United States of America Ex Rel. Bruce Barksdale v. Frank Blackburn, Warden, Louisiana State Penitentiary

GOLDBERG, Bеfore AINSWORTH and KRAVITCH, Judges. Circuit KRAVITCH, Judge. Circuit Appellant appeals Bruce Barksdale denial his for a writ of corpus. habeas For the reasons stated be- low, we reverse. court in the Newman ease af district

I. Facts: Henderson, 539 firmed. Newman v. F.2d was convicted of July Barksdale 1976), cert. and was sentenced to aggravated rape (1977).3 jury. Parish He had death an Orleans September indicted Or Four the district de months after court’^ Jury. Through appro leans Parish Grand case, the State re cision motion, priate challenged Barksdale the ra granted, was permission, which quested composition cial of the venire from which the appeal. appeal a belated That file notice him grand petit which indicted and the by upon was dismissed court motion of this try him were chosen. Af which would Henderson, v. No. Barksdale. Barksdale ter a motions were denied. hearing, both 73-1536, 880, denied, 95 cert. 419 U.S. S.Ct. conviction, appealed again his Barksdale Meanwhile, 145, (1974). the composition of the challenging the original judg State moved to vacate the petit and Louisiana juries. Supreme The in ment accordance with Federal Rules of conviction, reasoning Court the affirmed Procedure, ground 60(b)(4) on the Civil Rule economic that educational and factors ex magistrate hearing that the before the was the plain the between number of authority improper delegation an under in and the num black males the 461, 94 Wingo Wedding, v. 418 U.S. appearing ber of wheel. blacks 2842, (1974). The 41 879 motion L.Ed.2d 198, Barksdale, 247 La. 170 State v. So.2d granted appealed unsuccessfully by was denied, 921, (1964), cert. 382 86 U.S. Barksdale, Henderson, Barksdale (1965). 15 L.Ed.2d denied, (5th Cir.), F.2d 382 cert. partially on this court’s decision Relying (1975). 45 L.Ed.2d Bennett, F.2d in Labat v. by hearing was held Dis- evidentiary An 1966), cert. died Judge Christenberry, trict who while Barksdale next 18 L.Ed.2d Upon the case was under consideration. pursued corpus. Again, state habeas agreement parties, another evidеn- peti denied his Louisiana Judge before tiary hearing was held tion, Dees, Barksdale v. State ex rel. previous at the As he had done Schwartz. years La. 211 So.2d Three hearing, presented testimony Barksdale petition later filed a in federal Barksdale statistician, Levine, of Dr. a Arnold corpus. court writ of habeas His case for a Murphy, employ- commission Julian was that of consolidated with John Newm time, State, ee. The the first intro- evidentiary an2 of an purpose for the Smith, Dr. David testimony duced hearing magistrate. before a United States statistician, part testimony to rebut magistrate, After before the peti- Dr. denied the Levine. The court separated cases were sent back to corpus. tion for habeas initially the cases had judges to whom by Because of a factual error committed The of both assigned. convictions moved for and the district Newman and Barksdale set aside. hearing.4 At this granted decision in was a new hear- appealed State the New case, was immediately ing man but did not do so in additional evidence introduced both The district Barksdale case. decision of the State and Barksdale. relitigating proceeding, Louisiana from In State of ly estop state court independent legality death was set aside and life 1962 Grand Jury. sentence impris- September onment sentence imposed. viewed erroneously 4. The district court 13% 2. Newman in an had been indicted unconnect- percentage statistic in refer to the the record to ed case Parish Orleans September of those of blacks in the total sum- included Grand Jury. commission. moned to qualified referred actually 13% 3. This court declines to decide expressly venires. blacks on certain final petit the Newman decision collateral- whether could again black and that denied the for habeas 32.7% of same black, peti- relief. It is Levine left “litеr- order was had appeals tioner this court. ate” court referred to the undefined. The report indicated that of the Levine which Despite lengthy primary its history, occupation- population aged male 21-64 not relatively simple: issue Was case exempt, at least ally 31.9% with selecting grand black, years of was five education jurors in Orleans Parish at the time Bruce years with at least six of education Barksdale was indicted one and tried black, 29.7% with least seven against discriminated violation of The court observed education black. protection equal proc- and due comparable for 1963 had been no data rights? ess primary addition to the is- presented. The court also found that Le- sue, there are several collateral issues. The report vine’s indicated 1962 blacks urges appeal that Barksdale’s ha- approximately regis- constituted 17% of the beas claim cognizable should not be under tered voters. Powell, the rationale of Stone v. 428 U.S. 465, 96 (1976); court further found: evidentiary hearing that an should not have 1, 1962, prior January drawing As of petition been held on the as there had been venire, approxi- of the blacks constituted a full and fair on claim in state mately general 14.9% of the venire as court; and, finally, that jury embodied the Orleans Parish barred Rule of 28 U.S.C. 2254. § grand from petit jury wheel venires were January drawn. As of primary To decide the issue unlawful 1963 blacks constituted no more than discrimination presented has been persons general 14.3% venire with a mass of statistics representing vari- as embodied in jury the Orleans Parish ous views of disparities which existed January wheel. As of 1964 blacks con- between the black parish persons stituted no more than 14% the and the percentage of blacks at various venire, as embodied in the phases in jury process. selection Our Orleans In Parish wheel. task has been made more difficult persons blacks constituted 13.9% of all fact that the changed explanation its appearing petit on the final jury venires. of the statistics between pro- the time it June, January, In July, 1963 blacks posed findings of fact to the district court persons all appearing constituted 21.8%of the filing of its brief in this court. petit on final jury venires and blacks The district court the following found persons appear- constituted facts: ing petit jury on final venire called In 1962 blacks constituted 38.8% of the July into E in Section for the trial of population. Orleans Parish petitioner’s (Stipulation D). case There In 1963 blacks constituted 39.5% of the apparently petit were no blacks population. Orleans Parish petitioner’s (Stipula- tried case In 1962 blacks constituted 33.7% of the C). tion male population aged through 64. disparity presump- between the

In 1963 blacks constituted 34.4% of the tively eligible population of black males male aged through 64.5 (33.7%) of 21-64 in grand and the (14.9%) January, venire 1962 is The court found that while Levine conclud- 18.8%. ed in his report 32% of the

literate population aged male 21-64 not presump- oc- between cupationally exempt service tively eligible population of black males Findings Court,

5. p. Fact District noted there Justice Blackmun (33.7%) Mr. and the final of 21-64 in 1962 (13.9%) in 1962 is 19.8%.6 between jury venire differences fundamental exclusionary rule Fourth Amendment clearly Although we are bound of discrimination in allegations claims reviewing when erroneous standard A process. dis- grand jury selection findings fact of the district Wade 672, 683-84, Mayo, allegation that the charge crimination (1948), we are not 92 L.Ed. 1647 bound violated the judicial itself state errors of law. Because district court Clause, whereas Fourth Equal Protection facts, law to the we improperly applied the cases, upon to are called Amendment courts reverse. police seizing evaluate the actions of the habeas re- By allowing fedеral evidence. Corpus II. Issue Habeas view, constitutional defects we ensure that contends that Barksdale’s The State selection judiciary’s in the state grand jury claim of discrimination is not a by the very procedure are not overlooked proper corpus. federal habeas issue for process. In judges operate who state Powell, Stone v. integrity of our uphold this manner we L.Ed.2d system. judicial pro- Court held that “where State has reversal of a The Court admitted litiga- opportunity vided an for full fair of discrimina- the basis solely conviction claim, tion of a Fourth Amendment a state process involves the jury tion in selection prisoner granted may not be federal habeas However, those costs are society. costs to corpus ground that relief on the evidence strong policy the Court “outweighed by obtained in an unconstitutional search consistently recognized combatting of seizure at his was introduced trial.” 428 in the administration racial discrimination 494, U.S. at 96 at 3052. justice.” at 3001. 99 S.Ct. dissenting opinion a Relying on Cas- Partida, 1, taneda v. U.S. 508 n. that Barksdale’s claim We therefore hold (1977), 51 L.Ed.2d the State cognizable grand jury discrimination urges that v. Powell be extended to Stone corpus. federal habeas corpus grant foreclose a of federal habeas prisoner relief to who a state claims dis- Hearing Evidentiary III. grand crimination in the selection jury. habeas argues corpus It relief argues that an evi next State only should where the error be available not have been held dentiary hearing should alleged guilt, the determination of affected urges this court to by the district court case, Powell, as in that in this Stone v. adequacy of the State rec determine the no trial on error affected the the merits. thereon. ords and to base its decision These arguments extending same for petition of his filing Since Barksdale’s v. reject Stone Powell were considered and 1971, there corpus in have a writ of habeas ed Court in v. recently Rose hearings. evidentiary three U.S. —, Mitchell, 99 S.Ct. — evidentiary hearing in Prior to the first involving alleged a case court ordered October the district racial discrimination selection of Ten any reasons for not nessee jury foremen. State to inform it holding hearing. The State made no majority, Writing for the Mr. Justice objections. judgment resulted out that in pointed Blackmun Stone v. Pow- however, set aside hearing, from this ruling ell the its Court confined to cases motion State’s district court exclusionary created involving judicially Fed.R.Civ.P., 60(b)(4), because under Rule rule, utility ap- which had minimal when hearing magis- before plied corpus evidentiary proceeding. a habeas (footnotes Findings Court, p. omitted). of Fact of District 3—4 Wingo Wedding, v. Orleans Commission would trate was invalid under Parish he in that state given 41 L.Ed.2d 879 have if had testified U.S. 1, 1977, proceeding. April the district (1974). evidentiary hearing A new was or On denying an order appealed court entered dered at that time. Barksdale corpus. petition for a writ of habeas ruling During ap court. argued peal, evidentiary the State that no throughout history It is clear that hearing have This court should been held. action, corpus this habeas the State has had court’s and re affirmed district order ample opportunity objections voice its evidentiary hearing new quired a to be held evidentiary hearings. Prior to the holding petitioner’s claim that blacks were evidentiary hearing first it was ordered to systematically Par excluded Orleans give holding evidentiary reasons for not an juries ish at the time his trial. Barksdale hearing; gave none. When the first evi- Henderson, (5th Cir.), F.2d cert. overturned, dentiary hearing was the State holding in its argued against brief an Although L.Ed.2d Barksdale evidentiary hearing, but failed to unsuccessfully sought writ of certiorari to against for certiorari when this ruled judgment, review the did seek Finally, it on Judge that issue. after Chris- a writ of certiorari on issue of whether death, tenberry’s the State consented to a there an evidentiary should have been hear evidentiary hearing. new Given these ing. Therefore, requiring our evi facts, order an agree we cannot the district dentiary is a holding final resolution of that evidentiary court erred in a new issue. hearing. over September legal the State’s ob- argument basis for State’s

