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

1H5 STATES of America ex rel. UNITED BARKSDALE,

Bruce Petitioner-Appellant, BLACKBURN, Warden, Louisiana Frank Penitentiary,

State Respondent-Appellee.

No. 78-2582. Appeals, United States Court Fifth Circuit. March 14, 1981. Rehearing April Denied Reed, Orleans,

John Wilson New La. (Court-appointed), petitioner-appellant. Guste, Jr., Gen., J. Atty. Wm. Baton La., Connick, Rouge, Atty., F. Harry Dist. Wessel, Meissner, G. Brian William F. Asst. Orleans, La., Attys., Dist. New John S. Bak- er, Jr., La., Rouge, respondent- Baton appellee. GODBOLD, Judge,

Before Chief BROWN, COLEMAN, AINSWORTH, GEE, CLARK, RONEY, TJO- CHARLES FLAT, FAY, RUBIN, VANCE, KRAV ITCH, JOHNSON, Jr., GARZA, FRANK M. POLITZ, HENDERSON, REAVLEY, HATCHETT, ANDERSON, RANDALL, D. A. SAM JOHNSON THOMAS CLARK, Judges.* Circuit AINSWORTH, Judge: Circuit Barksdale, seeking aside Bruce to set his aggrava seventeen-year-old conviction for rape, appeals from ted petition denial his for a writ habeas * Judge James Hill of the court June C. recused himself and did not became member after Tate, participate argued Judge and taken this decision. Albert when this case was participate partici- Jr. did not decision of this He does consideration or under submission. not wish Judge pate case. Jerre S. Williams the decision. skirt, blouse, her an’s ordered her remove petition, corpus. As the basis for his Barks- dale, black, Then, alleges that blacks were who tore her underwear. off from the Orleans systematically excluded hand, in his Barksdale still the hammer Parish which indicted him her, raped “[y]ou his He told know victim. which included from the venire you kill going I am to have to now.” panel A of jurors who convicted him.1 the life, her and begged hysterically woman for court, dissenting, judge with one her to requiring Barksdale relented after re agreed with Barksdale’s contentions and of the As he swear to tell no one incident. States ex versed the district court. United grabbed the Barksdale his apartment, left Blackburn, 610 F.2d 253 rel. Barksdale by gave her a final victim the throat and 1980). (5th court then voted to Cir. The warning: anybody ever tell about you “If banc, rehear this case en United States ex have and I will you. this I will kill I before Blackburn, Barksdale F.2d rel. the again, you I better not see and 1980), (5th vacating panel the Cir. thus streets.” opinion. Fifth Circuit Local Rule 17. See later, A short the victim was found time systematic exclu We find that there was no agitated extremely in an and distressed juries of blacks the and sion from landlord. She was able condition her question, and therefore now af venires judgment description the assail- give police firm the court. a of her ant, composite drawing from which Background2 The Factual I. made. workers at a motel across the Two apartment victim’s also street from the facts of seem to have “been The this case ‘nice, descriptions man with a sharp quillets gave police lost of the of a ”3 morning vicinity morning. law.’ On October hammer seen a young Bruce followed leads, Barksdale police these On basis of apartment building her in New woman to Barksdale the next morn- apprehend able Quarter. French He knocked on Orleans’ ing. inquired and whether a couch in her door Barksdale positively The victim identified hallway was sale. As the woman attack, in a day after the October opened respond, Barksdale door to police headquarters. lineup at New Orleans door, against slammed shoved the wom The two also identified Barksdale. workmen her apartment, an back into and threatened Clothing from at the time seized Barksdale her with raised hammer. The woman descrip- his the victim’s arrest matched Barksdale, past grabbed run but he tried to A hammer tion of her assailant’s clothes. stairway she could reach the her before the victim similar to the one described brought forcibly apart her back into of Barks- was also found. Scientific tests victim, robbed his ment. Barksdale then fluid on the clothing dale’s revealed seminal bedroom, into pushed her and shoved garments. his Further- genital region of placed her face down bed. He his onto the more, removed from Barksdale’s cat hair back, her, knee the middle of her told vic- clothing hair taken from the matched I going you you “I’m not to hurt if do as pet bed, clothing and cat. you.” pulled Barksdale off the wom tim’s tell following petition alleged recital of the facts Barks- State prac- “[t]he Barksdale’s transcript from dale’s was taken of Louisiana ticed a number of the Parish Orleans crime court, systematic testimony the state criminal trial exclusion of all but a token before Negroes exhibit to this habeas from the which was included as an petition. charging petitioner returned the indictment aggravated Additionally, rape.” al- he leged State of Louisiana and the Bennett, “[t]he 365 F.2d 3. Labat v. systematic practiced Parish of Orleans exclu- J., 1966) (Gewin, dissenting). Negroes but a sion of all token number petit jury venire from which selected petitioner who tried who ren- guilty charged.” the verdict dered tests, eyewitness On October Barksdale asked see the scientific identifications make a with arresting officers in order to state evidence all were admitted and other subsequently He a confes objection. ment. dictated out found Barksdale typed po that was death charged imposed sion out verbatim guilty lice lieutenant. The facts in Barksdale’s penalty. sentence was later reduced to substantially statement corroborate those imprisonment. life rape related victim.4 Appeals II. Barksdale’s aggravated indicted

Barksdale was past years, seventeen Over the Barksdale by an Orleans Grand rape Jury. Parish every appellate has resorted to available Two members of that twelve channel, alleging in trial, variety of defects were black. Prior counsel for cluding jury discrimination. The Louisiana challenged composition Barksdale venire, and, jury venire, Supreme general grand jury appeal, the Court heard his first petit jury grand lengthy opinion, unanimously the in a no jury venire and the found itself, alleging systematic or blacks systematic exclusion of intentional exclusion of jury system, The state from since hearing noting blacks. trial court held a thе 584, Louisiana, developed to consider these Eubanks v. State of 356 contentions and U.S. 970, (1958), an extensive 78 2 L.Ed.2d case record which included the tes S.Ct. 991 timony of the which Chairman of the Orleans Par reversed murder conviction because discrimination, Jury judges judges ish Commission and seven “the parish adopted practice jury the Orleans Parish the have Criminal District Court.5 addition, keeping spirit In of the counsel for Barksdale and the selection in the entered stipulations state into written re law announced Eubanks case.” State Barksdale, 374, 380 198, 170 garding representation black on the v. 247 La. venires So.2d juries (1964). the presented jury and for various Based Barksdale then his years. on record, this claims to court denied Barksdale’s the United States Court, challenges. certiorari, Supreme 382 denied 921, 297, 15 (1965). 86 S.Ct. U.S. L.Ed.2d 236 trial, At presented Barksdale no evidence later, Approximately years two Louisi testimony in his favor and offered no ana Court denied ha Barksdale’s Indeed, except defense.6 for some limited petition. v. beas State ex rel. Barksdale police regard cross-examination of officers Dees, 434, La. (1968).7 211 318 So.2d ing confession, the voluntariness of the counsel for 1971, Barksdale did Barksdale for a petition not cross-examine filed a victim or produced corpus other witnesses writ of habeas in federal district confession, state. The petition accused’s court. originally was heard reproduced grand juries, they 4. Barksdale’s entire statement venires or but that affirma- original panel opinion tively sought decreasing repre- the dissent to the in this to avoid black jury panels. Virtually case. United States ex v. rel. Barksdale Black- venires sentation burn, supra, (Ains- judges F.2d at 273-74 n. 2 disproportion- all of the testified that a worth, J., dissenting). ately large number be ex- of blacks asked to hardship. cused because economic Knowles, 5. Daniel A. Chairman the Orleans Jury Commission, general Parish regarding pleaded guilty testified guilty 6. Barksdale and not lists, insanity. construction of various insanity reason of defense qualification process prospective jurors, trial, however, pursued never was was procedure developing utilized in final closing arguments. after withdrawn grand petit jury There was also venires. substantial discussion as to what information sys- petition alleged state habeas regarding Knowles could obtain from his files of blacks from tematic exclusion and petition, the racial characteristics of the selection venire. A later state habeas process. eventually supply Knowles did infor- denied, grounds not also was based on mation from which and the Barksdale state present petition. rel. related to State ex stipulations. extracted a series of statistical Henderson, 551, v. So.2d Barksdale La. judges The seven who testified stated (1971). intentionally did not exclude blacks literacy levels for and, that different magistrate, based on the contention a federal recommendations, district the lower magistrate’s explained white aside conviction. court set Barksdale’s participation was held be level of black Barksdale v. appeal state’s dismissed. F.2d at by the record.” 610 “unsupported Henderson, 73-1536, denied, 419 No. cert. contention that re- 272. The state’s 145, 42 880, 95 (1974). L.Ed.2d S.Ct. U.S. “in explained of the mainder The state then moved to vacate arguably benign system of terms judgment ground ‘hardship’ held to be excusing cases” was im hearing magistrate was an before Bennett, unacceptable light Labat Wingo delegation authority under proper Thus, supra, F.2d 698. with the state Wedding, legitimate without a non-discriminato- “left (1974). grant The motion was L.Ed.2d to rebut ry explanation Barksdale’s appeal, Barksdale ed and affirmed case,” panel set 610 F.2d at facie Henderson, Cir.), cert. F.2d 382 conviction. aside the denied, (1975). was remand L.Ed.2d 697 The case Is Guilt Irrelevant? III. and, hearing, after evidentiary ed for an hearings,8 fi district cоurt three such only one appeal, Barksdale raises On petition. denied the It found that nally issue, alleging in Orle- jury system jury com petitioner’s “the time of trial the blacks systematically ans Parish excluded in judges engaged and the were not mission grand jury petit jury and service. from purpose invidious racial discrimination and steps be- analytical must be taken Several jury ful exclusion of blacks as a class determined, issue can be fore this broad grand juries.” petit service on and Initially it however. must be determined court rul- appealed Barksdale proved prima facie whether Barksdale a court, one ing, panel and a issue in discrimination. At case reversed, holding that judge dissenting, how only will be not that determination prima presented Barksdale an unrebutted eli- disparity of a exists between the much case of racial discrimination. facie rep- black population black and actual gible compared percentage of the panel juries, how much of on but also resentation Parish in general of Orleans needed to the ease and prove 1963with of blacks 1962and and what statistical measures general venire for appearing representation appropriate. are Once dispari- years those and reasoned that the has it must proved, facie case been proved existence of both ties found “the effectively whether the state be determined be- grand petit jury and discrimination” be neces- that case. Here it will rebutted grand juries petit cause “both [the] Parish examine whether the Orleans sary to ap- selected from which the names excusing on re- certain workers system general 610 F.2d at peared on the venire.” constitutionally permissible quest was a addition, that the panel 266. In noted light in v. Ben- of rebuttal of Labat means juries sequence serving grand of blacks nett, supra, and related cases. through from 1954 in itself “evidences suggested by matter is preliminary A through discrimination limited inclusion.” made, and that Barksdale has never fact that the panel 610 F.2d held make, that any claim never colorable justifications disparities were could state’s for the he was of the crime for which unsupported illegal. The state’s he is innocent either state, hearing Judge error which and the introduced 8. The first before was held brief, through oppose Christenberry, motion. did not case was its who died while the evidentiary under consideration. A second Judge hearing was Friendly, therefore held before Collateral Is Innocence Irrelevant? Schwartz; petition. Judgments, he denied Barksdale 38 U.Chi.L.Rev. Attack on Criminal hearing of a factual moved for a new because (1970). opinion, Judge in error contained Schwartz’s 629, 637, (1950), Justice Powell in 94 L.Ed. 839 convicted. As stated his S.Ct. selection, v. Busta concurring opinion in grand jury Schneckloth in ab discrimination monte, 218, 257-58, discrimination, U.S. S.Ct. should never petit sent (1973), “central L.Ed.2d result in reversal of a conviction. Rose v. corpus affording reason” for habeas is “the Mitchell, 552, 99 supra, 443 S.Ct. at U.S. means, through writ, extraordinary an might very open It well still be an unjust redressing One incarceration.” whether, light in of the facts question question freeing can legitimately whether case, particular of a such circumstances petitioner guilty beyond who is a reasonable grand jury might be harm doubt of crime that cen a heinous furthers was a less error. If ever there case in tral concern. apply it is this which harmless error should mindful, however, one,

