Edgar Labat and Clifton Alton Poret v. Robert B. Bennett, Acting Warden, Louisiana State Penitentiary

Court of that or decision question in-

state whether asserting estopped from surer can be policy cov- in a which excludes a clause

erage requested specifically that was policy ne-

extended at the time the gotiated. however, respectable is, There

authority estoppel supporting in such example Golden Gate

situation. See Transport

Motor Co. Great American Indemnity Co., 6 Cal.2d 58 P.2d say (1936). We cannot the dis- taking wrong

trict court

same of Arizona law. view Guess Co., &

Baltimore O. R. 191 F.2d 976

(8th Cir.1951). judgment is affirmed. Poret,

Edgar Alton and Clifton LABAT Appellants, Warden, Acting BENNETT, B.

Robert Penitentiary, Louisiana Appellee.

No. 22218. Appeals Court of

United States Fifth Circuit.

Aug. Sept.

Rehearing Denied Benjamin Smith, E. H. Schrei- Gerald Wray Orleans,

ber, Gill, La., Ed- New G. Williams, Washington, ward Bennett D. C., appellants. Jackson, Jr., Atty. Gen., John E. Asst. Gremillion, Orleans, La.,

New Atty. Jack P. F. Louisiana, Baton Gen. State Atty. Rouge, La., Culligan, E. M. Asst. Orleans, Louisiana, Gen. State New La., appellee. TUTTLE, Judge, and

Before Chief BROWN, WISDOM, GEWIN, BELL, COLEMAN, Afterwards, THORNBERRY, took her Cir- held her. out alley Judges. in the direction headed cuit police appeared; empty of an lot. A car fled. attackers Judge: WISDOM, Circuit Sunday morning, on in- At 11 o’clock though dead, been hath not “The law Howard, one Earl formation furnished slept.” hath talking who had with two other been kept years has “Death” thirteen just assault, police before the Edgar Clifton Labat and close tab Labat in home. arrested He 23, 1953, an all-white March Poret. continuously custody since that time. for the Criminal District charging Poret, whom the identi- witness Louisiana, Orleans, found La- Parish of photograph police files, fied Poret, Negro petitioners bat and the two could not be found. Some time after- guilty proceeding, corpus in this habeas police wards him New Orleans located aggravated rape woman. of a white of the serving Tennessee sentence a for theft. brought The recommendation brought Late in 1952 he was back to Lou- mercy; the were sentenced defendants isiana to stand trial with Labat. to then death electrocution. Since through By appeal Louisiana courts the they solitary on been in confinement have Supreme to United the States Court and Peni- Death Row Louisiana State the corpus proceedings habeas state and stayed tentiary. their Nine times courts courts, petitioners federal have con- execution; once, hours less than three sistently unsuccessfully and contended they strapped in before were to they a were denied fair trial because chair. electric systematic Negroes exclusion of Sunday morning, four About o’clock from the in Orleans Parish. Finally, and November white woman the United States walking along Court, reversing her escort Circuit, Thalia Fifth re- they ap- Street in New proceeding Orleans.2 As manded this habeas to the dis- proached Street, Negroes Tonti two at- trict court that court to decide wheth- One, tacked them behind. a tall er were “limited and excluded in Negro, allegedly Labat, seized the escort panels” selection in Or- money. neck and demanded The leans Parish. United States ex rel. Poret escort testified at did Sigler, 1960, that “he and Labat v. * * * weapon not see the Ne- [but 4 L.Ed.2d 380. After an gro] pocket evidentiary if hearing, his hand in his had the district court weap- petitioners that he had a make assume since [one] found: had failed to timely objections grand jury on”. escort handed over Dollars make The Ten help. petit jury, “they was released. He ran for are now deemed Meanwhile, allegedly Negro, objections”; the other have waived these “that Poret, dragged halfway disproportions the woman down which between exist alley jury panels dark races street into a between on the in Orleans Par- ** * Calliope ish Thalia and Streets. In a few have resulted from a scru- pulous Negro joined minutes the tall him. One adherence to the laws Louisiana * * * * * * Negro raped the woman other while the which are laws rea- Shakespeare, Measure, occupants. Negro standing nearby, 1. Act Measure A II, Howard, attempt helped Sc. 2. Earl them failed, occupants. waken the After this They away. 2. had taken a taxicab to Howard walked the residence The escort then young suggested they woman’s married sister walk blocks several expected spend where she had to a the rest main street to hail a On taxicab. night. they way passed talking house on a dim- The was Howard with' ly lighted Negroes. corner section two run-down other The on case turned city. get They were unable to identification the defendants. Howard key the house and were unable to arouse the witness. See 11. footnote Officials constitutional”; their number there was sonable and acquainted sufficiently them- systematic proof presented have not “no here po- qualifications of all jury pan- selves with the from the exclusion of added.) (Emphasis jurors.” tential F.Supp. els in New Orleans”. Accordingly, district once court enough to a is clear The motion again application petitioners’ denied the panels, lawyer. Petit Louisiana for the issuance of writ of cor- habeas pro from the venires, derived final pus. petitioners appeal from random drawn at posed venire judgment. We reverse. venire). (the general jury wheel from the compo therefore, motion, attacks I. venires their sition partial on reliance court’s The district grand juries their as that as well compels ubiquitous fiction of waiver permeates the entire vice venires. petitioners’ con- to trace the this Court sys jury system; motion attacks through twists most tentions however, Court, appears to this It tem. legal proceed- of their convoluted turns reading and records old briefs ings. filed the habeas action until mo- filed their A. Labat and Poret although petitioners’ did counsel quash November the indictments tions general ve their attack abandon Although was three and nire, attack concentrated their peti- trial, their months half tioners have never had before jury.3 rea were several There day their in court: grand First, the sin.' sons for this venial day prove never had their to that judge jury from its the is selected by jury fair of were denied a trial their random. than drawn venire rather never, is, peers; district that until the Judge Second, William in October hearing court its March held Court of Criminal District J. the O’Hara Supreme obedience to the Court’s man- making Orleans, local for the Parish date. history, quashed the an indictment on always ground Negroes had been ex quash as follows: read Each motion to grand juries in Par cluded Negro popula- considering “That the Dowels, Nos. of Louisiana v. ish. State Orleans, and the tion of the Parish of 324, Court for Criminal District jury Negroes qualified for number (The un case is Parish of Orleans. systematic, service, un- had been quotes from reported. Black Justice exclusion unconstitutional lawful and length opinion in his dissent Negroes Venire from the General Louisiana, 1958, 356 Eubanks v. State Jury Jury panel and Grand and Grand 584, 588-589, 970, 2 L.Ed. U.S. 78 S.Ct. returning in- of the involved 4). 2d fn systematic, herein; said dictment petitioners’ tortuous of the unlawful and unconstitutional exclu- A review through Negroes the courts and descents sion of from said units has ex- ascents ren- continuously prior until the isted hereto for a shows that ease, 361 in this latest order number of Parish of dered its Or- of the courts leans; all those instances where- U.S. dealing jury with issue treated have been included the Gen- challenge narrowly to the Jury panels aas eral motions Venire Grand re- challenge grand jury. in, Negroes As such ferred hereto have been procedurally: against by arbitrary Louisiana law discriminated vulnerable grand jury objections limiting required inapportionate to [sic] Louisiana, U.S. 3. The exclusion of from the State 757; jury ground quashing Hill v. L.Ed. indict- is a for Texas, 1942, ment, objection to even when there is no composition L.Ed. 1559. guilty. defendant Pierre v. finds the any expiration irregularity raised defect or that can be be before against array judicial day following any pleaded or third the end venire urged grand jury’s filed, pleaded, term or before must be or trial heard ju- expiration whichever is earlier. third before day dicial of the term for which said Judge Oser, “C” of Fred Section drawn, or shall have been before Criminal District Court for the Parish entering upon if trial of the case i‘t Orleans, motions to dismissed the begun sooner; otherwise, all such quash, relying on Article 202 of the 1928 objections shall be considered as waiv- Louisiana Code Criminal Procedure urged ed and shall not afterwards be (LSA-R.S. 15:202). pro- This article heard.” or vides that: objections always conspicu- “All to the manner of Article has been select- ing drawing juror any ambiguity.4 or to its ous To resolve one say any right result, 4. In 1953 no one could cer- As a has a defendant tainty prescriptive period objections pro- what to the file any trial, vided in Article 202. Professor Dale venire at be- time before (L.S.U.), Bennett Coordinator the re- cause the is never held ‘after (Emphasis vised Louisiana Code Criminal Pro- end term.” add- just legislature, ed.) Slovenko, Jury System cedure enacted has in Lou- Law, described Article 202 as “In- follows: isiana Criminal 17 La.L.Rev. ** * objections (1957). sofar as it relates to grand jury panel to the article “This apparent difficulty there is con- continuous source of * * * permit apply flict with other articles which court [I]f the were to * ** filing objections objections the ment at to the indict- to ‘all article prior added) any array (emphasis time to the commence- or venire’ applied meaning suggests, ment of the trial. As as its literal defend- objecting petit jury venires, opportunity time for often ants would be denied an frequently challenge legality it states a rule which also list proves Undoubtedly prin- Ellison, Comment, unworkable. or venire.” Urging Time cipal difficulty Objections Jury source has arisen out Lists and attempt single Venires, (1955). out set rule 15 La.L.Rev. govern filing language that would the time for ob- “[T]he of Article 202 falls far jections general making legislative to the venire and short of clear * * * jury lists, govern and that would also intent a defendant with bona objecting composition grounds time for objection, to the for unable to fide grand jury ground quash- the ing applicable aas which determine his article is to ** * just ap- indictments. Article 287 what case limit plicable may imposes, declares that the demurrer and motion article unwit- quash filed, to tingly urging ‘must be tried and dis- allow time his ob- posed jection lapse wrong by relying before trial the merits.’ to apparently giving Even more latitude is contem- Code article or terpretation it a in- different plated by Supreme declaration in Article 253 objections present ambiguous to the indictment .that must Court. In its form prior ‘be made confusing to the commencement of this Article is one source of the trial or at procedure such time thereafter as technicalities of criminal permit.’ the court in its discretion In can cases which sidetracking be used as a means of cases where the indictment is defective the issue race discrim- illegal composition juries.” reason of the selecting of the ination in the grand jury list, (Emphasis added.) Comment, added Brash, confusion is in- jected by Bennett, Objections Article Drawing 202.” Lou- Time To Pile to the Selecting isiana Appraisal, Juries, 462, Criminal Procedure —A Critical of 481 18 Tul.L.Rev. (1953). 14 (1944). La.L.Rev. the Comments Article Ralph (Tulane) (former Professor 202) Projet Slovenko Article of the application written: “A literal of the of the Louisiana Code Criminal Pro- many cedure, article Reporter would situations render states: “It was the filing objection impossible. of an concensus of the Council Art. 202 of * * * interpreted provided Article the 1928 Code an unworkable- case, applicable objec- formula, the Wilson to which should be discarded. petit jury Objections tions to composition venires as well as to to the and meth- grand jury Chianelli, venires. (Art. State v. od selection 532(9)/ venires * * * (1954) grand La. 76 So.2d (Art. 533(1)) can long Court, after Supreme until problem, October Louisiana expiration said, of the the term itself “strained” Court as the During judicial that had him. phrase “expiration third indicted attorney. judi period had Poret no Article day to the third of the term” mean meaningless as to Po- day expiration was of the term. therefore cial after held, Wilson, 1943, Court ret. The Louisiana 204 La. State v. by any however, that an accused “cannot construc So.2d “Even the Wilson 873.5 provided be acts his own extend the time former 202 would tion of the Article filing Relying help for the motion.” did not of scant to a defendant who three-day procure Wilson, counsel until after on State held the Court passed.”6 untimely filing had That is Poret’s deadline of the motions to case. quash must be as a treated waiver ob- jections grand jury. courts turned on

In the state this case grand jury critical dates. The in- arraignment, counsel Labat had petitioners empanelled dicted the was later, days January 3, 1951.8 Two September 5, 1950. the in- It returned E. I. Ma- judge appointed Mr. district against dictment Labat and Poret Decem- represent Labat. honey counsel grand jury ber 1950. The term ex- remain case the status Thereafter pired March 1951. Labat was ar- January unchanged until ed raigned January 3, 1951; was ar- Poret grant Mahoney was Mr. asked when raigned October 1952. The motions Wray Gill, Mr. G. to withdraw. ed leave quash were filed November place, that Lá appointed in contended began February 24, The trial right effective denied his bat was Mahoney 76 or was impossible comply in that Mr. counsel It was for Poret case and old when he took the Article 202. He in a Tennessee year. during penitentiary months ill several and did not return to New Butler, 1955, urged by quash La. In State v. trial. be the motion to challenged 1 the accused must be trial 81 So.2d which before it is desirable filed it was However, venire because commences. containing adopt few- from a drawn wheel liberal rule for fil- as to the time required quash ing law. than names im- er The the 750 a motion to on these * * * sufficed, grounds. therefore, portant They are, held that “it Court Paragraph grounds motion before the that the be filed listed may B urged right of the case”. be as of until three application judicial days Su- trial, the' Louisiana In their before the corpus preme per- of habeas writs thereafter court’s raised with the petitioners mission, nobis and coram until of trial.” counsel commencement authority, (Emphasis added.) Projet, 535, Chianelli Butler as cited Article subsequent Wilson, p. to for the timeliness 267. un- in its motions. Court of their White, 775, 1939, 5. In State v. La. 193 192 Sep- reported memorandum decision 345, however, defendant, fugitive So. 27, 1957, rejected this view tember indictment, after filed for three stating “totally substance”, that without grand objection an and venire “which, Butler Chianelli was based on late, trial. It not be- after his came too Wilson, turn, v. in Michel, is based” State on expiration cause of the of the third 1040, 1954, So.2d La. 74 225 judicial day grand jury’s of the term but 201, Labat, 1954, La. and State v. 226 207 quash “a motion indict- because to 333. 75 So.2d be- [must] ment made at time the trial of the In State fore Chianelli, case.” Institute, Law Comments 6. Louisiana 1954, 552, 226 So.2d La. 76 Projet 535, Code of the Louisiana Article grand 727, distinguished the court Procedure. Criminal petit [six term months] that [one term month] reasoned Labat, So. 7. 226 La. 75 State v. begins necessarily since trial before 333, 337, 2d 338. petit jury term, end of the Article 202 merely requires Alabama, an accused to raise all 8. Hamilton State Cf. objections 157, L.Ed.2d 114. before 368 U.S. venires S.Ct. Supreme who, Court held that wish assert claimed constitutional The Louisiana rights”.10 at 163. facts did not show lack of effective at 76 S.Ct. findings accepted The Court counsel.9 repre Louisiana courts that Labat was Court, on Supreme United States sented counsel. effective case, also its first consideration Sep- petitioners, quash rebuff, as an After this motion to treated the 18, 1957, jury. applied State a writ of grand Labat v. tember attack corpus Lou- Dis- in the United States Poret v. State habeas of Louisiana nom.; District of reported and sub Eastern isiana, for the with trict Court Louisiana, 1955, application was based Michel v. State Louisiana. 83, 92, newly How- 100 L.Ed. part found evidence 76 S.Ct. U.S. testimony perjured and co- U.S. reh. denied 350 ard’s purposes majority opinion, important In the More L.Ed. 831. erced.11 discussion, petitioners’ present stated: the Court challenge to the their clarified counsel any at- made “Neither [defendant] motion quoting the jury system. After composition tack on the application quash, the habeas states: quash jury, their filed motions claiming placed discrimination indictments be- has now Your Honor “That grand-jury panel.” objection selection of the you fact fore (Em- at 162 at Ne- elimination both the made to added.) phasis Jury well groes service as Grand VENIRE, to- as that the GENERAL fugitive The Court held that “mere pre- Jury. wit, now This the Petit existing status here [does excuse] question.” grave and serious sents failure to resort to Louisiana’s establish- added.) statutory procedure (Emphasis ed all available to credibility Certainly his court. at 339. state So.2d desired, but there is leaves much to be 10. Chief Justice and Justices Warren whatever, than the state- other evidence Douglas They Black and dissented. con- signed prepared ments Howard, others op- cluded that Poret was denied “the portunity, guaranteed by committed Howard either process of due committing perjury or was coerced into law, challenge constitutionality * * * credibility perjury. [of [The] composition principal witnesses] is unchal- the state’s indicted them.” 350 U.S. possibility lenged except in far as the so They at 166. would have dismissed the always present in the of human error is against both because de- indictment persons in the circum- identification of jointly. were fendants indicted Sigler Labat [of this] stances suit.” F.Supp. 574, at 576. 11. Howard made a sworn affidavit and Continuing, point “The later testified that his statements iden- counsel stated: tifying police placing Labat referred to and the basis herein made objection in the State both Labat and Poret at the scene of of perfected Court police pres- Supreme crime result Court addition, apparently pursued sure. son, Elenora Hender- was not one original application who had not for writs to testified at the trial, spent States, stated that Court of the preme she the entire United as the Su- night Labat; of November of the United States in its opinion only a. 2:30 m. he was so drunk that did make the observation that though qualifications Jury was unable to him she arouse even the the Grand body; attacked, she rubbed ice over that had been cubes and that objection police go she saw beat and kick Labat. did not to or the refer to the proceeding Judge Skelly Jury. the Petit This should habeas J. have been set Wright, judge, forth, respectfully submit, we commented: “How- on motion appears rehearing Supreme person ard to be a of low for a before the men- Court tality. Unquestionably, as the evidence States as it United is counsels’ shows, subjected great opinion they he has been that humble would have pressures persons seeking help discharged your the maintained writ petitioners testimony in these since his defendants remanded the case for and/or Supreme Because the as to new evidence The writs issue Court denied the during the trial was not raised remanded the cause the district court rejected court, petition- state court for the district the consideration view the petitioners having application for rem- failure of the ers’ exhausted their state Sigler, petition- state The edies. to exhaust remedies. Poret v.