jections, Judge Christenberry evidentiary hearing District con- that a new should not 2254(d) ducted the have evidentiary hearing as directed been held U.S.C. § provides: this court. called the same witnesses, Levine, statistician, two Arnold (d) proceeding In any instituted in a Murphy, and Julian commission em- application Federal court for writ ployee, original who had testified at the corpus person of habeas aby custody evidentiary hearing jointly conducted with pursuant judgment to the of a State upon court, Newman and whose testimony the hearing a a determination after Newman Judge issue, decision was based. After the merits by factual made died, Christenberry competent jurisdiction State moved to re- court of State in a open expert proceeding record submit the testi- the applicant to which for the mony of its own and or agent statistician and to intro- writ the State an officer or testimony parties, duce by contained in state court rec- thereof were evidenced a writ- finding, opinion, ords ten companion written or other reli- cases the Barksdale indicia, adequate able original case at the time written shall of Barksdale’s correct, be presumed trial. to be unless the The motion was by resolved an agreement applicant shall by establish or shall other- parties both to conduct a new appear, or respondent wise shall ad- evidentiary hearing. mit— In October evidentiary third (1) that the merits of the factual dis- hеaring again was held. Barksdale called pute were not resolved in the State court Murphy and Levine. The State called its hearing; statistician, Smith, own to dispute part of (2) factfinding procedure em- testimony. Levine’s The State also intro- ployed by the State court was not ade- city directories, duced illustrative of the quate to fair hearing; afford full and techniques by used commission to (3) that the material facts were not jurors, select stipula- introduced a 1964 adequately developed at the State court tion from a proceeding state court to which hearing; Barksdale had not a party concerning been testimony the then chairman of the ^{[*] [*] [*] [*] [*] [*]} (6) applicant that the comity obligate did not receive a do not federal courts in full, fair, adequate hearing corpus habeas cases to defer to state de- proceeding; State court terminations on matters of federal law. obligation (7) judge of the federal is the applicant was otherwise opposite: process apply proper denied federal con- due of law in the State stitutional standards proceeding; court based on the under- facts, lying although the conclusions (8) part or unless that of the record of drawn from the may facts differ from the State court proceeding in which the (Citations state court’s conclusions. determination of such factual issue was omitted.) made, pertinent to a determination of the

sufficiency support evidence to Where factfinding procedures state determination, such produced factual adequate, comity judicial economy hereinafter, provided and the Fed- dictate that the federal courts should not eral court on a part consideration of such separate hold evidentiary hearings. To of the record as a whole concludes that hold a federal is to call state such factual fairly determination is not factfinding procedures question. into supported by the record: comity govern But applica- does And in an evidentiary hearing in pro- tion federal courts indepen- of their ceeding court, in the Federal when due dent judgment as to federal law. That is proof of such factual determination obligation cases, their obligation in all made, unless the existence of one or the district court properly this case more of the circumstances respectively discharged. set forth paragraphs (1) numbered also v. Hopper, See Lee 499 F.2d (7), inclusive, is shown by applicant, (5th Cir.), cert. otherwise appears, or is admitted respondent, or unless the court concludes Specific historical facts found pursuant provisions paragraph state habeas to which a standard of (8) numbered that the record in the State applied law is in deciding question a mixed court proceeding, whole, considered as a fact, presumption law and merit a fairly does not support such factual de- proceeding, correctness in a federal habeas termination, the burden shall rest upon Louisiana, 1031-32, supra provid West v. applicant establish convincing adequately ed that those facts were devel evidence that the factual determination oped fairly supported by the record. by the was erroneous. 2254(d)(3) (d)(8). U.S.C. & § The resolution of the issue of jury dis- present In the court did case district question

crimination is a mixed of law and specific facts found ignore not historical fact. The “factual” determinations made by the state was habeas court. Neither by state habeas courts which federal courts there the wholesale reexamination of fact presume must ‍‌‌‌​‌​​‌​‌‌‌​‌‌​​‌‌​‌​​‌‌​​​​​​​‌​​‌​​​‌​‌‌​​​‌‌‍to be pursuant correct to Supreme objectionable that the Court found 2254(d) do not questions § include mixed оf Rosa, 690, in LaVallee v. Delle 93 U.S. law Sain, and fact. Townsend v. 372 U.S. 1203, (1973). 35 L.Ed.2d 637 Instead 293, n.6, 318, 745, 83 S.Ct. simply district court reassessed and re- (1963); Balcom, (5th Mason 531 F.2d 717 legal upon determined issues the factual 1976). Cir. developed record in the state court. As we stated in Part II of West v. Louisi- reorganization Such of a volumi ana, 1026, (5th 1973), 478 F.2d 1031-32 Cir. complicated nous preclud record is not aff’d and part, adhered to in relevant 2254(d). ed § (5th 1975) F.2d 363 (en banc), Cir. a case dealing with effectiveness of counsel: Although the federal habeas court essen-

Regardless of the thoroughness of tially state upon specific relied facts concern- factfinding procedures, considerations of ing operation of the Orleans Parish fact, may defer to its findings of he composition of venires and

system and the judge’s law. It is the district findings the state already in panels determined applicable federal law duty apply to supplemented in the these facts were findings indepen- fact to the state court supplemental This federal habeas court. may law state conclusions of (1) dently. testimo primarily evidence consisted of: binding weight on habeas. Levine, given not be expert; statistical ny by (2) fact evidence introduced statistical at 760. concerning January, June the State 9(a) Pursuant to Rule IV. Dismissal venires; (3) testimony July argues that Barksdale’s The State employee by Murphy, commission have been dismissed under petition should only establishing to the fact directed governing 9 of the rules U.S.C. Rule attempted to employees commission because it was not filed petitions § would not subpoenaing persons who avoid Barksdale’s direct six after until during their paid by employers be their incorpo in 1965. Rule appeal terminated testimony Levine’s days service. equity concept of the common law rates explain primarily present was used provides pertinent part: laches and already in the state statistics thаt existed petition may A (a) Delayed petitions. cannot now attack court record. The State appears the state of dismissed if Murphy’s its own introduction of evidence. respondent which the officer testimony testimony which the Louisiana ability respond prejudiced in its Supreme had barred Barksdale from filing petition by delay its unless presenting when Barksdale filed his first petitioner shows that it is based on writ corpus of habeas a writ based grounds which he not have could had part on this court’s decision in Labat v. knowledge by the exercise of reasonable Bennett, (5th 1966), 365 F.2d 698 Cir. cert. diligence preju- the circumstances before 1303, 18 dicial to the state occurred. the testi and for which 9(a) apply does not to Barksdale’s mony Murphy necessary. ex Rule Dees, governing the rules rel. Barksdale v. 252 La. because § proceedings apply petitions do not filed respect So.2d 318 With to that as case, February before 1977. Jackson v. Es- pect might the district court telle, (5th 1978). 570 F.2d 546 Cir. well have found that Barksdale did not full, adequate hearing “receive a fair and problems proof recognize We proceedings.” State court 28 U.S.C. regarding to claims events which attendant 2254(d)(6). § years ago. Neverthe occurred number less, “Delay What the district court below and is no bar to federal habe did alone jurisdictional we relief to correct and consti what do now is to exercise our federal judicial analyze Hamilton v. Wat power to examine and tutional trial errors.” kins, 1970). facts of record in order to determine wheth- 436 F.2d Indeed, Estelle, er system jury delay selection at the time in Jackson v. su question operated systematically pra, thirty years. was over exclude blacks.7 in its brief claims it was The State As the Court stated in Town- delay, does not ex prejudiced but Sain, send v. 9 U.S. S.Ct. in its plain how. The State does mention (1963): L.Ed.2d 770 Knowles, that Daniel former Chair brief Commission, is dead. Although judge mаy, the district where man of the However, objection reliably the trial without the state court has found the Barksdale, facts, to in- permitted relevant to the state court’s from State defer Supreme Allgood, of law in its ana Court’s conclusions It be noted that v. should Goins 692, 696-97, (5th 1968), opinion comport with the did not F.2d 699 n. 6 Cir. appropriate expressed standards. this court the view that the Louisi- constitutional —, 2993, 61 L.Ed.2d 739 independent U.S. S.Ct. stipulation troduce Barksdale) 482, (not involving Partida, (1979); court record v. state U.S. Castaneda Knowles concerning testimony 1272, (1977). In 51 L.Ed.2d 498 97 S.Ct. Furthermore, it is diffi- given. would have prove Barksdale must prevail, order to manner comprehend cult in what which of discrimination is prima facie case prejudiced when the issues could be State by the unrebutted State. corpus are for the on federal habeas raised by Barks- part originally most those raised facie case of discrimi prima A at that time had dale at trial. State proved as follows: nation opportunity and exercised an to adduce evi- step The first is to establish concerning these issues. dence recognizable, group is one that is a dis- laggard anything Barksdale has been but class, treat- singled tinct out for different pursuing habeas relief. Two after laws, ment under the as written or as Supreme his direct Court terminated Next, degree applied. underrepre- appeal by denying application his for certio proved, by comparing sentation must be Louisiana, 921, rari in Barksdale v. 382 U.S. proportion group in the total 297, 15 L.Ed.2d 236 Barks S.Ct. proportion population to the called petition, dale filed his first state habeas jurors, significant over a grand serve as reurging the jury discrimination claims as period Finally, . . . as not- of time. Bennett, elaborated Labat v. 365 F.2d above, procedure that a selection ed 1966), cert. 386 U.S. racially is not susceptible of abuse or 1303, (1967). 18 L.Ed.2d 334 presumption of dis- supports the neutral petition This terminated in 1968. show- raised the statistical crimination death, when he was under sentence of ing. peti Barksdale filed a second state habeas raising arising tion issues under Wither Partida, 430 v. U.S. Castaneda Illinois, spoon v. omitted). (1977) (citations If at 1280 In 1971 the state case, prima facie plaintiff establishes district the Louisiana to show the burden shifts State rejected petition. In the same not because of unlawful exists year, present petition federal habeas of the effect of discrimination but because filed, combining original jury dis that Barks race-neutral factors. We hold crimination issues and the Witherspoon is case, facie and that prima dale established sues. of Loui not rebutted the State case was delay filing We hold that the the fed- siana. eral petition prejudicial habeas was not explica- Supreme Court The most recent and was not caused lack of prima facie case components of a tion of the diligence part Fur- Barksdale. is found in Castaneda discrimination thermore, 9(a) because Rule became effec- Partida, February tive on 1977 and cannot the habe- (1977). In Castaneda applied retroactively, apply it does not Spanish surnamed petitioner argued that Barksdale’s federal habeas which against discriminated individuals were was filed in 1971. jurors. The evidence grand the selection of V. Merits of Barksdale’s Spanish Claim surnamed in- showed that county comprised 79.1% of dividuals It is Barksdale’s claim that he was denied majority compared that population. The equal protection by being of the laws tried 39%, average per- population figure to aby on the basis of an indictment returned individuals centage Spanish surnamed jury from grand jury and before a juries over served on had which members of his race were intention — 1962-1972, Mitchell, to hold ten-year ally period excluded. Rose v. See 262 petitioners comparing Supreme

