Dalton circum-

On of his aunt of the custody to the stance are discussed in was released Houston, part any pro- detail apparently greater below without [in “C”]. requirements. Within seven bation “C”, part after an exhaustive Id. dis- under ar- Dalton was once more months Prejean’s prior criminal cussion conduct killing being. a human rest for only and other information ascertainable investiga- the confidential Prejean, 379 So.2d at 248. from report, addition, the court determined: opinion court’s other tion identified Prejean’s juvenile delinquency examples of support record will not a conclusion The background, into his familial capacity appreciate delved that defendant’s level, history, psy- employment criminality educational conduct was so examinations, men- impaired chiatric borderline because mental of his condition Significant portions tal of the retardation. and intoxication that the death sentence was, origin reason, court’s find their for that discussion excessive. the confidential sentence inves- one source: Only did Id. at thereafter the court tigation report. proportionality Preje- review of conduct noted, previously opinion very of the an’s sentence—in footnote As opinion. majority last sentence of the Court is divided into subheadings that the three- three mirror reading opinion A careful of the thus statutory part obligation to determine “ex- that the Preje- reveals court’s discussion of by inquiring into the arbitrari- cessiveness” impaired capacity to commit the an’s crime ness, statutory aggra- proportionality, and actually “C”, parts “B” and straddles vating circumstances of the sentence. heavily upon prejudi- relies the nonrecord supreme opinion, text of the court’s how- cial information contained the confiden- ever, neatly fit under rubrics does investigation report. tial sentence It is styled. “proportionality” court’s clear, therefore, abundantly that the Loui- section, part “C”, actually gen- review relied, signifi- siana some eral discussion excessiveness part, prejudicial cant on the confidential sentence; indistinguishable virtually is it its discharging statutory information section, from the “arbitrariness” review duty to determine the excessiveness—in- part Throughout parts “B” and “B”. “C” cluding disproportionali- arbitrariness and the whether death sen- jury’s court discusses the ty the verdict. —of Prejean’s tence is “excessive” because of A. The Merits youthful age, alleged his intoxication at the offense, time of and his borderline men- the rejecting argu due assert- tal retardation —three factors that ment, the federal court district observed “appreciate edly capacity his diminished Louisiana, Florida, as in the Su “[i]n criminality the of his conduct.” State v. sentences; preme Court reviews it a So.2d at 247. After short Prejean, 379 impose not does the sentence.” v. youth, part “B” of discussion Blackburn, F.Supp. 570 n. 997 16 intelligence, voluntary in- his low (W.D.La.1983). From this observation the offense, the the toxication at time of the premise court established the court concluded: “[mjaterial record can outside of the have factors, although significant, are sen imposition