ers then submitted the two issues to the L.Ed.2d 107. Supreme appli- Court of Louisiana on an peti- retr[ying] effect, the “in After corpus and cation for both habeas a com- they of which have offense tioners for the The mon law writ of coram nobis. error dis- convicted”, court the district Court, unreported accompa- in an order Sigler, charged E.D. Labat v. the writ. decision, by a denied nied memorandum F.Supp. district La.1958, 574. The the writs. State of Louisiana ex rel. judge consider the issue did Sigler, No. Poret Labat v. general Negroes from the exclusion September 25, petitioners 1959.13 The spite petit jury venires venire or the applied Supreme to the United States clearly application fact that Court a writ of certiorari. basis issue as an alternate raised that petitioners simply to the Su- same time He referred At relief. grant- Supreme preme Louisiana “after before affirmance Court’s Court, they ing their habeas carried forward certiorari limited to at- a writ of They proceeding grand jury Id. in the federal courts. tack on venire”. appealed order and re- the district court’s stay quested Fifth The of execution. the district Circuit affirmed Fifth Circuit, September 25, in an unre- sys- discussing court, again without stay order, granted ported but af- Negroes from the exclusion of tematic petition- firmed the court. district although jury system was rais- issue that Supreme applied to the ers United States Sigler, ed in 5 Cir. the briefs. Labat v. certiorari, prohibition, Court writs petitioners 307. The 267 F.2d raising newly and mandamus the issue thereupon applied to United States challenging found evidence but also Supreme Court writs certiorari.

petit jury venire. alleged: petition for certiorari application to the In each “Additionally urged that it was this alleged: Court, petitioners pass Honorable Court had failed negroes petit attor- exclusion also “It was discovered Orleans, handling neys in the Parish of State matter this this Louisiana, Court, when this be- when it considered case Honorable (ci- previously. petitioners prior application Michel fore vs. Louisiana, petition- supra) only 91 [76 S.Ct. 158]. considered tation * ** Jury Insofar as the Motion to er’s attack Grand Quash Jury con- the Petit had venire Parish of Orleans and failed herein, cerned, previously petitioners had stated consider fact quash petit motion to the indictment was venire on also attacked the grounds systematic filed Labat and Poret in the trial same exclu- against general jury by court as venire and from the sion Jury.” the Petit were tried.” (Emphasis added.) pointed pointed also had out Counsel new trial it been Butler, Jury 227 La. been attacked the Petit had also Chianelli, qualifications members, So.2d 1 and State v. its as to holding La. 76 So.2d It law that both the [¶] etc. quash Jury Jury on a motion to indictment based and Petit drawn Grand having from an wheel, been drawn the same out unlawfully be filed constituted venire comprise at all times not less should wheel before footnotes time trial. See Therefore, bringing 750 names. than 4 and 5. Jury Jury the Petit and the Grand both purview 13. 4 and footnotes the same law.” See within

I writs, reasonable, appro- granted Supreme the rule were Court integrity priate preserving judgment Cir- means of of the Fifth vacated the system, procedural cuit, state’s re- to the dis- and remanded the case question rel. Poret v. mains serious of the effect ex court. United States trict Sigler, 1960, of such rule federalism. on American 361 U.S. remanded Can a the fictitious waivér doc- The case was L.Ed.2d 380. state — trine, the exhaustion of state remedies principle, adequate-state-ground and the question “disposition wheth- of the procedural (at rule —convert a default petitioner’s members of race were er process) re- worst waiver state into a deliberately intentionally limited linquishment substantivé federal and excluded in the selection of rights? Fay sáys v. Noia “No” ahd jury panels, in violation Federal severely application limits the doc- Constitution.” rights trine when the at issue are feder- language B. The restrictive this ally-created federally-guaranteed strongly suggests Supreme order that the rights (habeas) pro- asserted in collateral satisfied that as to the ceedings in the federal courts. It is true question composition that federal habeas federal- relief strains panels issue, question was a live by lessening state finality relations waiver, a dead issue. The district judgments. However, of state criminal court, however, relying (Labat- on Michel finality “conventional notions of Poret), petitioners, having held litigations per- criminal cannot [state] timely objections failed to make mitted to defeat the manifest federal jury, “are now deemed to have waived policy rights that federal constitutional objections”. F.Supp. those at 175. personal liberty shall not be denied point on this error The district court’s opportunity without the fullest for fed- frequent reliance and the states’ judicial eral review.” 372 U.S. at habeas cases in federal doctrine of waiver “jurisdiction S.Ct. at 841. The in this circuit demonstrate the need federal corpus courts on habeas is not dis close look at Court’s by procedural affected Noia, defaults Fay incurred cussion of that doctrine applicant during 9 L.Ed. the state 372 U.S. 83 S.Ct. court * * proceedings 2d 837. 372 U.S. at 83 S.Ct. at 848. The “waiver” asserted turning Fay point v. Noia marks a euphemism simply diaphanous case is history corpus, it is of habeas rights resulting from a forfeiture revolutionary. Wechfeler, In Davis v. procedural No one default. doubts 68 L.Ed. legitimate in es has a interest the state 153, the state court had held that a filing tablishing orderly procedures for attempting federal officer ques to assert a fed pleadings certain in limine. No one privilege eral venue was deemed to have propriety tions the of such a rule as to failing waived the defense ínaké his rights as motions based on state-created appearance “special” appearance uiider serted in courts. And we are all state disallowing state law. the state legal familiar with useful fictions. But! ground Holmes, language Mr. Justice The initial trouble with the doctrine quoted, often said: relatively the mismatch between (here, probably, springes of- minor default as is “Whatever the State set attorney’s case, endeavoring ten a result of the those who are to assert law) heavy rights penalty confers, mistake of and the the State the as- rights. rights plainly sertion forfeiture constitutional of Federal when penalty reasonably made, does not fit the offense. This not to be de- incongruity prac- affects the reasonableness of feated under the name of local application the local rule. if tice.” Even strict 263 U.S. at at. 708 object again: quote Failure to or to make a time- Holmes “[H]a- Justice To ly objection principle through and violates that corpus all forms cuts beas applicant a very habeas is not to goes structure. entitled of the to tissue outside, federal relief he has exhausted not in sub- until in from the It comes (3) proceedings, state’s remedies. Forfeiture and al- to the ordination rights pre- procedural though default every form have served, inquiry with neutral state law opens whether accordance 14 empty adequate, independent, an nonfederal more shell.” than have been ground for conviction. defendant’s applied waiver, to The doctrine interpreted “If include exhaustion to procedural resulting from a forfeiture presently remedies, unavailable it would (1) principles. default, on three rests appear adequate- that timely waiver ob- object or make to Failure to state-ground merely rights rules are semantic constitutes jection on federal based objection and require- of the variants exhaustion

constructive waiver 15 (2) rights. the federal therefore ment.” language Holmes’s in Justice occurs This 14. was no where the choice waiver Mangum, dissenting opinion v. attorney in Frank choice. In Cobb Hobson’s 595, 582, 309, 346, 1915, young inexperi- S.Ct. 35 U.S. 969, 237 did not discuss with a Fay Noia the sys- In v. question 988. L.Ed. 59 enced defendant express principle it Negroes noted tematic exclusion of grand from the majority in Moore adopted juries. Georgia es was and trial courts 86, 1923, Dempsey, 43 261 U.S. v. have a firm rule the failure make 543, Holmes 265, objection timely which Justice L.Ed. 67 consti- constitutional Court, after objection. before This wrote. also Fay a waiver “In tutes sum”, consistently Noia, taken a Judge said, v. Bell “there no was pro jaundiced habeas relinquishment of waiver view intentional known ceedings has relied right state purview majority in which within * * failing opinion a time petitioner’s Fay to make v. Noia 339 objection ly the exclusion 102. F.2d at juries. rel ex Golds States United 71, 1958, Harpole, F.2d Sofaer, Note, 263 Corpus 5 Cir. v. 15. Habeas Federal 838, denied, 80 S.Ct. U.S. 361 cert. Prin- State Prisoners: The Isolation 78; 58, ex rel States ciple, 78, (1964). United 4 L.Ed.2d 39 N.Y.U.L.Rev. 82 Cf. Wiman, F.2d 5 Cir. 304 [procedural] v. Seals 53, “Where the state rule is a denied, 83 S.Ct. clearly 372 U.S. cert. one reasonable announced Balkcom, 722; v. counsel, application Whitus L.Ed.2d defendant denied, 496, cert. yield F.2d 5 Cir. waiver doctrine will result same L.Ed.2d adequate 379 343; that of non-federal Balkcom, ground 5 Cir. majority Cobb doctrine in the vast Balkcom, Whippier Henry Mississippi, also F.2d See cases.” 1965, State Goldsby 443, 448, F.2d 388. 5 Cir. n. counsel, with retained the defendant’s 13 L.Ed.2d defendant, consulting failed to out A number of excellent articles discuss systematic post-conviction exclusion claim federal habeas as a rem- ap during edy prisoners: or on Note, trial from the for state The Free- supreme court. We peal Expanding state dom to the Writ —The Use Fed- not Corpus, had waived defendant eral held Habeas 61 Harv.L.Rev. 657 jury. respect (1948); Hart, right Foreword, trial his objection Court, be Term, counsel made In Seals 73 Harv.L.Rev. composition during (1959); Bator, Finality trial fore 101-121 in Crim- jury. Corpus or the either inal Law and Habeas State plus evidence Prisoners, (1963); fact in that There Harv.L.Rev. systematic Brennan, known Corpus not exclusion Federal Habeas easily held We ascertainable. State Prisoners: An and not Exercise Federal- ism, (1961) ; Reitz, constitu not 7 Utah had waived L.Rev. 423 that Seals jury. Corpus: Impact rights In Whitus Federal either Habeas tional of an Proceeding, counsel decided Abortive State 74 Harv.L.Rev. the defendant’s (1981) ; Reitz, be 1315 pus as to the trial Federal issue Habeas Cor- raise the Remedy so com : did Post-Conviction if he cause munity the fear Prisoners, (1960) jeopardize ; hostility his case U.Pa.L.Rev. 461 would Impact Meador, The jury. of Federal there was Habeas We held with the * * * Fay appealed