the when рroved prima had a facie used cases. case of discrimination.8 in that the Court Castaneda established by may plaintiff’s rebut the case made it clear that the burden Court showing disparity that or no exists in little reducing general of population statistics to 498-99, population. a narrowed 430 U.S. at meaningful more statistics rests on the State, S.Ct. In order determine position 97 1272. vigorously opposed by a the dissent, According prob- prima the a dissent. the whether has made facie using general population lem instance, with statistics however, showing first the is obviously that included are those who urges he on this court must be statistics children, unable serve jury: on a individ- prior compared to cases. similar statistics uals occupationally exempt, persons exempt In the Court and several cases because of old age, and illiterates. While compared appeals general courts of have may legitimate such factors considera- population percentage statistics of population, tions in narrowing the the ma- given people group appearing from a on jority specifically holding refused to rest its Thus, Castaneda, supra, venires. petitioner that proven had prima facie petitioner the Court found that had case disparity 20% which existed proved prima showing facie by case a 40% population between a narrowed disparity percentage Span- between the of participation, making apparent it that county ish surnamed individuals in the State has the of proving burden such fac- 8, average percentage Spanish tors. 430 at of sur- U.S. 488-89 n. 1272. S.Ct. juries named individuals over the noted, however, It should be prior past years. prior ten In decisions Castaneda, the Court was not consistent as proved had prima indicated facie cases approved which statistics it compari- fоr 23%, upon disparities showing Turner v. purposes. son Because the disparity gen- is Fouche, 90 S.Ct. U.S. erally altered9 gener- when one turns from 14%, (1970), al population Hernandez Tex- data to statistics concerning as, the portion of population L.Ed. 866 pre- which is U.S. sumptively eligible 33%, Commission, juries, (1954), to serve on it is Carter v. crucial to hold constant being statistics U.S. L.Ed.2d Comparing fact, percentage 8. Spanish percentage sur- of blacks increased county named individuals in the in 1970 to the between 1950 and then in- 4.1% average percentage Spanish surnamed indi- by Pop- creased between and 1970. grand juries viduals which served on over a Commerce, Census, Department ulation ten-year period admittedly suspect statisti- Census, 33; 1960, 1950, 2:18, Bureau of Table procedure. cal If there had been a dramatic 1:20, 27; 1970, 1:20, Table 20 and Table Table percentage rise in the Spanish overall sur- Thus, 24. while Castaneda Court could county named individuals in the over the ten- rely presumption percentage rep- on a that the year period question, disparity the statistical group question resentation of the did not by comparison derived made the Court time, change appreciably over this court cannot would be skewed in favor of the defendant. do so. acknowledged problem, The Court indicat- ing relying assumption it was disparate participation To 9. the extent percentage Spanish surnamed individuals majority explainable group is reference to period ques- had remained over constant levels, lower use of educational tion. 430 U.S. at 495 n. 1272. The disparities population larger figures results in suggested Court also it was the State’s compari- if the than those which would result why comparison burden to show made was minority between the literate son made reliable, not over and above the fact group’s participation suspicious standpoint. from a statistical system. Thus, U.S. at if Similarly, given minority group if a has fewer percentage Spanish surnamed individuals population, children than the norm in the appreciably, had increased it was the State’s disparity using general obtained burden to show it. figures comparison purposes will be smaller petitioner presented In this case the has cen- result than the which would if the prove sus data to that the of blacks jury aged population was used. in Orleans Parish constant. remained

263 667, 33%, Louisiana, (11%); (1954) v. 98 L.Ed. 866 Preston v. and 25% and Eubanks 356 Mandeville, (5th 584, 1970) 970, (1958). L.Ed.2d 991 428 F.2d 1392 Cir. 78 2 U.S. S.Ct. (13.3%). percentages represent disparities the These representation percentage between Occasionally the considered sta- Court general group question popula- narrow tistics are even more than jury sys- in the representation tion and its example, in those stated above. For Whi- case, Beto, A Fifth Muniz v. tem. Circuit 545, 643, 87 Georgia, tus v. 385 S.Ct. 17 U.S. 1970), (5th a

434 F.2d 697 indicated Cir. v. (1967), Georgia, L.Ed.2d 599 389 Jones proved upon a facie case had been prima 24, 4,19 88 25 and U.S. S.Ct. L.Ed.2d showing ‍‌‌‌​‌​​‌​‌‌‌​‌‌​​‌‌​‌​​‌‌​​​​​​​‌​​‌​​​‌​‌‌​​​‌‌‍disparity of a between the 12% 404, 523, 88 Georgia, v. 389 S.Ct. Sims U.S. Spanish surnamed individuals percentage (1967) (per curiam), 19 L.Ed.2d 634 general percent- and the population compared percentage of blacks on Court age fifty grand which successive served on prospective jurors tax rolls from which Thus, juries. comparing percentages when percentage of were selected to the general popula- group of the relevant jury actually appeared on lists. Us- jury system, in the representation tion to its statistic, ing prima this held facie Court 12%, Beto, disparities supra, v. Muniz upon proved showings cases had been prima have establish a greater been held to 18%, disparities respec- and 19.7% case of facie discrimination. Likewise, tively. in a footnote Castane- population majority narrowed to da cases, In other Court com age over the of 25 with some individuals pared percentage of minorities in a nar repre- to the schooling compared population percentage rowed of that jury. grand Using sentation jury group appearing system. in the found a narrowed statistic the Court 26% commonly population narrowed re “significant a disparity which it termed dis- ducing population. it to the jury-aged Us prima a The decision that facie parity.” ing statistics, population narrowed however, proved, was not had been case prima held a facie case was made 430 U.S. at 488-89 on statistic. based upon a showing disparity of a in Alex 14% 8, 97 n. S.Ct. Louisiana, 625, ander v. 405 U.S. used, (1972). Depending L.Ed.2d 536 The courts on which statistics also proved have have a disparity disparities determined the as low as 11% between the group’s representation disparity of will jury-aged in the 11% pop prima facie case.10 A not, however, prove prima ulation and a fa representation jury necessarily its in the system relying Sheppard, without v. actually Thompson that sta case. In cie tistic for prima a holding (5th 1974), facie cert. case F.2d 830 Cir. proved.

had been Georgia, v. 43 L.Ed.2d 666 See Jones U.S. S.Ct. U.S. (1967) S.Ct. that in the con (1975), this court indicated (25.7%); Whitus v. Georgia, rights of a suit11 text to enforce (1967) (33.5%); blacks and women to serve Texas, Hernandez v. juries, 347 U.S. would not jury commission 10. Hernandez v. Texas, made, we must statistics compare holding 667, 98 L.Ed. 866 Hernandez. of Her- statistic from 11% nandez was that a disparity between the 14% group’s population and the participa- indiscrimi- typically 11. While the courts have tion in the facie prima proved and criminal defend- cited habeas nately corpus case of discrimination. challenges together opinion, ants’ with civil dis- however, the Court indicated there an 11 crimination has indicated that suits, this court % jury-aged between the there are times is sufficient when a disparity group’s in the participation system. suit, in a civil but may require recomposition For then, purposes the extеnt comparison defendant’s or habeas satisfy criminal we look to the of blacks Berry burden of petitioner’s Cooper, proof. jury-aged 1978); (5th Orleans to deter- Parish Porter 577 F.2d 322 Cir. v. Free- mine whether 1978). facie case has prima man, 577 F.2d 329 lists,12 required recompose cially subject race-neutral was not Transferring facts disparity Thompson was of abuse. the