Those no effect the the 1 persuasive premise as to This not numerous and tence.” Id. at 997. is so statement, neously support court Circuit of this the cited referred to as a Fifth case. Fur thermore, (Fla. Wainwright, panel opinion 1327 in Ford had been Brown v. 392 So.2d denied, 1981), opinion. superseded U.S. S.Ct. the court’s en banc cert. 102 Strickland, Strickland, (11th Cir.1983) (1981), v. 70 L.Ed.2d 407 and Ford v. Ford 696 F.2d Brown, -, (11th Cir.1982). banc) denied, (en -U.S. a Florida cert. 104 S.Ct. 676 F.2d 434 case, (1983). plurali erroneously designated a L.Ed.2d Because the as Louisiana . Ford, opinion ty was erro- banc determined that the Florida case. Eleventh Circuit en aspects ensuring ignores it two burden ad flawed because duty hered to its constitutional shifts to the sentencing scheme death Louisiana appellate fully level. For Louisiana to dis any cap distinguish this and charge responsibilities at the its “selection any noncapital in which case ital case from Stephens, U.S. Zant v. see stage,” judicial consid presentence reports receive 2733, 2744, 77 L.Ed.2d 235 eration, penalty case from death (1983), capital must its it afford defendant sentencing system arising capital a out of appellate “meaningful review” structured, depend sys upon that does not no sentence.2 Since sentence constitu appellate review order to assure tematic imposed in tionally be Louisiana without constitutionality. its review, meaningful the state su First, capital sentencing the Louisiana preme simply court of Louisiana does not judge the trial with scheme does vest perform reviewing the duties of a court. jury’s sentence of power to disturb the The “selection” of the criminal defendant is proce- sentencing death. Unlike sentence; imposition to the of his essential Florida, see employed in dures Proffitt necessarily input “selection” entails some Florida, 242, 248-50, court; supreme from and so the state it is 2960, 2964-65, (1976), or in logical to conclude that Louisiana Su — Harris, California, Pulley see preme necessarily perform Court must -, L.Ed.2d 29 undifferentiated functions of both sen (1984), procedure binds and, tence-reviewing significant accept verdict presiding judge extent, sentence-imposing court.3 Ac art. La.Code Crim.Pro.Ann. death. cordingly, the district court’s assertion that Accordingly, once the (Supp.1982). 905.8 merely the Louisiana “re rendered, the trial of death is verdict sentence, views” a but does not analogous to that of a judge a role assumes it, inevitably “impose” specious. is Most verdict, conduit, thus the passing the however, oversimplifi importantly, it is an death, Louisiana Su- deep cation of constitutional dimension. review. The state su- preme Second, posfeentence report in a Louisi performs its manda- preme court thereafter vastly penalty ana death case serves a dif tory aggravating circum- review typical function from that of the ferent and its concurrent assessment of stance report. guilty, presentence adjudged Once and the verdict arbitrariness [noncapital] is typical defendant sen of the sentence. proportionality to the authori pursuant tenced of the trial precisely It on account ty’s impose broad discretion sentencing role that judge’s limited legislatively determined statuto within the distinguishing obligation, ry carry first factor To out limits. apparent. readily sentencing judge may the the unveri scheme becomes consider pre in a regulation hearsay over fied information contained trial-level absence rendered, report4 in order to investigation sentence entire jury’s verdict once sentencing capital pro- or the California Florida did not consider nonrecord in- review, cedures. appellate that case is in its formation largely inapposite. id. at See 809-11. judge 4. A should not view the information trial presentence report ain defendant’s contained categorical provides Georgia 2. scheme for "The adjudged until after the defendant has been stage, narrowing and for indi- at the definition guilty. permit parte “To the ex introduction of appellate review vidualized determination judge pro- material to the who will this sort of stage." Stephens, Zant v. 103 at the selection guilt innocence or nounce the defendant’s S.Ct. at 2744. preside who over a trial would serious- will preventing ly purpose rule’s contravene the clarity, analytical the Louisi- For sake of premature possible prejudice submission from might “impos- Gregg as presentence report." ana viewed v. United of the States, 492, (dis- analogous ing" to that in a 89 at 1136-37 sentence fashion 394 U.S. at S.Ct. 32). judge impose cussing may under a trial Fed.R.Crim.P. which 1108