First, courts to in Noia the should be instance”, petitioner’s vanish- the first if a con- waiver to the narrowed fictitious rights remedy relinquish- ing point. stitutional are denied “his An “intentional right in the Federal unim- of a known court will remain ment or abandonment paired”. 418, 419, privilege”, enunci- 372 at 83 at the “classic waiver” U.S. S.Ct. Zerbst, 1938, 838. The rule of is “not one in Johnson 304 U.S. exhaustion ated defining power L.Ed. but one which relates to 58 S.Ct. 82 * * controlling appropriate power “furnishes standard”. exercise timing else a “lim- rule of would at 822. The become rule 372 U.S. 83 S.Ct. circumscribing judge power federal ited discretion the federal * * * habeas, deny applicant courts on in defiance of relief to an unmis- congressional deliberately orderly proce- by-passed takeable intent”. 372 doing Accordingly, at 83 S.Ct. at dure of the state courts and in so Court held that has forfeited his state court remedies 2254 is limited in its “§ * * * application interpreted to failure is not to be as a exhaust state open permission legal appli- remedies still to introduce fictions in- the habeas corpus.” application cant at the time he files federal habeas 372 U.S. at 438-439, federal court.” 372 U.S. at 83 83 S.Ct. There must be at 849. showing petitioner at 847. “after con- competent with sultation counsel or oth- recognized Third, the Court erwise, understandingly knowingly to “review state had often declined privilege seeking forewent to vin- judgments independ court which rest dicate his federal claims in the state grounds, adequate ent and notwith state * * courts *. [T]he standard here standing presence federal put depends forth on the considered grounds”, adequate held that “the but * * * petitioner. choice of A state-ground lim rule is a function by participated choice made counsel not appellate (Court’s em itations review” petitioner does not automati- phasis.) at 844. U.S. at cally bar relief. Nor does a state court’s only “appellate function is concerned finding independent of waiver bar deter- judgments of state with or decrees question by mination of the the federal jurisdiction courts, corpus habeas habeas, affecting courts on for waiver con not so federal courts is the lower rights question.” federal ais federal jurisdictional prerequisite fined. The U.S. at facts, 83 S.Ct. at 849. On the judgment not the of a state court de Fay strong case, v. Noia is a for the de- simpliciter”. at tention appeal cision not to was made Noia “In Noia’s case the S.Ct. at 844. personally, after consultation with his is federal —the relevant substantive law counsel. The Court held that ap law Fourteenth Amendment. State deliberately Noia had not by-passed state pears only procedural framework procedural law, because he was faced adjudicating federal the substantive “grisly with the appealing choice” of not paramount question. interest fed appealing, or of succeeding appeal, eral.” 372 U.S at running the risk of a heavier sen- power “The breath of the federal courts’ tence. “Each case must stand on its adjudication independent on habeas facts.” 372 U.S. at 83 S.Ct. at 849. corpus very from the nature of the stems * * * Second, Fay recognized v. Noia writ. The nature of the writ “comity language law, purpose that while demands that the state common Corpus Procedures, (1965). Comment, on State Trial 52 Va. State Court With- (1966). Hill, Inadequate Corpus, L.Rev. 286 drawal from Habeas U.Pa.L. Ground, (1966). State 65 Colum.L.Rev. Rev. See also Sandalow. (1965). Small, Henry Mississippi Adequate Cole Note: State and the Ground, Post-Conviction Remedies and Federal 1965 S.Ct.Rev. 187. Corpus, Habeas N.Y.U.L.Rev. February 1867,16 general pf venire, thé Act —the jury, jury. We hold of decisions” for hundred course that, relinquish- the view that absent intentional “irreconcjliable” jurisdiction right a known delib- absent habeas ment federal courts’ thing by-passing procedural erate known “defeated [some] requirement, procedural proceedings. ipay default occur State court court, yield failing procedural, plainly such must state rules make a State' overriding timely challenge policy”. jury system, to' federal does U.S., right 426, petitioner’s not bar the assert at 842. I to the S.Ct. at 83 challenge proceeding. in a federal habeas aye exceptional circumk There case, filing petition of of (l) The the untimeliness this in stances challenge jury system be in the months ers’ Or a and the motions three half gave no leans Louisiana Parish courts’ the trial fore sufficient the.'state holding that this any of the state’s constituted question untimeliness tp remove tice having challenge bearing by a “waiver” have prejudiced default. been only impossible petitioners here for that compliance to show ($} Literal up Poret; attorney could exhausted state remedies and their did he had intentionally Labat, process. by-pass timely for state a As filed motion. have Supreme by in may Mi have Court’s affirmance caused the default aged (Labat-Poret) chel ill Louisiana an or mistake inadvertence (3) holding petitioners court-appointed attorney.17 courts’ At the that filed, could no objections one “waived” their to the time motions certainty, say. the Louisiana what by jury is the fact that the Su limited filing proper law was time preme holding in the Court made ex this petit challenging the motions appellate a ercise of di its functions venire; general commentators most judgments. rect review the Louisiana filed that could be considered motion Fay grand jury v. Noia rescued the disregard any time trial.18 We before at squarely previously raised but not issue exceptional these and other circumstanc proceeding. decided in habeas this Fay plus fac v. Noia Under es. such petitioners are entitled to a decision on relevance, the absence have tors this issue as well as on the petitioners abused a contention issue. deliberately by-passing processes by state Fay procedural requirement.19 known relief for unlaw habeas Federal v, preserves petitioners’ ob Noja part fully prisoners state detained jections Supremacy parcel State Parish Clause.20 16, February 5, 1867, 28, § ch. 18. 5. footnotes Act See expanded This habeas act Stitt. by-passing defendant’s “deliberate Tbe jurisdiction include of federal courts ground procedures” is “the of State may any person be re- cases where “all . in federal relief be denied for which liberty violation or her strained failure, con a federal to raise habeas treaty any or law constitution, courts”. in the state claim stitutional is, States;” state the United Denno, 368, 370, U.S. Jackson asserting rights. prisoners federal 1774, 1777, L.Ed.2d 908. n. ‘ ju course, any system 17. “Of civilized jurisdiction enough 20. “Insofar [habeas] as this administration should have dicial joints gross entertain federal district courts to to avert enables looseness litigant’s rights growing out Courts have claims denials lawyer’s rights guaranteed by negligence United denied of his mistake even plead Constitution, failing proper file it is not a case kind States high- prescribed sitting judgment precisely ing on a moment.” court lower merely aspect States, It one court. er Berman United respecting Supremacy L.Ed. Clause of the 2d say expect have last courts cannot banc on Labat-Poret and six other cases procedural involving rule that defeats Two of on a local similar contentions. systems constitutional an accused’s federal dilutes those also involved cases impartial jury. right Walker, Louisiana. In Scott v. Negro, under Cir. 358 F.2d II. charged rape, sentence of death were excluded from fifty A. hundred Seven Livingston Davis, In Parish. Davis ago Magna declared, “No Carta *** 770, Negro, 5 Cir. F.2d un- imprisoned shall free man ** * der sentence of death the murder except way destroyed, or in charged police officer, a white peers or judgment of his the lawful Ne-i groes sys- were excluded By land.”21 [and] law tem in Parish. Acadia each case parium, time, judicium Blackstone’s petitioner Court found that the had made King granted privilege his vassals John great prima case, chiefly facie erroneously linked, Runnymede, percentage disparity of Ne- between the “right indissolubly, of trial with the but groes percentage parish in of and the country, per patriam, by jury, of the * * * Negroes to have included on shown every peers that of general venires. In each case Englishman.”22 very “The idea of a constitutionally state a failed to furnish jury”, Supreme said, “is has Court acceptable explanation disparity. for the body composed peers a of men of the Accordingly, aside the Court set rights equals persons it or of the whose determine; and remanded with convictions the cases or is selected summoned is, neighbors, fellows, directions the district court issue asso- his legal having releasing ciates, prisoners, persons writs sub- same ject, course, holds”. petitioners status as he Strau- to retrial of the 303, 1879, Virginia, 100 der v. West U.S. the state. importance 25 L.Ed. 664. lays down v. Walker Scott right jury peers to a of one’s extends guidelines in this area difficult valuable beyond any “For individual defendant: of the law: ex- racial discrimination to result clusion from service otherwise systematic ex- “The first is qualified groups our not violates Negroes judi- from in clusion of Constitution and the laws under enacted Negroes represent cial districts where concepts it but is at our basic war with population part a substantial society representa- of a and a democratic pro- deprivation equal constitutes government.” tive Smith v. State Amend- tection under the Fourteenth Texas, 128, 130, 1940, 311 U.S. 61 S.Ct. Mississippi, ment. Patton v. State 164, 165, 85 L.Ed. 84. 184, 463, 92 332 U.S. L.Ed. achieving said, 76, Supreme B. the interest of uni- where the Court formity plan, on the exclusion of decisions 'When a selection whatever Negroes juries, is, way operates from en this Court sat as al- such a whereby high- IV, Blackstone, Commentaries, Constitution federal law is 22. Bk. Chap, xxvii, (Tucker 1803). er than state law.” Mr. Justice Frank- 349 Allen, furter Daniels v. sub. decided Walker, 1966, 23. 5 F.2d Scott v. Cir. 358 Allen, 1953, nom. Brown v. 344 U.S. 561; 1966, Billingsley Clayton, v. 5 Cir. 443, 510, 73 97 L.Ed. 469. S.Ct. 13; Davis, Cir. 359 Davis v. 5 F.2d Chap. “peers 770; 1966, 21. 39. of a Crown ten Rabinowitz 361 F.2d v. United States, 1966, 34; ant were his Crown tenants”. Mc fellow 5 366 Cir. F.2d Jack- Keehnie, (2d Ed.). Magna Carta, States, 1966, 379 v. son United 5 Cir. 366 judged 34; Beto, 1966, “The idea that a vassal should be F.2d Brooks Cir. integral peers part 366 F.2d 1. society.” Keeney, Judg feudal ideal of by Peers, (1952). ment complete ways “never commissioner that he had result long-continued any rep- single any known exclusion of a instance where large Negro group sat on a resentative at all Negroes, group, history” country other racial “in entire prima returned itself indictments verdicts out a case of the made facie against by juries equal protection”. thus denial them selected Norris 469, Alabama, 1934, State of cannot stand.’ 332 U.S. 294 U.S. proposition S.Ct. Her- The second L.Ed. 1074. also See S.Ct. Texas, 1954, equally in- nandez is that U.S. which is clear minimal or token 98 L.Ed. clusion of number S.Ct. pre- jury list does not transitionary period where In a systematic rule vent exclusion moving, commissioners operating, for the moving slowly, a nondiserimina toward Allen, said Brown v. selecting tory a cross-section course, L.Ed. 469: ‘Of community, sophisticated methods summoning token Negroes on of token inclusion of venires comply equal pro- service not does have increased the defendants’ burden tection, Texas, 311 Smith v. of] [State systematic proving prima facie case of 85 L.Ed. [61 84].’ Negro representation exclusion. When See also United ex rel. Willie States dispro extremely lists is not venire Seals, Wiman, Cir., Jr. v. 304 F.2d Negro portionate population in the proposition, 67. A further parish, heavy one. the burden dispute, does the Constitution Alabama, of 380 U.S. See Swain v. State require proportion not exact be- an 824, 825, 829-830, 85 13 L.Ed. S.Ct. Negroes percentage tween the of 759; 2d Yale 326. Note 75 L.J. population percentage of Ne- and the But, “very said, decided this Court groes lists, jury on nor does the Negroes proportions and variations require particu- Constitution that jury propor white from on lists racial panel lar in a criminal population, tions which variations include ac- members of the race of the continued, long explained aré not person. cused v. Ala- Swain State of systematic furnish sufficient evidence of bama, 824, 13 U.S. jury exclusion of from service.” Finally, L.Ed.2d it is clear 759. also Wiman, United rel. v. States ex Seals proof upon that burden of is a F.2d 67. Cir. 304 Swain petitioner pro- corpus in a habeas expressed not inconsistent with views ceeding to establish sufficient facts specifically in Seals. In Swain the Court finding warrant a of denial of approved inference discrimination rights. constitutional Swain State drawn “deter Patton Norris as supra.” Alabama, evi sufficient rebuttal minative absent rejected simply dence”. Court Court has held that “woodenly” application rule of “this Negro “indisputable no had fact that *** proof dis cases where the grand served a criminal court during said crimination is to occur jury thirty years period for a created peremptory challenge per process very strong showing during jury sons called service”. period systematically were ex- 227, at 839. at S.Ct. In Swain jury cluded from service because of race. * * * “Negroes noted that served duty [imposing] [on] grand juries selected, try 80% justify such exclusion ranging number from one to three”. having brought about for some at U.S. at 828. reason other than racial discrimination”. Mississippi, approach developed Patton v. State C. The Scott Walker, Davis, jury Davis v. and other 92 L.Ed. (Emphasis added.) scrutiny requires Testimony exclusion cases close of a jury statutory exemption.27 statutory selec- procedures The staff also jury selecting daily practices laborers, avoids manual actual and the tion wage earners, “outside” workers commissioners. (for convenience all include we of these at time it existed law as Under the “daily wage earners”), in the term al- tried, were indicted and Poret Labat though statutory authority there is Jury Commission Parish Orleans practice. Thus, for this Mr. V. G. War- ap- three commissioners consisted ner, jury commissioner testi- year a four pointed the Governor fied: there has In Parish term.24 Orleans Negro jury commissioner. been a never City “A we So went and used the employed has never And Commission Directory starting also then Beto, Negro. Compare Cir. Brooks indiscriminately and marked off F.2d 1. occupations, names. As far as maintain must The Commission peo- we found out that all of the venire) (general “jury all wheel” ple say, were, carpenters, least filled with names times painters, welders, mechanics, jurors. prospective From wheel shipfitters, they all —the commis- and the jury selected venire is they sion found all wanted to be at random.25 are drawn venires excused. for the of names selection Q People that laborers would were wheel, clerical staff the commissioners’ want to be excused? city directory26 names from the culls jurors. going persons they A never served Because lose have * * * doctors, money. law- The staff does select would [W]e yers, drivers, try others school-bus to mark off [select they occupations duty] people indicate whose looked like workers, service would excused were either inside sala- system law, drawing from which the No is to be made. Under respects certain Parish differs in name shall be canceled from lists said parishes. used in other with- from the withdrawn wheel general example, court, venire For instead out an list order the said wheel”, “jury perfect of 750 names in shall be a correct and the record of jury proposed petit jury venire of other names wheel. The said general supplemented parishes of 300 venire list be from to have shall time petit proposed jury jury box and a names time as the necessities service may jury require. drawing LSA-R.S. to 100. Cf. No shall be made venire with 15 :203. 15:175-15:189 :191-15 See from a list of less than seven hundred and names, Walker, fifty (750) 358 F.2d at 563. in an Scott unless extra- ordinary jurors case when are order- tales ju- judges ed the criminal “LSA-R.S. 15:194: Selection one of the preservation preparation, court, may, rors; judge district said his dis- supplementing cretion, delay, list in order to avoid order drawings select at commissioners shall said containing from a list and said wheel large, impartially, citizens of not hundred less than five having qualifi- (500) names, and in Parish such cases it shall register voters, requisite duty cations to im- as be the said commissioners mediately drawing names than hundred to less seven after said refill not fifty persons competent complete under this said said wheel list so jurors. required A to list these reach the number Code serve as to of seven prepared, fifty (750) be certified to names shall hundred and names.” part commissioners, kept as a 26. The Commission also other used sources subject of the of their records office consistently from time to time but never judges criminal orders of the extensively: telephone directory, or parish. The district court of said names registration (for the voters’ rolls a short slips pre- copied on said pared shall be list while), employees large corporations, purpose, for the with the number acquaintances. friends and corresponding that on and address placed lists be wheel See footnote 37 for LSA-R.S. 15:174. and shall workers, subpoena. kind of or in some

