Alexander v. Louisiana Brief for Petitioner

    Supreme Court, UE. 
F 1 L £  IV

vlUN 9 197!

IN THE
E, RuteKl l R, CL.f R \

Supreme Court of the United States
OCTOBER TERM, 1970

N o .5944

CLAUDE ALEXANDER,

Petitioner,

v.

STATE OF LOUISIANA.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF LOUISIANA

BRIEF FOR PETITIONER

Jack Greenberg 
James M. Nabrit, III 
Charles Stephen Ralston 
Margrett F ord

10 Columbus Circle
New York, New York 10019

Charles F inley

P.O. Box 3463 
Lafayette, Louisiana 70501

Attorneys for Petitioner
Washington. D. C. - T H IE L  P R E S S  • 202 - 393-0625



(i)

INDEX

Page

Opinion Below ..............................................................................  1
Jurisdiction .  ............ ..................................................................  2
Constitutional Provisions and Statutes Involved ............ .. 3
Questions Presented............ .. .........................................................  4
Statement of the C ase ..................................................................... 5
Summary of Argument .................................................... .. 12
Argument:

I. PETITIONER WAS DENIED EQUAL PROTECTION 
OF THE LAW IN THAT NEGROES WERE SYSTEM­
ATICALLY EXCLUDED FROM THE GRAND JURY
THAT INDICTED HIM ...................................................... 13
A. Petitioner Made Out a Prima Facie Showing of 

Racial Discrimination in the Selection of the
Grand Jury that Indicted Him . . . . . . . . . . . . . . . . .  14

B. The Evidence Established that There Was an 
“Opportunity for Discrimination” in Violation
of Whitus v. Georgia and Avery v. Georgia.................... 19

II. THE TOTAL EXCLUSION OF WOMEN FROM JURIES 
IN LAFAYETTE PARISH DEPRIVED THE PETITIONER
OF A JURY REPRESENTING A CROSS-SECTION OF 
THE COMMUNITY IN VIOLATION OF THE DUE 
PROCESS CLAUSE OF THE FOURTEENTH AMEND­
MENT . ............................................................................. .. . 22
A. This Case, Unlike Hoyt, Involves the Total Exclusion

of Women from Juries........................................................  23
B. The Total Exclusion of Women Violates the Require­

ment of Representative Juries Imposed by the Due
Process Clause.....................................................................  25

III. THE INTRODUCTION OF PETITIONER’S ALLEGED 
CONFESSION VIOLATED HIS RIGHTS TO DUE 
PROCESS OF LAW...............................     30

CONCLUSION ............................................    34



Page
APPENDIX

1. Statutes of Louisiana Relating to Jury Selection...............  la
2. Portion of Decision of Supreme Court of Louisiana

in State o f Louisiana v. Pratt, 255 La. 919, 233 So.2d
883 (1970), Dealing with Jury Selection.............................. 9a

CASES

Anderson v. Georgia, 390 U.S. 206 (1 9 6 8 )............... ................... 20
Avery v. Georgia, 345 U.S. 559 (1953) .............................. 19, 20, 21
Ballard v. United States, 329 U.S. 187 (1946)...........................  25, 26
Bostick v. South Carolina, 386 U.S. 479 (1968) ......................... 20
Carter v. Jury Commission of Greene County, 396 U.S. 320

(1970) ......................................................... ........................15, 25, 26
Chapman v. California, 386 U.S. 18 (1967)................................  31, 33
Eubanks v. Louisiana, 356 U.S. 584 (1958) .............................. 13
Glasser v. United States, 315 U.S. 60 (1941) .............................. 25
Harris v. New York, 401 U.S.___ , 28 L.Ed.2d 1 (1971) ____13, 31
Hill v. Texas, 316 U.S. 400 (1942) ............................................. 22
Hoyt v. Florida, 368 U.S. 57 (1 9 6 1 ) ..........................................passim
Jones v. Georgia, 389 U.S. 24 (1967)..........................................  15, 20
Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966) ......................... 25
Miranda v. Arizona, 384 U.S. 436 (1966) ................................ passim
Norris v. Alabama, 294 U.S. 587 (1935).......................................  15
Patton v. Mississippi, 332 U.S. 463 (1 9 4 7 ) ............................... .. 15
Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971)............... 29
Shapiro v. Thompson, 394 U.S. 618 (1969) .............................. 28
Sims v. Georgia, 389 U.S. 404 (1967) .....................................  15, 20
Smith v. Texas, 311 U.S. 128 (1940)............................................  25
State of Louisiana v. Pratt, 255 La. 919, 233 So.2d 883

(1970) ...................................................................................  1,4, 11
Thiel v. Southern Pacific Co., 328 U.S. 217 (1 9 4 6 ) .................... 25
Turner v. Fouche, 396 U.S. 346 (1 9 7 0 ).............................. 14, 15, 16



Page
Walder v. United States, 347 U.S. 62 (1954) ...........................  31, 33
White v. Crook, 251 F.Supp. 401 (M.D. Ala. 1 9 6 6 ).................  27, 29
Whitus v. Georgia, 385 U.S. 545 (1967)..................................... passim

STATUTES

Ala. Code 1940, Tit. 30, § 21 ........................................................... 27
Fla. Stat. Ann. § 40.01 (1) .............................. 23 28
Idaho Code § 2-411...........................................................  28

Louisiana Code of Criminal Procedure § 402 .................  2 6 22 23
Louisiana Code of Criminal Procedure § 408 ..............................  2, 5
Minnesota Stat. Ann. § 593.02 ...............................................  28