We recently grand jury in which the did include Mitchell, in Rose v. blacks, grand two in which (1979), 61 L.Ed.2d 739 Justice Black- jury selection occurred at time when mun in Part II of opinion wrote his great progress being made in eradicat Court that a claim of racial discrimination Louisiana, in ing jury discrimination in the selection of a foreman overwhelming the evidence so presented cognizable an issue cor on habeas grand jury, how that no no matter selected pus regardless guilt or innocence of constituted, indict, could fail to and in petitioner, regardless of whether which no serious claim of innocence has previously granted the state had full and ever been raised. hearing petitioner’s fair This claim. apparent response was an speculation precedential Whatever the value of raised by Powell in Justice his dissent opinion of Justice Part II Blackmun’s Castaneda where he stated “claims of Rose, may not be the word on the final cogniza discrimination are not subject. As Justice Powell noted his ble corpus on federal habeas after Stone concurrence: Powell, 465, 428 U.S. 96 3037 S.Ct. [49 upon is Whenever a federal court called (1976).” L.Ed.2d v. Castaneda Parti 1067] prisoner state issue a of by a writ da, 482, n.1, 1272, 508 U.S. 97 S.Ct. corpus, things it is to do two habeas asked 1287 n.1, However, (1977). L.Ed.2d Part only that should be with re- undertaken II opinion joined of Justice Blackmun’s respect way sys- straint and for the our by only justices joined judg two who in the First, justice is tem of structured. as one by ment of the Court and two dissenters general jurisdiction of it is request- court (Justices Stevens), leading White Jus upon ed to entertain a collateral attack tice question precedential Powell to its val judgment the final of another court of ue “for of not all the four Members who Second, jurisdiction. general contrary to

join support it the judgment.” even Court’s federalism, principles of a lower federal Mitchell, 582, n.3, supra, Rose v. 443 U.S. at is not only asked to review a state (Powell, J., n.3 concurring). S.Ct. at 3014 judgment, trial court’s but almost invari- holding Since “the of may the Court be judgment ably highest the court of position by viewed as that taken those as well. the These considerations State members judgment who concurred on inquire, critically one to more prompt grounds,” Gregg Georgia, narrowest v. has, whether than this Court ever it is 153, n.15, 2909, U.S. use of appropriate to allow the habeas n.15, (1976), 49 L.Ed.2d 859 Justice Powell’s prisoners who do not seek corpus state point is well Even considers taken. if one personal their interest in the protect part holding, Part II to be a the Court’s justness of their convictions. may dispositive not be of this Jus case. Mitchell, 579-80, supra, tice 443 U.S. at opinion Rose v. primarily Blackmun’s addresses (footnote omitted). The Jackson, at 3012 contention of Justice dissent 99 S.Ct. 282, 298, ing Texas, corpus guilty prisoners in Cassell 70 use of habeas to free v. U.S. par is indeed between black and black ity trial had a fair accurate who however, case, jury system, Parish present ticipation in the Orleans troublesome. inappropriateness prevail only if such need not rest but can we purposeful that Barks- corpus since we find from discrimination.” of habeas “results Partida, supra, v. prevail merits.10 do not U.S. at Castaneda dale’s claims 493, 97 S.Ct. Legal Issues IY. definitive means Castaneda set out a is Intentional discrimination racial proving discriminatory intent: claim. of Barksdale’s foundation Thus, equal in order to show that an cj.ges have the fact that “Recent established violation occurred in the protection has solely act is not unconstitutional an official selection, grand jury the de- context disproportionate a racially it has because procedure fendant must show that Partida, supra, impact.” Castaneda v. employed resulted in substantial under- 1279, citing Wash 97 S.Ct. at U.S. at representation his case or of identi- Davis, 229, 239, ington v. 96 S.Ct. belongs. group fiable to which he (1976); Arlington

2040, 2047, 48 L.Ed.2d 597 group Housing step first is to establish that is Heights Metropolitan Dev. class, recognizable, one that is a distinct 264-65, 97 S.Ct. Corp., 429 U.S. singled out for treatment under (1977). different L.Ed.2d 450 The evidence laws, statistical; applied.... as written or as presented in case Barks- is Next, degree underrepresentation even proof has offered no to show that dale propor- proved, comparing must be qualified from оne was excluded group total to relief tion of service. Barksdale not entitled dispar proportion serve as showing mere statistical to the called to upon a Standefer, issue, suggested public preliminary in a in racy interest accu “[t]he Another greater supplemental justice filed but not brief Barksdale results is criminal upon argument, economy judicial pro relied at oral is whether the concern than the cases____” collaterally contesting estopped from state fessed in civil Standefer United light of New- issue States, supra, 447 100 S.Ct. at U.S. at Henderson, 1976). man v. At one consolidated for the F.2d 502 Appeals opin (quoting from the Court point, petition was Barksdale’s habeas estoppel— ion). policy The other basis for evidentiary purpose of an litigants “protecting the burden of reliti hearing magistrate of John before a with that weight gating an identical issue”—carries little Newman, alleged who racial discrimination judg party not in the earlier when a involved part same indicted the Barksdale. After the offensively. estoppel use Park ment seeks to hearing, magistrate’s Shore, Hosiery supra, lane 326, Co. separated cases were and sent back to different Hosiery, at 649. In Parklane judges. district eventually Newman’s conviction emphasized courts Court should set aside the Fifth Circuit. “broad to determine when [of have discretion brief, heavily In his lane S.Ct. Barksdale on Park relies estoppel] apply.” should fensive collateral 439 322, Shore, Hosiery v. 99 Co. 331, not at 99 S.Ct. at 651. It was an U.S. 645, (1979), 58 L.Ed.2d civil case 552 deny application in of that to abuse discretion mutuality which held that the bar doctrine did estoppel appropriate case. Collateral is this application estoppel. “Under collateral litigated fully only issue was when identical doctrine, mutuality party could use this neither Here, prior is case. the issue whether against prior judgment estoppel as the the a other unless against system jury selection discriminated parties both bound Newman, In state contended first blacks. Id., 326-27, judgment.” 439 99 S.Ct. at U.S. at any (footnotes omitted). term, Newman had discrimination that waived how 649 ever, Just last and, later, failing object Supreme to at trial that nonmutual claim Court held that estoppel against on collateral be have relied state cannot used the federal findings hearing. should government evidentiary case. Standefer criminal own rather than hold its 1999, States, 10, 20-25, 100 Henderson, 447U.S. S.Ct. supra, United Newman v. 2006-08, (1980). 64 L.Ed.2d689 While Stande noted, “the at 504. As this court state F.2d fully dispositive in a fer is not of the issue finding attack the of the district court does not case, corpus certainly be habeas it would systematic quali exclusion of there was a that anomalous to maintain eral appeal, collat that nonmutual from the that indicted fied citizens estoppel apply does not or direct at trial Id. cannot now offen Newman.” Barksdale very but can be same invoked on the findings. sively use those unattacked case, proceeding. issue in a In as habeas this 205, significant at period over a 23%.” U.S. at 85 S.Ct. 827-28. above, Finally, time.... as noted a se- Court concluded that The insuffi procedure susceptible lection that is prima “to make out a case of cient facie supports racially or is not neutral abuse invidious discrimination under Four presumption that of discrimination raised 206, at teenth Amendment.” U.S. showing.. by the statistical .. Once the disparities at 828. While the actual S.Ct. defendant has substantial under- shown 16%, range found Swain from 11 to representation group, of his he has made purposeful Court held that discrimination prima discriminatory out a facie case of based race alone could not be “satisfac purpose, and the burden then shifts to the torily proved by showing that an identifia to rebut case. State that group community underrepre ble in a is Partida, supra, Castanedа v. 430 U.S. at by as sented much 10%.” 380 U.S. at 494-95, 97 S.Ct. at 1280. There are thus 208-09, Gewin, 85 S.Ct. An See parts four test. Decisions, Analysis Jury ap Selection plaintiff must first identify a distinct 805, pended Sparks, to Foster v. F.2d class, significant underrepre- then show a (5th 1975). circuit, 828-30 Cir. This class, then, sentation of finally, that Thompson Sheppard, F.2d support showing by demonstrating that denied, 984, 1974), cert. U.S. that the selection procedure susceptible is 1415, (1974), S.Ct. L.Ed.2d 666 held that part permits abuse. fourth of the test Jury required would Commission not be the state to rebut the inference of discrimi- recompose jury lists when was an there purpose. natory The test elimi- does not disparity between the percentage 11% discriminatory nate the need to show in- per blacks total and the tent, merely acknowledges but “[i]f centage of blacks list. disparity sufficiently is large, then greater disparities Whether or not consti unlikely solely it is due to chance or prima tute facie evidence of discrimination accident, and, in the absence of evidence to depends upon the facts of each case. contrary, one must conclude that racial Louisiana, supra, Alexander v. 405 U.S. at or other class-related factors entered into 92 S.Ct. at the Court found that process.” the selection Castaneda v. Parti- petitioner had da, prima established a facie supra, n.13, U.S. at 97 S.Ct. at juror case discrimination because the “se procedure 1280 n.13. This does not reveal procedures large how lection themselves were not ra disparity required estab- cially prima dispari lish a neutral” and there was a facie case what statistics 14% be defining disparity. ty eligible should used in between the presumptively population and actual prospective list of Supreme Court has “never an jurors. The Court made clear it did nounced mathematical standards for the rely alone, improbability “on statistical demonstration of ‘systematic’ exclusion of ” procedures sеlection themselves Louisiana, blacks .... Alexander not racially neutral.” 405 U.S. 1221, 1225, 31 L.Ed.2d at 1225. The Nevertheless, 14% (1972). guidance some prima only sufficient case create facie disparities necessary to raise a other evidence of A discrimination. facie case can gleaned be disparity of was Alabama, 14% found sufficient to precedent. Court In Swain v. 202, prima establish facie case in Hernandez v. 824, 13 (1965), U.S. S.Ct. L.Ed.2d 759 Texas, 475, 667, U.S. S.Ct. L.Ed. Negro evidence established that “while (1954), light in of- the fact that no males over 21 26% of in constitute all males person with county age group, in this a Mexican or Latin American only ‍​​​‌​‌​​​‌​‌‌‌‌‌‌​​‌‌​​‌​​​​​‌‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‌‍10 to 15% surname had ever served on a commis petit jury panels drawn sion, grand from the jury county. box since 1953 been or have Negroes [sic], Supreme having only there one In cases the has found been other Court high case in which the prima was as facie cases to be established when Partida, v. 23%, Castaneda v. found the Court. Turner disparities there 532, n.8, Fouche, 346, at 488 97 S.Ct. at 90 S.Ct. supra, 396 U.S. U.S. 33%, (1970); Jury v. the basis of proceeded Carter on L.Ed.2d 567 n.8. The Court 518, 320, Commission, population 396 U.S. S.Ct. because there general statistics 25.7%, Georgia, (1970); Jones v. assumptions” L.Ed.2d 549 in implicit “so many 4, 19 (1967); L.Ed.2d 25 88 S.Ct. eligible population sta of the untested use 33.5%, v. Georgia, Whitus appellate court could not which an tistics (1967). L.Ed.2d in record below which make “without a were tested.” Id. In assumptions those give some idea While the above cases cases, appropriate statistics other where magnitude to estab disparity needed record, the developed in the Court had been case, greatest signif prima facie their lish describing the on statistics relied there in their demonstration that icance lies eligible presumptively of blacks figure proves jury dis magic is no which See, g., v. Louisi e. Alexander service.12 given lit Any disparity means crimination. Alabama, ana, supra; supra; Swain isolation; in of inten tle determination Georgia, Georgia, supra; Whitus Jones requirеs ex tional racial discrimination supra. of all the facts and circum amination given Supreme of a case. The