when there a 11% between proving in the into for percentage popula- jury the of blacks total the model discrimina- case, it that percentage tion and the of blacks on the tion in a criminal is conceivable petition- jury jury list. In that the commission the court would have held that the case proved by showing of er facie case system prima had utilized a selection which had a the subjective disparity, no in it.13 The court existence 11% that it factors stat- of an but by the jury ed: was rebutted commission’s system racially showing that was neu- the jury We conclude that a list drawn subject tral to abuse. and not mechanically, and at objectively, random voting from the of a is county entire list Alabama, In Swain v. entitled presumption to the that (1965), the Su- fairly drawn from a source which is a preme petitioner the had not Court held representative of the inhab- cross-section proved facie prima petitioner case. The jurisdiction. presump- itants of that The proved between disparity14 there a 10% was tion, course, of is rebuttable but the chal- the of percentage popu- blacks in the male lenger showing burden of carry must the age lation over of 21 and the is, that product procedure of such a appeared of jury blacks which on venires fact, constitutionally defective. period years. over a of The Court indicated there proof jury was no that commis- 490 F.2d at 833. applying sioners were their selection crite- placing contrast to the rule the burden ria differently depеnding on the of the race proof upon the criminal of defendant prospective juror disparity and that the was challenge jury composition, to the attempt so small as to reflect “no studied Thompson appeared place the ini- specified include or exclude a of number showing tial burden of a fair objective Negroes.” 380 U.S. at at 830. system jury of selection on jury com- mission. therefore, The disparity fact that It argued, 11% can be Su- was held not to require recomposition preme acceptable set of the Court has 10% as an lists, jury then, be disparity, must where no evi- evaluated in con- at least there is junction with the fact system all indica- dence that of selection tions the selection procedure subject was racially both fa- neutral or is to abuse. jury recomposed completely through objective 12. lists had been ed once standards. preliminary injunction after list, however, had composed issued That of 80.8% response plaintiffs plaintiffs to the suit. The white individu- individuals and black 19.2% argued appeal disparity was still disparity representation als —an 11 between % large, though too even all indications were the representation gener- list randomly. compiled lists were population. al process composing It is clear that the of compiled by randomly The new list was 13. se- neutral, racially start lecting list was from every fourth from name the voter list. argument finish. A made similar cannot be This resulted in a list which of were white 75% people people, composing jury about for were black lists a mere 25% 5% disparity trial, from the total black Orleans Parish at the time of Barksdale’s county. discussed, selected individuals were sent as will be infra. ' racially questionnaire. neutral Some of the questionnaires disparity returned 14. were undelivered characterized post office; were others delivered but never 380 U.S. at 824. The evi- 10%. returned to however, Commission. After the showed, comprised dence that blacks non-delivery reduction because of or non-re- age over the 21. The of 26% percentage questionnaire, striking turn of the after from blacks on of exempt the list individuals who asked to be panels period over a of about 10 age, occupation either because of old their rep- between While the court’s 15%. 10% women, they striking because were and after is, resentation there- as 10% disability, physical those who cited were unable fore, questionable, holding rested there write, away to read or at school or were being percentage disparity. a small Id. overall deceased, commission had a list select- According a Prima Facie court’s A. Did Barksdale Prove district fact, findings ? largely adopted Case State,15 proposed findings of fact of the course, question, “There is no comprised popula 38.8% the total group Negroes, are members of a . tion of Orleans Parish in 1962 and capable distinct recognizable as a class Parish in 1963.16 These percentages singled treatment being out different compared the representation should Mitchell, under laws.” Rose v. venire, blacks on Accordingly, we must now turn to juries grand petit which both and were presented in the statistics Barksdale has January selected. blacks allegation of com support his that there was venire, of prised general jury the systematic in 14.9% and against discrimination blacks by 1964 number had petit jurors slipped the of in the to grand selection and 14%.17 early compared general Orleans Parish in the 1960’s. This should be roughly figure. portion spent argues of reflect that Barksdale 15. The State considerable its explaining why stipulated this distribution brief the statistics it favors the State because less people “It than race is known are reason to of the on the venire He tо in the district court are erroneous. well settled that is whose 14% fairly argues stipulations no of fact en- black. there is represented conclusive, presume controlling that blacks are into are and tered and any part greater among them, number the of the to courts even the bound enforce government venire nire as a whole. race party whose is unknown than the ve- if is the bound.” A. States, Coop. Duda Sons Ass'n v. United & State, hand, argued on 1974) (citations The the other before F.2d omit- persons court will, therefore, the district that the whose is ted). race permit- The State not be should unknown be considered to be appeal ted to attack on the which it statistics to 50% argument black and the fact that at one It bases its on white. stipulated below. 50% point people the race of 13 16. All statistics are drawn from the district listed as “undetermined” was determined. Of findings other- court’s wise. The of fact unless indicated argues the 7 were black. The State there- found district court also that persons fore unknown should of that all whose is race 50% comprise population aged the of male to be be considered black. 33.7% parish 21-64 in the same was of the adopted argument 1962 and The district court that 34.4% population population findings in 1963. The male figure. based fact on its of the 50% ruling used at the of Barksdale’s because time While the cally such a is soundness of statisti- prosecution, say indictment and placed requested were not suspect, females we cannot the district court jury duty they specifically clearly on ruling. unless erroneous so court, however, argued to serve. Both the State and Barks- The State before this agreed persons dale so to that few women asked that be that termined should be considered to the whose race is unde- 100% placed jury duty on male the It black. argument supposed “stipulation” was the relevant bases one. its on figure. A Barksdale’s trial counsel percentage appearing 17. The of blacks on dif- record, however, reading careful that was compliance reveals major ferent venires been a con- has source of which the State tne statement to refers parties. tention between the individuals on the venire is The race of the attempting gain made the context look- determined jury the commissioner with ing very “questionnaire” back short in- Subpoena jury Barksdale’s records. The Duces Tecum for prospective cluded the summons sent to the jury commissioner refused to jurors. questionnaire race of asked stating comply subpoena, with the the records person. dispute the that some from the fact arises not reliable because of number of blank, people question left people did what who not indicate their race is, marking others marked “C.” “C” attempt was or who marked it In an “C.” course, ambiguous person have could jury commission, —the obtain some records from the meant either “colored” or Caucasian. attorney requested the court to argued judicial before the district take notice the fact that a “C” persons that the should whose race is unknown means trial however, colored. The re- request by considering be distributed of them to fused this and also refused to order 32% comply be black and the remainder white. Barksdale commission to with the subpoe- fair, Thus, argues this nas. sidered to be a never even if or if it favors distribution statement could be con- other, party proposed one argument population (i. stipulation, it favors the State. The it was eligible roughly accepted is that the court. 32% e., age, purposes appeal, five or more For of this we adopt will education, occupationally exempt) finding and not the district court’s and consider 50% black therefore the unknowns should those whose race is unknown to be black. As eight-year period. venires over an figures of in 1962 and 1963, leading to 23.9% and 25.2% 39.5% in random- grand jury venires were.chosen 1963, respectively. disparities in 1962 and as- general venire it can be ly from calculation, disparities are any those Under sumed, contrary, evidence to the absent enough suggest race-neutral large which existed between disparities being placing used when criteria were not grand jury percentage of blacks on on the venire.18 names population over general venires and the juries grand petit Because both approximately eight-year period are ap were selected from the names the same as existed between venire, general it is clear that peared on general on the venire and those of blacks petitioner systemat shows to the extent general population. participation ic exclusion of blacks from full petitioner statistics Using venire, proved he venires, it is obvi- presented grand jury existence of both dis which existed in disparities ous that crimination. of a 1962 and 1963 are not isolated instances findings The district court made no of disparity, typical dispropor- are of the but disparities fact which existed over a jury blacks in the representation tionate period years. produce Barksdale did not years. average system throughout percentage evidence of the of blacks on the percentage of blacks disparity between the years, general period venire over a but general population20 percent- and the present did uncontroverted evidence19 of appearing age grand jury the number venires of blacks blacks disparities appreciably contrary. 18. These are data to the While there re have census jury-aged duced when statistics of thе population number of male was no evidence on the blacks population years, are used. The district court found for each of those the numbers population aged using LaGrangi- of the male 21-64 was can be derived the Three Point 33.7% black in 1962, popula Interpolation, interpolation of the same an a statistical re- 34.4% Comparing fig tion was black in implicitly those adopted lied on Barksdale and percentage general ures to the 1950, of blacks in the Using the district court. 1960 and venire, jury disparity there is an data, following general popula- 1970 census 18.8% disparity and a compared in 1963. This should be years 20.1% tion are derived for the 1954- statistics disparity between the 14% 1962: jury-aged population jury system par and the Total Parish ticipation prima found to constitute a facie case Population Year Total Black Black % Louisiana, in Alexander v. 405 U.S. 160,906 48,338 (1972), 31 L.Ed.2d 536 and the ob 30.03% 160,176 48,767 Texas, disparity served in Hernandez v. 30.45% 11% 159,319 49,163 98 L.Ed. 866 30.86% 158,338 49,525 10, supra. See note 31.28% 157,224 49,854 31.71% 155,986 50,150 19. This evidence was controverted to the limit- 32.15% argument 154,621 50,412 ed extent of the over how to distrib- 32.60% 153,128 50,641 ute individuals whose race was unknown. 33.07% 151,510 51,059 33.70% party presented 20. Neither evidence of what therefore, eight-year period, Over that blacks percentage population averaged population of the Par- 31.76% year for each between 1954 and 1962. Unlike ish. Castaneda, see note LaGrangian for the Three Point The formula supra, we cannot assume the black Interpolation is as follows: remained constant over those because we figures stipulation originally 21. These taken from a and were introduced quash part the Indict- entered into between the State and Barksdale trial as a of his motion to (and presumably thus also on the

venires) through from 1954 1962 is 20.29% and is discussed ‍‌‌‌​‌​​‌​‌‌‌​‌‌​​‌‌​‌​​‌‌​​​​​​​‌​​‌​​​‌​‌‌​​​‌‌‍at length in that range with a The opinion. 18.7% 22.21%.22