Mississippi Code 1942 Ann. § 1762 ...................... .....................  27
New Hampshire Rev. Stat. Ann. 1955, § 500:1 .........................  28
North Dakota Cent. Code § 27-09-04 ........................... ................  28
South Carolina Code 1962, § 38-52 ............................................ 27
Virginia Code § 8-178(30)................. ..............................................  2g
Washington Rev. Code § 2.36.080 .................................................  28

OTHER AUTHORITIES

Finklestein, The Application o f Statistical Decision Theory 
to the Jury Discrimination Cases, 80 Harv. L. Rev. 338
(1966) ......................................................................................... 16, 17

Moroney, Facts from Figures (3rd and Revised Edition,
Baltimore, Md., 1965, Penguin Books - Pelican) ....................  17

National Bureau of Standards Handbook of Mathematical 
Functions (National Bureau of Standards, Applied Mathe­
matics Series, No. 55, June 1964) U.S. Govt. Printing 
Office ...............  t o



IN THE

Supreme Court of the United States
OCTOBER TERM, 1970

No. 5944

CLAUDE ALEXANDER,

Petitioner,

v.

STATE OF LOUISIANA.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF LOUISIANA

BRIEF FOR PETITIONER

OPINION BELOW

The opinion of the Supreme Court of Louisiana is reported 
at 255 La. 941, 233 So.2d 891, and is set out in the Appendix 
(A. 170-180).1

*In a companion case, State o f  Louisiana v. Pratt, 255 La. 919, 
233 So.2d 883 (1970), the Supreme Court of Louisiana decided issues 
relating to jury discrimination common to both cases. The relevant 
parts of the Pratt decision have been set out in the Appendix to this 
Brief (B. A. 9aT5a).



2

JURISDICTION

Judgment of the Supreme Court of Louisiana was entered 
on March 30, 1970 and a motion for rehearing was denied 
May 4, 1970 (A. 181). An extension of time for filing a 
petition for writ of certiorari was granted by Mr. Justice 
Black to and including September 29, 1970. The petition 
for writ of certiorari and a motion for leave to proceed in 
forma pauperis were filed on September 29, 1970, and were 
granted on March 1, 1971 (A. 181).

Jurisdiction of this Court is invoked pursuant to 28 
U.S.C. § 1257(3), petitioner having asserted below and 
asserting here the deprivation of rights, privileges and immu­
nities secured by the Constitution of the United States.

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

This case involves the Fifth, Sixth and Fourteenth Amend­
ments to the Constitution of the United States.

This case also involves sections 401-404, 408, 410-411, 
413-417, and 419 of the Louisiana Code of Criminal Pro­
cedure, the texts of which are set out in the Appendix to 
this brief (B.A. la-9a).

QUESTIONS PRESENTED

1. Was petitioner, who is a Negro, denied due process 
and equal protection of the laws as guaranteed by the Four­
teenth Amendment by being indicted by a grand jury 
chosen from a venire from which Negro citizens were sys­
tematically excluded in violation of Whitus v. Georgia, 385 
U.S. 545?

2. Was petitioner denied due process of law as guaranteed 
by the Fourteenth Amendment by being indicted by a grand 
jury chosen from a venire from which women had been 
systematically excluded?

3. Was petitioner denied due process of law as guaranteed 
by the Fourteenth Amendment where at trial a statement



3

was introduced, for impeachment purposes, that he allegedly 
had given to police officers shortly after his arrest and where 
the testimony of the police officer established that petitioner 
was not advised that he had the right to have a lawyer 
present at the time he gave any statement and that petitioner 
had not affirmatively waived his right to remain silent?

STATEMENT OF THE CASE

Petitioner, Claude Alexander, is under a sentence of life 
imprisonment imposed by the District Court for the Fif­
teenth Judicial District in Lafayette Parish, Louisiana, follow­
ing his conviction for rape. His conviction was affirmed on 
appeal by the Supreme Court of Louisiana (A. 170).

Prior to trial petitioner filed motions to quash the indict­
ment on the grounds that: (1) citizens of the female sex 
were systematically excluded from the grand jury list and 
venire and from the grand jury empaneled; and (2) citizens 
of the Negro race were included in the grand jury list, and 
grand jury venire, in such small numbers as to constitute 
only a token representation having no relationship to the 
number of Negroes in the general population in the Parish 
of Lafayette and in the Fifteenth Judicial District. There­
fore, the indictment against him was invalid and illegal 
because it was returned by a grand jury empaneled from a 
grand jury venire made up contrary to the provisions of the 
Fourteenth Amendment to the Constitution of the United 
States of America (A. 6).



\J 4

1. Facts Relating to Racial Discrimination in the 
Composition of the Jury.

Prior to trial a hearing was held on petitioner’s motion 
to quash the indictment.2 The evidence revealed that the 
jury commission was appointed by the court and consisted 
of five members (all of whom were white (A. 50)), includ­
ing the clerk of the court of Lafayette Parish. The com­
mission had selected a list of 400 prospective jurors to 
serve for the terms in which petitioner was indicted. Of 
these 400 prospective jurors 27 were Negroes, or 6.75%, 
and the race of 5 persons was unknown.3 From this list 
20 names were drawn, one of which was that of a Negro. 
From these 20, twelve, none of whom were Negro, com­
prised the actual grand jury that indicted petitioner (A. 3- 
4, 16-24, 39).4 Petitioner’s challenge to the grand jury 
centers on the manner in which the commissioners selected 
the 400 prospective jurors from which his grand jury was 
drawn.