stances The V. Statistics also do reveal which statis Court cases not dispari tics should be used to measure the court have The district court and this gen particular, ties. at issue is whether presented with a of statis been multitude meaning more eral statistics or attempts describe Orleans tics eligible population ful statistics should be as it almost two system Parish existed here, where, as are in used those statistics ago. Most of the statistics were decades important is an inquiry the record. Levine, Dr. proposed by expert, Barksdale’s given may one—a or de disparity increase stipulated during either the counsel substantially set depending crease on which hearing state court or the court district employed.11 of statistics is state, part, gener for its proceedings. proposed by ally accepted the statistics Partida, Although supra, Castaneda v. Barksdale, although appeal the state ar general population used statistics to meas gued original in its an even more brief disparities, ure racial that case should than that favorable view of statistics require using figures. be read to those While we do by the district court.13 taken When Supreme Castaneda reached the this Court, join fray, not decline to statistical appealed had been to this it tried and danger uncritical defer proves the It case general circuit on the basis of statistics. any In the absence of was oral ence statistics. argument not until before guidelines, persuasive figures can be clear Court that the State of Texas undermine support as well as to eligible popu contended that more narrow found finding explain lation would of a facie case discrim statistics findings general proposed example, popula- between thе time For case the tics this filing tion of Parish in 1963 found of its Orleans fact district court and district to be The male black. court.” 610 F.2d at 256. brief 39.5% population aged period was census, 21-64 in the same state, did basis the 1960 black, substantially lower. urge appellate 34.4% a view of the in its brief indeed than those favorable to its case statistics more Burger, dissenting 12. Chief Justice in Castane- posi- adopted the district court. The state’s Partida, supra, da v. 430 U.S. at defending regard in this clear —it tion “[tjhe wrote that decisions of this Court corpus re- denial of habeas district court’s demands, suggest, and that eli- common sense lief, the reasona- order to demonstrate statistics, gible population gross population result, attempted to the state bleness figures, provide starting point.” the relevant supportive there was a more demonstrate (emphasis original) available in the record. view panel majority opinion the criticized changing explanation state for “its the statis- of on Depending figures ination. com evidence before federal district court. pared, the disparity Second, between the actual places analysis our considerably juries participation black in the venires and greater emphasis stipu- certain statistics presumptively eligible and population may by both Barksdale lated and state be as small great as 4.34%14 or as before the state trial court and district figures 25.2%.15 But of these neither has court. any meaning unless the facts of this case are examined as a whole. The of this task Population Eligible A. The court is first to determine the con whether glomeration presented of statistics conclu Barksdale contends that he was indicted sively shows intentional racial discrimina grand and petit convicted tion, then and to determine whether jury from blacks systematically state has effectively showing. rebutted that excluded. To of assess the merits this claim, neсessary it is to first determine the Our analysis radically differs from percentage population eligible of the for panel First, that of the majority. we find blacks, grand jury service attributable describing statistics presumptively then percentage and to determine of eligible juror population, black rather than jurors According black and veniremen. general population, black provide the the statute in effect in compulsory proper starting point for inquiry into jury service was limited to males at least 21 disparities racial in Parish. Statistics old.16 had years Jurors to be literate in describing percentage of black males of English, a of jury age resident the Parish for one provided by Barksdale and service, year prior the state. Further and neither under regarding information eligible the presumptively indictment for a crime nor black convicted of a readily addition, felony. obtainable from the 1960 census certain persons were figures which Barksdale himself in occupationally exempt offered from service.17 disparity eligible upon competency The between black males discretion to decide of years (26.2%) particular physi- with at least seven of education in from cases where stipulated petit jury infirmity relationship, and the final venire for cal from or or other causes, (21.86%). be, person may opinion in the judge, incompetent upon to sit the trial of 15. The general between the any particular case. (39.5%) in 1963 and the foregoing, jurors In addition to the shall be of blacks on the 1964 venire as persons good known well character and panel majority (14.0%). calculated standing community. exempt § 174. Persons from service 16. Women were not compelled ju- serve following persons exempt be shall ries but could volunteer for service grand serving jurors, from exemption or but the filing written declarations of desire to serve. personal shall be tо them and L.S.A.-R.S. 15:172.1. exemp- when tion, do not claim themselves 17. qualifications exemptions and shall be for sufficient cause chal- 15:172, lenging any person exempt provi- service were established L.S.A.-R.S. under 174: sions of this article: Qualifications § qualifications juror (3) Judges to serve as a active of the and officers sever- petit juror any state, or a attorneys-at-law, phy- the courts this al courts of this sicians, surgeons, actively state shall be as follows: and dentists en- state, gaged duly practice be a profession To citizen this less than of their twenty-one years age, state, resident bona-fide licensed under the laws parish teachers, professors drivers, which the school school bus holden, vice, year preceding apothecaries, for one next such ser- and all members of paid English departments, able to read write lan- fire and all commercial guage, any offense, charged travelers, residing not under or interdiction in the state who are actu- any any ally engaged travelling, or convicted at time either them- felony, provided dealers, that there no shall be dis- selves or in interest of wholesale race, color, tinction made on account of or commission merchants manufacturers. previous servitude; provid- (4) persons sixty-five years age, condition of All over further, judge physical ed that the district shall have those who from sickness or other precise we use the more and therefore any nor other source Neither the census than 1962 figures of the 1960census rather to the contains statistics presented approximations.20 the exact racial enough to calculate detailed meeting these population breakdown of the Second, expert Barksdale’s seems approximate In order to statutory criteria. adjustment his to have been overzealous in eligible popula the black of the eligible population on account of the tion, using complicat a expert, Barksdale’s adjustments exemptions. occupational His called Three- ed mathematical formula as persons categorized eliminated all “Sales Interpolation,18 LeGrangian Point estimated but the retail men and Sales Clerks” in all population male of Orleans Parish the black certainly This is a much broader trade. adjusted 1963. He then as 1962and exemption statutory for category than figure proportion eliminate the estimated to In the absence of “commercial travelers.” occupa group illiterate or exemption, for we any figure exact tionally exempt. adjust for the “commercial traveler” cannot occupational exemption, will limit our our reluctance to con and In addition to in adjustments categories to the other listed jury system demn state’s on the basis census, statute, and estimates, specified in the mere there are several reasons adjustments made Barks- accept approximations included why we do Finally, Barksdale’s all, expert.21 while expert. First the use dale’s Barksdale’s of the ignores poten expert proportions does calculate figures of 1962 the fact that fifth-, sixth- and seventh- jurors to for at tial had reside Parish for lit eligi grade education as a substitute year they least full before become one requirements addition, knowledge for eracy for and ble service. In service, fifth-grade fig totally emphasizes at he emptied replaced wheel not and time, comparisons. We see no making new are in his any one but instead names ure the Louisiana erroneous added as the old ones are used. Thus reason declare eligibles determination that a sev population .of on the wheel would Court enth-grade approximates had normally include names which education some service, needed for qualifications been on it for several months. Further State 382-83, more, Barksdale, supra, 170 at city directory, from which the So.2d selected, especially light did fact that addi jurors certainly names of simple literacy, required instantaneously.19 juror not add all new residents tion obligations of reasons, the duties and appropriate For date to to “understand these form of citizenship republican composition jury-eligible of the under measure the use sev We therefore year prior government.”22 be must well over may infirmity incapacitated the count continues some refinement of be from render- Preface, service, ing generally who served See such and those have time thereafter. iii; provisions grand jurors (Part Louisiana) Population of this under the Census months, during previous Klutznick, F.Supp. Young article six see also petit jurors as those who have served as herein (E.D.Mich.1980). again provided, be who shall not jurors expiration of one called as until fact, statistically might, be sounder It year from the their date of service. exemptions adjust practice these not to telegraph (5) telephone operators All since, statute, they “personal” all agents. engi- and railroad station Also chief exempt group Some taken. of the need be systems. neers of electric and water works employer likely paid if would be their serving. LeGrangian be interested 18. The formula for served would the Three-Point panel Interpolation opinion, is set out in the 610 F.2d at 226 n.20. required 15:194 have 22. L.S.A.-R.S. register requisite qualifications as vot- “the 19. No claim has been made that the use required 18:31 that voters L.S.A.-R.S. ers.” city directory discriminatory. itself is obligations of citi- the duties and “understand govern- zenship republican form of under normally The decennial counted census interesting note under April year, recounting It is although ment.” 1 of the figures participation venire ty jury figure apрroximate enth-grade education At tri statistics. eligible population knowledge requirements to the literacy al, appear stipulated service, although have parties we also calculate jury for jury eligible persons population with estimate of the that 19.43% 1, 1962, fol sixth-grade January We find the were black.24 education. wheel as lowing presumptively eligi persons estimates of the all figure presumed that This approp be the most black, presump ble race were undetermined support in the record.25 tion some riate: Seventh Sixth of a sampled thirteen parties point at one undetermineds, that found group of Percentage of Blacksin black, leading to an alternative seven were Eligible 28.16% 50% of the undetermineds presumption that Using presumption, that were black.26 compared below to These statistics will be on the wheel persons 16.64% of the grand percentage jury, of blacks Finally, were black. January venire and the persons on the two out of the twelve venire. Barksdale, well as jury which indicted Composition B. The Racial of the Grand black, grand juries, were previous the three Jury Grand Venire Jury and the 16.67%. yielding a black venire grand jury and figures These for great dispute be There has been compare previously de participation parties the racial breakdown tween over as fol eligible population figures rived persons who included lows: compare venire. We a varie therefore EDUCATION SEVENTH-GRADE Stipulation, Stipulation, Actual Jury Grand Undetermined Undetermined ** Participation Black* Black _50% Percentage Eligible Blacksin EligiblePopulation 26.31% 26.31% 26.31% Percentage Jury of Blackson Jury Venire 19.43% 16.64% 16.67% 9.67% 9.64% Disparity_6.88% law, voting rights federal sixth-grade presumption black, educa- all undetermineds required tion is presumption to create a and we therefore also recalculate literacy. 1971(c). 42 U.S.C. § percentage by assuming that of the unde- 50% terminеd were black. percentages 23. These using fig- were calculated 4, 7, ures from report Tables and 8 of the of Dr. Apparently 25. the most common reason Levine, A. expert (Plain- Barksdale’s witness being many able to determine race was that B), tiffs Exhibit and Table 96 of the 1960 Cen- people filled in the blank for race on their appendix, sus. See supra, the statistical for the subpoena point with the letter “C.” At one exact calculations. pretrial hearing quash on the motion to indictment, stipulation attorney requested 24. pertinent part: Barksdale’s states in judicial cognizance “the court to take According Subpoena to the return to the when ‘C’ is used it is for Duces colored. ... Of Jury Tecum issued Commission course, any cards in out of the file that had a ‘C’ names in the wheel as of January 1, 1962, would Any indicate 118 or meant colored.... were Ne- 19.43% groes. person going white is not to take a chance put figure Record, A. Note that the a ‘C’on his card.” includes a cate- State Court gory II, D-8, called page indeterminate in Vol. which there Defendant’s Exhibit persons. were 34 adopted Louisiana Court stipulation is contained in Volume 3 of figure opinion. in its 170 So.2d at 382. Appeal 19.43% the Record on at R-378. figure may questioned This be because of the