petitioner clearly prima proved facie

case jury discrimination with these sta- presented by The evidence tistics.23 subpoe- commission would showed somе, all, na but not individuals listed in the To buttress prima through case made city directory previously who had not showing, the statistical there is evidence juries. stipu- to serve on It was qualified selection used in Or approximate- court that lated in the district subject leans Parish was to abuse one who appear one-third of those summoned ly was of a mind to discriminate. The first jury commission were black. As before the step in the process selection was taken aged 21-64 in of black males commission subpoenaing people to parish roughly appear for qualification. service one-third, appear the use of would commission admittedly subpoena did not all directory any was not the source of city jury age. males24 of It those excluded who nearly one- discrimination. While occupational exemption could claim an racial black, only were 15:174, third of those summoned jury service under such La.R.S. physicians, firemen, attorneys of those on the wheel as of teachers. Additionally, subpoena it did not those who January approx- black. There is were companies per- day imately worked as laborers between 18% past experience knew from centage appear commission of blacks summoned to be- pay they while would not its workers and those whose names fore the commission jury duty. process subpoena jury on This of not list. At this were included on the po- ing large group day spe phase procedure of laborers was the race of Bennett, members cifically jurors v. 365 tential was obvious to the at issue Labat (5th 1966), cert. 386 F.2d 698 Cir. of the jury commission as the individuals however, figures, ment. These unlike those in Black Black on % % stipulation, Jury the initial are combined for each in General Grand Population Disparity year, presenting rather than the numbers for Year Venire Also, grand jury. each individual the column 1958 31.71% 9.50% 22.21% by adding labeled Number of Blacks is derived 1959 32.15% 10.50% 21.65% persons of all whose race was unknown 50% to the number of 1960 32.60% 12.66% 19.94% person If known to be black. 1961 33.07% 13.33% 19.74% fraction, that resulted the fraction is round- 1962 33.70% 14.85% 18.85% person up ed and the is considered black. Number only Total findings 23. The district court made limited Blacks relating representation Grand of fact of blacks Jury Final Grand petit jury Number venires. The district court found Jury comprised petit Black jury Black that Venire % Year ve- 13.9% petit jury nires in 1962 and venires in 21.8% 0 17 150 1954 11.33% Comparing three fig- months of 1963. those 2 19 175 1955 10.85% general population figures, dispari- ures to the 0 16 150 1956 10.66% ties of in 1962 and in 1963 are 24.9% 17.7% 3 19 200 1957 9.50% revealed. 3 19 200 1958 9.50% figures may supplemented Those with the 4 21 200 1959 10.50% general statistical information on the venire 3 19 150 1960 12.66% grand jury derived from the venires from 1954 4 20 150 1961 13.33% through proposed petit jury 1962. Because ve- 4 26 175 14.85% randomly general nires were chosen venire, from the disparities we can assume the found 22. Black Black on % % grand jury general between the venires and the Jury Grand General approximately the same as were Disparity Population Venire Year present proposed petit jury between the venires general populations. 30.03% 11.33% 18.70% and the 30.45% 10.85% 19.60% 16, supra. note See 30.86% 10.66% 20.20% 9.50% 21.78% juror potential race of the was known personally before required appear agent. The evidence shows the selection cases, the Court prior In the commission. virtually no in the that there was reduction opportunity recognized that there is level,25sug- of blacks at this representation permits for abuse in a race was not taken into gesting that juror to be known potential race of the judges they trial when account jury. Alexan- people selecting the See pro- granted excuses in order reduce Louisiana, der v. 405 U.S. petit posed petit venire to the final venire. (1972); Georgia, Jones v. 31 L.Ed.2d 536 (1967); consciousness, 19 L.Ed.2d race There is evidence of however, Georgia, impaneling grand juries. 389 U.S. 88 S.Ct. Sims in the Georgia, (1967); Whitus v. year grand jury 19 L.Ed.2d 634 Twice a venire was randomly general from the drawn venire. (1967); Wyrick, Ross v. 581 F.2d judge charge grand jury 1978). rep- large peo- reduction would select twelve term of court stage grand at this would ple jury resentation of blacks to serve on the from the perhaps advantage was taken suggest suggests venire. The record grand opportunity. beginning September of that with the systematic attempt there was a Grand In impanel grand order to petit jury, grand jury— place every two blacks on commissioners chose a venire ran- grand jury each there were two blacks on domly general from the venire. September through September 1962 and for which we have 1962, except September for the 1960 Grand statistics on the percentage of blacks on the Jury, only which had one black. general venire, process this selecting argues sequence grand venires resulted in grand jury (2 participation black — 2— jury venires with virtually per- the same 2—2—1—2—2—2—2) evidences discrimination centage of blacks as the venire. through agree. limited inclusion. We petit juries, For juries, after the commis- evidence shows that in nine sion had a proposed petit jury selected ve- where the number of blacks on the venire nire, judge fourteen, of each section would reduce varied from six to the number of all, that section’s approximately venire in half vary blacks selected to serve did not petit arrive at a final jury Again except only venire. for jury the one which had one point this process in the selection the black.26 example, jury perhaps 25. the final while total exclusion had ended with black, only Eubanks, venires through were than less inclu that exclusion limited 1% the present of blacks in the venire. sion was in the Barksdale case. 391 F.2d at 696-97. Judge Jr., Haggerty, impan Edward A. who As further evidence that there was race con- September Jury eled the 1960 Grand which had grand jurors, sciousness in the selection of only one black it on testified at the on Jr., Brahney, Judge Thomas M. testified in re- Barksdale’s se Motions to that “I had Quash impaneling gard grand to the Negroes up. lected two I and one didn’t show distinctly had two blacks on it: “I recall there had alternatives in mind I him at and called for prospective jurors three colored were two or Negroes that time. I had selected two to serve them wish and one of didn’t to serve and even grand jury on the in 1960.” T. 246. Were it appointed after I them and one ill of them took party, not for the absence that there would I called several others . . . one of every grand jury have been two blacks on from them became ill if I Louisiana, and called to see could the time Eubanks v. condition, replace him and one had a heart was decided quit jury.” appears through Jury he the It then that the when Grand which indicted Barks- grand juror judges purposeful- dale. one black fell he was Eubanks held that the ill black, ly replaced suggesting commissioners of Orleans in with another Parish had been the tentionally excluding grand judge making blacks from was not race-neutral selections. participation, and directed that such conduct stop. suggested must This court in Goins Allgood, 1968), 391 F.2d 692 that flipped coins The statistician who testified for Barks- were ten times and each time probability dale hav- up tails, indicated that one heads came and the other there juries ing only on each two blacks of those suspicion would be understandable that one, but given the amount of variance something was (perhaps amiss the coins venire, is number of blacks on the less coins). were not “fair” than one in a thousand. See also Finkel- essentially problem This was with the stein, The Deci- Application of Statistical “conflicting” testimony experts. of the two sion Theory Discrimination expert given The State’s testified that Cases, dis- Harv.L.Rev. The venire, number of on each finding trict court of fact made no on draw of random selection most likely point, that it with indicating was faced jurors just result would be two black as — “totally views of opposing competent and one likely one “head” “tail” is the most qualified experts,” that therefore any given flip result of of two coins. The carry Barksdale had failed to his burden answer, however, question requires an that proof, at least to the extent that his case likely is was the most number of not what was solely improba- based the statistical on grand jury, each but whether blacks on bility of sequence representation that consistently getting suggests that number First, blacks. clear that it is something that besides a race-neutral selec- proved prima case facie discrimi- being expert tion was made. As the State’s nation independent of the highly suspicious question, himself to that did not address sequence of grand participation. only testimony the record is evidence Second, judge improperly we find the trial trial expert. judge’s The Barksdale’s found experts’ testimony to be in total finding hopelessly that evidence was conflict. contrary, experts On the the two was, therefore, clearly conflicting errone- responding to the same issue. of black sequence ous. We hold that expert only testified that juries grand representation probability was less than one in a thousand September September 1958 to 1962 was suf- that the 2 — 2—2 — 2—1—2—2—2—2 sequence unlikely ficiently that it constitutes addi- produced by a selection tional of discrimination in the im- evidence race expert, neutral. The State’s grand juries paneling of in Orleans Parish. hand, other given testified that percent age of venire, each having blacks on two

black jurors on a jury was not statis the State Rebut Barksdale’s Pri- Did B. tically undisputed. unusual. That Facie ma Case? problem recog with analysis, the State’s majority in Castane- rejection by nized by judge during trial the eviden da position of the dissent tiary hearing, fails to address presenting narrowed statistics is burden of itself question raised Barksdale. petitioner makes it clear it is question only having is not whether produce burden to such evi- State’s two blacks grand jury, given on a num below, however, the dence. At ber venire, of sufficiently blacks the on is presented some evidence which Barksdale statistically to is the suggest unusual it population to narrow the to a can be used product of proc a race-conscious selection group simply than the precise more ess, but consistent the whether of selection population jury-aged popula- or even the two black grand jurors sufficiently is un as it was the bur- tion. Inasmuch State’s usual to suggest there is not a neutral race evidence, any ambigui- this produce den to selection process. missing be ties statistics must construed or Analogous flipping would of two State, against than against rather coins. If up one coin came heads and the Barksdale. tails, other explain a statistician that would unusual; this that, appeal is not of the on is fact, position is the State this first, likely however, If, disparities result. between the the same two two-fold: serve, ed to La.Const. art. Addi- eligible jury system are population § and by the were great tionally, groups as as found district individuals certain not those permitted Proposed when the' State’s to excuse themselves from adopting court persons age under its revised sta- service. This included over the Findings of Fact and infirm, prove prima physically of Barksdale not facie and those tistics did case; second, occupations. any may be ex- certain La.R.S. 15:174. educational plained by the lower achieve- In the ar district Barksdale question of at the time in ments blacks gued population com that the relevant was by greater percentage the fact that a of prised of of Orleans Parish be residents companies than whites worked for age tween the 21 and 64 who were while pay they which would not them were literate dur occupationally exempt and not serving jury duty given on and hence were ing question. did State hardship deferments. We find the State’s not at dispute hearing, but on that proposition first to the process antithetical appeal argues age exemp because the that appellate proposi- review second personal every tion is not by exercised unsupported by tion the evidence. one, persons excluding those 65 and older brief, argues length population In its at from the statistical results in State misleading disparities by that the statistical found statistics. Even if the State assertion, correct in it wrong they trial court are because are had the burden dispari presenting on evidence what the improperly based constituted statistics. ties would been had a age-nar have valid reading Proposed Findings A careful rowed examined. by parties of Fact submitted reveals presented no evidence to district State many findings proposed by that conclude, court on this issue. We must stipulated Barksdale were the State. therefore, popu that the exclusion from the disagreed When the State and Barksdale on lation over 64 proper, of those see proposed finding, trial court uniform- Commission, Carter v. accepted ly proposed finding. the State’s that or findings While this court reverse must disparities. made no difference in the found erroneous, which clearly fact are we find findings clearly these are not erroneous. argues appeal Additionally, the State Furthermore, proposed they were literacy figures presented It is with the appellate State. inconsistent they misleading Barksdale are because litigant process permit propose find- interpolated census data for 1960 and ings of fact argue at trial and then presented there was no evidence findings appeal clearly that those erro- how much required education should be neous.27 person order for a to be liter- considered argues ate.28 The further there State At the time indicted and way is no to ascertain at what level tried, qualifications service That education an individual is literate. were established La.R.S. 15:172. That so; however, may be Castaneda establishes required jurors statute to be citizens of the proving the burden such factors state, older, 21 years or residents of the not the petitioner. parish for year prior one service on a jury, English, able to read write Castaneda looked charged any schooling.” under interdiction with of- had “some fense, conviction, felony not have a and of with presented Barksdale has well-known, good evidence, namely, standing sophisticated character and in more community. were exempt jury-aged popula- from of the male Women jury service they request- having unless tion five or more of years education. specifically 15, presents supra. See note 28. The data in terms 27. census statistics years completed of education than rather “literacy.”