give a preme the defendant “sentence suited to Georgia, Presnell v. Court cases: potential particular 14, 235, character and 439 U.S. 99 S.Ct. 58 L.Ed.2d 207 States, Gregg v. United rehabilitation.” Florida, (1978) Gardner v. 430 U.S. 22 89 S.Ct. U.S. (1977). 97 S.Ct. 51 L.Ed.2d 393 (1969) (discussing L.Ed.2d 442 Fed.R. Although neither case itself establishes Burke, 32); Townsend v. see Crim.P. holding dispositive claim, of Prejean’s a 736, 740-41, 1252, 1255, U.S. S.Ct. 92 together supply the cases a in valuable (1948). capital L.Ed. In a Louisiana sight jurisprudence. into our constitutional case, however, jury, acting in insight guides our identification and capacity its as a link vital conscience application of a rule law rational community, has set sentence of comports upholds obligation with and our punishment maximum for the capital sentencing proce “to re-examine proven al conviction. Since the has against dures evolving proce standards ready assertedly proper punish located the dural society.” fairness a civilized maximum, statutory ment at the State Florida, Gardner v. 430 U.S. at little, any, if reason to obtain nonrecord (footnote omitted). This obli tending jury’s information to bolster the gation, unrelated, separate while not compel decision.5 The does have a eighth from our duty amendment to ensure ling consider, interest if it so should capital a state procedure desire, postsentence might information that acceptable affords an “reliability level of pronouncement belie the harsh the determination appro that death is the justify less severe these sentence. Under priate punishment in a specific case.” postsentence reports circumstances Carolina, Woodson v. North may certainly appellate affect court’s 304-05, 2978, 2991-92, 49 L.Ed.2d ultimate decision whether to affirm or to (1976) (footnote omitted) (plurality opini directive, the jury’s reverse solemn on).6 legitimate State therefore has a interest procuring reports. But whatever Florida, Gardner the United States reports, be the ultimate function of the question Court considered the reliability defendant’s interest in their whether a Florida defendant was denied plainly outweighs the State’s interest process of due law when death sentence Florida, their use. See Gardner v. imposed on the basis of information 349, 359-360, 1197, 1205-1206, presentence investigation contained in a re- (1977). And the Louisiana port, portion of which had not made been mag is greatly defendant’s interest available to the defendant. 430 U.S. at nified the fact that he is entitled under 97 S.Ct. at 1204-07. A had “meaningful constitution murder, convicted in sep- Gardner of precondition as a review” to his irreversible sentencing hearing arate had recommended punishment. selection for Accord imprisonment. life Thereafter trial ingly, analysis the district court’s judge presentence investigation ordered persuasive. nonrecord evidence claim is not report and disclosed all but a “confidential” & Presnell Gardner portion parties. considering After process argument

Prejean’s due report, is an the information in the the trial fairly extrapolation judge from two Su ap- recent sentenced Gardner death. On possibility 5. caprice extinction all of rehabili- reason “[T]he rather than or emotion.” Gard- aspects Florida, 358, tation is one of the of the death sentence ner v. 430 U.S. at at 1204 any that makes it different in from other added). kind (emphasis a Thus state sentenc- sentence____" Florida, 349, Gardner v. 430 U.S. eighth scheme is limited the amendment 360, 1197, 1206, (1977). S.Ct. 97 duty by separate, yet a circumscribed relat- ed, duty process to administer in manner noted, 6. As the Court has is of "[i]t vigilant that assures a and faithful adherence to importance vital to the defendant and to the process. due constitutional community any impose that decision to the be, be, appear death sentence to on based