H27 EDUCATION SIXTH-GRADE Actual Stipulation, Stipulation, Jury Grand Undetermined Undetermined ** * Participation Black 50% Black Eligible Blacks Percentage of 28.16% 28.16% 28.16% Population Eligible Jury or on Blacks Percentage of 16.67% 16.64% 19.43% Jury Venire 11.49% 11.52% 8.73% Disparity * were black. race of undetermined all which assumed persons Trial stipulation ** were black. race of undetermined adjusted that 50% persons assume to only Trial stipulation discussed, supra, cases Eligible light Eligible Population, Court Supreme Population, States the United which Seventh-Grade Sixth-Grade not be could case facie prima a that held _Education_Education showing that “satisfactorily proved is under- community in a group Percentage identifiable Eligible we percent,” Blacks by as much represented Eligible a prove to has failed Barksdale that find Population 26.31% 28.16% discrimina- grand case facie prima Percentage of that acknowledge We tion. Blacksin the as to guidelines no clear given has Court Final Petit case. facie prima proves what Jury Venire 21.86% 21.86% offered disparities However, case the Disparity 4.45% 6.30% jury discrimi- case facie prima prove may be thin; proof such razor are nation easily rebutted. Clearly, disparities these are insufficient prove prima facie case. Jury Ve- for the Petit C. The Statistics

nire D. The Sequence of Grand Juries While there has been disagree some ment between parties Apart as to from petit which dispari statistical above, venire ties statistics discussed appropriate, Barksdale relies on the parties sequence stipulated actually serving blacks that final Orle grand juries ans Parish prove his discrim year venire for of Barksdale’s ination claim.28 expert Barksdale’s testified trial, figure pre 21.86% black.27 This sequence grand jurors only 32% of the undetermineds sumes that serving September from 1958 to September blacks, so it cannot be criticized on the 1962 had such a low probability of occurring grand jury stipula basis venire same by chance as to be “non-random.” The black, presumed tion of 19.43% expert state’s utilized different statistical This final all undetermineds black. tests to arrive at his conclusion that petit jury figure compares venire sequence was consistent hypothesis with a eligible population statistics as follows: of randomness. The district court came to of blacks on each The number stipulation 5 of in Volume is contained

27. This September September Appeal, pages 1958 to 1962 was 921-24. It was the Record 2, 1, 2, 2, 2, 2, 2, as follows: “Stipulation designated D” court. clude blacks as it is with efforts to we cannot deem erroneous: exclude conclusion blacks. totally opposing views com “Faced with qualified experts, this Court

petent and grand petitioner as to finds that prov carry his burden jury has failed VI. State’s Rebuttal Evidence based on ing invidious racial discrimination Moreover, alone.” improbability statistical has we find that Barksdale Since if of Barks- accepted, even the contention proven facie case of discrimi- grand jurors were not expert dale’s nation, may rebuttal evidence state’s randomly proves nothing about ra selected hold, superfluous. seem be But we as an grand cial discrimination. Of course Parish decision, our grounds alternative selected; randomly it is not were not assuming, arguendo, even that Barksdale so contended state. The burden, did meet his initial ade- the state conscientiously and nonran was selected his quately rebutted case. domly judges by the of Orleans Parish Court, pursuant District to Louisi Criminal testimony There is extensive judges they

ana statute. testified that sought qualified jurors by to select the best record of judges the Parish criminal that, according from a venire to Louisiana representatives courts and of Jury Com law, composed possess of only citizens regarding juror mission proce selection competence. specified levels of These ing testimony dure. Such im has considerable that, they did judges testified while same portance. Partida, supra, Castaneda v. intentionally from the exclude blacks not 498-99, & U.S. at n.8 S.Ct. at 1276- reducing they sought to grand jury, avoid 1282; Alabama, supra, n.8 & Swain v. representation jury from the venire to black 207 n.4 & S.Ct. at n.4 grand jury. actual Presented with a judges & 830. The they testified that did that 16.64 and in 1962 was between venire or intentionally include exclude blacks black, surprising is not that 19.43% from the grand petit venires or the or sought avoid judge who reduction juries, large but a disproportionately that two black participation black would select of number blacks to be be askеd excused jury. on a grand twelve-man Sever hardship. stipulated cause economic they judges testified that had to al of testimony of Jury Commission shows least special efforts to find at two make “an exceedingly large number of the eligible who were to serve and did blacks Negro appear males who Jury before the occupa have to be excused because disqualify Commissioners themselves hardship. espe or court should be tion This stating by they service either that can moti cially careful not to ascribe invidious or they only not read write or that have had who, as group judges noted vations very schooling, small amount of or formal majority, taking were not race by panel by showing they self-employed or they granted “when excuses in into account employers their will not excuse them proposed petit venire to order reduce from work pay and will not them their ” final venire.” 610 F.2d at 268. wages if serve on a .... While expert squarely ad Unfortunately, neither simple protestations good “of faith in mak key question: sequence dressed the does the ing individual selections are insufficient juries conclusively prove that the grand dispel facie systematic case of ex intentionally process selection excluded clusion,” Louisiana, supra, Alexander v. juries? from the The answer blacks U.S. at 92 S.Ct. at the assertions no, be question to that must because judges and Jury Commissioners of concept every bit as nonrandomness Orleans Parish are strongly corroborated to in consistent with nonrandom efforts other evidence in the record. The 1960 into evidence figures introduced census year, only while 35.9% ‍​​​‌​‌​​​‌​‌‌‌‌‌‌​​‌‌​​‌​​​​​‌‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‌‍of popula the white following little; summarized in Barksdale and tion earned this 93.6% of men of black males show that 70.8% table had $4,999 less, annual incomes of or com $3,000 per less than pared Parish earned Orleans with 59.5% of whites. With Number With Number No Income or No Income With Income With Income $4,999 $2,999 or Less Percent Total or Less Percent Males, Black 71,339 76,222 53,944 70.8 93.6 14 and Over Males, White 202,283 120,272 72,668 59.5 35.9 14 and Over Census, (Part 20, Louisiana), Population 1960 Census of Table Bureau of Source: Thus, applicable is not to the case. judge facts assertions Labat all underrepre- daily commissioners that blacks held the exclusion requested to be ex- sented because wage as a class jury earners from service hardship for cannot be dis- cused economic Thiel Similarly, violated the Constitution.29 as ad hoc de- missed mere rationalization Co., Southern Pacific 66 328 U.S. signed to camouflage invidious discrimina- (1946), 90 L.Ed. 1181 is analo S.Ct. tion. Labat, case, gous; Jury in that as “deliberately Commission intentionally dismissed opinion panel excluded jury persons from the who lists all dispari racial for explanations state’s work for daily wage.” 328 U.S. at 66 record unsupported either as ties at S.Ct. 986. The district court in case this Labat opinion court’s foreclosed specifically found the Jury that Commission disagree. emphatically Bennett, supra. We did not daily exclude the entire class of de statistics shown, use previously As wage panel opinion earners. The prospective level the educational scribing litigants appear agree to that about one dis reduces substantially jurors black appear third of those who were called jurors black eligible between parity black, Jury before the so Commission Parish on Orleans serving actually those stage.30 there was no at that literacy differing Thus, jury venires. Then, personal appearance before and black white prospective levels of members, Commission the uncontroverted explanation partial as a be dismissed cannot evidence is that workers were for Fur excused participation. jury reduced hardship only economic practice request. Nei thermore, Jury Commission’s ther Labat nor Thiel can prospective read hardship be so as excuses granting being proscribe itself benign, many dismissed and in cases be jurors cannot Bennett, supra, certainly beneficent, Labat practice excusing unconstitutional. present sample: “Although case is not that the basis of its own 29. Since we decide the Court Labat, governed by [city] directory, need not address we did not canvas the entire [sic] be should Labat reading appellant’s just contention twenty-eight the ‘A’s’ reveals ‘wage-earners’ given effect. retroactive who were sent notices for duty.” (footnote omitted) 30. The district court concluded not all wage part earners were excluded in 1130 persons those on whom it service II. OCCUPATIONALLY EXEMPT POPULATION, PERCENTAGE bur impose would an intolerable economic judge federal would

den. “It is clear that a Source: 1960 Census, Tables justified excusing daily wage earner be Total Occupation White Black entail an un for whom service would College Presidents, hardship.” Thiel v. Southern due financial 43 836 883 etc. Professors, Co., supra, Pacific 66 17 363 380 Dentists also See (permit U.S.C. § Pharmacists ting hardship”). for “undue excuses Firemen