271 stating they either that cannot read or This was the educational level utilized 698, Bennett, (5th Labat v. 365 F.2d 728 Cir. only they very that have had a write or denied, 991, 1966), cert. 386 U.S. 87 S.Ct. schooling, of formal or small amount 1303, again 18 L.Ed.2d 334 self-employed or showing they Henderson, (5th Newman v. 539 F.2d 502 employers will not excuse them that their denied, 914, 1976), Cir. cert. 433 97 U.S. pay them their from work and will not 2986, (1977). may S.Ct. 53 L.Ed.2d 1100 It jury. . wages they if serve on or with may persons not be that more than well established that concluso It is years uniformly four of education were suf ry by judges statements commis ficiently literate to have served on a Louisi sioners that there was no discrimination Statе, early ana 1960’s. The however, present any prima not selection will not rebut a facie did evidence to why using years show five proof. more of edu showing; there must be some See e. improper. cation would be As this was its Partida, 482, g., v. Castaneda U.S. burden, years we must assume that five 1272, (1977); Alexan S.Ct. 51 L.Ed.2d 498 generally education was sufficient to satis 625, 1221, Louisiana, der v. U.S. S.Ct. fy literacy requirement. The trial court Fouche, (1972); 31 L.Ed.2d 536 Turner v. comprised found that in 1962 blacks 346, 532, 24 L.Ed.2d 567 U.S. jury-aged population occupation (1970); Georgia, v. 389 ‍‌‌‌​‌​​‌​‌‌‌​‌‌​​‌‌​‌​​‌‌​​​​​​​‌​​‌​​​‌​‌‌​​​‌‌‍U.S. Sims ally exempt having years at least five (1967) (per 19 L.Ed.2d 634 cu comparable education. There was no find Louisiana, riam); Eubanks v. 356 U.S. ing any year, of fact for 1963 or other (1958); Pierre v. although present Barksdale did evidence Louisiana, 59 S.Ct. jury-aged population the literate male (1939); Wyrick, L.Ed. 757 Ross v. 581 F.2d Comparing in 1963 was 32.7% black. these (8th 1978). testimony Cir. In the population percent refined statistics to the Chairman, Jury the court is Commission age appearing general of blacks ve prior presented with little more than what 1963,disparities nire in 1962 and of 17%and satisfy inadequate courts have held is Again, highly 18.4% are found. these are proof. As was the case in State’s burden significant disparities.29 Louisiana, supra, Pierre the chairman’s any It is asserted dis- State primarily attempt explain disparity parity presumptively eligible between the literacy in terms of different levels between venire must supported in the blacks and whites is not qualification have been proc- created at the if record. The evidence shows that even agree. ess before the We commission. those with less than five education At hearing before the district court the population, are excluded from the relevant introduced, objection without significant disparity between the there is a Barksdale, stipulation which had been en- representation general pop of blacks in the stipulation tered into a different case. jury system. ulation and those in the testimony covered the the Chairman of the position that the remainder of State’s Jury given Commission would have had he explainable in terms of the disparity been called in that case.30 He would have benign system excusing “hard arguably testified disparity pre- that the between the Ben sumptively eligible ship” cases is without merit. Labat v. and the pool 1966), explainable nett, because: cert. 365 F.2d

an exceedingly large number of the Ne- (1967), held that such is not an gro appear Jury males who before the disqualify explanation disparity. Commissioners themselves for the It acceptable expert By proba- 29. Barksdale’s the time in the district testified that Knowles, bility large produced Commissioner Chairman of race-neutral selection is less than one in Commission at the time of .Barksdale’s ten thousand. indictment and trial was dead. excluding many wage earners 1960’sof language there was is true that Labat unconstitutional, therefore cannot wage earners had suggest daily that all for the explanation as an by used excluded, systematic and it was the in 1962 and 1963 which existed disparity which was un- exclusion of the entire class eligible black case, between acceptable. The evidence in the how- jury sys- within the the number of blacks ever, all many demonstrated that but not tem. either wage earners eliminated subpoenas, by being

never sent ex- being a literacy levels as Excluding different they cused the commission when came in disparities be- justification large for the qualified, by being to be or excused record, unsupported by it cause is judge proposed trial when he reduced exception be- excluding wage earner petit petit venire to the final venire or unconstitutional, the State cause it is itself grand jurors. when he chose 365 F.2d at legitimate left without a non-discrimina- is 714-15. prima tory explanation to rebut facie case. suggested While the Labat court it was the total exclusion which was remand the Accordingly, we reverse and unconstitutional, approval case, with court to enter cited and direct the district Co., of Bruce Thiel v. Pacific an order the conviction Southern U.S. rein- aside and that he be in which Barksdale be set L.Ed. 1181 days or be released from earners, dicted within 60 “Wage Court stated: custody. state including paid by day, those who are constitute a very portion substantial REMANDED. AND REVERSED community, portion a that cannot be inten tionally systematically excluded AINSWORTH, Judge, dissenting: Circuit whole in part doing without violence to case, majority’s action in this annul- jury system.” democratic nature of the ling 17-year-old a Louisiana state court con- (emphasis U.S. at at 987 Barksdale, rapist viction of confessed Bruce added) (footnote omitted). While state crime, serving now a life sentence for his juries court grand are not bound federal brings perceptive observation to mind requirements only by cross-section but where he wrote: “It of Justice Black equal protection guarantees, state court seemingly becoming more and more diffi- juries comprised must be of a cross- acceptance proposition for the gain cult to section of the community satisfy order to desirable, punishment guilty Amendment, Apodaca Oregon, Sixth things being equal.” Kaufman v. other States, 217, 240-41, United (1972). Thus, strictly while Thiel is not 1068, 1081, (Black, J., (1969) L.Ed.2d applicable, expressly as it was founded on dissenting). supervisory power Court’s over lower presented Uncontroverted evidence at his courts, certainly persuasive federal it is au aggravated rape trial Dis- Criminal thority proposition for the the exclu Parish, Louisiana, trict Court in Orleans sion wage earners need not be as com conclusively morning shows that on plete Judge may suggested Wisdom have 3, 1962, petitioner Bruce Barksdale October in Labat in order to cоnstitute denial of young apart- woman into her followed right comprised of a cross-sec Street, building ment in New Chartres tion of community. especially This is so Quarter, seeing French after her Orleans’ when wage the exclusion of earners creates grocery return from the store. He knocked presump 17—18% between inquired on her door and whether a couch tively eligible population and the participa hallway apartment was for sale. tion jury system. young opened the door to re- woman