2 A. 29-65. The hearing was held jointly in the cases of petitioner 
and his co-defendant, Lee Perry Pratt. The Supreme Court of Louis­
iana decided the jury discrimination issues in Pratt’s appeal. The rele­
vant portions of that decision, State o f  Louisiana v. Pratt, 255 La. 
919, 233 So.2d 883 (1970), are set out in the Appendix to this 
Brief.

3It should be noted that there are inconsistencies in the record as 
to the number of Blacks and of persons whose race is unknown out 
of the total of 400 persons. The State introduced as an exhibit a 
certification by the clerk of the court stating that there were 25 
Negroes (or 6.25%) and 4 persons with no race shown (A. 15). A 
count of the actual list of jurors, however, (A. 16-24) shows 27 
Negroes and 5 persons with no race. In this brief, however, the 27-5 
figures will be relied on as establishing a prima facie case of racial dis­
crimination.

4These figures were obtained from the testimony of the registrar 
of voters (A. 39) and by comparing the lists of the grand jury venire 
and the actual grand jury (A. 3-4) with the overall jury list (A. lb- 
24).



5

According to United States Census reports for 1960 
(which were admitted into evidence below), the total num­
ber of persons in Lafayette Parish over 21 years of age and 
hence eligible for service on juries was 44,986. Thirty-five 
thousand, five hundred and thirteen were white and 9,473, 
or 21.06%, were black. Of these totals, the male popula­
tion, the only group considered for jury service (see part 2, 
infra), consisted of 21,736 persons. Of this number, 17,331 
were white and 4,405, or 20.27%, were Black.

The evidence as to the method used by the jury commis­
sioners in compiling the grand jury lists was as follows: A 
list of names was obtained from several different sources, 
including the Lafayette City telephone directory, the city 
directory, the registrar of voters registration list, lists sub­
mitted by the parish school board or any list the commis­
sioners could find, including recommendations made by the 
jury commissioners themselves (A. 35, 37). A question­
naire was mailed out to persons on the list to determine 
whether or not the individual was qualified to be consid­
ered as a candidate for the general venire list (A. 40-41).

As a result of this process, the commissioners obtained 
7,374 questionnaires, 1,015 of which, or 13.76%, were 
from Negroes (A. 15).s On each questionnaire there was 
given the race of the individual involved (A. 8, 51). A 
card was then made up on each person for whom there was 
a questionnaire and was attached to the questionnaire (A. 
36). Each card also designated the race of the prospective 
juror (see A. 7, 51). Finally, a white slip of paper contain­
ing only the name and address of the person was attached 
to the questionnaire and the card (A. 55-58).

At this point, the commissioners were ready to select 
four hundred6 names to place in the box from which to

5 One hundred and eighty-nine questionnaires had no racial desig­
nation (A. 15).

6Article 408, La. Code of Criminal Procedure, requires that at 
least three hundred names be drawn. The clerk testified, however, 
that four hundred were drawn in this case (A. 44).



6

draw grand jury venires of twenty names each. For each 
person they had a set of papers consisting of a question­
naire, a card and a slip of paper. On the first two, the 
race of the person was designated. The clerk testified that 
the commission worked from about 2000 of the sets which 
were placed on a table.7 Sets were picked up, purportedly 
at random; the white slip of paper was removed and put in­
to the box (A. 43, 48, 55-58).

At the end of this procedure the jury commission had 
selected four hundred names, 27 of which, or only 6.75%, 
were those of Blacks. For the purpose of selecting the 
grand jury that indicted petitioner twenty slips of paper 
were pulled from the box, one of which was that of a Negro 
(ii . e 5% of the names were Negro). The lone Negro was 
not drawn to serve on the twelve-man grand jury. Thus, 
the grand jury that actually indicted petitioner included no 
Negroes at all. The clerk testified that no consideration was 
given to race during the selection procedure (A. 34, 35, 41, 
45, 47-48, 54-57, 59). However, it was admitted that the 
documents used to select the venire contained racial desig­
nations, that the designation was referred to on occasion 
for identification purposes, and that the commissioners 
could have noticed the race of the persons during the 
selection process (A. 48, 51-52, 58-59).

2. The Facts Relating to the Exclusion 
of Women from the Jury Rolls.

The evidence established that women were totally 
excluded from juries in Lafayette Parish because of the 
operation of Article 402, La. Code of Criminal Procedure, 
which prohibits the selection of a woman unless she has 
filed a written declaration of her desire to serve (A. 32-33).

7 After the questionnaires and cards were made up, they were re­
viewed and persons not qualified or exempted under the law were ex­
cluded (A. 52, 54-55).



7

The clerk of the jury commission testified that question­
naires were deliberately not sent to women (A. 35-36). 
Only preliminary efforts had been made to encourage wo­
men to declare their desire to serve.8

8The clerk of court (who is also a member of the jury commis­
sion) testified as follows:

Q. Did you act as a member of jury commission in draw­
ing up a grand jury venire which made its return in the first 
week or two of September of this year?
A. Yes, sir.
Q. That would be the same grand jury that returned an in­
dictment against Claude Alexander, do you know that, sir?
A. Yes, sir.
Q. Yes, Mr. LeBlanc, are you familiar with the procedures 
followed by the Jury Commission in drawing up the venire 
of three hundred names for the grand jury?