Teachers VII. Conclusion TOTAL his case. A fair and reasonable nation. The district court did prove petitioner, Bruce Clearly Barksdale failed to facie case of not err in Barksdale, assessment discrimi- finding failed prove Total Male Population, Percent Exempt ^[*] Nonwhite proportion Ages 21-64 of nonwhites in Table who are nonblack. 214,039 20, reduced 3.34% 156,577 4.11% 1.1% adjust 56,830* 1.18% disparities far too

of the statistics shows finding discrimina- support low to III. YEARS OF SCHOOL COMPLETED Moreover, tion. the rebuttal evidence Source: Levine Tables 5-8 Report, dis- clearly valid demonstrates SEVENTH GRADE parities not attributable to racial found are * Total White Nonwhite Black Accordingly, the decision discrimination. Males 25-64 106,573 79,850 26,723 26,429 denying the writ of habe- district court Males 21-64, corpus in school 2,826 2,319 Males 21-64, AFFIRMED. not in school 10,347 6,420 3,927 3,884

TOTAL 119,746 88,589 31,157 30,814 APPENDIX STATISTICAL SIXTH GRADE 1960

I. POPULATION —ORLEANS PARISH Total White Nonwhite Black* (Louisiana) Part 20 Census, Source: [herein- Males 25-64 115,187 84,389 30,798 30,459 after “1960 20 & Table 96 Table Census”], Males 21-64, Nonwhite males: 50,412 in school 2,866 2,347 Percentage of nonwhites estimated to be non- Males 21-64, (from 96; Table assumes that same per- not in school 10,771 6,601 4,170 4,124 centage of nonwhites who are nonblack in ages 21-64): ages 20-64 1.1% TOTAL applies 128,824 93,337 35,487 35,096 Total Male Estimated (50,412 reduced black, Population, male 1.1%) ages 21-64 aged 21-64 154,621 49,857 ^[*] of nonwhites who are nonblack. Nonwhite reduced by 1.1% adjust proportion Percentage: Black 32.2% IV. RACIAL BREAKDOWN OF THOSE ELIGIBLE FOR JURY SERVICE_ . Source: Tables above POPULATION, EXEMPT II. OCCUPATIONALLY SEVENTH SIXTH PERCENTAGE_ GRADE GRADE Tables 20,122. 1960 Census, Source: Total Total Black Black Black Total White Occupation Males 21 64 119,746 30,814 128,824 35,487

Judges and Lawyers Percent Exempt Surgeons 3.34% 1.18% 3.34% 1.18% by Occupation and Physicians

I. addressing majority opinion, prior OF THOSE ELIGIBLE BREAKDOWN IV. RACIAL claim, merits the jury discrimination JURY FOR SERVICE_ a collateral issue: whether discusses Tables above Source: majority is describes cognizable. claim SIXTH SEVENTH detail, explicit emphasizes the crime in GRADE GRADE related, guilt zealously claim not Total Black Total Black relief be limited advocates that habeas Not

Number making those colorable claim inno 124,521 30,450 35,068 115,746 Exempt issue, however, not before cence. That Percent of impression This us. is not case of first Eligibles Who 28,16% which we would be free decide based 26.31% Are Black upon interpretation our of the Constitution. contrary, during pendency On the KRAVITCH, with whom Judge, Circuit appeal, Supreme this Court determined B. RU- GODBOLD, Judge, ALVIN Chief precise adversely position this to the issue POLITZ, Jr., JOHNSON, BIN, M. FRANK Mitchell, urged by majority. Rose v. ANDERSON, HATCHETT, LANIER R. U.S. 99 S.Ct. L.Ed.2d 739 RANDALL, D. JOHNSON III, SAM (1979), the that claims of racial Court held CLARK, Judges, join, Circuit A. THOMAS members the selection of dissenting: grand jury cognizable of a state notwithstanding corpus, federal habeas whether single issue: presents a This case guilt beyond was established a reasonable proved appellant district court at trial free from doubt constitutional dis- racial prima facie case unrebutted law been error.1 The thus has established selection crimination we, tribunal, highest judicial our in- respectively jury which jury and court, members of a lower are bound majority con- him. The tried dicted Supreme precedent,2 regardless Court a case. such prove failed appellant cludes espouse To personal views.3 continue to disagree. I Powell, 1. In Stone ment ty at fundamental values of our socie- (1976), legal system.... L.Ed.2d and our 560-64, Court denied federal relief habeas for state prisoners raising claims based on the Fourth opinion, 2. The Rose written Justice Black- exclusionary Amendment rule. In Rose the mun, facts; consisted of Part I: Part II: that specifically Court extend limi- declined to cognizable; the claim was that and Parts III and IV: tation to a claim of discrimination. petitioner prove failed to an unrebutted The Court stated: prima Justices, facie case of discrimination. Two Marshall, Brennan and concurred in of discrimination a claim conclude [W]e parts opinion all four of the of Mr. Justice jury so grand differs of the selection Justices, Burger, Powell, Blackmun. Four application of on habeas fundamentally from Stewart, Rehnquist by separate opin- and two exclusionary rule Fourth Amendment ions, judgment disagreed in concurred the remaining Justices, but reasoning Powell should of v. Stone with Part II. The Stevens habeas review foreclose be extended White, judgment deny- and ing dissented from the are [T]here court.... in federal claims such habeas, specifically but in concurred Part claim between differences fundamental Thus, II. five held Justices the claim to be issue in Stone at the claim at issue and here cognizable. dent, prece- For a discussion Rose as constitu- that the note [W]e Powell.... v. Term, Supreme see The Court 1978 93 adjudicat- a federal interests that tional 60, (1979). Harv.L.Rev. 199-209 jury grand discrimi- ing claim on habeas a substantially vindicate seeks to nation majority quotes 3. The extensively Stone. compelling Judge issue in those at than more As noted Friendly proposition above, for the account of on that habeas relief discrimination only should be justice available for those who strikes make a in the administration race colorable Friendly, claim of innocence. See Amend- Is Fourteenth of the concerns the core 1132 appeal is from the since.4 This reject al courts opinion position recently a so