ried reverse of the In 1953 one types, questions sales work or something executive race related to the they that, prospective juror.28 like where commissioners subject wage daily to lose would not be excuse earners and those who money. age, residence, literacy, do not meet Mr. J. B. fied: Clerk welders, painters, hourly makers, except if in here people, allowed to serve.” because we knew not for the «* School [A] A ^[******] their send lot of that he wouldn’t firm on the Anybody an inside docked or * it would be Board, rated Government, [but * looked like notices to] Murphy, Chief Commission employees would people jury.” [The when] we * * man, in other lose let that we didn’t mark them Commission they fruitless. shipfitters, looked like they or the any truck they him off to serve * money, since past were they were subject to be have marked were Supervisory they experience 1943 testi- working * * drivers, decided he was words, boiler- inside would were off * jury] venire” prospective spective each section of the Criminal District drawings Court has a selected, interviewing which the commissioners names. The index forms the names of the R.S. 15:195. grand jury. trict names to fill the from the other to one of are grand jury After the Twice a serve kept wheel at random Court, statutory qualifications.29 The the Commission draws for a in an year the venire. These are who in contain as proposed grand jury judges jurors. a substantial of 150 qualified six months wheel 75 alphabetized names are made jurors, rotation, empanel judge, Commission names. Additional venire These wheel. “proposed [petit many potential venire names select selects Criminal Dis- usually term. LSA- persons of 150 number card pool from submitted has been from the the 750 for the selects twelve 40,000 index after until pro- are Jury judges subpoenaed appear those se- are mailed to notices before jurors requiring potential their lected as of the Criminal District Court. Each judge appearance commissioners. before the venire” or then selects the “final required they appear, panel When of about from which the questions answer certain written are selected. The veniremen serve year Warner, holden, chairman in 1952- next 28. Mr. V. B. the court one question preceding service, able to read and testified such English language, in- to assemble statistics not under enable the staff write offense, by Negroes jury any participation charged in to the or terdiction or provided any felony, process any to aid the chair- so as time of selection man when he testified convicted at frequently (as he that shall be no distinc- did) question race, in criminal cases. color or on this tion made on account of previous disappeared. servitude; pro- material has This statistical condition of Apparently attempt judge further, to assemble it as shall vided that the district meaningful permanent upon ever or record was com- have discretion to decide the petency jurors particular that it made. testified The chairman cases pieces paper kept physical infirmity existed notes on from or from as where employee’s relationship, causes, person drawer. desk or the other judge, may be, opinion Qualifications any incompetent upon 29. “LSA-R.S. 15:172 to sit the trial of grand qualifications particular as a to serve The case. juror any juror petit foregoing qualifica- or a In addition to the jurors tions, persons of this state shall be as follows: courts shall of well be state, good standing not less To be citizen this known character and the years age, twenty-one community.” a bona fide than parish for in and resident the selecting pro- they get paid, as Lou- a term of one month. where didn’t they jurors they get paid, spective venire for final isiana don’t usually judge day's (petit jury panel), calls the would miss that work? The for 15:196. volunteers. LSA-R.S. Well, quite A a number we had the number of record does not indicate - excuses, type. yes, of those duty. Negroes jury for who volunteer Q you say one of Would that was judge discre- considerable exercises largest for exeuse ? the reasons determining composition of tion in the Well, say guess ybu A I coUld that. although státutory venire final my just talking generally I am authority appears to to deter- be limited recollection, very fre- but that was a mining ju- competency of individual quent to we had deal situation that daily wage appear If earners rors.30 Wage Particularly with. after to from the final and ask be excused passed by Hour the United Laws were hardship, venire of financial because Government, people had these States judge grants generally request. they many and if did to work so hours “C”, Judge who Fred Oser Section they not work the hours would not furnishing jury venire selected get probably paid for it. That was Poret, jury tried Labat major were number of excuses that O’Hara, Judge who J. dead. William presented.” District was on Criminal relating to The Louisiana statutes from 1932 to the Parish Orleans discriminatory jury system on are not testified: against their Discrimination Ne- face. “Well, principal reason I think the [to groes comes the administration might you call was what excused] system. jury Commissioners words, hardship reasons. In other 1953 testi- served Parish in Orleans get they job to on the had to remain they to broaden fied that made no effort they keep pay their had to their or (the pool) the base the card index words, they or, going in other business changing prior commis- the methods job their not take time off from could Negroes by seeking to or out sioners something else. their or business large compensate number dis- obligations. They had families daily wage qualified earners.31 They present it a case that would index that Commission inherited a card hardship men to would on these be a years producing had succeeded in require them to serve. white on Q generally (19) ex- Was Parish. Its Orleans wage they change cuse that earners failure to amounted sys- if had serve decision deliberate to continue .the provides: “The LSA-R.S. 15:192 out néver checked tion club: “we have organization any any Orleans Parish of commissioners kind Or character. persons qualify their all before shall “Has to send notices to.” He was asked: judges jurors, any attempt part selection on the there been right change Jury policy courts have the several district shall its Commission jurors.” upon competency decide to serve selection over the venires Parish Warner, Jury 31. Mr. Y. G. Chairman of the * * * number of to increase the 1952-56, that he did Commission testified Negroes serving venire? He. any particular effort made not “know of replied: place, wouldn’t “In the first we get in”. Mr. number of how Mr. Knowles ad- know to do that.” Knowles, on Com- D. who has been the Jury had mitted that the Commission “about the mission since stated that they tó “met and decided wanted never jurors] only prospective of were [sources policy number a matter of increase of the city directory, telephone book the * the serving Negroes on the * venire”. The * registration office”, the [and] changed “method has not over been “very unsatisfactory”; which was * * * the same stUl follows sent notices the Commission never organiza- Negro churches, pattern”. or a Masonic Negroes 10,816 definitely white, 8,958 tematic limitation of on the were along policy, venires. This Commission were undetermined. judges’ policy excusing of with the all Negro Comparison percentage wage daily earners from the population Orleans Parish totally venires, ex- had the end effect Negro percentage of veniremen in the Negroes cluding impor- from most Orleans Parish Criminal District Court stage tant fact- strong sys- —final showing in itself makes finding by jury. a trial Negroes tematic exclusion of service. found that of a The 1950 census showing Turning the facts D. 182,631, 570,445 residents, total of operative Parish of the Orleans effects Negro. per about 32 cent were many jury system, find that we stipulated. have There facts sample jurors In a of 8657 selected large reports number of statistical also a during period January 1948 to (See Appendix) the district court March 1953 for the commissioners’ in in and considered allowed evidence venires,32 aggregated proposed av findings. reaching its erage proportion of 6.2 non-whites was cent; eligi per population the non-white outstanding fact is that in jury duty per ble for 25.8 was cent.33 invariably juries rule were all white expect proportion One Ne could Black in Parish. As Justice Orleans groes vary proposed venire to pointed opinion first out in in the figure per above and 25.8 below the Labat-Poret case: cent; instance, however, in no did the “Only memory peo- once within proportion per non-whites exceed 16.1 living ple parish in had a colored cent. If attention is confined to the ju- person been selected as trial, immediately preceding months juror, happened look ror. That who November 1952 to March man, like white was under selected jurors whose determined race was one.” mistaken idea that he per Negro. 4.9 cent In no one were 350 U.S. at at 165 single proportion venire was the of Ne tried, groes At the time Labat and Poret were per above 9.6 cent. Negro petit no had ever on a served stipulations One of the states that in a criminal case in Parish. Orleans Jury certified Commissioners petitioners’ in general introduced ap- counsel for the venire “in numbers proximating evidence the venire lists venire”.34 10% months, January winnowing jurors Parish for 103 Since the final every March of the Or- place section proposed takes when venire leans Parish Criminal District Court. venire, reduced to the final consider we 20,492, figures showing a total of comparative venire lists show white Negro, definitely Negro jurors which 715 were should be based figure figure 32. The excludes those venire- 33. This takes into account qualifications men whose race could not be determined stated LSA-R.S. 15:172 exemptions provided from the commissioners’ records. A sub- and the in LSA- sample women, un- of those whose race had been R.S. It excludes 15:174. because against ordinarily determined checked voter women do not serve jurors registration Louisiana; records. Of the 247 must volunteer. subsample pos- whose race it was Stipulation provides: although “That per sible to this fashion 6.0 determine prior Negro February, had Negro. subsample A cent were those jury empaneled ever served on a initially final veniremen whose race was Negro try in the Criminal District undetermined included 177 Orleans, the Parish of since previous subsample. Jury Commissioners had certi- Only per sub- 1.7 cent those qualifying under fied the state Negro. sample were ap- law in venires numbers proximating of the venire.” 10%

717 underrepresenta- eases, proposed of these both 8657 Of final venires. only Negroes some- tion of on venires is studied, were selected 4094 veniremen pronounced in- than in the final what more these final Of venire. for Negro. disparity in In case. The this case stant veniremen, per were cent 3.7 Speller Al- v. is about the same as to March 1952 period November from len, 1953, Negroes 97 on the proportion of (reported with, nom. L.Ed. 469 and sub only per It cent. 3.1 final was venire Allen). Allen, Speller Brown In of that none therefore understandable jury were made court noted lists Negroes venire the final included on containing county lists, 8,- up from tax jury panels served 3,136 taxpayers, individual of whom February were tried and Poret Labat Negroes. per cent were of the Criminal “C” Section 2,126 names, involved contained box of Orleans. for the Parish District Court per only cent of that number 145 or 7 drawn for their were Jurors said, Negroes. were of The Court names panels “C” and furnished Sections disparity would “This between the races proposed Section venire “E”. On acceptable solely on not be this Court February were 150 there “C” the evidence of the clerk commis- jurors, prospective 91 were whom sioners that he selected names citizens Negro, persons, and 58 one was a white good qualified moral character and those undetermined race. Of were of paid jurors, and had not serve as who veniremen, proposed served in the their taxes”. U.S. at defi- these 45 were final venire. Of at 419.35 Negro, nitely persons, none was white Dowels, 139,- State Louisiana v. No. There of undetermined race. and 8 were proposed Criminal District Court fur- 149 on the venire were (unreport- Orleans-,' these, Parish of Oct. “E”. 83 were nished Section Of ed) only Negroes, definitely is the known case in which persons, were white Criminal District for the Parish were of undetermined race. Of quashed proposed veniremen, an indictment be- selected 57 were Negroes systematically these, cause had been were for the final venire. Of juries. Negro, parish persons, excluded from In Dowels white none was a Judge O’Hara, case, in this testified 6 were of undetermined race. grand described the in Or- Negroes percentage in Or- very leans Parish at the Labat and time compares per leans Parish of 32 cent Poret were indicted and tried: Negroes percentage with the negroes grand per on a have served “[N]o of 3.7 cent over venires year since ne- period per 1936 when there and 3.1 were five cent groes wheel; in the trial. In [and] several months Scott before negroes presence Walker, proof per wheel we held that of 13 brought change Negro population per in the continu- cent one Negro negroes prima ous omission of cent veniremen makes a * * * grand jury representation His facie case token Orleans. Judge Honor Fred on venire lists. In United Oser Section presided Wiman, supra, ‘C at the trial Labat [who we States ex rel. Seals v. * * * per That Poret] found “tokenism” where two cent testified. county per- he had selected never a colored veniremen were in a per popula- jury; son on that none where cent male 31.7 Negro. age those selected to be tion over 21 intervieived regarding, should, presumption think 35. The as we we rebutted unchallenged by showing on a based on relied clerk’s selections the clerk property, “comparative taxable is no evidence standard based wealth” “un- racial discrimination”. tax rolls. This standard that, challenged”. “Dis- held The Court colored; ruling quashing had here- that he discrimi- a the indictment never system- any against nated because in of intentional and venireman because grand making negroes in de- or atic exclusion of of color from race * ** obvious, juries there- It is in Orleans Parish because cision. fore, colored race color and the the that no and in violation of reason that grand jury Amendment, a Fourteenth inclusive of ever served on person has years grand jury in which the in- the that returned colored the in sixteen persons case, placed in the dictment this that have been in because person grand jury has from is not differentiated wheel is colored because no by judges, pattern any of in- selection that the the been selected court, consistently persons cluding judge of colored this the eliminated * * * * * * per- juries. is grand from It If colored such service. constantly grand opinion appearing court on individual of this the the sons grand juries consistently that selection in venire eliminated community throughout years grand jury this from selection because has and em- tradition a certain selection controlled standard general thinking community ployed by making officers the selec- persons as a tion, whole is influence under it be said colored can that (Emphasis opportunity that tradition.” added. have grand serve * ** length by Quoted at jury? Justice Black in Our situation Eubanks, particularly in U.S. at fn. Orleans seems to be 970). theory S.Ct. the United vulnerable Supreme and chance ‘that States Court Louisiana, Eubanks explain the hardly accident alone can L.Ed.2d negroes omission Continuous from speaks with an especially and loud grand long period over a grand clear voice on the courts, have and because we time’ five Supreme Parish. Court courts, last four six select- Jury noted that when ing grand juries shows record Commission first started to include Ne- notwithstanding that the number of groes pool jurors, potential un- re- grand juries, indicted, that courts select til when was Eubanks grand grand juries gardless of court selects which were in Orleans selected jury, Negroes or that court selects when in- Parish. Six more were or grand jury, or selects court how that cluded on list of 75 names each grand court jury, or often judge grand one jury. how selected the grand or observed, all courts selected a Court of the 432 out have “Yet any jury, period or only single Negro time over selected was chosen”, or select all continue court courts mistake. he was chosen negroes juries, the omission of 356 U.S. at at 972. “Un- consistent, disputed testimony same. proved constant also practice large Negro four out substantial [It number of is] educated, of sev- population six the list courts to. select from parish twenty- enty-five, fifteen, twenty registered possessed vote interview, qualifications service, required preliminarily five for appointment grand jurors, no emphasized by their of which is fact all person among regu- ever that since 1936 Colored Commission larly grand jury selected veniremen interview selected for the * * * panel. Indeed, have served four courts. grand jury parish of its While this court is conscious federal opinion many years.” fallibility, firm its “judges noted The Court record States, serving United now testified the local court Louisiana ruling except support generally they [as other did in this case] would against system challenged Ne- identical had not discriminated here. choosing grand juries, responsible had commissioners for the groes ju- general pick available venire at the tried the best time Eubanks very persons these indicted were the re- rors”. The Court brushed aside same n “general sponsible general their the assertions officials venire when duty”: performance of Labat and Poret The were indicted. district court selected the reluctantly to conclude forced “We are jury which indicted Eubanks selected long-continued the uniform and grand jury the which indicted Labat and Negroes grand ju- from exclusion of juries Poret and selected in record cannot ries shown this Eubanks and Labat-Poret. accident, chance, or to to attributed sufficiently quali- that no fact III. Negroes have ever been included fied peti prima facie case the The to various in the lists submitted placed on a burden tioners established judges. us that It seems clear to local coming re forward with the state Negroes consistently barred have constitutionally evidence and a buttal jury of- their service because explanation acceptable for the facts that race.” U.S. at S.Ct. gave rise the inference deliberate to Here and intentional discrimination. Mississippi, Patton v. State conclusionary general state relies 92 L.Ed. 332 U.S. “dis denials and its contention opinion, unanimous proportions” which district court declared: Court found to “exist between the races resulted, jury plan, jury panels whatever Parish” “When a selection Orleans always is, way pri operates in as such not from racial discrimination but long-con- complete marily benign practice ex and result from the any representative cusing jury “outside” tinued service exclusion negroes, large group workers, laborers, and earners at all from a manual any group, daily wages, paid indictments of whom are other racial most against excused, Negroes. persons returned them verdicts were These many allegedly, Ne stand.” were thus selected cannot not because daily they paid groes but bcause were Quoting Eubanks, this statement wage; persons such serve force essentially said, the situa- “This subject jury undue would them to an tion here.” 356 U.S. at hardship.36 indicted 973 Eubanks was grand jury system explanation de- Parish unac Orleans findWe daily ceptable. (A) Dowels is scribed in Eubanks and The exclusion of granting any court testi- 36. The district found: “The excuses common laborers quite mony cus- made did show that it was distinction whatsoever was between tomary jury granted both commissioners excuses jury selecting filling [in wheel and common laborers and whites who were proposed judge testimony venire] [in select- and the common laborers. shows ing jury cases, great majority venire] to excuse from it was final duty persons particularly juror prospective en- re- who were himself who living. duty gaged quested Ju- in common labor for a relief from rather sug- any being instigated paid rors are not fees than relief cases, Parish, many judge consequently, gested by or the commis- serving jury, grand jury judge on a either or the sioner. Whenever jury, or a a real it would real would constitute commissioners felt that be a person particularly hardship hardship, means to a of limited a financial Thus, jury- probably hardship, person there were for a to serve as a income. man, request more laborers excused from for excuse from common duty seriously duty any gen- class for this reason than considered other erally granted.” F.Supp. people. However, there is no indica- at 177. tion of kind in this record that wage pe- choosing charged class violates the officials fed- earners with process equal protec- jurors may eral titioners’ due exercise some dis- rights jury repre- impartial competent jurors cretion to the end tion community. may senting be called. But must not allow a cross-section large class, (B) competent jurors 47 the of this desire to lead exclusion Negro per in Orleans cent of them into selections which do not com- all workers Parish, found, port judge concept dis- district against community.” in violation criminates cross-section Glas- equal States, protection in that the clause ser v. United large disproportionately class contains a 86 L.Ed. 680. Negroes. (C) Contrary to number of dealt with Smith v. State of Texas holding, jury system courts, the district court’s is Glasser state authority statutory permitting system Louisiana courts. federal daily jury exempt selection officials overriding considera The wage a class. earners as establishing jury not tion in a is prospective jury of service on the burden Jury all A. a burden service is system. jurors of the fairness falls most And of it who serve. course may accom be The two considerations wage daily heavily upon But earners. occupa by exemption modated of certain community segment so is this large example, groups, and doctors tional sys- jury important a and so community firemen; good re wage simply daily tem without earners quires not inter that their services by be community. representative not is duty. policy de rupted jury But the part “It the established tradition is proper a constitutes termination what pub- instruments of use community mat is a cross-section of the truly jury body justice a lic that the be legislature least in ter for the community.” representative —at leg Here, Louisiana first instance. Texas, 1940, 311 U.S. Smith 128, 130, State of question when islature settled the L.Ed. 84. daily wage list earners from its omitted functioning jury proper “[T]he system, and, duty.37 exempt groups from democracy indeed, it- our ‘body self, requires be a Parish that the this Orleans The breadth of community’, truly wage representative excluding policy reflects earners group organ special just la- and not the manual its Not arbitrariness. observed, requirement ; addition, If “out- or class. are excluded in borers exempt apothecaries, teachers, drivers, Persons “LSA-R.S. 15:174. bus school departments, paid service and members of fire all from exempt following persons residing travelers, shall be and all commercial jurors, serving engaged actually or from who are the state traveling, personal exemption but the shall be in the interest or for themselves dealers, and do not themselves mer- them when commission of wholesale exemption, it not be sufficient claim shall or manufacturers. chants exempt challenging any person sixty-five years persons (4) cause All over provisions age, other of this article: or under the who from sickness those incapacitated (1) members, officers, infirmity may physical and be legislature, during service, rendering those clerks of the the ses- such and legislature going grand jurors and in and under sion of the returning served as who have during provisions article from the same. of this the previous lieutenant-governor, (2) governor, months, those who have six and treasurer, secretary provided, auditor, petit jurors state as herein state of tion, served as public again state, superintendent called as educa- not shall year employees. expiration and of one their clerks until after the (3) Judges and officers of of their service. active the date attorneys-at- telephone opera- state, (5) telegraph All and several courts of agents. law, surgeons, physicians, Also station and dentists tors railroad and actively engineers engaged practice and water of their chief electric systems.” profession duly licensed under works professors state, of this and school laws Flynn, 2 Ed. United 2043 and such as truck-drivers States workers side” upon relied as Cir. employees and workers F.2d such service mechanics, welders, court.39 The court in those carpenters, painters, district accepted boiler-makers, plasterers principle cases that a shipfitters, represent cross-section of if be as- should a Even it could are excluded. relationship community defend a but found that be- sumed that there is prove policy laborers, or ants’ did a class contain- not manual statistics tween large systematic ing disproportionately number “formal method” of total (Fay) Ne illiterates, incompetency exclusion laborers groes, Bicans, service, assumption Puerto laborers cannot be such an Bove, (Flynn). applied and skilled Cf. United to outside workers States is, Cir. F.2d The fact workers. however: “Jury competence limited Co., Thiel v. Pacific Southern their oth- those who earn livelihood L.Ed. daily paid than who is er basis. One involved total exclusion similar day fully competent be as wage systematic daily $3 exclusion paid as one who is a week $30 $300 earners Parish. A federal pay pe- month. In other words the clerk of tes- commissioner and court particular riod of is com- a individual tified, as the commissioners testified eligibility pletely irrelevant and here, his they “intentionally that excluded 38 capacity juror.” a to serve as jury persons from the lists all who work wage”. daily 221, for a 66 U.S. at dispute policy There no is as to S.Ct. clerk he at 986. The stated that jury selection officials Orleans case, commissioner, and as this Parish, judges: commissioners it “generally city directory systematic used the as the one total exclusion of daily wage prospective jurors. In re earners as a class. this source names of ** * materially juror spect called into case differs from a [when] Fay York, says People of court that he is State of New on a venire and working day afford 332 U.S. 91 L. for a and cannot $10 group per- “Any Co., 38. Thiel v. Southern Pacific 328 U.S. that vides class interest, may, public at be ex- sons jury panel or L.Ed. 1181. from the excused cluded jurors by order a dis- service Fay challenged 39. In the defendants finding judge that such based on a trict special jury “blue ribbon” used under hardship, jury would undue service entail jury law of New York. The Court said ** See inconvenience extreme that the “uneontradicted evidence is that Brandt, N.D.Ohio United States person was excluded because P.Supp. the Court dis 349 in which occupation or economic status”. Fay, Flynn, Thiel and dis cussed S.Ct. at 1629. The Court also tinguished ground Thiel Pay reported noted that a net taxable decided Thiel was the total “issue $65,000 income of over wage by jury exclusion earners officials $30,000. 1940 to Bove 1942 and over This F.Supp. at In was unlawful.” showing identify very “not did them close- Krieger, 1947, 212 La. State v. ly viewpoint depressed with the New So.2d 58 the chief clerk group they classes”. The with which Property Department Public organized closely were most identified was charged forgery with of checks made labor, it could be claimed that payable persons garbage placed on the union members were excluded challenged jury pay-roll account. He panel. 332 U.S. at 67 S.Ct. at ground that manual venire on the white Flynn the Court found that systematically were excluded quite laborers “appellants’ proof own demonstrates jury proposed readily distribution, from the venire random notice Supreme coupled legitimate qualifications 150 for The October 1946. operated produce standards, find [had] court’s Court affirmed the district very disproportions ing sys com- did not the evidence show plain”. 216 F.2d at labor- 384. Unlike tematic exclusion of white manual pro- statute, Louisiana 28 U.S.C. § ers. Judge [dollars], doing part to work for four without violence serve, system. men never made one of those democratic nature of the putting names so order avoid Were we to sanction an exclusion of ju- people encourage I know won’t become this nature we would what- court, qualify responsible rors won’t ever desires those for the court, The in “jury I do out”. panels them selection leave have to against persons corroborated this commissioner discriminate low testimony, adding purposely that he ex- would economic social status. We craft, bricklayers, cluded ‘all the iron breathe life into latent tendencies carpenters, these and machinists’ because to establish the as the instrument economically socially privi- men into court and offered that came ” * * excuse, leged. hardship] [financial as an That we refuse to do. usually go”. judge 220, 222, 223, 224, let them Su- atU.S. “by preme at 985. Court ordered a new trial panel properly and drawn from a on its Court rested Thiel fairly chosen.” The Court in Thiel: said supervisory power, perhaps it because “Recognition given unnecessary must to the fact was rest the Con- eligible way perhaps point stitution or that those service every Nevertheless, of so- state to be found in ciety. stratum courts.40 Thiel is strong Jury competence petitioners. an indi- case for It was group or class vidual rather than civil case with no racial overtones. very Moreover, matter. That fact lies at members of five jury system. laboring particular disre- heart of To class on the gard open dis- it is to the door to class decided the factual issues. super- and discriminations which tinctions Court’s decision to exercise its visory certainly power are ideals abhorrent to the democratic not inconsistent * * * by jury. of trial This ex- recognition wage of the exclusion of daily clusion of all those who a earn In Brown earners as unconstitutional. wage justified by cannot be federal Allen, 397, 73 S.Ct. U.S. Certainly nothing state law. L.Ed. the said: “Our Court federal statutes such an ex- warrants duty protect the federal constitutional clusion. And the statutes California rights of all not mean must or does we equally justification are devoid of impose conception should on states our * * * practice. Wage the earn- lists, proper of the so sources of ers, including paid those are who long reasonably as the a source reflects day, very constitute substantial the population cross-section the suitable portion community, portion of of the intelligence in character for that sys- intentionally that cannot be tematically duty.” in whole or in civic excluded improper departure statutory suggested Supreme 40. It from stand- has been the rep- supervisory ards, panels power Court’s enables it because all-male do community. conflicting of the a cross-section “reconcil[e] desires resent language judiciary Thiel, improve seems federal standards As in Court’s beyond rights holding protection mere of individual while to extend the application power. exercising appropriate supervisory For of the self-restraint adjudication injury example, limited to the to constitutional and the “The is not injury system”. delicate to the balances of the federal defendant —there is Note, Supervisory system, institution, Power of Fed- law as an Courts, large, community eral 76 Harv.L.Rev. and to the (1963). processes The Court also exercised its su- democratic ideal reflected pervisory power in Ballard v. United of court”. 329 States, language This is of 329 U.S. at 265. Smith Citing Texas, Thiel, 91 L.Ed. 181. the Court v. State of systematic Virginia, held that of exclusion 164 and Strouder West jury panels from an women federal U.S. 303.