A. Yes, sir.
Q. And you participated in that procedure?
A. Yes, sir.
Q. In drawing up the list of three hundred names, were any 
citizens of the female sex included?
A. No.
Q. In fact, all women were excluded, isn’t that right?
A. We didn’t have any names submitted to us of any with 
the intention of willing to serve.
Q. And you didn’t look for any names of women to serve 
on the jury, the grand jury?
A. That’s right.
Q. And none were listed on the grand jury venire.
A. That right. (A. 32)

* * * * *
Q. Mr. LeBlanc, you would include the names of any women 
who volunteered service. Is that correct?
A. Yes.
Q. And as I understand, the reason you did not include 
women is because they are exempt from service unless they 
specifically volunteer and offer their service. Is that right?
A. Yes (A. 53).

* * * * *



8

According to the United States Census Report for 1960, 
the total number of women in Lafayette Parish over 21 
years of age and hence eligible for service on juries over 
23,250, with 5,068, 21.8%, being Black. By excluding 
women, therefore, more than 50% of the persons eligible 
to serve were automatically kept off juries. The jury list, 
the grand jury venire and the grand jury that indicted peti­
tioner contained no women at all.

3. The Facts Relating to the Admissibility 
of Petitioner’s Confession.

At the trial the prosecutrix and her boyfriend identified 
petitioner as one of the men who had committed the assault 
and rape. Policemen who came upon the scene similarly 
identified him as the person they had apprehended as he 
tried to flee. Petitioner took the stand and testified in his 
own defense. His story was that he had been in the park 
on his way to burglarize a club on the premises. As he was 
walking along, at about 1:30 A.M., he heard moans. He 
investigated and saw a white girl, nearly nude, at the bot­
tom of a culvert. He went into the culvert, looked at the 
girl and started back out to go get help. At this instant, a 
light was shone in his face and he was arrested by police 
officers.

When petitioner had finished his direct testimony, the 
prosecutor announced that he would introduce a statement

Q. Were any invitations or notices sent to women advising 
that they had a right to declare their desire to serve on the 
jury?
A. I’ve discussed that with the Assistant District Attorney 
and I’ve sent her at different women’s clubs to explain to 
the women the possibility of being on the jury. The reason 
so far that the women have not served is because facilities 
and accommodations for ladies were not available in the old 
courthouse. But since the new place is being constructed 
we’re working on the women to submit names and intention 
to serve (A. 54).



9

allegedly given to police officers immediately after peti­
tioner’s arrest. The jury was excused, and a hearing was 
held before the judge to determine the admissibility of the 
alleged confession (A. 65-67). The testimony o f the offi­
cers was that one o f them advised petitioner that he had 
the right to remain silent, that anything he said could be 
used against him in court, that he was entitled to an attor­
ney, that if he couldn’t afford an attorney one would be 
offered to him, and also that he had the right to stop talk­
ing at anytime he felt like it (A. 70, 74, 85, 100-101). In 
response to a question by petitioner’s counsel, however, the 
officer testified positively that petitioner had not been 
informed that an attorney would be appointed to be pres­
ent at the time he gave a statement (A. 157-158).9 Further, 
two of the officers testified positively that petitioner made 
no response to the warning given him. Rather, the inter­
rogating officer testified that he just began asking questions 
and petitioner responded to them (A. 78-79, 90, 92).10

Q. Captain, you did tell this man, did you, that he had a 
right to be advised by an attorney?
A. I advised him that he had a right to a lawyer.
Q. And that he had a right to have an attorney present 
when the statement was taken?
A. No, sir.
Q. You didn’t tell him that?
A. No, sir (A. 157-158).

10 Thus:
Q. Capt. Picard, you said that you told him something about 
his right to remain silent?
A. Yes, sir.
Q. And did he remain quiet and gave you no answer when 
you told him that?
A. Not during that saying, no, sir.

* * * * *
A. After I advised him of his rights I said, “What happened 
in the park?” , and he told me.

* * * * *
Q. But he didn’t tell you that yes, he would agree to talk 
did he?



10

The questioning took place in the detective’s office at the 
city police station at 2:30 A.M., immediately after peti­
tioner’s arrest (A. 67-68). The petitioner and three police 
officers were the only persons present. One officer asked 
questions, took notes of petitioner’s answers (A. 93), and 
then reduced the alleged oral statement to writing (A. 68). 
The notes were then discarded (A. 95).

Petitioner testified that at the time of his arrest he had 
been handled roughly by the officers (A. 110-111). He 
further testified that he was refused the use of a telephone 
to call his mother at the time of the interrogation (A. 111- 
112), and that he told the interrogating officers that he 
was sleepy (A. 112-114). These allegations were denied by 
the officers.

All the witnesses testified that petitioner refused to sign 
the statement when the interrogating officer read it to him. 
The officers testified that the reason he gave was that he 
wouldn’t sign it until he got his shoes back (A.- 71, 73, 88). 
Petitioner testified, however, that it was because he hadn’t 
said the things that were in the statement (A. 116, 117- 
119). In any event, the only signature on the statement 
from which the interrogating officer testified was that of 
the officer (A. 152).

The trial judge overruled petitioner’s objections to the 
introduction of the purported confession, holding that it 
had been made voluntarily and that the proper Miranda 
warnings had been given (A. 123-126). The jury was re-

A. No, he just started talking.* * * * *
Q. He just kept silent. Is that right, sir?
A. He kept silent until he told me what happened in the 
park.* * * * *
Q. He said nothing to show you the state of his mind in 
response to your warnings until he began to say what occur­
red in the park, isn’t that right, sir?
A. No, sir. (A. 78-79; see also A. 158.)



called, and the interrogating officer was permitted to tes­
tify as to the statement. It was an admission of the crime 
and directly contradicted the story petitioner had given 
on the witness stand.11

4. Proceedings in the Courts Below.

As stated above, petitioner raised his constitutional 
objections to the jury selection procedures by motion prior 
to trial and objected at trial to the introduction of his 
alleged confession. As to the jury claims the trial court 
denied the motion to quash, relying on Louisiana and federal 
court decisions dealing with racial exclusion and on this 
Court’s decision in Hoyt v. Florida, 368 U.S. 57, dealing 
with the exclusion of women from juries (A. 26). With 
regard to the introduction o f the confession, the court 
held: (1) the confession was voluntary; and (2) there had 
been compliance with Miranda v. Arizona, 384 U.S. 436.