judicial which, by Supreme Court irrelevant ed district court of the federal decision inappropriate. his evidentiary hearing, denied after claim. II. indicates, Supreme majority As the September Appellant was indicted Partida, 482, Castaneda 430 U.S. Court grand tried 1962 Parish Orleans 494-95, 1272, 1280, 51 L.Ed.2d 498 97 S.Ct. He first raised July and convicted in proving (1977) guidelines established prior trial the issue of To make out discrimination.5 a case pursued through state and feder and has court in the Newman decision of the district Innocence Irrelevant? Collateral Attack Henderson, Judgments, Newman v. Criminal 38 U.Chi.L.Rev. case was affirmed. denied, (1970). (5th 1976), cert. 539 F.2d Cir. 2986, 914, 53 L.Ed.2d 1100 Legal presented compelling U.S. (1977). 97 S.Ct. ar scholars have guments pro both and con on this issue. See States, generally, court’s deci Four months after the district Kaufman v. United 394 U.S. 217, 231, 1068, 1076, case, request the State 89 S.Ct. 22 L.Ed.2d sion in the Barksdale J., (1969) (Black, Popper, dissenting); granted, permission, Post K. which was to file a ed (1978); appeal. appeal Conviction Remedies in a Nutshell Ba That was belated notice tor, Finality upon Law and Federal Habe Criminal this court motion dismissed 73-1536, Prisoners, Corpus Henderson, for State 76 Harv.L.Rev. Barksdale. Barksdale v. No. (1963); Boyte, Corpus 145, Af denied, 880, Federal Habeas 95 S.Ct. rt. 419 U.S. ce Remedy Only A for the ter Stone v. Powell: (1974). the State 42 L.Ed.2d 120 Meanwhile Innocent?, Arguably 11 U. Richmond L.Rev. original judgment moved to vacate Note, Guilt, Innocence, (1977); and Feder Rules of Proce accordance with Federal Civil Corpus, alism in Habeas (1980); 65 Corn.L.Rev. 1123 60(b)(4) ground dure Rule hearing Comment, Corpus: Federal Habeas magistrate im before the was an Innocence, The Relevance of Pеtitioner’s proper authority Wingo delegation under (1978). U.Mo.K.C.L.Rev. 382 2482, 461, Wedding, 418 U.S. 94 S.Ct. (1974). granted motion was L.Ed.2d 879 case, panel opinion in this 610 F.2d 253 Barksdale, unsuccessfully by appealed (1980), gives complete history: procedural Henderson, (5th Barksdale v. F.2d conviction, appealed again Barksdale challenging his 1045, denied, Cir.), 95 S.Ct. cert. composition of the 2662, (1975). 45 L.Ed.2d 697 petit juries. Supreme The Louisiana Court evidentiary hearing by District An was held conviction, reasoning affirmed the that edu Judge Christenberry, who died while the case explain cational and economic factors disparity Upon agreement under was consideration. between the number of males parties, evidentiary hearing another the number of blacks Judge held Schwartz. As he had before appearing ‍​​​‌​‌​​​‌​‌‌‌‌‌‌​​‌‌​​‌​​​​​‌‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‌‍wheel. State v. Barks previous hearing, Barksdale dale, done 198, 374, (1964), 247 La. 170 So.2d testimony presented the of Dr. Arnold Le- denied, cert. 382 U.S. 86 S.Ct. vine, statistician, Murphy, and Julian (1965). L.Ed.2d 236 State, employee. The for the commission Relying partially on this court’s decision in time, testimony of Dr. Bennett, first introduced the Labat v. 365 F.2d 698 statistician, Smith, part 1966), denied, David to rebut in cert. testimony court de- (1967), of Dr. Levine. The Barksdale next L.Ed.2d petition corpus. pursued corpus. Again, nied the for habeas state habeas petition, Because of a factual error committed Louisiana his Court denied court, Dees, for and Barksdale moved State ex rel. 252 La. Barksdale granted hearing. hearing (1968). years At So.2d 318 later new Three petition Barksdale filed a court for additional evidence was introduced both federal corpus. by a writ of The district habeas His case was con the State and Barksdale. again petition solidated with that of John Newman for the court denied the for habeas purpose evidentiary hearing petition- of an before a relief. It is from that order that the magistrate. hearing appeals United States After the to er this court. ,magistrate, sepа before the the cases were protection equal In judges 5. order to show that an rated and sent to the whom back to grand assigned. violation in the context of initially has occurred the cases had been The selection, jury that the defendant must show convictions of both Newman and Barksdale procedure employed appealed resulted in substan- the were set aside. The State the deci case, underrepresentation his or of the sion in tial of race the Newman but did not imme belongs. diately group to which he The do so in the case. The identifiable Barksdale presump- the between The show: petitioner must the facie case prima a of black males population tively eligible is underrepresented allegedly group (1) the and the final (33.7%) in 1962 of 21-64 class;6 (2) the distinct recognizable, a (13.9%) 19.8%. is venire in jury petit comparing by underrepresented is group total group the the of proportion the presump- the disparity between jury the proportion in with the of black males eligible population tively time; (3) selec of the and the final period (34.4%) over a venire 21-64 (21.8%) 12.6%. or is not is of venire in susceptible jury abuse system is tion to shifts burden then percentage neutral. The the racially disparity between prima persons case the facie of the to rebut constituted the state which blacks list drawn alleged disparity. whom the the explaining constituted which blacks the III. Prima Facie Case com- list which was thereafter the of (32%-14.9%) is 17.1%. piled A. The Evidence Statistical finding was figure in the last The 32% made find- The district court extensive account, literacy into us by taking derived of ings of fact to the statistical evidence as statistics.7 ing grade fifth education found, underrepresentation. The in- explicitly The district court did not con- ter alia: whether, findings its of upon based clude of the blacks constituted 38.8% fact, appellant presented prima a facie had pоpulation. Orleans Parish Rather, because, it case. denied relief “as- In 1963 of the blacks constituted 39.5% suming arguendo disparities the did that population. Orleans Parish case,” prima present a facie concluded In 1962 of the blacks constituted 33.7% state, by the that that the evidence adduced population aged through male 64. at the judges commission and In 1963 of the appellant’s blacks constituted 34.4% of indictment and trial time effort,” making population aged through adequately male “a sincere justified disparities. explained presump- The disparity between the eligible population males tively and black reading A careful of the record reveals (33.7%) of 21-64 in 1962 and the of major portion findings that (14.9%) 1962 is January, stipulated venire trial court were appellant disa- parties. 18.8%. When the state and out underrepresentation written or as 347 670-671, serve total paring procedure od of time. method of 671]. lection proof, dez v. sion,” Norris first showing. ^[229] racially step is a sometimes has been held to be Finally, as noted different treatment Texas, against L.Ed. grand jurors, recognizable, 98 L.Ed. 241 ^[475] Alabama, proving Washington v. neutral proportion Id., applied. 1074] establish [96 a delineated class. at 478-479 at 480 susceptible called the 866]. raised U.S., discrimination supports S.Ct. must be (1935). 294 U.S. 587 over a [74 S.Ct. at distinct Hernandez proportion Next, 2040, above, under Davis, 480 [74 [74 proved, This method significant “rule available of abuse the statistical group class, presumption group S.Ct. 671], degree 426 U.S. v. 2048, [55 of exclu- called selection Hernan- laws, S.Ct. at singled 667 at Texas, is one com- or is peri- See se- 48 as 6. That 430 U.S. at ana statute infra, ment capable used this standard. literacy. Obviously, at trial Although he has made U.S. L.Ed.2d shifts to the State to rebut substantial criminatory L.Ed.2d comply with Henderson, five under the blacks ^[625] as to the (5th 536], years Labat circuit in 597]. being singled neither side 494-95, at 630 underrepresentation Cir. purpose, 539 F.2d jury qualifications, out law Once degree Alexandеr 1966), literacy prong education as recognizable, 97 S.Ct. at 1280. [92 is not the district court presented any evidence of education S.Ct. out for defendant disputed. v. again Bennett, facie Louisiana, different distinct of his burden case. case in Newman see criterion has shown necessary 365 F.2d adopted note 10 Louisi- of dis- group, 1976), class, treat- then 1134 1221,

greed proposed finding, (1972), on a the trial court using popula 31 L.Ed.2d 536 uniformly accepted proposal. the state’s jury aged tion statistics narrowed to the must, therefore, accept We findings as population, the court held that a dis 14% clearly A. Duda erroneous. & Sons parity, combined evidence that the se States, Coop. Assn. 504 v. United F.2d 970 neutral, process racially lection was not es (5th 1974). Cir. prima tablished a case. facie disparities as found Alabama, 202, In Swain v. 380 U.S. court, together with the selection method 824, (1965), S.Ct. 13 L.Ed.2d 759 as the (discussed infra), used were more than suf out, majority points Supreme Court ficient to establish presumption of racial held disparity per- that a 10% between the prior discrimination. decisions the Su centage in population of blacks the male preme prima Court has indicated facie cases age over the percentage and the of proved upon showing disparities of period blacks on venires over a years 23%, Fouche, 346, Turner v. 396 U.S. prove was not sufficient alone prima 532, (1970),33%, S.Ct. L.Ed.2d 567 Carter proof facie case where there no Jury Commission, 320, U.S. S.Ct. racial proc- discrimination in the selection 518, (1970), 33%, 24 L.Ed.2d 549 25% and ess. Louisiana, 584, Eubanks v. 356 U.S. 78 S.Ct. majority does not dispute and cannot 970, 14%, (1958), L.Ed.2d 991 Hernan that, decisions, upon disparities based these Texas, 475, 667, dez v. 347 U.S. 74 S.Ct. range 17-20%, in the as found by the (1954). L.Ed. percentages rep These judge, system neutral, trial racially resent disparities percent between the presumption raise a of invidious discrimina- age representation group question require tion and the state to comе forward general population in the represen its Nevertheless, with rebuttal evidence. Thus, tation in jury system.8 when majority concludes that appellant failed to comparing percentages of the relevant prove prima facie case. It reaches this group general population repre to its by completely ignoring conclusion the dis- sentation in jury system, disparities findings trict court’s of fact as to the rele- 14%, Texas, Hernandez supra, great percentages vant eligi- of blacks in both the er have been held to raise a presumption of population ble and in the venire for the intentional discrimination. Instead, decisive years. percentages based Where a narrowed has been upon a formulation never introduced con- considered, impermissible disparity also pages sidered at trial debut across the of an has been as low as example, 14%. For appellate opinion. Understandably, these when the appearing names on the tax di figures substituted create much smaller dis- gest used, the Court unacceptable held parities findings than do the of the district 18%, disparities of Georgia, Whitus v. court. 545, 643, U.S. 87 S.Ct. 17 L.Ed.2d 599 (1967); 14.7%, Georgia, majority opinion Jones v. Nowhere does the de- 88 S.Ct. (1967);9 findings L.Ed.2d 25 clare the district court’s “errone- 19.7%, ous”; v. Georgia, Sims simply ignores them. U.S. Our stan- (1967). L.Ed.2d 634 In Alex dard of review mandates accept that we Louisiana, ander findings fact the district court unless case, Beto, 8. A Fifth Circuit Muniz v. 434 F.2d Whitus and Jones states that the 1970), respectively. indicated a facie case these cases was 33.5% 25.7% proved upon had disparity showing been percentages by majority of a The leading used are mis- 12% percentage Spanish between the percentages in that reflect general population surnamed individuals in the group general population whereas in fifty and the cessive which served on suc- upon each case the disparity (thоse its Court based decision grand juries. found in the narrowed appearing digest). names on the tax majority conceding that the Court had found evidence of discrimination in

1135 Bennett, 698, (5th 365 F.2d Cir. reject clearly bat v. specifically them as erro- we Henderson, 1966) U.S. in v. Mayo, again Wade and Newman neous. (1948); 1976), Baker v. L.Ed. Louisiana (5th F.2d Cir. both Metcalfe, (5th 1981); Cir. F.2d cases, percentage considered the this court Cruz, F.2d United States more jury-age having five or population of (5th 1978); Rule 52. For Cir. Fed.R.Civ.P. Apparently relying of on years education. disregard totally the appellate district court precedents, this circuit’s the instead base its findings trial court’s and utilized for examined and the determination of its own im- upon findings is conclusion eligible jurors the of the male of process permissible and to the antithetical ex jury-age population non-occupationally Furthermore, appellate where of review. empt having years five or more and here, findings trial are as the court’s based education. facts, upon stipulated accept- must be the Although majority that the states to do flies in the ed. Refusal so face grade literacy was estab seventh standard precedent. As we stated in A. established Court, Supreme lished the Louisiana States, Coop.Assn. v. United Duda & Sons authority cites as for this assertion State 1974): “It is well 504 F.2d 198, 170 Barksdale, (1964), La. So.2d stipulations that of fact en- fairly settled attempted justify the wherein the court conclusive, controlling and tered into greater disparities by noting racial the them, courts are to enforce ... and bound between number of whites than blacks with government party if the is the bound.” even and years seven twelve of education Moreover, begin were we free to with a college-educated even number of larger figures fresh slate and derive our own falls generalized comparison whites. This adopted those appeal, majority are establishing educa short minimum First, unacceptable respects. in several to read and write and does not tion needed majority has narrowed the eli substantially figure nar permit of a thus use gible population arbitrarily deciding that disparities on rowed to establish the racial years schooling a minimum of seven arguen question. Assuming list in determining “literacy.” the standard for one, proper do that is a or that the standard as is no evidence in the record to how There adopted by legally it could be construed comply with much education needed court, it was not introduced the Louisiana requiring jurors the Louisiana statute proved by the state in the court or as such language.10 the English read and write In disputed, it could have been below where popula Court looked at Castaneda ap may initially on schooling.”11 which had In La not be considered tion “some judge, incompetent upon trial of sit 10. L.S.A.-R.S. 15:172: any particular case. Qualifications 172. § jurors foregoing, shall be In addition to qualifications grand juror as a to serve good persons character and of well known juror any or a of the courts this in community. standing in the state shall be follows: (emphasis supplied). state, not To be a citizen of this less than twenty-one years age, a bona-fide resident holding Court’s Castaneda parish of the holden, for which the court is general population statistics. was based on year preceding for one next such ser- Court, footnote, rejecting the state’s a argument plained vice, English lan- able to read and write the disparities be ex could charged guage, not under or interdiction levels, literacy differing narrowed offense, any any any or time of convicted at age of 25 individuals over the felony, provided there shall be no dis- schooling compared that to the with some race, color, or tinction made on account previous Using representation jury. servitude; provid- cоndition of dis narrowed statistic parity Court found 26% further, judge ed shall have “significant disparity.” which it termed competency upon discretion to decide had been facie case The decision that particular physi- cases where from however, proved, that statis was not based on relationship, infirmity cal or other at 1276- n. tic. 488-89 causes, be, person may opinion 77 n. Sloss, (5th peal. making finding, 615 F.2d 163 In this the district court Ramirez proposed finding. 1980). adopted the state’s Cir. paragraph majority, relying upon a Second, majority opinion rejects the parties the stipulation13 between figures “mere estimates” the for court, fig two different produces state trial 1963, stipulated by appellant general on the percentage ures for black court, the state and found the district venire: 19.43% and 16.64%.14 they derived because were three- upon paragraph this is mis- Reliance Instead, interpolation.12 point LaGrangian placed. urged by It was not the state at compares jury figures venire for the evidentiary hearing, appeal. nor on years general popu with the Moreover, paragraph, parties in this figures year lation for the 1960 in order to showed; merely stipulated what the return years establish the for the stipulate figure shown did not that the reasoning illogical. and 1963. This constituting on the return was correct as Moreover, previous jury in general Specifically, the entire this venire. employed cases this has the identical paragraph recited: interpolation methodology utilized in the According to the return to the Sub- Bennett, court below. Labat v. See Duces Tecum issued to the addition, poena (5th 1966). F.2d 698 Cir. trial, Jury out of a total of Commission objection the state offered no to the jury 607 names in the wheel as of 1962 and 1963 figures as found 1, 1962, January 118 or court; 19.43% indeed, the district stip the state Negroes. figures. ulated to Again, majori those ty ignores proper our role as an appellatе figure A. Note the 118 includes a cat- court. egory called indeterminate in persons. which there were 34