1109 If, argues, important the State it is Supreme Court affirmed as Florida peal, the in the sentencing to use such information appellate record sentence. the death assume in process, we must that some portion confidential include the did not judge’s will decisive in the cases it be rejected nonetheless report. The court the a life sentence and a choice between judge argument the trial Gardner’s tip If it death tends to the sentence. part basing in erred in his decision had life, presumably scales in favor of the report. at 97 sentencing Id. the information would be favorable and 1201-03. S.Ct. at why no there would be reason it should certiorari, United On the States hand, On the other if it not be disclosed. sentence. The vacated the death Court sentence, the the is for death basis noting it began its discussion Court reliability outweighs plainly in interest unnecessary the con to consider would be preserving the State’s interest the report, which the tents of the confidential availability comparable information in appendix to its had disclosed in an state other cases. stressed that death brief.7 Court 359, at at 430 U.S. S.Ct. 1205. Per Id. fundamentally different from sentence haps relevant to the most instant punishment, legitimate kind of other presentence explained that the re acknowledged protection port reviewing must be disclosed to the extends to sen the due clause to order ensure the even state le process. “The defendant tencing sentencing handed administration of the gitimate interest the character requested That had not decisions.8 counsel imposition of leads to the procedure which report way justified full in no access to the right may no even if he have complete a less record “the submission of particular result of the sentenc object to a reviewing court than record on 1205; 358, at ing process.” Id. at judge which the trial based his decision to Oklahoma, 447 v. U.S. Hicks cf. S.Ct. petitioner to at death.” Id. (1980). The L.Ed.2d 175 97 S.Ct. at question to the of the then turned Georgia, v. 439 U.S. Presnell presentence re reliability of confidential 58 L.Ed.2d S.Ct. ports: to consider the Court had further occasion given must be [Consideration process protection per which due extent to quantity, quality, as well appeal of his meates a criminal defendant’s which the information on Presnell, the Court capital sentence. secrecy may rely. Assurances of judge up whether a defendant took the issue to the transmission of con- are conducive the basis of be die on could condemned may closer rela- fidences which bear no finding that the record an court’s or average fact than the rumor tion to establishing aggra evidence contained may pledge gossip, imply item of had found vating circumstance. A attempt independent verification In the sentenc guilty Presnell of murder. trial, judge The risk instructed ing phase information received. accepted impose the information it could the death that some of erroneous, may be it determined that Presnell had sentence if confidence engaged while misinterpreted, by investigator or committed the murder harm, bodily “kidnapping sentencing judge, is manifest. offense of with full of the basis 8. "Without disclosure stated: 7. The court sentence, capital-sentencing the Florida evaluate in a function of the Court to It is not subject procedure to the defects which would be possibly prejudicial im- the first instance unconstitutionality holding of pact opinions appearing in a in the resulted of facts Florida, presentence report. Georgia." Furman v. Gardner Florida, at n. Gardner S.Ct. at 1206. n. 5. at 1203 sodomy.” at aggravated Id. in upholding case----” Because the death jury returned a at 236. sentence S.Ct. the state court on relied Supreme appeal, death.9 On the Court of properly subject evidence that was not the Georgia ruled that the offense of sod of finding, jury’s the of the reversed omy properly ag would constitute an the death sentence. gravating circumstance. Nonetheless the The Due Process Violation sentence, holding the court affirmed jury finding was though even there no on It is submitted that Gardner Pres- rape, the issue forcible of evidence in the nell, applied in when the the context of sufficiently record established that offense capital system, estab- supported necessary ag and therefore the Prejean’s process right lish due to have the gravating circumstance. validity the jury’s sentencing of decision certiorari, On the United States on appraised the of basis the evidence that First, relying Court reversed. on v. Cole brought jury, before the unaffected 196, Arkansas, 514, S.Ct. U.S. extremely prejudicial the use of extraneous (1948), recognized L.Ed. 644 the Court incorporated information that was never right process a criminal defendant’s to due process. into the adversarial As has been is violated when his conviction is affirmed noted, capital sentencing under Louisiana’s the establishing on basis of evidence an process, capital which entitles a defendant jury on which offense had not been review,” “meaningful appellate Loui- instructed: siana Court sits in sentence-re- It is process as much a violation of due viewing capacity well in a capacity as prison following send accused to analogous to that of sentence-imposing charge conviction of a on which he was entity. supra, note accompany- See never tried as it would him convict ing By using text. the nonrecord informa- made____ upon charge that was never instance, tion To law, peti- conform to of due injected extraneous and in- untested validity tioners were entitled have the phase” formation into the “selection appraised their convictions on consid- process. sentencing Stephens, See Zant v. eration of the case as it was tried and as 103 S.Ct. at jury 2741-44. That the was no were issues determined the trial longer involved in the selection decision court. rendered acute more inter- reliability postsentence est in the Presnell Georgia, v. 439 U.S. at report. Arkansas, strictly S.Ct. at For however su- quoting Cole v. state 201, 202, Second, preme may at 517. fact have at assessed relying Florida, jury’s “individualized Gardner determination” 51 L.Ed.2d character and the circumstances crime, regardful Court concluded that the “fundamental it did prejudi- so principles procedural fairness” enunciat cial potent information both more more “apply ed Cole10 with less no force extensive than the jury that which con- penalty phase capital of a trial in a sidered. Actually, rape. Georgia, had convicted Presnell of on forcible Presnell 439 U.S. at offenses, penalty phase three and in the 15 & n. 99 S.Ct. at 236 & n. 1. had returned a verdict Presnell to three death Two sentences. of- necessarily expanded 10. Presnell Cole. The depended fenses and sentences on Presnell hav- rape had Presnell instructed on forcible been ing rape.” committed "forcible ver- statutory rape. support- as well as The evidence simply "rape.” dict found Since had aggravating circumstance therefore statutory been instructed on rape, both forcible subject jury's finding, have been but if Georgia Supreme unwilling Court was finding ambiguous so the so it was not jury's to assume that the verdict referred to the properly attributable the offense of forcible Accordingly, more serious offense. the court rape. supra. See note depended reversed two death sentences