On appeal, the Supreme Court of Louisiana, in the com­
panion case o f State v. Pratt, 255 La. 919, 233 So.2d 
883 (1970) (B.A. 9a) rejected both challenges to the grand 
jury venire (A. 172-174). The court held that purposeful 
exclusion of Negroes had not been shown, and also relied 
on Hoyt v. Florida to uphold the exclusion of women. 
With regard to the confession issue, the Supreme Court 
accepted the factual determination of the trial judge (A. 
179). A rehearing was denied (A. 181), and a writ of 
certiorari was sought here.

Petitioner also testified that the morning after his arrest he had 
given another statement to a detective that was substantially the same 
as the testimony he gave at the trial (A. 137-138).



1Aj \ aJL'xJ

12

SUMMARY OF ARGUMENT 

I

Petitioner made out a prima facie case of racial discrimi­
nation in the selection of the venire from which the grand 
jury that indicted him was chosen. Although adult Negro 
males compose 20.27% of the population of Lafayette 
Parish, they represented only 6.75% of the jury venire of 
four hundred persons. The jury commissioners claimed that 
the four hundred persons were selected at random from a 
pool that was 13.76% black. However, statistical analysis 
demonstrates that it was improbable in the extreme that 
the reduction in the percentage of blacks could have resulted 
from random selection methods.

No explanation was given for these disparities, except for 
denials that race was considered when the venire was 
selected. However, at critical stages in the selection process 
the jury commission had a clear opportunity to discriminate, 
since the documents they worked with designated the race 
of the persons being considered for jury duty. Therefore, 
the grand jury was empaneled in violation of the equal 
protection clause of the Fourteenth Amendment.

II

By operation of a Louisiana statute that excludes all 
women from jury duty unless they volunteer for service, 
no women whatsoever were on the jury rolls. This result 
largely was caused by the jury commission’s deliberately 
not sending jury questionnaires to women during the proc­
ess by which they developed a pool of names to be consid­
ered for service. Thus, this case is distinguishable from 
Hoyt v. Florida, 368 U.S. 57 (1961), relied on by courts 
below, since the affirmative action of the commission was 
responsible for the total absence of women from the rolls. 
In contrast, there were at least some women on the rolls in 
Hoyt.



13

The total exclusion of women from jury service denied 
petitioner his right to a jury venire reasonably representa­
tive of a cross-section of the community as a whole. Louis­
iana has offered no valid justification for the use of a 
scheme that has had the totally exclusionary effect shown 
here. Therefore, the indictment of petitioner violated his 
right to due process of law guaranteed by the Fourteenth 
Amendment.

Ill

At petitioner’s trial, an alleged confession was introduced 
by the state for impeachment purposes that was obtained 
without compliance with Miranda v. Arizona, 384 U.S. 436 
(1966). This case is distinguishable from Harris v. New  
York, 401 U.S. ___ , 28 L.Ed.2d 1 (1971), in that the cir­
cumstances surrounding the giving of the confession raise 
serious doubt as to its reliability. Harris should be limited 
to those cases where the confession involved is of the same 
order of reliability as physical evidence that has been seized 
in violation of the Fourth Amendment. Therefore, peti­
tioner was denied his right to due process by the introduc­
tion of the confession against him.

ARGUMENT

I

PETITIONER WAS DENIED EQUAL PROTECTION OF
THE LAW IN THAT NEGROES WERE SYSTEMATICALLY
EXCLUDED FROM THE GRAND JURY THAT INDICTED
HIM.

At the time of the indictment of petitioner the grand 
jury list and venire for Lafayette Parish, Louisiana was 
made up from various lists secured by the jury commis­
sioners (A. 35-36).12 A questionnaire was mailed out to

12In this case, only the grand jury was challenged. Thus, this case 
is like, e.g., Eubanks v. Louisiana, 356 U.S. 584 (1958).



14

every eighth person on the list thus compiled by the jury 
commission (A. 40-41).13 The race of the individual was 
listed on the questionnaire (A. 8). When the questionnaires 
were returned, the commissioners determined which per­
sons were qualified for jury service. For each such person 
a card was made out which also designated race (A. 7) and 
the card was attached to the questionnaire. Slips of paper 
on which were written only the name and address of the 
individual were then attached to the questionnaire and 
card. Sets of questionnaires, cards and slips were picked 
until 400 names were chosen. The slips of paper alone 
were then deposited in the general venire box from which 
jury venires were drawn.

At the beginning of this process the jury commission had 
started with an eligible male population that was 20.27% 
black. They received back 7,374 questionnaires, 1,015 of 
which, or 13.76%, were from Negroes.14 From these ques­
tionnaires they picked a jury venire of 400 names, 27 of 
which, or only 6.75% were black,15 and finished with a 
20-man venire containing only one black. The twelve men 
on the grand jury that actually indicted petitioner were all 
white.

A. Petitioner Made Out a Prima Facie Showing of 
Racial Discrimination in the Selection of the 
Grand Jury that Indicted Him.