^723 proc- straight-out equal situation, protection and the due as in the exclusion Negroes, degree Fourteenth Amend- prejudice clauses of the ess “the can merge Nevertheless, ment in this case. never be known”.43 clearly prejudices exclusion defendants pro equal protection clause daily wage who are earners or making arbitrary and from hibits a state doubly prejudices defendants Exemp unreasonable classifications.41 Negro wage daily are earners. Unlike wage daily a class tion earners as Flynn, United States v. the formal meth- (1) classification. an unreasonable selecting jurors od of contained consti- standing has, Thiel Their economic as tutional flaws. teaches, compe relationship to their Georgia, Appeals of The Court of tency (2) jurors. As demonstrated recognizing United States that the while legislature’s the Louisiana omission supervisory its Court relied wage daily from list earners its Thiel, interpreted deci- powers jury duty, groups exempt com from process and due in terms of sion ju munity’s need for their services Four- protection equal clauses greater than its need for their rors is State, Allen Amendment. teenth uninterrupted services workers Ga.App. 137 S.E.2d outweighs hardships at the financial rights white civil held wage duty. (3) Daily tached to process and deprived of due worker large extremely earners form such protection equal of the law denied segment community, definable excluded Negro per workers, cent all that their jury panels. any exemption nullify would as a class prospect having jury repre venires said, in Allen: The Court sentative a cross-section of the com sys- any opinion “We munity. se- the consistent that results in tem goes por- group This fair- exclusion also lection integrity “very ness of the service trial. tion those available fact-finding process”42 depends office, those than from in that rather impartial representative discrimination, does venires available without type community under- as whole. The defendant not accord to fact-finding mining system’s him. entitles the law unfairness, process, opportunity equal protection clause ‘The prohibits risk a that defendants who Amendment Fourteenth wage by daily any prejudiced convicting person earners will be state jurors jury impartially exclusion of are in the same class is use of a dangers compel condemna- com- which would from a cross-section drawn necessity practice York, munity.’ Fay tion of the 332 without v. New finding (Dis- prejudice 261, 1613, of the court’s actual af- L.Ed. 2043 67 91 S.Ct. * * * fecting senting In opinion) of the case. when outcome But Morey Doud, 1957, 457, 41. v. exclusion cases 354 U.S. relief 114. In the racial 463-467, 1344, 1485; granted proof 1 77 S.Ct. L.Ed.2d of actual has been without 1886, Hopkins, 356, Yick prejudice Wo v. v. 118 U.S. Pierre defendant. 373-374, 1064; 220; 354, Louisiana, 1939, 6 30 S.Ct. L.Ed. 306 U.S. State of Co., 1949, 757; 536, Eastman v. Yellow Cab v. 7 Cir. L.Ed. Strouder 83 874, 881; Equal 309, Huang-Thio, 303, Virginia, 1879, 173 F.2d 100 U.S. West Classification, State, Protection and Rational v. Ga. Allen 25 L.Ed. See Ga.App. 56, Ct.App.1964, 1963 Pub.L. 412. 137 S.E. 110 indicating entitled that a defendant Walker, 1965, 42. Linkletter v. jury fairly to a from a selected cross-sec 14 L.Ed.2d 601. community regardless tion of wheth Alabama, 43. Hamilton State of v. er he a is member of the class discrimi U.S. 52, 55, against. L.Ed.2d nated jury age, excluding and trial fourteen mine

a State uses a pro- laborers, 19,014, those totaled accused is entitled to farm insure, 13,556 5,458 so far as whom cedures which will possible, are selected were whites.44 The census records also * * * 141,141 impartial. When white males fair and show there were 58,- provides indictment fourteen a over in Orleans Parish and State law Negro jury, process of 313 Disre- and trial law, due males over fourteen. garding good cause, opinion, indict- in our includes exclusion for if all by juries selected in male suc- ment and trial laborers as a class had been law, cessfully accordance with the established excluded from service per only representing per from a cent of the 3.8 list of citizens community.” Al- cent of ex- cross section of the the whites would have been State, 1964, parish. cluded from service in the len v. S.E.2d 715- figures side, These the low Maryland decisions Two recent bear only refer to male “laborers”. The good in- question a state’s whether excluded class covered not laborers may justify systematic exclu- tentions workers, and, in- but outside artisans system. sion of a class from wage. deed, daily every person on always Maryland required jurors to district court found that: show their existence of God. belief thirty-seven “Approximately per cent effect, course, non- was to exclude Negro work force New Or- Madison, believers. In State ap- common laborers and leans were A.2d the Court 240 Md. proximately per total ten cent of the exclusionary held, practice re- “[T]he Negro craftsmen work force were such rep- sulting in the failure of the bakers, blacksmiths, construction community resent cross-section of the machinery operators, etc. Thus it will process condemned the [due Negro large be seen that number of equal protection Four- clauses] [of the] prospective logically would cited teenth Amendment”. The Court duty necessarily be excused from approval Allen In Madi- v. State. regular administration of the challenge son, a defend- came from pertaining laws the selection who, Apostolic ant as member of the this, any sys- juries, without faith, in the existence of God. believed tematic discrimination kind.” Schowgurow State, Md. United ex rel. Poret and Labat States 213 A.2d 475 the Court reached Sigler, E.D.La.1964, F.Supp. 171, challenge result same on a 178-179. system by a Buddhist. Negro Thus, per cent of all workers benign theoretically A neutral B. Orleans were excluded from the Now sanctity principle loses its aura of when jury system. neutrally. The effect fails to function wage daily of the exclusion of earners knowledge in It is common New jury deprive of a was defendants certainly Orleans and Parish Orleans peers. of their But economic and social sys Jury Commissioners know that the disqualification it was much more. The wage daily earners tematic exclusion of daily wage earners, of all as it was obvi- jury dis service must result in a ously do, disqualified more bound to far Negroes proportionately number of small Negroes and, analy- final than in whites jury in the and in the final venires. wheel sis, operated token to exclude all but a operates exclusion on several levels. The number of from the venires. using First, commissioners, jury city directory listing occupations, The 1950 records for ex census Orleans daily wage male laborers over from the Parish show that all clude all earners figures only years age. for laborers are for over fourteen The census male those 725j / purposeful for pool of names raises an inference jury source that Judge general venire, O’Hara jury wheel, there- discrimination.45 As reducing pointed Dowels, Ne- by radically out in Orleans Parish the number ** * “large population pro- groes might had for the colored be drawn that ** * level, many qualified if them posed At the next venires. grand par- pro- daily wage up service”. Here show earners essentially Judge judges stipulated ex- what posed ties the district venires final O’Hara found a fact in 1952: from the these clude survivors inexorably operates system venires. public “That schools the Parish wage against daily all to discriminate years 1943 of Orleans between the Negro against earners, particularly graduated 19,651 wage earners. elementary 7,730 from schools and high schools. principled, neutral, was Negro -foolproof: on ever sat No parochial (Catholic) schools That and-— grand in or a trial Orleans the Archdiocese of New be- Orleans gradu- years Parish. tween the and 1953 6,087 Negroes elemen- ated from the years Poret Labat before Nine high tary 2,172 from the schools and tried, of Louis- were schools. put iana commis- all of the state’s more, Negroes, fifty years That they under that sioners on notice in the Dis- have served U. S. by duty placed upon the con- “a them trict Court for the Eastern District provisions question con- stitutional Louisiana, New Division. highest by applied court strued and complaint in our land” that year nu- That in the there were [jury] our exclusion cases “not with was Negro operating busi- merous males prohibits distinction ac- statute which City in- nesses in the of New Orleans prac- count of race or with the color but cluding companies insurance * tical administration of the law 2,000 employed persons. about Anderson, 1949, 205 La. 51,126 [Ne- [in That there were 1950] noted the Court So.2d 38. that case Negro proximately 1,500 males em- Negro population Allen ployed by Post De- the U. S. Office per Parish 10 to cent Negro employed partment; males Parish, population “and of Alien 1,027 teachers; approximately considerably per- less than that professional, technical and kindred centage qualify could service”. employment. thirty-one years “[N]ever That there have been institutions parish’s negro history had a ever served higher Negroes op- education of jury”. on a court erating New Orleans since there- held that the commissioners had Straight University time duty; fore “failed” their “this founded, by followed New Orleans prima case” evidence established facie University 1879; Xavier Univer- “general statements rebutted 1915; University sity in and Dillard jury commissioners, the clerk merger formed court, registrar Straight the sheriff University and New Orleans University. had dis- voters” who “denied against negroes.” criminated 51,126 [Ne- That there were [in 1950] gro] males between commissioners The failure of age. any compensate for the to to take action Negro wage years of education the median of earners That exclusion Negro segment seeking completed by potential of of out additional names 45. See footnote 31.