HH constitutionally adulterating Accordingly, Supreme re the Louisiana by openly recog quired prejudicial function postsentence “review” Court’s use of in information, and untested nizing unreliable infringed Prejean’s formation in this case error in potential introduced the court right jury’s to have the verdict assessed on Georgia directive to the Furman v. imical criteria the basis of the that circumscribed capital sentencing systems be free of deliberation, simultaneously the and 238, intolerably arbitrary 408 U.S. factors. denegrated appellate the court’s constitu (1972); 2726, 33 346 see 92 L.Ed.2d S.Ct. obligation tional to the determine whether 188-90, Georgia, v. 153 at Gregg 428 U.S. arbitrarily has acted or has rendered 195, (1976). 2909 at 2935 96 S.Ct. excessive otherwise sentence. confidential, utilizing un expressly the course, way This analysis, of in no de dual, of its tested information the midst pends finding on a was not counsel “impose” undifferentiated functions to and furnished the confidential sentence investi sentence, clearly to the the court “review” gation report. While counsel requirement the that a crimi ran afoul of may have been alerted to the contents of only by nal to his death defendant sent investigation the confidential sentence re forged by dint material information the port, satisfying notice alone falls short Gardner,11 process, see and adversarial defendant’s right Louisiana to have -the public tempered in the aware crucible Presnell; Georgia, v. ness, review of his death sentence fair see Furman 2726, ly L.Ed.2d objectively 92 S.Ct. 33 346. and Mani administered.12 trial, during sentencing phase is often testified 11. between adversaries essen- of the “[D]ebate trials____" seeking nothing post- tial to the truth function then there have been in the would Florida, at at reports already Gardner v. 430 U.S. sentence that was not disclosed jury. Having prevailed 1206. to in a motion to evidence, suppress having and decided as a successfully counsel obtained the strategy attempt matter of trial not a more to Prejean’s juvenile record from the exclusion Prejean's pitiable exhaustive elucidation of char guilt sentencing phases and of trial. Once the acter, nonetheless the Lou counsel encountered made, completed reports were trial was and the Supreme objectionable isiana Court’s use of the certainly statutory right object Prejean had to point information at a in time when his interest in both the UCSR the information contained reliability paramount, had see Gard become investigation confidential re- and the sentence Florida, v. ner 430 U.S. at S.Ct. at solely port. objections were directed at the His yet ability fallacy when his demonstrate Although judge the Louisiana trial UCSR. had id. at become rather limited. See also to hold a "contradic- vested with discretion 5, 360-61, n. 1203 n. 1205-06. judge hearing,” necessary tory not find it did level, purely On a information visceral hearing. La.S.Ct. to 28, such See Rule order postsentence reports was contained in the two 3(c). utility contradictory hear- § profoundly prejudicial. pursuit State’s ing under these circumstances is doubtful: against Prejean the death on one rested judge Court were trial factor, and one factor alone: that the murder Prejean’s juvenile/criminal aware of back- well ground, peace engaged victim officer in his lawful was a Prejean has admitted the re- militating duties. The factors in favor of a accurately prior juvenile adju- ports display his were, contrary, sentence less than death on the Preje- is that The crucial factor here dications. Prejean numerous: 17 at the time of objecting to the Court’s an is offense; age he functioned at the mental postsentence reports express use of the in a (borderline retardation); and his mental 13‘/2 severity helps justify of his manner capacity appreciate criminality of his He does not contend that factual sentence. night of drink- conduct was diminished his reports may not enter details contained ing. Had the Louisiana Court disre- cognizance of the members of the Louisiana garded postsentence reports, and devot- the two Supreme Court. mitigating ed fac- serious consideration these demonstrably the Rule worked to In this case light (perhaps tors in the of the racial even disadvantage. Prejean’s Prejean's ed, counsel