This Court has long held that where statistically signi- 
cant disparities between the percentage of Negroes eligible 
to serve on juries and the percentage on jury rolls has been 
shown, a prima facie case of racial discrimination has been 
made. Turner v. Fouche, 396 U.S. 346, 359 (1970); Sims

13If the eighth person was exempt by law from jury service, how­
ever, then the next eligible individual was selected (A. 35-36).

14One Hundred and Eighty Nine had no racial designation (A. 15).

15Five of the 400 were unidentifiable as to race.



15

v. Georgia, 389 U.S. 404 (1967); Jones v. Georgia, 389 U.S. 
24 (1967); Whitus v. Georgia, 385 U.S. 545 (1967); Patton 
v. Mississippi, 332 U.S. 463 (1947); Norris v. Alabama, 294 
U.S. 587 (1935). Once such a showing has been made, the 
state has a heavy burden of rebuttal, which may not be 
satisfied by testimony, as here (A. 34; 35; 41; 45; 47-48; 
54-57; 59), of jury officials that they did not include or 
exclude any one because of race. See, Turner v. Fouche, 
396 U.S. at 361, and cases cited there at n. 21.

Petitioner here made such a showing. Lafayette Parish 
has a population of 20.27% black males. Only 13.76% of 
the names of persons obtained by the commission by use of 
questionnaires were black. The actual jury list compiled 
from these questionnaires and from which the grand jury 
was drawn contained only 6.75% black names. And even 
if the five persons whose race was not known are assumed 
to have been Negro, the percentage was still only 8%.

The state has simply failed to provide any adequate rea­
son for these results. With regard to the disparity between 
the percentage of blacks in the parish and the percentage 
of blacks among those returning questionnaires, the clerk 
of the commission testified that he was aware of the fact 
that there had been a lower rate of response from Negroes. 
Indeed, he admitted that because of the sources of names 
that were used, “naturally there was a greater percentage 
of personal mail to the white people than to the Negroes. 
And for that reason it follows that we had larger replies 
from the white than from the colored” (A. 45-46). Thus, 
it was clearly established that the commission had failed in 
its constitutional duty to utilize methods that would result 
in a jury list . . ‘truly representative of the commu­
nity,’ “ as required by Carter v. Greene County, 396 U.S. 
320, 330 (1970), and by Turner.

Even more serious, and as equally lacking in a constitu­
tionally acceptable explanation, is the large drop from 
13.76% blacks returning questionnaires and 6.75% blacks 
on the actual jury list. The clerk testified that the more



16

than 7,000 returned questionnaires were examined to deter­
mine who among the returnees were eligible for service until 
about 2000 were left (A. 52; 54-55). No evidence was 
offered by the state as to the racial breakdown of those 
excluded, so it is not known whether the remaining ques­
tionnaires reflected the same 86.24% white - 13.16% black 
ratio as did the total number of questionnaires. It is clear 
from Turner, however, that the burden was on the state to 
justify and explain any drop in the percentage of blacks 
resulting from this weeding out process, if any in fact did 
take place. 396 U.S. at 359-361.

The two thousand or so questionnaires that were left 
were then placed on a table, and 400 were picked. Of 
these, only 27 were blacks, and for five the race was not 
known. The selection procedure was purportedly a ran­
dom one (A. 55-58). Petitioner urges, however, that by 
the use of accepted methods of statistical analysis it can be 
shown that the chances of this result being obtained by a 
random system are so small as to lead irresistibly to the 
conclusion that random methods were not used in fact.16

The approach to be used is that described at length in 
Finkelstein, The Application o f  Statistical Decision Theory 
to the Jury Discrimination Cases, 80 Harv. L. Rev. 338 
(1966), referred to by Mr. Justice Clark, writing for the 
Court in Whitus v. Georgia, 385 U.S. 545, 552, note 2.
In that article, Finkelstein suggests an approach to jury dis­
crimination cases more exact than simply attempting to 
infer discrimination from what appear to be significant dis­
parities between percentages of Negroes in the general pop­
ulation and in jury lists, the intuitive approach typically 
used. He points out that statistical analysis provides a 
ready tool by which courts can determine the probability

16The argument that follows is based on the assumption that the 
proportion of blacks in the 2000 questionnaires used for selection 
was the same as that in the 7,434 received, i.e., 13.76%. As noted 
above, if the percentage was significantly less than that, the state 
failed in its burden to explain any disparity.



17

of particular numbers of blacks being on lists if a random 
method of jury selection was indeed used. If the probabil­
ity in a particular case is significantly small, then it can be 
concluded that the selection process was not random. Thus, 
in the absence of an alternative explanation of why the 
number of Negroes is small, it can be inferred that race 
was a factor in choosing the jury. In his conclusion, Finle- 
stein points out:

A basic legal principle in the jury discrimination 
cases is that the selection of an improbably small 
number of Negroes is evidence of discrimination . . . 
The second legal principle controlling these cases 
is that a disparity between the proportion of Negroes 
on venires and in the population generally is evi­
dence of the improbability of random selection. 80 
Harv. L. Rev. at 374.

In his article Finkelstein demonstrates how a number of 
methods can be used to calculate these probabilities. Here, 
we will use a simplified version of the chi-square method 
he describes at 80 Harv. L. Rev. at 365-373. The method 
and formula used are explained in Moroney, Facts from  
Figures, a book explaining statistical method and written 
for laymen without mathematical training.17 This method, 
it should be noted, is a conservative one—that is, it approxi­
mates the highest possible probability of the particular 
result coming about by chance. As will be noted, the actual 
probability is much lower.