726 Jury Commission- population “The Orleans of those New words. the 1950 responsible for the and other officials years. ers

was 6.5 panel under a con- selection were of this 28,- year 1952, in the there That procedure— duty to follow stitutional registered Negroes to in the 005 vote would not ‘a course of conduct’ —which Parish Orleans.” operate in the selection to discriminate special have a Certain other statistics grounds”. jurors Hill v. racial Negroes relevancy number 400, 1942, Texas, 62 U.S. 316 State eligible juries. parish to serve on the dis- L.Ed. 1559. Like S.Ct. per Appendix cent A. In 1950 64 See Texas, crimination in Hill State population had more non-white “ Par- Orleans [d] iscrimination [in schooling. 4. Table than four of com- arise from the action ish] [s] (LSA-R.S. 15:174 Under Louisiana law Negroes exclude all missioners who (194)), ex- there were qualified whom know to be do not occupation. empt This of their because nor seek learn who neither know 9,132 per compares 6.99 with whites or qualified any in fact whether there are exempt jury Table cent from service. to serve.” Appendix A. Beto, 5 Cir. 1161. Brooks v. See analogy in There is between the an 366 F.2d 1. Lightfoot, stant ease and Gomillion states, Louisiana, most ex- C. like L.Ed. occupa- empts duty jury from certain 2d statute 110. In that case Alabama officials, groups public tional such redistricted, gerrymandered, City of doctors, firemen, policemen, others. Tuskegee. effect obvious legislature has decided for twenty-eight-sided city off fenced engaged good community men former most of white citizens from occupations have their these should not Negro into the citizens. The read interrupted jury But work service. purposeful Here statute discrimination. legislature exempt, fit to not seen has wage daily earners, bar exclusion of class, workers, la- “outside” manual ring Negro force, per cent of work wage.46 borers, paid daily and earners coupled the commissioners’ failure gen to seek additional for ex- The Louisiana district courts have impossible eral made it for Ne judicial venire in- tensive discretion to excuse groes to reach the box in criminal dividuals not classes from serv- but Parish. cases in Orleans Instead of Dorsey, ice.47 207 La. State v. coming accept forward State’s with an scope of this author- So.2d 273. The explanation able deciding competency for exclusion Ne ity is “the limited to groes, proved facts that “physi- jurors particular cases” of give “purposeful rise to an inference of infirmity”, “relationship”, or cal “incom- part discrimination” petency upon par- the trial sit officials, legal selection within sense ticular 28 USC case”48 Unlike § * “* * pertinent See footnote 15:174. part: LSA-R.S. the dis- judge decide trict have discretion to shall ample precedent par- upon competency “While there conferring judge power on a court or physical ticular in- cases where jurors, firmity relationship, ‘excuse’ individual other precedent causes, writer for con- person may he, known opin- ferring judge power incompetent on a court or to de- judge, upon ion sit persons termine what classes should any particular the trial case." LSA- relieved of burdens serv- R.S. reads: “The commis- 15:192 Jury Blume, Analyzed, Selection ice.” sioners the Parish shall (1944). qualify persons Mieh.L.Rev. all before their selection jurors, judges several 15:172, establishing quali- right 48. LSA-R.S. district shall have the courts de- provides, upon jurors.” competency fications service cide

727 ground daily wage deprived petitioners of an hardship a financial age jury, impartial com- hardship a cross-section because exemption; And, munity, process infirmity. Article due violation physical exemption equal protection states, clauses of the “the and the expressly 174 ground for Amendment. personal” and is not a Fourteenth shall be 1929, Smothers, 168 challenge. v. State selecting ju- method of vice in the The Ross, 781; 1099, 123 So. La. jury infected entire rors 405, 842. La. 31 So.2d 212 Louisiana, parish. Pierre v. State notwithstanding significant U.S. 59 83 L.Ed. It is practice Or- long Davis, 757 and 5 Cir. existence Davis wage excluding daily petit F.2d and the 770. Since the leans Parish grand Code Louisiana earners, revised drawn from the venires were by just Procedure, enacted from same wheel “the lists which the Criminal legislature, grand jurors prod- contains were chosen the Louisiana exemption exclusion, or disqualification, uct the same unconstitutional course wage daily jurors prospective conduct resulted in discrimina- exemption of juries.” there an earners. Nor is tion in the selection hardship. Lou- Davis, for financial Davis 361 F.2d 770 at regards legislature apparently isiana 775. re- service, as the judgment court is re- duty garded Thiel, fulfilled a it in versed and the ease is remanded with earnings: regardless of loss releasing directions to issue the writ duty well as “Jury service is petitioners custody present on their duty citizenship; privilege it is sentences, subject, convictions and plea of shirked on that cannot be course, by to reindietment and to retrial earning inconvenieney decreased Walker, the State. See Scott v. Cir. Pacific power.” v. Southern Thiel 561; Davis, 358 F.2d Davis v. supra, Co. Cir. 361 F.2d 770. 987. APPENDIX A IY. petitioners Counsel submitted petitioners hold We following tables, record, based on the In 1953 prima case. facie made out a adequate show that non-white before, years in the Parish and for five population existed in Parish in Orleans selecting method of stand meet the constitutional failed to adopted the Su population Court and between ards 1: Male Table sys age preme twenty-one sixty-five record shows Court. The tematic exclusion Parish Race of Orleans system. 1950, 1960, Orleans Parish and 1953. Non-White Year White has failed to the state We hold that 40,113 142,209 acceptable consti- come forward with an 46,287 116,269 longstanding explanation for tutional 50,412 104,209 disproportionately of Ne- small number 48,231 111,193 resulting groes total and the venires Population Data derived from Census absence of exclusion, Dept, juries. systematic Bureau of of Commerce laborers, Census, 22, 1950 2:18 class, outside 1940 2:3 Table of all manual making 20.1 workers, artisans, Table 1960 1:20 Table and earners point figures figures Le use of three estimated from census Grange Interpolation Formula. 728 eligible proportion of the

Table 2: Estimated lation serve Grand Population of Juror Male Orleans Parish Petit must made as follows: belonging in 1950 various cate- Race age 5: Males em- Table over the gories. categories ployed exempt in certain Jury Duty from 15:174 under LSA-RS Subject Non-White White 3, residing New Orleans Sec. Citizens2 99.6% 98.5% Metropolitan in 1950. Standard area Residents3 97.9% 94.6% By Race. four More than Category Negro White 4 schooling years 64.7% 89.6% 42,966 131,225 Total occupational No Lawyers & Exemption5 98.7% 93.0% Judges 3 966 Physicians population of Orleans & 3: Total Table Surgeons 1,478 48 21 over Parish race College Presidents, 1953. Professors & in- Non-White6 White Year structors 444 28 94,985 331,411 1940 Dentists 333 16 113,241 271,421 1950 Pharmacists 413 20 125,752 257,495 1960 Firemen, Fire 117,597 262,241 1953 Protection (manufactur- & Salesmen Sales Clerks proportion 4: Table Estimated excluding ing and wholesale population of Parish Race Orleans clerks) 4,036 49 retail belonging categor- in 1950 to various 638 276 Teachers ies.7 exempt Subject Non-White Total White categories 9,182 Citizens8 99.65% 98.55% exempt in% Residents9 97.9% 94.6% categories 1.03% 6.99% four More than schooling10 Table 77 Source: Census 2:18 years 67.0% 89.9% occupational No Proportion non-whites Table 6: Exemption11 98.7% 93.0% populations. various (Code According to 15:174 LSA-RS Proportion Population per- certain Procedure), (N/W+N) of Criminal Eligible exempt Jury and Petit from Grand Service sons are only Jury confined Males If service. attention 25.8% previous- Both sexes 1953 alterations to Sec. 27.0% concerning popu- figures Males ly stated 24.4% sample 21 5. See Table 5. from derived Citizens 20% 2. according over, sex, Par- 6. Races Other 0:5%. 1950 Census 2:18 Table 55. ish 1950. Proportion Distribution, from 7. Table the Binomial Harv- 3. residents is estimated University place against Cambridge, Press, ard Mass. of residence sample population one 1955. total 20% year and over of Orleans Parish supra. 8. Note 2 Bulletin 1 & 1950 Census P-D36 Tables Table 33. 1950 Census 2:18 supra. 9. Note Schooling figures obtained 20% sample according population sex of supra. 10. Note Orleans Parish supra. Table 65. 11. Note 5 over. 1950 Census 2:18 misconception serious of the issues we Commissioners’

Proposed decide, upon Venire misinter are called proper pretation or to accord failure Jan. 1948 thru 6.2% 3/53 weight sub-sample and an undeter- to certain salient facts interpretation prior inaccurate mined 6.0% Moreover, in a close 1952 thru decisions the case. Nov. 4.9% 3/53 scrutiny history pre case Final Venire array typical in relief a sents bold 1948 thru Jan. 3.7%' 3/53 by employed current tactics too often sub-sample race un- bordering defendants,2 upon criminal if determined 1.7% actually constituting oppression and not 1952 thru Nov. 3.1% 3/53 important of an harassment witness prosecution; an unmerciful at Judge (dissenting): GEWIN, Circuit alike; on tack counsel and court case, involving most one of the This can best be assertion issues which in the crimes committed heinous ever disproved by who are now witnesses Orleans, history of rich and varied New dead; shifting of and the as issues “nice, Louisiana, has been lost in the losing on sertion of new issues after respect- sharp quillets I of the law.”1 asserted;3 strong the ones first challenge fully dissent, doing in so venomous condemnation state and facts, interpretation the rea- courts; claim sometimes local federal soning legal applied and the conclusions newly evidence; discovered and the majority opinion. I to the facts in the allegation that conviction based disagree legal do not with the abstract fraudulently coerced and obtained evi principles discussed, the record does dence. support opin- not the facts found in the ion; therefore, application Nothing herein is said meant relate legal principles such to the facts found question provid- to the whether the law results in error. ing capital punishment aggravated in analysis opinion rape good A careful will cases or evil for the resi- clearly demonstrate that there has dents State. That decision been a must be Shakespeare, King Henry, VI, particular I, grand jury the selection of Part II, may sharpness. Furthermore, Act Scene IV. lose their grand jury a successful attack on a improper may 2. No reflection sat several is intended with earlier affect oth- respect present to counsel er convictions who must based on re- indictments by grand jury.” issues which their clients assert in- turned the same upon. Sigler, F.Supp. (E.D. sist In Labat v. La.1958) Judge Skelly Wright J. conclud- opinion In footnote 5 of its ed : Michel v. (Poret “Petitioners, throughout long litiga- State of Louisiana and Labat v. this Louisiana) by tion, represented competent State of have been U.S. 83; choosing. 100 L.Ed. counsel of reh. their own Their den. 350 Supreme U.S. case has been 100 L.Ed. considered Supreme Supreme Court of Court made this Louisiana and the observation with grand sep- reference Court of the the attack United States on two jury: arate occasions. Their case been be- only may prompt “Not lower fore the courts of the state and na- determina- preliminary court-has, tion of such tion innumerable times-.- This matters avoid necessity trial, effect, petitioners of a retried second but a delay long determination, offense its such as have convict- here, extremely ed. makes While it must be owned that difficult Negro rape this class case for the State to over- conviction of a white subjected prima come the facie female this state should be claim which scrutiny, to the severest established a defendant. Material on the basis of jurors may here, grand witnesses and récord made die or Court can- say petitioners jurisdiction, leave the these were de- and memories as specific process practices relating due to intent or nied of law.” petit jury panels. legislative It concerned with branch of the made government juries, considerations Louisi- economic state cases, Furthermore, and omits must consider the selection in civil we ana. relating have consideration of realization we evidence case with the pardon, power intentional exclu- or to exercise execu- issue of deliberate and clemency. tive sion. Eastern District The Issue I. Louisiana, ex District United States 3a succinctly us is before issue Sigler, rel. Poret and Labat v. F. opin- per clearly curiam stated exactly (1964), proceeded Supp. Court, United States ion of the accordance with mandate of the Su Sigler, Labat

ex rel. Poret preme rely Court. did not “on the It in the 4 L.Ed.2d 80 S.Ct. ubiquitous quite as fiction of waiver” following language: heavily majority the indicates.4 What judgment and the case is vacated “The majority quotes opinion from the of the dis- for Court to the District remanded the Court would be characterized District question mem- position whether the of summary of better as the District Court’s petitioner's were deliber- race bers of holding Supreme its the of in the Court intentionally and ex- ately limited to of on review the case certiorari first petit jury the cluded the selection in of Supreme Michel the Court of Louisiana. panels, Federal Con- the in violation of (Poret and Labat of Louisiana State added.) (Emphasis stitution.” Louisiana) of U.S. 76 S.Ct. State argument the about should be There 83; 100 L.Ed. reh. den. question to are deter- we fact that quote I L.Ed. been Federal is mine whether there opinion District Court: from the of the infringement respect with Constitutional objections “They failed make such limitation and intentional to deliberate hence, previously timely, decid- petitioner’s in race of the and exclusion Supreme jury panels. Court petit ed the United States the selection majority very case, now deemed opinion are deal with in this does not objections.” those exclu- to have waived of deliberate and intentional issue (Emphasis added.) selection of on of race in the sion account majority summarizing opinion, in are substantial areas of 3a. there While Court, emphasized agreement opin- holding of in the the District in this dissent and “they concurring result, Judge are Court held in the District ion Bell objec- (1) waived these now deemed have there two material differences: by majority). (Emphasis my Judge opinion, tions.” added deal- view Bell’s concludes, opinion ing question further exclusion of The Court’s of the with the ' beyond effect, wage class, goes that “the District Court’s reliance earners as ubiquitous Supreme on fiction waiver” terms the mandate stressing misplaced. Further considera- Court which directed consideration majority question, only. tion of the of Louisi- waiver race Michel v. State issue (2) ana, supra; if the economic asserts: even court, however, relying proper excluding wage on “The district issue of earners pe- (Labat-Poret), subject consideration, held that record does Michel for timely titioners, having support to make there was failed not a conclusion objections jury, to the ‘are now deemed intentional exclusion of a deliberate and objections’. Certainly, wage to have waived those earners as class. such support F.Supp. the conclusion at 175. does not the record point daily wage district on ex- “The court’s error this earners” were that “all frequent Rather, the states’ reliance on record shows at best the cluded. upon granting in federal habeas cas- re- doctrine of waiver of excuses a liberal quest purely circuit demonstrate the need this -reasons es benevolent pay provide close look Court’s for a did Fay v. jury doctrine in discussion in the state court. service Noia, 1963, L.Ed.2d 837.” given persons Regardless wheel and that colored con- consideration of the Court, stantly appeared general question the District venire. the waiver hearing actually proceeded full to a again emphasize issue Here we that the petit composition of the issue here involved does not relate Again quote panels. from the Dis- we petit but to “the selection opinion: Court’s trict panels.” though is convinced “Even this Court appropriate Accordingly, it seems more objections petitioners’ Judge testimony by quote O’Hara late, make-up nev- too come appeared District before ertheless, cau- out an abundance of petitioners on behalf a witness tion, testimony was detailed taken con- expressed counsel assertion with the cerning composition petitioners tak- that the evidence concerning gen- involved of both trial was for benefit en at the .the practice past eral in the Parish Judge O’Hara testified Poret and Labat. Orleans, Louisiana, se- selecting respect to the method lecting drawing juries. review A Parish for the testimony convinces this Court actual trial of cases at the time simply peti- no merit period and Poret and the Labat (Emphasis tioners’ contentions.” add- immediately preceding This trial. ed.) testimony unusually im- fact makes his portant. It is factual and not theoreti- a The Facts