elect- composition respective races decision, Prejean put as a tactical offender), of the victim and a reversal testify own behalf at the the stand to in his might very well been forthcom- have hearing. Had others Sonnier, See, (Eddie) ing. e.g., officials, (such psychi- juvenile correction Oklahoma, (La.1979); So.2d 6-9 Hicks during cf. had him trou- atrists who evaluated L.Ed.2d members) family youth, bled and immediate festly, the Due Process Clause demands On the other hand the Supreme Louisiana eighth Court, that a defendant’s amend Louisiana State, an organ as the plainly of right meaningful appellate ment review legitimate a in learning interest all it by remain of damag unadulterated the use may choose to learn about the de- ing information in the review extraneous may pass fendant whom it unto death. process. Accordingly, the Louisiana Su competing These interests in have clashed preme express use of Court’s the confiden instant they may readily the but tial in its the information of exces review reconciled. siveness the of the violated due Along reasonable, perhaps with the laud- Presnell process by right adumbrated able, goal understanding of background the Gardner. histories the individuals who have been process concept; is a Due flexible it punishment, for selected the ultimate the procedural protections “calls for such Supreme Louisiana carry must out Court situation demands.” Morris particular the its constitutional obligation to the examine Brewer, sey v. 471, 481, U.S. S.Ct. jury’s solemn By allowing decision. its re- 2593, 2600, (1972). L.Ed.2d 484 The view of the arbitrariness and excessiveness typical inquiry scope pro into the due prominently sentence to be influ- rights requires balancing compet cess by severely enced harmful information that generally See Hewitt v. interests. Helms, 864, 872-74, not could have been factor in jury’s 459 U.S. 103 S.Ct. the (1983); v. El decision, 74 L.Ed.2d 675 Mathews Supreme per- Louisiana Court 319, 335, dridge, 424 U.S. 893, 903, 96 S.Ct. mitted element of intolerable unfairness (1976). 47 L.Ed.2d 18 When the interest at injected to be proceedings. into the life, however, stake is pro human the due particularly error is acute context analysis sharply cess focuses fair .the capital sentencing system, Louisiana’s be- ness of procedures employed deprive Supreme oper- cause Louisiana Court See, prisoner e.g., Ed of that interest. as a sentence-reviewing ates body and Oklahoma, dings 455 U.S. simultaneously operates a manner akin 869, 874-77, (1982); Lockett v. L.Ed.2d body. sentence-imposing Under the Ohio, 57 particular present here, circumstances Florida, (1978); Gardner v. L.Ed.2d 973 Supreme Louisiana Court encountered an 1203-07; 430 U.S. at 97 S.Ct. at obligation separate its examination of Illinois, Witherspoon v. upon the information which the actual- (1968). ly deliberated from its use of whatever inquiry accordingly centers on the fairness prejudicial it information have chosen Supreme of the Louisiana use Court’s case, however, to discover. postsentence prejudicial reports two openly commin- affirming analy the death sentence. This functions; gled separate those opinion its implicitly pri sis a balancing entails publicly Prejean demonstrates error. vate Prejean against public benefit to was entitled to such en- as would by burden Prejean incurred State. meaningful sure the his review of would derive benefit from the substantial sentence, unimpugned ex- meaningful use of ap Court’s pellate tremely prejudicial review of his sentence information contained based upon jury. the information postsentence known to reports. (1980) (valid liberty sentencing prejudicial possibly interest dis- that could information cretion). Additionally, reviewing the "arbi- have been known in its exercise of trariness" of the conduct As a discretion. result whatever might significant judiciary have found it moral reservations the State and its jury, Preje- knowledge might sending without otherwise have encountered in record, past juvenile youthful an’s returned the most se- im- such offender his death were permitted society. mediately assuaged, vere objective- in our civilized and the sentence Instead, however, supreme ly justifiable. readily court focused on became more potential gross of this case otherwise countenances