Turning to the facts in the present case, the first step in 
the calculation is to ascertain the number of blacks that 
would have appeared on the final jury list of 400 people if 
the proportion was the same as for the questionnaires. Since 
this was 13.76%, there would have been 55.04 blacks rather 
than only 27. What, then, is the probability that 27 or

173rd and Revised Edition, Baltimore, Md., 1965 (Penguin Books- 
Pelican), Ch. 15, pp. 246-270. The formula can be found on page 
250. A copy of this book has been deposited with the Clerk for the 
convenience of the Court.



18

fewer Negroes would appear on the list if the selection were 
random as claimed by the jury clerk? The chi-square for­
mula, explained in detail in the margin below,18 shows

18The steps in the computation were as follows: 
1. The formula used was:

chi-square = (Aw - Ew)2 + (An - En)2 
Ew En

2. The arithmetic values were as follows:
Actual (A) Expected (E)

White (w) 373 (Aw) 344.96 (Ew)
Negro (n) 27 (An) 55.04 (En)
Total 400 400.00 .

(As noted above, the “expected” figures given above merely reflect 
the relative percentages of Negroes and whites among the question­
naires, i.e., total jurors times percentage of Negroes among question­
naires equals expected Negro jurors, or 400 x 13.76% = 55.04.)

Applying the formula, thus:
chi-square = (373 - 344.96)2 + (27 - 55.04)2

344.96 55.04

= (28.04)2 + (-28.04)2
344.96 55.04

= 786.24 + 786.24
344.96 55.04

= 2.279 + 14.285

chi-square = 16.564

4. To translate the chi-square numbers to determine probability 
we used the table published in the National Bureau of Standards 
Handbook of Mathematical Functions (National Bureau of Standards, 
Applied Mathematics Series, No. 55, June 1964, Govt. Printing Office, 
p. 982.) For a chi-square number of 16.564, the probability is five 
in 100,000, or .00005.



19

that that probability is at best only .00005, or five in 
100,000.19 Stated another way, the probability is that 
this result would obtain only once in 20,000 random selec­
tions.20

Thus, it has been established that, because of the num­
ber of Negroes selected, the probability that the four hun­
dred names were selected at random, as claimed by the 
state, is so low as to render that claim inherently suspect. 
The disparity shown, as the Court said in Whitus, “strongly 
points” to the conclusion that race was considered by the 
jury commissioners. 385 U.S. at 551. As will now be 
shown, the commissioners had a clear opportunity to uti­
lize racial considerations.

B. The Evidence Established That There Was an 
“Opportunity for Discrimination” in Violation 
of Whitus v. Georgia and Avery v. Georgia.

In Whitus v. Georgia, 385 U.S. 545 (1967), and Avery v. 
Georgia, 345 U.S. 559 (1953), this Court dealt with a com­
bination of a disparity between blacks eligible for jury duty 
and blacks on the jury rolls and of what it termed an “oppor­
tunity for discrimination” by those involved in the jury 
selection process. 385 U.S. at 552. In Avery, different 
colored tickets were used for white and Negro prospective

19 Dr. John de Cani, a professor of statistics at the University of 
Pennsylvania has calculated the exact probability as being only 
.0000043, or less than 5 in one million. Thus, it may be noted, is 
less than the probability noted by Mr. Justice Clark in Whitus, which 
was .000006, or six in one million. 385 U.S. at 552, no. 2.

20Even if it is assumed that all five of the persons whose race was 
unknown were black, the probability is only three in ten thousand. 
(.0003). The relevant figures under this assumption are Aw=368, An=32, 
Ew=344.96, En=55.04, chi-square=l 1.184. And if the five unknowns 
are excluded altogether, the probability is five in one hundred thou­
sand. (.00005). (Aw=368, An=27, Ew=340.65, En=54.35, total
jurors=395, chi-square= 15.959.)



20

jurors. In Whitus, names of prospective jurors were selected 
from tax digests segregated according to race. See also 
Bostick v. South Carolina, 386 U.S. 479 (1968); Jones v. 
Georgia, 389 U.S. 24 (1967); Sims v. Georgia, 389 U.S. 
404, 407-08 (1967); Anderson v. Georgia, 390 U.S. 206 
(1968). In both instances, convictions were reversed 
because of the danger of abuse inherent in a system where 
the race of jurors could be known at critical stages in the 
jury selection process.

This case presents facts indistinguishable from Whitus 
and A very. A significant statistical disparity has been shown 
above, and an opportunity to discriminate was present at 
at least two stages in the process. As has already been 
noted, race was requested on the questionnaires sent out to 
all prospective jurors; the inquiry was answered in all but 
189 of 7,374 of the returned questionnaires (A. 15). A 
card was filled out for each juror which also contained a 
racial designation. The questionnaire and card were attached 
together and were used in the process by which the possi­
ble percentage of Negroes to be included in the jury rolls 
was reduced from 13.76% to 6.75%.

Thus, the questionnaires were used to reduce the num­
ber of possible jurors from 7,374 to about 2000. The 
questionnaires and cards were also used to select from that 
2000 the 400 names that would be put into the venire 
box. The only justification given for the racial designation 
was that it was used, on occasion, for the purpose of iden­
tifying the individual who had sent back the questionnaire 
(A. 51). No explanation was given, however, as to why 
the race of the person had any relevance in determining his 
qualifications to serve. Moreover, it was admitted that the 
commissioners had the opportunity to look at the question-



21

naires and notice the race of the person in question (A. 
58).21

Thus, this case presents precisely the situation that 
obtained in Avery and Whitus. There was a significant dis­
parity between eligible Negroes and those ultimately placed 
on the jury rolls that was unexplained by the State except 
for general statements that the commissioners did not take 
race into account. There was a clear opportunity to dis­
criminate because prospective jurors were identifiable as to 
race at critical stages in the selection process. Just as in 
Whitus, it cannot be said “on this record that [the oppor­
tunity to discriminate] was not resorted to by the commis­
sioners.” 385 U.S. at 552.