Thus, practice spond request we hold that when Barksdale forci- early bly open, Parish in the slammed the door shoved existed Orleans leads, young apartment, police woman back into her and of these ap- able to her prehend threatened with a raised hammer. The Bruce Barksdale the next morning. past victim tried to run her but assailant positively Barksdale was by identified his grabbed was before she could reach the day victim on October following the stairway apartment building, in the and attack, in a lineup show-up held in a room forcibly brought apart- back into her police headquarters. at New Orleans ment and the door was locked behind her. two workmen also identified Barksdale at robbing victim, After his Barksdale lineup as the man with the hammer dragged her into the bedroom and shoved they vicinity had seen of the victim’s her face down placed into the bed. He his apartment day of the attack. back, knee in the middle of her and in- Clothing seized from Barksdale at the going formed her that “I’m not you to hurt time of his arrest matched the victim’s de- you if do as I tell you.” Barksdale ordered scription her apparel. assailant’s A ham- blouse, the woman to remove her and he mer similar to the one described ripped Then, her underwear off. with his victim was also recovered. Scientific tests hand, hammer still in his raped Barksdale clothing revealed seminal his victim. Barksdale then informed his fluid in genital region garments. of his “[y]ou victim that know I going am to have Furthermore, cat hair removed from Barks- you to kill now.” begged hysterically She clothing dale’s was found to match cat hair life, for her and Barksdale relented after bed, taken clothing from the victim’s requiring her to “swear on a Bible” that she pet cat. would tell no one of the incident. As he apartment, m., left the On October grabbed Barksdale at around 9 a. Barks- young dale again by police woman informed a officer outside his gave throat and her warning: you speak this “If cell that he anybody ever tell wished to with the offi- about this I you. apprehended will kill I have cers that had him day before and I again, will notified, and I better you not see on before. The Detective Bureau was streets.” arresting and one of the officers came to Barksdale’s cell. Barksdale informed Several hours later the victim was found officer that he wished to make a statement. in an extremely agitated and distressed Barksdale was then taken to the Detective landlord, condition her who managed to Office, Bureau Assignments General where extract an account of happened. what had he dictated a statement that was taken give She able to police description down typewriter by police verbatim on a assailant, of her police from which a com- lieutenant.1 facts in the statement are posite drawing was made. Two workers at the same rape as those related victim a hotel across the street from the victim’s as a witness at Barksdale’s trial.2 apartment gave police also descriptions of a man with a hammer seen in the vicinity trial, At presented counsel for Barksdale apartment that morning. On the basis no evidence in his favor and offered no trial, police typed 1. At officer who STATEMENT Early statement testified Wednesday that he took down morning. say the state- last I’d about exactly Barksdale, using o’clock, ment as dictated helping nine I was this white man phonetic spellings necessary. abed, car; when move out his house to his on Du- maine between Chartres and Decatur. I saw girl, girl, by pulling this dog white come confession, 2. The along full text of Barksdale’s along. carrying grocery bag. She was And I questions by police with several asked officers laughed way pulling dog, she was following statement, follows: laughed. got she looked at me and So after I Barksdale, CM, age Statement of one Bruce through man, helping my way I was on yrs, residing St, apartment, 1121 Ursuline rear again. back of town and I saw her She was Aggravated Rape relative going of one opened, in her door. And the door was -, WF, yrs residing_Char- passed by, was closed but I unlocked. St, upper apartment, tres front halfway occurred stopped went to the comer and AM, Wednesday, at 9:30 October 1962 at place came back. And I went inside the -Chartres St. upstairs hall. And I went and I seen where the Indeed, except perfunc- produced by

defense. for some nesses the state. The scientific tory police tests, cross-examination eyewitness officers re- identifications and other garding the linking voluntariness of Barksdale’s evidence the crime confession, counsel for Barksdale objection.3 did not were all admitted without Fur- thermore, even cross-examine the victim or other wit- throughout long and tedious dog my figured had made some mess and I went to Parish Prison and seened brother. door, place. changed was her IAnd knocked on the and Then I came back Ann and to 2429 St. opened They laying my she excepting the door. had sofa back into own clothes the shirt. jist outside the door in the I hall and asked her if IThe stood around and ball watched the she wanted to sell it. She was nervous and upset, guessshe game and then I went home. Then the next I was scared of me. The door day say I’d it was a little bit ball before the opened, missed, was and I reched at her but I game guess, police come on around noon I and then she tried to run out the door. Then apprehended my by my both me and wife grabbed reched at her and her her arms and they house. And cinct, booked me at the First Pre- in, pulled I her back and then I closed the door. they my police and took inwife another I couldn’t lock the door with the chain and I They they booking car. told me were me with door, told her to lock the and she locked the aggravated rape. morning I Then this told the money, say door. I asked her for she she didn’t turnkey I wanted to talk to one of Detec- money, give have no she hand me a dollar and I tives that arrested me and tell ’em the truth got it back to her. Seemed to me like she everything. say git about He he would ’em. whining git- nervous and start to like she was willing And this I Officer asked me if would be ting ready holler, got and I that’s when put my story writing say yeah. down in I and my pocket. hammer from back I drew it back brought up And that’s when he me here to her, say and she don’t hurt me and I told her make the statement. going I wasn’t to hurt her. I told her to take following questions propounded by clothes, skirt, off her she had on a tie on Jerry corresponding Officer Chatelain and the scared, kept she took it off. She was she given by answers were Bruce Barksdale. saying me, don’t hurt don’t hurt me. And I told you What kind of hammer was it that Q. used go lay lay her to on the bed. She on the bed on raping girl? lay her back but she kinda across the bed. I opener, A. A small iron crate the one that the pants reched down and tore her off. Then I police got from 2429 St. Ann. my private got top took out and of her. you When did take Q. the hammer off the put my her, private Then I and while I was bed? intercoursing I made her kiss me I and made A. After I’d asked to swear to God she tongue her stick her again out and I went to kiss hеr police. wouldn’t call the put tongue and she her back in. She told cry Did she seem you Q. scared or while gonna this was me hurt me and I told her no I’m not going on? going you to hurt and I took the hammer and A. She was scared and cried while I was inter- threw it on the bed next to her. She was coursing sitting her. standing up. on the bed I and was This you Is this all that Q. know about the was above? after I finish with her and I had come in A. all put That’s there is to my private my I know about it. pants her. had back in anybody promise you my anything Did pants. say Q. closed I told her I I know statement, you gonna they police. make this say or did threaten call the She man Ino you get you gonna police, ain’t call the make this statement? I’m from Illinois. No, my say you guilty A. gonna And I I own free don’t I will. Cause I’m care betcha still police. say you gonna help call of what I’d done. I wish And she that it’d me. hurt me say.no (s) gonna you. say and I I ain’t Bruce Barksdale hurt I you you gonna would swear on a bible ain’t call Bruce Barksdale police say and she This she don’t swear statement taken and she Detective Bureau say got say Headquarters Friday, she ain’t no bible. I if Police this was October you say you typed by gonna D/Sgt. Dyer someone else I pres- betcha if call Paul police they’d you. Chatelain, open Jerry completed kill I ence told her of Officer door and let me out. And as I walk out the at 10:30AM. say you gonna police. I door I know call Note: In this footnote the name and address say man, She I don’t wanna die. I ran on down of the victim have been deleted from the stairs, got then I protect identity. after outside I walked above confession to her back of town on Ursuline street one block and I caught Ursuline, Royal the bus on I went City to Canal Street and transferred to the bus and I went back Park entirely 3. The above recital facts was taken by my brother’s house at transcript testimony from the before the stayed 2429 St. Ann. IAnd there and I state criminal trial which was included changed completely, clothes and I waited and petition. exhibit to this habeas judicial peti- upheld case by reexamination of this the conviction. v. State Barks corpus dale, tions for habeas in both state and 198,170 (1964). 247 La. So.2d 374 courts, federal Barksdale’s confession has Supreme United States Court denied Barks challenged accuracy, never been for its reli- dale’s for a writ of certiorari. voluntariness, ability, admissibility. or Barksdale, Barksdale, short, guilty. is clearly He 297, (1965). Approximately L.Ed.2d contend, petition, does not in this habeas later, two Barksdale filed his first a single phrase, line he innocent. petition, ultimately state habeas which was guilt, jury’s determination of how- denied Louisiana Court. ever, others, in this case as in many so Dees, State ex rel. Barksdale v. 252 La. end, hardly the or even beginning 211 So.2d 318 Petitioner filed a end, only beginning.” “but the end of the petition, second state habeas also Friendly, Is Innocence Irrelevant? Collat- finally ex denied. State rel. Barksdale v. eral Judgments, Attack on Criminal 38 Henderson, La. 257 242 So.2d 886 (1970). trial, 142 U.Chi.L.Rev. Prior to (1971). black, Barksdale, who filed document petition filed Barksdale then this habeas Jury entitled “Motion to Aside Set Commis- in federal majority district court. The sion, Jury Venire, Jury General Ve- Grand opinion traces the path tortuous traveled nire, Grand and Petit Jurors Venire” through all sys- levels federal court ground on the of racial discrimination based filing petition.4 tem since the of that Suf- systematic exclusion of blacks. This mo- say fice it to that after the recent most tion by was the trial denied and after case, hearing federal court in the this dis- appealed conviction Barksdale to the Louisi- judge trict of the opinion that “the Court, ana Supreme contending that blacks testimony by evidence and adduced the had been unconstitutionally excluded from explains justifies” adequately state the jury the in venires his case. The Louisiana Court, decision, disрarities by majority statistical noted in a the unanimous opinion. found no view my judgment unconstitutional exclusion of the from the Orleans Parish judge venires trial not should be disturbed. majority, point estop 4. collaterally As noted at one Barks- man the State decision could dale’s relitigating legality instant was consolidated with of Louisiana of purpose September of John Newman for the of Jury,” an Grand should 1962 the state evidentiary hearing magistrate. before a federal not be bound conclusion of the in court hearing magistrate, After before the Newman. The state offered no factual defense separated cases were back and sent or law memoranda of to the district court in the judges initially district to whom the cases had case, original hearing Newman assigned. judge The district set aside district case. A court in this new state District conviction, appealed. Newman’s and the state Attorney, recognizing gravity of these originally The Fifth Circuit reversed the district conviction, cases, case, sought rehearing in the Barksdale court and affirmed the presented and for the time evidence first ground objections that Newman had waived his allegations. rebut Barksdale’s Barksdale regarding panel. Newman v. Hender- Henderson, (5th 1975), 510 F.2d 382 cert. Cir. son, 1974). (5th 496 F.2d 896 Cir. The Su- L.Ed.2d preme opinion, Court vacated that and remand- (1975). sought A new was not argument ed for reconsideration of the waiver because, time, Newman at the the Fifth Circuit Henderson, upon. relied Newman v. 425 U.S. ground had reversed the district court on On petitioner challenge that the had waived his remand, parties, without briefs from the jury. Henderson, Newman v. F.2d 896 Fifth Circuit reversed itself and set aside New- (5th Thus, 1974). Cir. when Newman was fi- Henderson, man’s conviction. Newman v. nally Circuit, decided the Fifth the state had (5th 1976). supplemental F.2d 502 Cir. In a attempted allegations rebut of racial brief, the state recites that in Newman it “was Therefore, New- discrimination in case. given opрortunity fully present no the issues govern man should not this case in Supplemental appellee to the Court.” brief of contesting state is Barksdale’s contentions of at 6. racial discrimination. Although the court notes in footnote “expressly declines to decide whether the New- phenomenon. presented of this judge noted that since the The district Louisiana, Levine, testimony of Arnold expert in Eubanks v. Dr. decision Mathematics, black Professor of Tulane Universi- L.Ed.2d ty, support his that there Parish ve- contention representation Orleans statistical evidence of racial discrimination undergone change nires has dramatic —with jurors the time the selection at of his petit jury representation proposed black To conviction.6 counter Dr. Levine’s com- rising from in 1952 to venires 14.9% putations, offered Furthermore, State Louisiana found that at Smith, testimony of Dr. W. Asso- David conviction the time Orle- Statistics, Experimental ciate ans Professor Parish commissioners not ex- University, Louisiana who cluding “daily wage “entire class” concluded earners,” there was no evidence of nonrandom practice prohib- to have a found grand jurors selection of in Orleans Parish discriminatory impact ited Labat v. Ben- nett, 1966).5 pro- the time of Barksdale’s trial.7 The F.2d 698 professors fessional judge district resumes both concluded that evidence intro- impressive, appear highly quali- both duced the state to be statisticians, competent fied and and both petitioner’s indicates that the time of [at] Thus, divergent reach conclusions. trial the judges commission not, opinion case is as the majority sug- engaged were not in invidious racial dis- gests, merely example this court re- purposeful crimination and exclusion of a sponding clearly defined set of facts. blacks as a class jury from service on the Before the court can for Barksdale hold grand petit juries. testimony The today, it to decide set of facts— and evidence demonstrates that an at- worthy the state’s or Barksdale’s —is of be- tempt being to comply made with the lief. dictates of Although obviously Eubanks. early at this date disparities had not been proposed by If the statistical evidence percentages, reduced desired a sin- expert accepted, racial dis- cere effort to achieve this was in effect. parities between the black in . this record in case shows appearing Orleans Parish and blacks that the dramatic increase in repre- black venire, venire, general grand jury in sentation venires was not jury venires at the time his convic- Partida, tokenism. v. supra Castenda approach disparities tion 20%. Such disparities may holds that the statistical apparently majority sufficient under the be explained. We believe that the evi- view prima case of racial establish facie testimony dence and adduced the state If, however, we turn discrimination. adequately explains justifies those figures presented Dr. Levine’s to those disparities in this case. Smith, through Dr. State of Louisiana an entirely different view the Orleans Not satisfied legal with the factual and process presented. Parish selection determinations of the trial judge federal case, this the majority today upon relies contends on basis of state this computations series of statistical to set expert testimony disparity that the between statistics, aside this conviction. But like eligible black and the num- descriptive devices, most can sometimes be ber of venire is support used compel pre- 8.7%, even only per- the difference between the —and —a conceived result. The statistics bantered centage of blacks with a fifth- sixth- about grade (26.2%) case are an excellent example education Levine, improper Jury 5. dealt 6. Labat with Detection of Non-Randomness selection period ending Parish Orleans for a in 1953. Selections. specifically The district court in this case con- earners, daily wage cluded that the exclusion of Smith, Critique A of Non-Ran- of “Detection objectionable Labat, found did not occur in Selections." domness 1962-63, period the critical in this case. proverbial January man from Mars would jury wheel as of blacks in the disparity between (17.5%).8 As for the surely think we must consider our population and those serv- general black justice terribly bad if we are of criminal juries, Parish ing on Orleans willing undoing to tolerate such efforts at substantially figures again show state’s judgments of conviction. He would be proposed by than that Barks- gap smaller surprised, suppose, I should to be told dale, only 11.2%.9 If the court were to really that it never was bad and that both eighth- state’s contention that an adopt the steadily improving . it has been is essential to become a grade education grow His astonishment would when we qualified grand juror, would thing told him that the one almost never dispari- be a mere 5.8%.10 Such statistical suggested on collateral attack is that the prima ties are insufficient to establish a prisoner was innocent of the crime. facie case racial discrimination. See Friendly, supra throughout at 145. Never Alabama, v. Swain petitions that Barksdale’s have (1965) (disparity of 10% been before various courts has there been case); prima insufficient to state facie he slightest intimation that is innocent F.2d 830 Thompson Sheppard, of the crime for which he was convicted. 1974) (disparity insufficient for of 11% Judge Friendly As asserted in the above-cit- case). prima facie article, only exceptions, ed with few “con- case, The statistical evidence in this subject victions should be to collateral at- therefore, suggest- as is compelling is not as prisoner only supplements tack when the judge, majority. ed The trial who plea his constitutional with colorable position explore fully was in a the statis- Here, at 142. claim of innocence.” Id. experts Levine presented by tical evidence arguments Barksdale’s constitutional where Smith, exclu- found no unconstitutional guilt, his Parish shed no doubt on the issue of sion of blacks from Orleans venires at the time of Barksdale’s convic- especially wary should be to set aside tion. That determination of the factfind- ethereal as the grounds his conviction on judge er —the trial stand. LaGrangian Interpolation, re- Three Point —should majority in footnote 20 of the ferred to Barksdale’s collateral attacks on his crim- for opinion ascertain the black inal repeated conviction have received hear- figures are available. years where no actual ings and have many consumed hours of judicial hieroglyphic time.11 missioners, 8. Brief for at 30 31. appellee 518, (1970). 9. This is difference between disparity sixth-grade education, blacks with a fifth- or four sepa- 11. This alone has received petition Parish the Orleans population, hearings rate in federal court. evidentiary percentage serving actually of blacks hearing the first evidentiary February grand juries, at 33. Brief appellee magistrate. 15%. was had before a United States Relying magistrate’s between the on a the district the difference report, 10. This (J. eighth-grade judge Christenberry) granted percentage edu- with an of blacks later, cation, and the for habeas One corpus. year 20.8%, juries serving judgment between 1958 was vacated and a second evi- actually hearing Judge at 33. Brief for appellee was held before Chris- dentiary 15%. judgment rendered, Before could be are obtained by tenberry. the above statistics Admittedly, Judge imposing which died. Consequently, requirement Christenberry an educational black third was held before tends to cоnstrict qualified evidentiary pool (J. Schwartz). judge it is not unreasonable However, candidates. federal newly appointed hearing, achievement some level of educational At this third require state introduced sta- jurors. See v. Com- Carter prospective tistical evidence to counter that presented by means, affording of is “the corpus Levine, expert by Barksdale’s employed writ, of redress- extraordinary through an does the court footnote used 257-58, unjust Id. at ing an incarceration.” should that Barksdale the conclusion compel purpose is at 2063. That central the confusion merely adds to prevail. It decision,12espe- majority by the not served in this case. statistics contrary to the decision runs cially where formally opinion majority Although the federal the factual determinations of Barksdale retrial reindictment leaves highly doubt- upon judge and is based trial of time long period possibility, as a relating conjectural statistics ful and even commission elapsed since se- racial discrimination alleged with state trial in and the crime I Accordingly, dissent. reassembling lection. difficulties the attendant theory matter of evidence, this a “makes Thus, in at 147. supra Friendly, only.” sets decision majority effect