Third, in determining the relevant black percentages general 23, however, Paragraph venire in in cannot be read isolation; the majority disregards conjunc- once more it must be considered in finding of the paragraph immediately district court. The district with the tion court found: follows: 1,1962, January

As of prior drawing According to the return to the Sub- venire, approxi- poena blacks constituted Duces Tecum issued to mately general 14.9% of the Jury venire as Commission out of a total of embodied in the persons petit Orleans Parish called for 1,1962, wheel from petit which January service as of 198 or venires Negro. were drawn. 16.50% were three-point LaGrangian interpolation of the undetermineds are black. The state ar- computing population figures a method of gued for in the court below that of the unde- 50% years upon inter-census black, based the actual cen- termineds were adopted ever, district court surrounding years. sus counts for the This percentage. majority, this how- accepted by formula is relied statisticians and was support states that there is some Bennett, upon this court in Labat v. record for the assertion that of the unde- 100% 1966)(en banc). 365 F.2d 698 ignoring termineds that black. Aside from proposed the state 50% document, although bearing 13. The state court court, assumption the unde- 100% caption “State of Louisiana versus Bruce termineds were black has been demonstrated empirically signed by attorneys Barksdale” and who point to be false. At one the race represented Barksdale, recites that “the defend- people of 13 listed as “undetermined” was de- herein, ant Negro Morris Rowe is a member termined. Of the statistically 6 were white. While Presumably, stipula- Race.” this was a prove this does not tion tered in the an unrelated case which was alsо en- unknowns, prove of all it does that not all ‍​​​‌​‌​​​‌​‌‌‌‌‌‌​​‌‌​​‌​​​​​‌‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‌‍Barksdale case. undetermineds were black. figure, 19.43%, 14. The first assumes that all persons black; of undetermined race are figure, 16.64%, second assumes that one-half (assuming paragraphs 23 and bers from figure 198 includes cat- Note the A. “undetermineds” 50% indeterminate egory called by the trial black).15 language used persons. there were “prior drawing judge finding in his persons called The names those venire, approxi blacks constituted service, paragraph referred to general venire” corrob 14.9% of the mately general venire. from the were drawn (Emphasis add interpretation. orates Therefore, number total accurate ed.) wheel) general (jury in venire of names the 2254(d)16 a federal 1,1962 § Under U.S.C. January as must include the of sup evidentiary hearing, may, court in an placed jury who into venire. were the developed in adequately not recognized plement this fact. facts apparently The state court, in the court percentage state and this was done proposal The state’s for the of obviously proposed to the district general venire is below. state blacks in the found, court, court the state adding together the total num by derived names of those casts further doubt on the graph opinion placing tinent Regarding Jury pearance be file to poena transferred from an old to a of the work, exempted, slip qualification. The ous racial before the ry. tached card were intended purpose slip was then filed in a master when additional actual stapled ed placed check qualifying subpoena, not to From each use is not expressed sons, separate unless it From the For qualified, completed subpoena. If he personal immediately. The white Jury was part only. practice date in a blue and a white of designation. be put requested but no racial some person, subpoenas compelled the drawing process. the letter the the district court prepared. it other retained before the Commission file from which became Attached their names a reason for not a card the that the white Jury use accuracy These stated: point information number of these subpoenaed information Commission Practice.” and was neither excused nor of the wheel. slip process proceeded his than to record on the card them as Commission, the wheel at “E” for on, subpoenas necessary. was address, On their When a reverse as an Each Jury recipient when information was a white possible designation. designating filed agreed ultimately slip among prospective commission Commissioners was a reliability slip contained subpoena slip the in a appendix to wishing and the side new person appeared needed. was not a he surrendered found slip subpoena to be use in some cases subpoena had the name For such same persons, was was separate person’s ap- which was a “Stipulation alphabetical supply city were taken used wheel, used as follows. and blue as a cross- emergency kept The blue qualified removed the found of place time directo- and at- prepar- At In jurors, of serve, para- vari- sub- per- who was per- file. not the the for no all to 16. 28 U.S.C. (emphasis supplied). jurisdiction prepared tached, time, the other presumed written plicant tion the or as issue, shall establish or able and ployed quately proceeding; or were not resolved al court subpoenas, fair, nied proceeding; tion of such concludes nent the nation, after, State court nation of such factual issue (2) (d) (6) (1) (3) (7) (8) agent corpus afford a full and fair judgment respondent shall admit— evidence to fairly supported after a to a due thаt the from the information contained that the that the material facts were not that the or unless that and the Federal court ^[******] made for writ and the State or an finding, developed would then by any thereof adequate subpoenas process of adequate by determination to be that such factual the the State court was not produced § hearing proceeding in which the determi- in a blue and white proceeding 2254(d) a part applicant the application person merits applicant support written correct, were a State court factfinding proceeding to which the a State it shall subpoena, at the State court hearing on the written part be and cards. provides: the State law parties, of the opinion, or other reli- filed did the record. such factual instituted in a Feder- hearing; provided for herein- otherwise unless the custody court, was otherwise record as a whole for a writ merits in the State court not receive indicia, determination is in with a card procedure on considera- slips factual evidenced court sufficiency record the a made, perti- pursuant of a State determina- competent appear, would be applicant adequate file with of habe- shall determi- hearing; hearing; dispute factual officer ade- full, em- the ap- de- at- be to a percentage contrary, sent evidence to the that the dis argues to this court that general blacks on the venire in 1962 was parities percent which existed between the accept figure 14.9%.17We must age grand jury of blacks on venires and clearly erroneous. general population four-year over the period approximately same as exist table, A attached to state court docu ed between the of blacks on the containing disputed stipulation, ment figures general general lists for the numbеr of blacks on the venire and those in the grand jury through venire from 1954 population. showing underrepresentation thus over evidentiary hearing The evidence at the “significant period of time.”18 This tab September through showed that from only persons le reveals that 14% of the September only two blacks were on September grand jury venire grand jury, except September each were black. The further indi document on which there was one black. cates that from the March findings by judge for the venire, September venire to the 1962 blacks years percentage 1962and 1963as to the approximately per constituted 14% of the (1962— in both the total blacks (and grand jury sons on the venires 38.8%; 39.5%) eligible popu and the 1963— figure assumes that all unknowns are (narrowed age, lation to relevant not occu black), while the of blacks in the pationally exempt, 32%) literate: general population, as found the trial 1963— together with the official censuses for 1950

judge, roughly one third. As the 1960, slight which show a jury venires were increase randomly chosen general assumed, venire it can be twelve-year ab the black over that Supplementary Bennett, Appellee 17. See Brief of and this circuit in Labat v. 365 F.2d (5th Rehearing 28-29, 1966) officially system- had En Banc at 698 Cir. found footnote “f.” Parish, atic exclusion of blacks in Orleans Loui- period years prior siana over a to 1960. Louisiana, Court In Eubanks v. 584, 970, (1958) 356 U.S. 78 S.Ct. 2 991 L.Ed.2d Negroes Grand Jury Who Grand Actually Jury Venire Grand Jury Negro, Served on Venire Percent Percent Negro Grand Venire & Colored & Jury Total Total Colored Total Undetermined Mar. 54 75 12 6 16%

Sep. 9 54 75 6 12% Mar. 55 75 5 11 14.6% 6.6% Sep. 55 9% 9 15 100 . 15% Mar. 56 75 9 8 10% 12% Sep. 56 75 6 8 10.6% Mar. 57 125 13 10 10.4% Sep. 57 75 5 10 13.3% 6.6% Mar. 58 7 14 1 100 14% Sep. 2 58 7 100 10 10% 15 2 Mar. 59 100 10 15% 10% Sep. 2 59 11 100 6 11% 2 Mar. 60 75 6 10 13.3% Sep. 60 75 9 1 12 16% 12% Mar. 2 61 75 8 10 13.3% 10.6% Sep. 61 2 75 11 11 14.6% 14.6% Mar. 62 75 14 2 13.3% 18.6% Sep. 14% 14%