The circumstances An all white sen- in the bear reiteration. unfairness delicate calculus black, to Prejean, age 17 and decision-makingprocess. Dalton tenced death sentence without electrocution. It did so reasons, For the above Dalton long his- any knowledge whatsoever of his granted should be the Writ on his due a his- tory juvenile delinquency, of serious process claim. youth- tory of illicit conduct belied jury’s very age. ful From the fact of Capital II. Discrimination in Sentenc- verdict, may presume that the public ing ag- in that the circumstance believed majority opinion none holds that of (Caucasian) killing of state gravation a —the Prejean’s five claims for relief establish a trooper outweighed testimony establish- — I rights. of his constitutional can- violation youthful age, his deficient Prejean’s not, agree least, at the is intellect, he was and the extent to which evidentiary hearing to an on entitled time influence of at the under the alcohol discrimination-in-capital-sentencing racial Yet the of the offense. Louisiana conveniently The majority claim. con- Court, jury, Prejean’s unlike the found killing police cludes that a officer is so factor, to youth significant at least to be utterly reprehensible a statistical youthful years had been that his extent study murders of of law enforcement offi- incorrigibility In to and violence. inured was, (Prejean cers would be relevant ap- conducting constitutionally sacred is, perhaps only person still in the state sentence, Prejean’s pellate of review murdering peace row for on death offi- Preje- supreme utilized evidence cer). it is While true that statis- suppressed past, an’s adolescent criminal proof would cure the knowledge, justify, at tical have to defects jury’s from the to Balkcom, part, penalty. in the ultimate that this Court noted in Smith v. least (5th Cir.1982), errant 671 F.2d 858 it is to reports has court’s use of the two that, case, suggest only study this urged having as violated the not been peace the murders Louisiana officers amendment, causing an eighth by either judicial finding could enable a of racial by ap- arbitrary rendering keep It discrimination. is essential pellate constitutionally meaningless. review from mind that claim stems both asserted, suggest- It nor is it has not been amendments, eighth and fourteenth ed, Rule 28 spectre arbitrary or and that the invidi- as the con- is unconstitutional written. On showing ous conduct raised legal rights in this case trary, the involved juries, racially that Louisiana however con- facially proper guard the fair conduct of stituted, sentence black murderers death provisions any of state law. In substantially frequently more than white sen- the UCSR the confidential murderers, they or that investigation report may be received tence any frequently murderers much more for without killing killing than whites for blacks. If spectre viola- raising the due proffered study statistical would estab- Indeed, prejudicial information tion. disparities, by necessity these it lish would may types report regularly en- the two pros- strictly upon murder be focused those ter of each Louisiana Su- percipience already ecutions which had resulted con- preme giving cause Court Justice without being victions and which the the court for alarm. But constitutional statutory aggra- find at here, asked to least one not, put extremely prejudicial prof- vating long circumstance. as the So postsentence in the sen- information to use analyze the ra- fered statistical data would portion opinion; tence review sentencing phases information, impact of those jurors, cannot cial unknown n slightly the state adduced evidence justify even be used the court aggravating nine statutory to hold one of the verdict. For this Court least jury’s circumstances, highly relevant it would be discriminatory, the issue arbitrary, conduct.

and therefore (and legislative light Louisiana’s determination that nine

constitutional) sep- aggravating circumstances are so

arate

reprehensible that each alone enables murderer, of a convicted it can-

execution society suggested that Louisiana

not be claiming superior any basis any one factor vis a vis

aversion to event, (and cannot

others. not) conclusion, as it be this Court’s

should wholly foray into the

is a unsubstantiated simple conjecture. I believe that

realm of entitled proffered evidence See Townsend v. hearing. evidentiary

Sain, 293, 312-313, 83 Zant, Spencer (1963); (11th Cir.1983).

715 F.2d 1579-1582 reasons, foregoing respectfully I

For the

dissent. America,

UNITED STATES

Plaintiff-Appellant, AIRLINES, INC. and Rob-

AMERICAN Crandall, Defendants-Appellees.

ert L.

No. 83-1831. Appeals,

United States Court

Fifth Circuit.

Oct.

Case Details

Case Name: Dalton Prejean v. Frank Blackburn, Warden, Louisiana State Penitentiary

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Oct 15, 1984

Citation: 743 F.2d 1091

Docket Number: 83-4548

Court Abbreviation: 5th Cir.