practical of a serious guilt whose person

free a beyond a reasona- apparent

heinous crime

ble doubt. collateral Justice Black stated that “[i]n TORTORICI, Plaintiff-Appellant, Lena corpus whether habeas

attacks v. always require proceedings, I would § HARRIS, Secretary of Patricia Roberts the kind defendant raise that the convicted Resources, Health and Human claim that casts some of constitutional Defendant-Appellee. Kaufman guilt.” shadow of a doubt on his 217, 242, States, v. United U.S. No. 79-2735 ‍‌‌‌​‌​​‌​‌‌‌​‌‌​​‌‌​‌​​‌‌​​​​​​​‌​​‌​​​‌​‌‌​​​‌‌‍1068, 1082, 22 L.Ed.2d Such Summary Calendar.* view is with the historical use to consonant Appeals, United States Court put. which the Great Writ has been See Fifth Circuit. Bustamonte, Schneckloth 2041, 2059, Jan. (Powell, J., concurring). As Mr. Justice concurring opinion Powell stated in his

Schneckloth, the “сentral reason” for habe- subject. in his As noted Mr. Justice Powell Judge Schwartz April Barksdale. On concurrence: denying Barksdale’s peti- an opinion rendered aby is called upon Whenever a federal court error opinion, of a factual tion. Because habeas cor- to issue a writ of state trial, prisoner and the a new moved for both parties things that it asked do two should pus, granted for a partial the motion district re- with restraint hearing, undertaken only evidentiary fourth trial. At this new justice our for the way spect evidence. additional introduced both parties general First, as one court structured. Judge a new rendered Schwartz June jurisdiction entertain a col- it is denying requested again opinion judgment of an- the final lateral attack upon habeas corpus. jurisdiction. Second, court of other Mitchell, 12. The Rose v. Supreme federalism, a lower contrary principles —U.S. —, 99 S.Ct. to review not only federal court is asked in the held that a claim of racial discrimination judgment, but almost invar- trial court’s state grand jury selection of a foreman presented highest judgment court of the iably regardless cognizable issue on habeas corpus as well. These considerations prompt guilt innocence petitioner more than this Court critically one inquire, regardless the state had of whether previously allow has, ever whether it is appropriate granted a full and fair to the petition the use of habeas state prisoners corpus claim. However, er’s portion opinion their who do not seek to protect personal holding value, so has questionable precedential justness convictions. interest of their for as noted Powell in his con Mr. Justice (Powell, J., concur- Id. at 3012 at-, 99 S.Ct. curring “not all of the four Members opinion, ring). join judg who even the Court’s support (Pow ment.” Id. n. at —, * 34(a); 5th Cir.R. Fed.R.App.P. judg concurring). ell, J., Court’s ment in Rose not be the final word on may

Case Details

Case Name: United States of America Ex Rel. Bruce Barksdale v. Frank Blackburn, Warden, Louisiana State Penitentiary

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 21, 1980

Citation: 610 F.2d 253

Docket Number: 78-2582

Court Abbreviation: 5th Cir.