1,550 13.4% 9.2% venire, general a 18%. span, strong presumption system raise a underrepresentation years.20 over these recognized atic Supreme Court has sys for abuse a opportunity is an there findings court’s Accepting the district potential permits the race of the tem errоneous,21 ap clearly I conclude that selecting people to be sig juror known pellant presented compelling case of Louisiana, underrepresentation of blacks on jury. nificant Alexander See v. general venire from which 625, 1221, L.Ed.2d 536 92 S.Ct. venires grand jury 24, Georgia, (1972); 389 U.S. Jones drawn. (1967); 19 L.Ed.2d Sims Geor B. The Selection Procedure 523, 19 L.Ed.2d gia, 389 U.S. 88 S.Ct. (1967); Georgia, 385 U.S. Whitus proce- We turn next to the selection (1967). 17 L.Ed.2d 599 See 87 S.Ct. system dure to determine whether “susceptible racially neu- of abuse or Ross v. 581 F.2d Wyrick, also Castaneda, at tral.” 1978). repre The dramatic reduction sug this level would sentation blacks op advantage was taken gest step The record reveals that as first portunity. process subpoenaed commission qualification individuals se service potential for ex Further city directory.22 lected at random from the grand ju selecting isted method complete required These individuals Twice venire was year ries. race, re questionnaire, including randomly general from the venire. drawn appear subpoena verse side of the judge charge grand jury for The before the commission at which time personally term of court would select that subpoena commis was surrendered. The persons grand jury twelve from the venire prospective sion all found eliminated Again, grand jury. the race was for the exempt23 excused qualified to be not and September fact that from known. The The names of hardship. others because two through September exactly 1962 qualified excused those found to be and not grand jury, except were on each blacks general placed were to be venire.24 one, only was September 1960 when there court stage, At this as found random selection negates probability of 1962, blacks year proportion for the consideration. forcefully indicates racial and approximately was from one-third reduced testimony judges25 of two buttressеd actually placed of those 14.9% The summoned to persons practice stipula- not all the names A state 24. 20. table attached to the court placed qualified tion even of blacks and not excused were reveals an smaller number persons, serving grand jury period general who on the for the 1954to Names certain venire. printed serving, desig- expressed 1958. for The table is at note 19. a reason placed (Emergency) E and in the venire nated from basing 21. than on find- Rather its conclusions necessary. time as See note to time below, ings opinion constantly majority of the district supra. opinion panel to the alludes procedure, in this case. Under rules of our Jr., Judge Haggerty, impan- A. who Edward banc, panel opin- once the case is en voted September 1960 which had eled ion is vacated. it, hearing only on one on testified at black Quash “I had se- Barksdale’s Motions admittedly subpoe- 22. The commission did not up. Negroes two and one didn’t show I lected jury age. na all who males of It excluded those mind for him at and I called had alternatives occupational exemption from could claim an Negroes to serve time. I had selected two 15:174, phy- service under La.R.S. such grand jury it in 1960.” T. Were on the not for have been two blacks sicians, firemen, attorneys Addi- teachers. party, there of that would absence tionally, subpoena those who worked did every grand jury on from day companies laborers commission 584, Louisiana, time Eubanks v. the S.Ct. experience pay past its knew from would not (1958), was decided L.Ed.2d 991 jury duty. workers while on through grand jury indicted Barks- judges qualifications juror held dale. Eubanks commissioners Louisiana statute on reprinted in- supra. had been of Orleans Parish at note argument there testimony appellant’s Barksdale’s was exclu in the record is the through inclusion, judge’s finding practice expert. sion limited we The trial that the was, hopelessly confliсting disapproved Allgood, evidence Goins F.2d therefore, I (5th 1968) Beto, error. conclude that Cir. Brooks v. sequence representation (5th 1966).26 F.2d 1 Cir. grand juries September Sep- 1958 to appel The statistician who testified for sufficiently unlikely tember 1962 was lant indicated that the probability having process indicate that the selection was not exactly juries two blacks on each of those racially neutral. one, given but the amount of variance in significant underrepresentation The venire, the number of blacks on the is less evidence, proved by coupled the statistical than one in a thousand. Finkel See also process with the evidence that the selection stein, Application of Statistical Deci racially op- was not neutral and afforded Theory Jury sion to the Discrimination abuse, portunities presented Cases, (1966) (utilizing 80 Harv.L.Rev. 338 facie case of discrimination. Castaneda v. sequence in Barksdale as an Partida, U.S. systematic discrimination).27 illustration of (1977). L.Ed.2d 498 finding district court made no of fact IV. Rebuttal Evidence point, concluding that it was faced “totally opposing of competent views petitioner presents prima Once the facie qualified experts.” discrimination, case of intentional the bur- disagree den to rebut shifts to the state. I Appellant’s expert prob- testified that the with the conclusion judge of the trial ability was less than one in a thousand that the majority that the state carried its bur- the 2-2-2-2-1-2-2-2-2 sequence pro- Although clearly den. we are bound by the duced random selection. The ex- state’s reviewing erroneous standard when pert, hand, given other testified that court, findings of fact of the district Wade venire, of blacks on each Mayo, having grand jurors two black on a Metcalfe, (1948); L.Ed. Baker v. was not statistically unusual. This undis- 1981); F.2d 1198 Fed.R.Civ.P. Rule puted. question is whether the consist- 52, we are by not bound conclusions of law. ent selection of two grand jurors over Co., Hоrn v. C. L. Contracting Osborn period of years sufficiently unusual to (5th 1979). F.2d 318 Cir. show process a selection racially not neu- tral. As the expert state’s did not address The district court conceded that the selec himself question, that the only process evidence tion was “haphazard” and that dis to tentionally excluding grand black, jury suggesting judge blacks from with another participation, making and directed that such conduct race-neutral selections. stop. suggested must Allgood, This court in Goins v. Judge (5th 1968), 391 F.2d 692 26. As Brown stated in Brooks: Cir. that perhaps while total exclusion had ended with requirements making The dual awareness of Eubanks, through that exclusion limited inclu- met, inevitable must be but this must race never, present sion was F.2d at 696-97. in the Barksdale case. 391 never, simply be done as the means of never, never, simply It discrimination. must As further evidence that there was race con- applied proportional representa- be to secure grand jurors, sciousness in the selection of never, never, simply applied It tion. must be Judge gard Brahney, Thomas M. Jr. testified in re- predetermined or fixed to secure limitation. impaneling to the of a that had Id. at distinctly two blacks on “I it: recall there were prospective jurors two or three colored and one Court cited this article in Whi- of them didn’t wish to serve even after I 545, n.2, Georgia, tus v. 385 U.S. 87 S.Ct. appointed them one of them took ill and I n.2, (1966) concluding 17 L.Ed.2d 599 called several others ... one of them became probability underrepresentation that the of the replace ill and called to see if I could him and again in that case was .000006. The article condition, quit one had a heart and he Castaneda, by cited was at 496 the Court 430 U.S.

jury.” appears It then that when one black n.17, at 1281 n.17. S.Ct. grand juror purposefully replaced ill fell he was grand blacks from the re or exclude not been parities which “had existed addition, one, testified who that He con percentages.” juries. to thе desired duced qualifying factor in use race as a however, was he did not cluded, that a “sincere effort” gener admitted that he “feels jurors, underrepresenta-, grand reduce the being made to qualified less than whites Negroes jury ally tion and that the commission jurors.”29 racial serve as judges engaged in invidious to purposeful exclusion discrimination and offered evidence as how The state no blacks.28 wage what conditions earn- many or under “hardship.” excused for This similarly that the ers were majority The concludes wage of all by adequately disapproved the exclusion presented the state evidence Bennett, v. majori- as a class Labat prima facie earners rebutted case. (5th 1966). majority dis- ty testimony of the F.2d 698 Cir. approval cites ground Labat on the that Labat intentionally tinguishes state judges that did not exclusion the total exclude blacks service. held unconstitutional include or here, earners; court found wage conclusory It is well established that state- did not exclude judges and commission ments commissioners that Yet, justifi- principal class. no the entire there was reducing the state for will not rebut a facie show- cation offered selection percentage e. ing; proof. approximately must be See one-half there concrete 482, placed Partida, summoned g., v. 430 U.S. blacks Castaneda 1272, daily wage is that (1977); general Alexan- on the venire S.Ct. 51 L.Ed.2d 498 1221, Louisiana, Assuming arguendo 625, excused. der v. 405 U.S. 92 S.Ct. earners were Fouche, excusing (1972); wage the reduction due to 31 L.Ed.2d 536 Turner earners, widespread 346, 532, sufficiently 24 L.Ed.2d 567 exclusion S.Ct. 404, refutes the (1970); Georgia, disparity this kind of 389 U.S. to create Sims repre- (1967) (per general cu- venire probability 19 L.Ed.2d 634 S.Ct. Louisiana, population. riam); 356 U.S. a cross section of Eubanks sented (1958); 2 L.Ed.2d Pierre v. majority that the record lacks population and those total specific cy no evidence requirements, explain nire; burden on the state state these introduced to corrobоrate including nar- disparity by evidence statements. Here, appellant, population figures. rowed state, figures Moreover, introduced testimony judges not the sex, occupation, age, by virtue of of two on each narrowed the inclusion blacks state schooling, figures the ac- jury, supra, note 25 the asser negates see could have intentionally cepted. include If other factors further tion that did not stipulation fallacy in a contained this 29. This statement conclusion is demonstrat- by appellant the state before into “The testi- entered ed the district court’s statement: (in appeal p. at appellant’s mony trial the record that an at- and evidence demonstrates pre- judge 342). being comply this statement tempt who made with the made to appellant’s trial. Labat v. dictates of Labat." This court decided sided Bennett, 1966) in 1966. 365 F.2d 698 practices occurred at issue case 1962 and 1963. disparity, narrowed the the burden was on cannot, present

the state to them. We level, appellate possible as to speculate justifications; limited to the evi- we are

dence introduced in the court below.

I failed to conclude that the state rebut facie case of intentional ‍​​​‌​‌​​​‌​‌‌‌‌‌‌​​‌‌​​‌​​​​​‌‌‌‌‌‌​‌‌‌​‌‌‌‌‌‌‌‌‍discrimi- nation. I would reverse the district court.

Therefore I dissent. SERVICES, LOGISTICS

OFFSHORE Inc., INC., Logistics, and Offshore Appellees, Plaintiffs-Appellants-Cross MANUFACTUR- ARKWRIGHT-BOSTON COMPA- ERS MUTUAL INSURANCE NY, Appel- Defendant-Appellee-Cross lant. 79-2143.

No. Appeals, United States Court Fifth Circuit.

AUnit 16, 1981. March Rehearing Rehearing and En Banc 19, 1981. May notes Louisiana, calculate the enough detailed statistics (1939); Wyrick, Ross v. 581 F.2d L.Ed. racial breakdown of exact judges 1978). Although juror criteria meeting statutory attempted explain commissioners the bur- Castaneda defines qualification. between the of blacks reduction number and the proof petitioner of both dens of jury qualification and the summoned prove un- petitioner for the it is state: actually placed general ve- number by showing the derrepresentation requested stating nire many blacks proportion group between excuses or to meet litera- “hardship” failed ve-

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: Apr 14, 1981

Citation: 639 F.2d 1115

Docket Number: 78-2582

Court Abbreviation: 5th Cir.