II. cal, on incom- statistical estimate based plete figures. quote We both from the Exclusion A. Deliberate Intentional testimony Judge given open O’Hara Jury. Petit deposition. from his The fol- court and Judge extensively quotes lowing sampling from his testi- is a fair mony: who case. The O’Hara testified lengthy however, quotation,

most is from “Q. reasons, you hardship did On October, opinion him rendered in any releasing show discrimination in unreported, failing anyone, opinion is but or or release white black? lengthy quotation from the clear it is Judge dealing O’Hara was “A. No. Judge juries. At least O’Hara’s “Q. of their color? On account opinion designed any was to correct abuse no discrimina- “A. No. There was peculiar which manner of existed tion whatsoever. selecting grand juries in Parish Orleans “Q. way Now, far as as the same prevalent at the time of his decision. It exemptions, man was a whether say only question seems fair to colored, a if he he was white or said systematic involved was not exclusion municipal employee, schoolteacher or juries” systematic “from Parish ex- age sixty-five, would it or over the grand jury. clusion from the The action any he whether was difference make by Judge condemned O’Hara was the or black? white

practice judges Parish “A. No.” selecting grand juries sys- under old mention of the tem. There is no ^[******] compile gen- “Q. do, selection Judge, trying officials who I am what Indeed, eral anything venire or trying wheel. I ex- and am not to do opinion presence cept strictly per- indicates the what is one thousand general advantage in the correct, taking wheel or on the venire. cent without testimony anybody, His stipulation showed that for 16 in the it

prior to shown, already part in this case the names of persons placed colored case, per- had been record in this certain “Q. actually you say many people centage Would there were as to how many Negro? or are white serve on the 20% going Now, I was black. who are thirty. “A. would be about 20% anticipated this, in Mr. Gill ask and “Q. One-fifth? excused question, men were when “A. No. preemptorily challenged or for cause or "Q. you say there were ever Would challenged, no was made discrimination many 10 ? as % including yourself? judges, yes. Oh, “A. no, no, no, oh no. If oh oh “A. Oh “Q. juror At times? juror, prospective happened challenged cause say “A. I never would negro, happened be a it be that; say white than would less I It make difference. wouldn’t would run about between 20 question cause of what the would be a “Q. —Negroes panel or the he would be excused was whether venire ? not.” cause or run “A. Yes. It would about approxi- speaking venire 22, 23, 18, In mately months there 16. Some Judge testi- persons, O’Hara be more than others. would fied as follows: “Q. figures, or Are these absolute during period you “Q. Do figures recall percentage ? mentioned, whether that I [1948-1953] my estimation, the “A. From own general to find or not it serving about, people run would colored panels of veniremen 25, maybe guess I about petit jury Parish? in Orleans 22, 18. little less than 25— yes. say like I would would “A. I talking “Q. You are about abso- dates. bit better to Yes, little number, Judge? now, lute yes. col- had answer is We “A. Yes. guess venire, persons on I ored “Q. nothing Judges part what- had latter of 1930. from the of ever do with the selection to “Q. From on? then veniremen; that correct? “A. Then on. just right. “A. was That’s That any “Q. they sub- there in Where Now, Jury Commissioners. I stantial numbers? myself to from time would interest Well, I “A. would consider Jury Commission- time to see what the representative of number there were my always doing, it was ers were Negroes panels. on the trying they to were observation number, “Q. By representative get many jury wheel colored you mean? they what do could. Well, I state that would “A. “Q. you Did ever make a statistical City a whole there New Orleans are analysis Negroes of the number able and are lot whites than [sic] more wheel? that were included qualified Ne- than on to serve Jury No, I “A. know that the but do rep- Negroes groes, number and the Negroes to Commissioners would ask Jury effort of the resented best Negroes, give of other them the names Negroes get Commissioners to they would ask the members panels. compa- Negro corporations, insurance “Q. many as one- Were there thought they nies and whatever sources they Negroes any third of the veniremen get Negro from. could you during handled the venires They inquiry. I am not would make period ? administration; talking I am about the just saying from to would

“A. No. time time I colored, they myself same was I to he wanted see excuse interest because doing.” would be treated alike ? what were ****** “A. Yes.” “Q. Would you feel large ^[******]

percentage, significant least a say this, “A. I could that I know percentage wage earners that came plan anybody’s part of no desire you probably to with this would excuse to minimize the number of or, receive, words, in other their excuse the wheel.” granted? would be Stipulation. B. The

“A. Yes. “Q. you large Did find that a opinion too the ma- Section II D its proportion persons of those jority “[tjurning who came asserts the facts you request showing operative excuse -effects of the Or- grounds being wage earners or jury system, leans Parish we find that day Negroes? workers were many stipulated.” facts have been opinion fully quote does not then Well, quite “A. a few there immediately stipulation, but turns to cer- would ask be excused for reports Ap- tain set forth statistical reason. There was no discrim- pendix Thereafter, opinion. A to the made, say ination I like would that. dealing subject with the ais resort applied to Whatever the white would calculations, percentages to mathematical apply colored, ap- and whatever and other statistical data. Later Sec- plied apply to the colored would support tion III the opinion, its con- white. finding clusion and “failure “Q. you time, But at same did to take action to commissioners significant percentage find there was a compensate Negro for the exclusion of being wage excuse earners wage by seeking out earners additional by Negroes? which were made potential jurors raising names an in- “A. Yes. purposeful discrimination”, ference of “Q. —Veniremen? lengthy quotation there is a from the stipulation. stipulation jointly “A. Yes. That one signed by parties counsel for all great getting difficulties colored following states “that facts people. instance, For man would having proved taken as and true or up say, porter, come T am a work I subject judicial salary someplace a small notice and have got family,’ getting paid if stipulation and not he Court.” The was offered on doesn’t work. behalf of Poret and Labat and it would they thereby. seem be to me should bound “Q. up If a man had come said majority opinion that, takes given you excuse, note the one man stipulation gave you quotes portions white and another man certain the following Also, 5. Your is from the “MR. SCHREIBER: record: Honor, “MR. I SCHREIBER: would like the record to show On behalf of relators, any both Clifton Alton Poret evidence is taken in the Edgar goes Labat, in trial of this to bene- we offer evidence the cause also the stipulation, guess identify I can fit of Alton Poret as well as Ed- we it Clifton Stipulation gar as Number Labat. Yes, right,-that “THE “THE COURT: I understand COURT: all all just by counsel, good, Stipulation is this evidence is to offered Number be- joint regardless petitioners’ offering. coun- cause it is a which of it, “MR. sel offers it is to be offered SCHREIBER: Which is agreed attorneys claims, petitioners’ to the connection both all the parties Edgar case, that are involved in Clifton Alton Poret and Labat. this including Yes, “MR. SCHREIBER. sir.” the State of Louisiana. right. “THE COURT: All sequence Judge length Law- and Deceased III. The C. Deceased in Section yer. the items lifted numbered body quoted stipulation great controversy has in this arisen A opinion is as follows: Items to and Poret attacked case as when Labat (13 omitted), 14,15. There is a failure Negro and the number of proper Item take note contents jurors appearing panels at the It footnote. It is forth in a set opinion majority is itself time. appears impor- Item is as to me that confusing just the at- rather when as other tant as items contained place I tack took will show later as stipulation. in the It reads as follows: thing opinion. clear, is how- One ever, important most witnesses two “13) although prior February, That testify subject who could about 1953, Negro had on a ever served dead when Labat and Poret made their negro petit jury empaneled try during frontal attack the last habeas the Criminal District for the Judge corpus hearing before West Orleans, Jury Parish of since lips District Court. Death locked Or- Commissioners the Parish of key of these witnesses and concealed negroes qualify- leans had as certified testify. about could facts which ing under the state law is no as There intimation to what approximating in numbers venires testimony Judge Fred Oser would have (Emphasis the venire.” add- 10% of ed.) if he had lived. attorney, Mahoney, Judge stipulation The deceased Mr. Item 13 of the given questionable accolade of hav- testimony are not in conflict. O’Hara’s ing caused a characterized “the Judge default Tfhe indicated that at least 10% aged general mistake of an ill and Negroes; inadvertence or the stipulation venire were attorney.” Moreover, court-appointed he approximately that states indirectly having Negroes. prac- accused of committed number were Under the judg- hindsight sin” tice, juries actually a “venial because served he em- gen- ment as the tactics should have were taken from the ployed. accept I do these venire, accusations eral least of which was 10% Mahoney or conclusions. Mr. was not composed Negroes. writer, certainly his known The mathematical calculations set lawyer long record honored as an criminal majority forth opinion Section II D profession who served his confounded, confused and justifies answer to accusation some completely percentage nullified memory respect for of sheer out figure stipulation stated in Item 13 of the lawyer, nothing if else. The determina- testimony Judge O’Hara tion of the Court in Michel v. quoted which we have above. (Poret of Louisiana and Labat v. says Louisiana) p. majority 91 at spite of what appropriate 164 seems and suf- to be District Court the reliance about holding accepting go into ficient. After waiver, Court did District Supreme Court question trial court and the whether merits of the showing was no exclu- of Louisiana that there had been deliberate intentional counsel, jury. the petit of a lack of effective Su- A sion the selection preme lit- glance Court concludedthat there was Court’s at the District hurried against support F.Supp. makes for the accusation opinion, tle 171 at 234 Mahoney. Mr. beyond Mr. The court noted that doubt. this assertion obvious Mahoney gives law- discussion was a well-known criminal full The District Court nearly years yer experience, and for its conclu- with reasons of the facts and the appraisal was no evidence simply it concluded that there It not a fair sion. is incompetence. Speaking ques- opinion on of on it is based to state that question of failure to and also the tion waiver. grand “petit only. jury panels” Actu mentions attack immediate make an ally, foot- when Supreme that issue was settled the case jury, Court asserted was first certiorari reviewed writs note 7: Supreme Court, to Louisiana Michel Mahoney, contrary, since Mr. “On supra. Judge Louisiana, State excep- recognized deceased, as West, Judge Wright, well took note tionally qualified On June counsel. Judge of this obvious from fact legal profession in New Or- opinion F.Supp. p. West’s plaque him with a honored leans quotes opinion where he from honored and him as ‘an astute cited Supreme Court. lawyer has been ever criminal him of the oath administered mindful apparent Supreme It is that the Court ago uphold years law and to Statute, considered Art. the Louisiana day in guarantee each accused strongly by majority, 202 so criticized pointed State’s out court.’ As as a valid state of limitations. A statute brief, imme- make an or not to whether ways. statute of both limitations cuts As grand jury was en- attack on diate by Supreme stated Court Pender- tirely Mr. Ma- within the discretion gast States, v. United honey reasons and there valid 87 L.Ed. 368: doing (Emphasis the time.” not so “Every limitations, statute added) course, may permit rogue escape.” System. Jury D. Time Attack hand, important policy On the other con beginning opinion states involved,7 siderations are as the Court “consistently petitioners un- pointed and Corp. that the out in Chase Securities successfully” Donaldson, were de- 304, 314, asserted that 325 U.S. resulting sys- (1945): nied fair trial 89 L.Ed. 1628 Negroes. Later, tematic exclusion justi- “Statutes limitation find their however, majority opinion concludes necessity fication and convenience reading old after briefs and records logic. They represent rather than in aeutally the attack was not made until expedients, principles. rather than filed in 1957 and the habeas action was They practical pragmatic are de- so the failure counsel do was spare litiga- vices to the courts from a “venial sin”. claims, tion of stale and the citizen necessary again emphasize being put it is Once to his defense after dealing grand jury are faded, we memories have witnesses have question here. The calls for disappeared, mandate died or evidence has (Citing “in selec authority) consideration of exclusion They been lost. Evidently, jury panels.” by tion of arbitrary, definition and their Supreme grand operation Court concluded that the does not discriminate be- jury question just had been settled because unjust claim, tween the and the per curiam remand mandate delay. avoidable unavoidable Judge Skelly Wright opinion, J. in his termination of claims such as he raises Sigler, F.Supp. (1958), elapsed Labat here. Five have now since committed, stated: the crime was de- lay largely “The the United has been caused Poret’s States also affirmed the conviction after available, own actions. Even if granting a writ of memory certiorari limited permitted, the victim and chief an attack on the venire. witness would he reluctant to retell Louisiana, Michel v. State story experi- sordid of her unfortunate 91, 100 L.Ed. 83.” ence. Poret’s conviction composition whose he did not attach following opinion 7. The is from the highest (Labat Louisiana’s Michel v. affirmed Louisiana Poret), supra: challenge court and no constitutional perfect made here “Poret’s to the case affords illus- fairness that trial.” necessity prompt (Emphasis added.) tration of the de- Judge ing original trial. state court

They the the law not come into have Wright with refer- judicial process as follows through commented but the placed They represent pressures had been legislation. that through ence to the Howard: public privilege liti- on the policy to witness about the gate.” “Unquestionably, as the evidence great subjected shows, to he been Coerced, Witness, Testi- on E. Attack help seeking pressures persons Testimony. mony, New testimony in petitioners his since these the state court.” opinion points majority out corpus application in the for habeas the concluded that was District Court United States whatever, evidence aside statements Sep- filed of Louisiana Eastern District signa- by prepared others for Howard’s newly on was based tember per- ture, he had committed either testimony found evidence a witness’ doing by coerced into so was perjured Footnote 11 was coerced. police. opinion in addition also states only in- witness Nor Howard the was they petitioners had dis- claimed that Judge Wright further stated: volved. Henderson, witness, Elnora covered one .a definitely im- an Howard was “While original trial, who had not testified at portant case in the state’s witness Her testi- who was now available. but testimony against petitioners, mony night of that on the would show Rajek at least and Miss was Penedo alleged (the rape was November important. specifically Both identi- early in the been committed have petitioners, not fied the morning 12,1950) spent she of November court, state court but night Labat, the entire he was persons raped Miss who had the two morning during early hours so drunk credibility Rajek. unchal- Their is 12 that November unable she lenged except possibil- in so far as the though massaged arouse him she even always present ity human error body It is difficult with ice cubes. persons in the in the identification see such how such evidence or a wit- (Emphasis in suit.” circumstances newly discovered; ness would be because added.) alleged testimony true, if the cer- Judge Wright circumstances, In sub- tainly known Labat would about have jected scru- actually “to the severest the evidence Elnora Henderson he and where tiny,” he denied writ. part was when he did awaken. He newly discovered evidence and III. The Law actor on the scene. us, again Returning issue before proceeding corpus first habeas peti- namely, members “whether court, Sigler, F. Labat federal deliberately inten- tioners’ race were Supp. interesting (1958), it is to note tionally selec- limited and excluded by position petitioners. taken As jury panels,” turn tion of we by Judge Skelly Wright, observed J. Supreme by case most decided recent already conviction had affirmed Alabama, Court, Swain State Louisiana, Supreme Court of State 824, 13 L.Ed.2d 759. Labat, 226 La. So.2d page half of that first and a Within the Court, Michel v. opinion bear- the Court sets forth law Louisiana, ing issue must we decide: peti application L.Ed. In that “Although Negro defendant tioners claimed were convicted containing perjured testimony Howard, members to a entitled of Earl race, purposeful de- witness, per of his State’s state disinterested police. liberate That is denial account was coerced participation passed of race of sue was on dur- neither raised nor

737 justice of discrimination of violates invidious under administration case (Emphasis Equal Amendment.” Fourteenth Protection Clause.” added.) forbidding tifiable ited “Nor “But (Emphasis added.) ^[******] ****** be assumed or purposeful Negroes. group intentional constitutional subject It discrimination applies community merely of exclusion prejudices.” command asserted. which iden- may Allen, lim- L.Ed. 469. race 1276; Texas, effort 278-288, 67 S.Ct. State of purposeful The Swain jurors. any 344 U.S. Thomas v. State of 325 U.S. New 1613, 29 deprive realistic See In Brown v. S.Ct. and a case York, 91 443, also 358, 405-406, 65 members L.Ed. dealt with 393, Fay substantially opportunity 471, 332 U.S. Akins 2043; 73 S.Ct. Texas, 212 Allen, Negroes of v. the issue of v. 261 at People Brown effective State of to serve 397, Negro S.Ct. U.S. 284, 97 of v. Carolina, comprised v. Brownfield State of South 7 of the names % 426, 513, 189 county U.S. 23 L.Ed. S.Ct. 47 in a list com- where 882; Florida, prised eligible taxpayers. Tarrance v. State of 188 38% 519, 402, 572; U.S. 23 S.Ct. 47 L.Ed. The Court held the discrimination was Mississippi, Smith v. State 162 U.S. caused an rather economic factor than 592, 1082; 900, 16 S.Ct. 40 L.Ed. Bush a racial one and hence it found no consti- Kentucky, Commonwealth 107 tutional violation. In the col- this case 110, U.S. 1 625, S.Ct. population 27 L.Ed. 354. approximately ored 31- proven, It must be Tarrance v. stated, State clearly and as the evidence 32% Florida, supra; Martin approxi- State composed shows that Texas, 316, 338, 200 U.S. mately 26 S.Ct. petit jury panels. 50 10% quantum proof L.Ed. neces long person has It the rule that sary being a matter of federal law.” asserting an intention thus to exclude attacking procedure charged The selection defendant Swain was proving capital rape. has the convicted of the burden such intent. offense of Mississippi, capital 162 Smith v. U.S. criminal State venire case usually 900; jurors. 16 contained about S.Ct. Tarrance v. State Aft- 402; Florida, er 188 U.S. S.Ct. excuses and cause the removals Texas, venire is Martin v. 200 U.S. reduced to should State about It Fay 338; People be noted S.Ct. State Swain there were six to eight Negroes York, supra, venire, on the New U.S. would be around S.Ct. 1613. the instant case the 10%. stipulation (Item 13) No. states there length goes great majority approximately on a venire of 10% discussing factors involved. economic jurors. Judge testimony O’Hara’s placed Heavy on the civil case reliance slightly larger percent. indicates a Co., 328 U.S. of Thiel v. Pacific Southern Court concluded in Swain as follows: appropriate au- 984. More 66 S.Ct. supra,

“Moreover, thority Allen, an is Brown v. where we do not consider aver- age eight Negroes involved an economic factor was these six panels constituting in which discrimina- forbidden token criminal case racial meaning If Ne- inclusion within tion the ratio was claimed. 7% groes compared cases in this Court. Thomas v. list as State eligible Texas, taxpayers from which 38% 412; composed not consti- 53 L.Ed. Akins v. of Tex- list was did as, wrongdoing tute constitutional where 325 U.S. 1692; Avery involved, diffi- L.Ed. economic factor was it is v. State Geor- gia, conclude L.Ed. cult me to infringement 1244. Nor do we been constitutional consider evidence prima in this instant case where the more case make out a facie favorable however, alarm, growing jury panels over the petit figures on the of 10% rapid of crime and the reluctance compared increase of with must be 31-32% alike, citizens, and witnesses Moreover, did of victims population. Thiel case help. Miran- the courts for See question to turn to constitu- of not deal with the Arizona, infringement, ques- da of U.S. v. State the racial and tional (1966), (dis- 16 L.Ed.2d involved; the Court was ex- tion was not senting opinion) Mr. Justice White ercising power where supervisory rather its stated: passing constitu- on a fundamental than

tional issue. any gov- function of “The most basic security provide for is to ernment Conclusion IY. property. and of his the individual Jersey, Pretermitting any discussion Lanzetta v. New further ju- L. on the question attack when society made, of waiv- are matter Ed. ry system 888. These ends was case, laws which elements served criminal er, the other and all preven- petitioners part have the most are aimed at the me that is clear to it reasonably ex- intentional tion Without proven and of crime. deliberate not performance the task in the selection effective clusion preventing private was and petit panels. Their evidence violence retalia- tion, It human vague, uncertain. was is idle to about and talk indefinite proof. dignity theoretical, The chiefly statistical civilized values.” and ****** supported amply District concluding race the evidence appre- “Secondly, the swift and sure number of the total or color of respect 44% to hension of those who refuse was not appearing on the venires names security dignity personal why actual It is obvious determined. neighbor unquestionably its has their jury panels came on the attack might impact be similar- on others who finally failed, and all efforts after other ly tempted.” The facts show also failed. attack long approp- How will citizens exercise years had substantial while courts riate restraint continue numbers of society indulge delay to and return to venire, evi- no substantial and there was nighttime rapist, stealthy the ruthless purposeful ex- dence of intentional murderer, burglar, the cold blooded best, did attack At the initial clusion. organized nar- sex fiend members allegation which a loose rise above not gangs? The case of criminal cotics supported evidence. resulting often becomes a cause celebre judgment should be of the District Court public expense, and in in unreasonable affirmed. respects, becomes the hero some he leading mercy player plus role in a fantastic tempered with Justice charged display procedures that continue trial, of court with fair even those years. upon are revolting crimes, principles victims are the most proper forgotten. system. A are dead! deeply Some in the American embedded society protection agencies balance between Courts and law enforcement charge rights concepts. of the individual should never deviate those with crime must be achieved. observe, appropriate never- It seems to commonplace hear unre- spent theless, much is now nation has It police en- through- and law great criticism strained time and exercised efforts ap- Lawyers are history persuade officials. victims of forcement out its represent pointed defendants courts crimes let the determine heinous neglect professional charged guilt punishment. success and fix Great is convict- violence, “lynch If defendant misconduct. Mob been achieved. furnishing ed, lawyer gun aveng- law”, is accused pistol and the The accusa- representation. large ineffective er have ended measure. There prevalent piecemeal appeal practice now upon spread the records of the tion is day. raised if another On lawyer need on becomes then embroil- court. appeals question piecemeal see his own actions ed in the defense Paige Potts, Cir., represent 354 F.2d doing accused his best Harrist, appointment. 2; defendant, Footnote and cf. Marion v. court under even honesty Cir., 1966, least where at reputation for 363 F.2d Sometimes his question held out jeopardy. was placed In some cases his one constitutional in professional reputation use. is scarred and future blotted. decision, only question for assum- The remembering ing pop- my always waiver, a view, no is never and waiver case, rights accused, is whether demand a ular doctrine in a death of the times deliberately system by Negroes and intention- close of the entire examination ally tried, in which and from it limited excluded the selection are criminals away petit jury panels in violation of the there should cut of the be some sentimentality question mandat- evident which soft at times Constitution. This Supreme prevalent, place in seems to be its a ed to the District Court degree austerity fair Court in ten after of firmness over dealing question. in in should be with defi- commission of crime substituted ant, dangerous and diabolical criminals. majority appellants that The holds by showing prima made out facie case a BELL, Judge (concurring Circuit in produced Negro a which had not result): grand actually on a or served concur in I the result the reason petit jury years up several time exclusion, class, daily that as a of all produced of trial and which in event wage deprived appellants earners of an prospective Negro a token number of impartial jury in violation of the due jurors. sys- also disclosed a evidence process equal protection clauses of daily wage tem whereunder earners and My the Fourteenth Amendment. con- all outside were excluded from workers currence, majority opinion, unlike the is petit overall list which special opinion not based on race. This jural panels -The dis- are drawn. latter disagreement my filed to outline with the closure, my judgment, in made out a premise majority opinion, race prima case, facie was not overcome. cautionary purposes respect also for with However, agree I not the evidence do that language opinion. to some of the of that respect made such with to ex- a case out clusion on race. necessary or limitation based separate It first majority opinion wheat from the great majority places stock in points chaff. Three be taken as set- actually served, Negro fact that no on a One, grand jury tled. a is not case during period although large portion majority reasoning question. conflicts Such with opinion is in that focused direction. The Alabama, 1965, Swain v. State Supreme against appellants ruled S.Ct. L.Ed.2d 759 and our grand jury question years ago. Walker, recent en banc decision Scott v. Louisiana, 1955, Michel v. 350 U. Cir., 1966, where F.2d we S. Two, 100 L.Ed. said: the District not Court did rest its decision “ * ** the Constitution nor does re- merely on It waiver. decided case panel ju- quire any particular alternatively on waiver and on the merits. include rors a criminal mem- Third, petit jury question was not as- person. of the accused the race bers serted Court on the first U.S., Alabama, Swain v. State of appéal. pains point court was *” * * 202, 85 S.Ct. 824. out attack was made com- position jury. course, may Instead, Of it fact of no question by Negro apparently actual is sub- service saved under the adhering proof Ct. L.Ed. while the total factor mitted dealing Fay position relating its rules limitation picture to exclusion ap conclusionary selection federal and not as on race based plicable proceedings, state court Nevertheless, never is a slender reed fact. finding theless of deliberate said: to base a on which duty protect and exclusion limitation intentional the federal con- “Our petit jury rights in the selection mean stitutional all does not undisputed light impose evidence panels we must or should on states jury panels person conception proper of the 150 our that each source of Negro rep- per long lists, cent least ten so as the reason- included source stipulated ably fact This was resentation. reflects cross-section Judge testimony population O’Hara indi- in- and the suitable in character and * higher percentage duty. a telligence over an for that civic cates even period line with of time. sustained Implicit Fay People in the rationale of testimony a that smaller in the case other Al- of of New York and Brown v. quali- Negro population percentage of was len, teaching equal protec- is that the the jury popu- than the white service fied process of tion and the due clauses the percent repre- lation, of ten minimum this by Fourteenth are violated Amendment thirty compared a two sentation of class exclusion a where the result the Negro population does not make per cent jury is a list that does a not reflect fair and limitation intentional out deliberate community. cross-section the jury Negroes from service. or exclusion jury This in fault the Parish system person pan- appear except 150 is not based on insofar that the race It does happened Negro daily usually the trial to be reduced more were els wage approximately judges final earners than white but it is a to a venire fault magnitude percentage of such persons a to indicate an im- the 75 that proper jury system. say Negroes is not to final venires was on these This However, per that slightly there was not a cent. reason the exclu- over three Negro representation sion. Jurors in are Orleans Parish not reduction in excusing jurors paid through the exclusion of class of came about this jurors practical hard- reason excused because a to be asked jury by letting simply 150 ship, those service would amount to a financial or hardship tendency Appar- in the end to serve. who volunteered serve ju- ently only would half of the 150 to excuse class about one this anyway. Nevertheless, panel needed for actual a blanket ex- each such rors on permitted many This clusion excused. cannot be whatever the so could be service hardly finding practice a reason is basis for case due to be reversed a fault. limitation because intentional deliberate jury service. exclusion question The mandated to deter- mine whether there was a deliberate and hand, prac do think the the other I On intentional limitation and exclusion of wage excluding daily earners all tice Negroes contravening federal Con- require violates service My goes stitution. own out- conclusion comprised a list be ment question side I we doubt that community. Theil cross-s fair ’tion reading ques- limited to narrow of the 217, Pacific, 1946, 328 U.S. v. Southern scope question tion and the would 1183, 984, makes such a 90 L.Ed. finding include of a defective Fay cases. requirement clear in federal wage based on exclusion of the earn- York, 1946, 332 People of State New er class. 2043, 1613, 91 L.Ed. S.Ct. U.S. appropriate A word of caution is rest points in Theil reversal out language respect to some other power supervisory of the court ed on majority opinion. As court, concerns Then, trials. of federal question, emphasize I waiver would S. Allen, 1952, 344 U.S. Brown v. Fay by-pass doctrine deliberate list includes illiterates ? Voir dire questions might Noia, illiteracy disclose but at offending destroying L.Ed.2d 387. Defense counsel should not risk derogation dignity jurors. Seemingly take the court’s the waiver no other applied protection where doctrine to federal constitu- would be available. United See rights Henderson, Cir., 1962, tional in federal habeas courts as States v. forego challenging jury sys- jury system approved a license F.2d for an thereby provide eighth grade tems and a built-in error where an education standard by jury event first results a was one factor considered com- Moreover, selecting jurors. prospective conviction. should trial courts missioners just be alert to avoid such situations majority relies on state authorities requiring counsel to make a choice proposition for the entire jury sys- first instance as to whether system infected where list does not challenged. tem is to be represent a fair cross-section of the com munity appellants majority and thus finds that opinion of tests the standing. proposition, population This if disparity have non-white between language settled the broad of the Su and the number of preme States, literacy. my regard Ballard v. United As list without States, L.Ed. dissent in Rabinowitz v. United resting clear, 2d Cir., 1966, federal case 366 F.2d makes supervisory power, here, least forecast. dis- think the as I stated I have light The court there said that parity reversible error of a rea- be tested in should depend in literacy compari- such event does not on a show sonable standard. ing prejudice in an individual should be on the basis of the case. son made process due Negro population clause of percentage the Fourteenth avail- guarantees trial, Fay jury Amendment qualified a fair able and service People York, supra, against v. percentage State of New cited, jury connection, cases and a fair trial en list. there is this jury majority visions a list opinion fair reflects mention in the some community. literacy cross-section Brown on a fourth standard based Allen, supra. Having jury v. grade contemplates these authorities This education. mind, concluding difficulty in I by functionally persons. have no in service illiterate appellants standing that adequate have to com I do not think this is an educa- wage plain of the country earner class exclusion. tional standard dedicated to Having one joined reversal, may education where states save all it be compulsory education. The harm have apt well to add little is to come jury system by adoption done new indictments. commit- The crime was 1953; of such a standard would incalcu- 1950, appellants low be ted were tried Assuming right lable. unlikely adequate proof and it is trial under Sixth and Amend- forthcoming Seventh would be under facts right, hardly ments is a viable could it be this case for conviction at this late date. supposed right that the would not include Court was of this view in up made who could com- Louisiana, 1955. See Michel v. prehend issues, supra. example who would have This is an of a near capacity system jus- resolve the issues. Such breakdown in our criminal by sifting brought issues must often be resolved tice about defect complex by following long delays facts and process, appellate difficult in appertaining through process indulgence instructions law. right piecemeal appeal approach.1 How this be vindicated where Persons examples delay, 1, appellant 1. As of unusual see the F.2d sentenced to following along fifty years rape; cases heard en banc with in 1959 for Davis v. Walker, Cir., 1966, Davis, Governor, case: this Scott v. 361 F.2d sentence appellant 358 F.2d sentenced to death of death in the murder of a rape; Beto, Cir., police in 1958 for Brooks v. officer. gomay charged grave crimes free. ASSOCIATES,INC. BOLT Paraphrasing Society loser. will be the v. Cardozo of Justice famous dictum DeFore, People ASSOCIATES, 242 N.Y. ALPINE GEOPHYSICAL Beckmann, go INC. and C. may Walter Appellants. free be- the criminals N.E. the courts have blundered. cause No. 15750. crimi- administration It capacity of justice exceeds the now nal Appeals United States system. doubt that There is no court Third our Circuit. administration Argued Feb. capacity of the presently exceeds Sept. Decided system. decisions banc en Our court United in Rabinowitz case and this States, Cir., 366 F.2d Cir., 1966, F.2d Beto, 5 Brooks anit I think do not this clear. make sitting say statement excessive unlikely ais that there court, or feder- state commission pre- possesses the al, circuit which in this immune compile list

science racial on either from successful attack grounds community cross-section fair ap- through the use of a mathematical pro- may appear as a proach. What easily shown can be scribed imbalance using And, percentages. of course simpler process is much decisional apply a mathematical where we jacket straight test, but mathematical reasoning on all the instead of balanced way facts, has not relevant strength Swain

or the law. Alabama, supra, fair is a D.C., See F.Supp. also approach to the commomsense

problem and I think' it unfortunate majority departs, as lower court question, from

does here on race expressed.

the sound view

Moreover, imperative adopt approach make new

court some possible errors are assert-

certain all piecemeal instance to

ed first avoid

appeals and resultant interminable adopt delays. have to The courts

parens patriae approach guardians of system to certain that

the court make

possible are not held out for future errors

use. Judge:

COLEMAN, Circuit concurring opin- join specially

I in Judge BELL.

ion

Case Details

Case Name: Edgar Labat and Clifton Alton Poret v. Robert B. Bennett, Acting Warden, Louisiana State Penitentiary

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 30, 1966

Citation: 365 F.2d 698

Docket Number: 22218

Court Abbreviation: 5th Cir.