In summarizing petitioner’s contentions concerning racial 
discrimination in the selection of the grand jury venire, we 
wish to re-emphasize the cumulative effect of the jury selec­
tion process detailed above. The commissioners began with 
an adult male population that was 20.27% black. If the 
final venire of four hundred persons had reflected this pro­
portion, it would have contained 81 Negroes and 319 whites 
instead of the actual 27 Negroes and 373 whites. However, 
the commission developed a basic pool that was only 13.76% 
black (6359 whites, 1015 Negroes) by the use of methods 
that they knew were likely to elicit a smaller proportion of 
black than white responses. Even so, a 13.76% figure for 
the venire would produce 55 black persons and 345 whites. 
The wide divergence from these figures indicates, as shown 
above, that a random method of selection was not used.

At two crucial steps in the process, when the question­
naires were reduced to two thousand and when the final 
selection of the four hundred names was made, there was

21 Significantly, the clerk agreed that the proof of whether race 
was considered would be “how many colored or how many white are 
actually included in the four hundred selected from the two thou­
sand” (A. 58).



22

the clear opportunity to discriminate condemned by this 
Court, because racial designations appeared on the forms 
used by the commission. The net result was that only 27 
Negroes were on the grand jury venire of 400 persons. 
When 20 names were drawn in order to constitute the 
actual grand jury that indicted petitioner, only one person 
was black and he was not picked to serve on the twelve- 
man jury. Thus, by a consistent process of progressive and 
disproportionate reduction of the number of blacks, the 
ultimate result was reached—an all-white grand jury that 
returned the indictment challenged here. Because of racial 
discrimination in the selection of the grand jury, the indict­
ment must be quashed and the conviction based on it 
vacated, Hill v. Texas, 316 U.S. 400 (1942).

II

THE TOTAL EXCLUSION OF WOMEN FROM JURIES IN 
LAFAYETTE PARISH DEPRIVED THE PETITIONER OF 
A JURY REPRESENTING A CROSS-SECTION OF THE 
COMMUNITY IN VIOLATION OF THE DUE PROCESS 
CLAUSE OF THE FOURTEENTH AMENDMENT.

It is clear in this case that there were no women on the 
jury rolls in Lafayette Parish. The clerk of the jury com­
mission testified that this was because of the effect of Arti­
cle 402, La. Code of Criminal Procedure, on the manner in 
which the commission proceeded to obtain names of pros­
pective jurors. That section expressly excludes all women 
except for those who had previously filed a declaration 
stating their desire to serve.

The clerk testified that in selecting names of persons to 
whom questionnaires were to be sent, the names o f women 
were deliberately passed over. Moreover, only preliminary 
efforts had been made to encourage women to volunteer 
to serve.

According to the United States Census Report for 1960, 
the total number of women in Lafayette Parish over 21



23

years of age, and hence otherwise eligible for service on 
juries, was 23,250, with 5,068 being black. Since the total 
population of the Parish over 21 was 44,986, therefore, 
51.7% of the persons eligible to serve were automatically 
kept off juries by the exclusion of women.

Both the trial court and the Supreme Court of Louisiana 
relied on the decision of this Court in H oyt v. Florida, 368 
U.S. 57 (1961), in upholding this result, the latter saying that 
“ [i] t is well settled that the fact that women do no appear 
on a general venire list for jury duty furnishes no cause for 
quashing an indictment in view of Article 402 of the Code 
of Criminal Procedure.” (A. 173.)

Petitioner contends that the Louisiana Supreme Court’s 
reliance on Hoyt was misplaced, since his case raises the 
issue left open by Hoyt, viz., whether the total exclusion 
of women from juries violates the due process clause of 
the Fourteenth Amendment. Petitioner urges that Hoyt 
should not be extended to approve such total exclusion.

A. This Case, Unlike Hoyt, Involves the Total 
Exclusion of Women from Juries.

In Hoyt, this Court sustained a Florida statute22 essen­
tially the same as Article 402 against attacks on its con­
stitutionality both on its face and as applied. It is with 
regard to the latter aspect of H oyt that petitioner contends 
that the present case presents facts sufficiently different to 
require a different result.

22Fla. Stat. Ann. § 40.01(1): “ . . . provided, however, that the 
name of no female person shall be taken for jury service unless said 
person has registered with the clerk of the circuit court her desire to 
be placed on the jury list.” As will be discussed below, in 1967 this 
section was amended to remove this provision and substitute an 
exemption limited to “expectant mothers and mothers with children 
under eighteen (18) years of age, upon their request . . .” Laws 
1967, C. 67-154, § 1.



24

In Hoyt, the Court pointed out that it found “no sub­
stantial evidence whatever in this record that Florida has 
arbitrarily undertaken to exclude women from jury service” 
(386 U.S. at 69). Similarly the Chief Justice and Justices 
Black and Douglas concurred in the result since they could 
not say “from this record that Florida is not making a good 
faith effort to have women perform jury duty without dis­
crimination on the ground of sex.” {Ibid.) These conclu­
sions were supported by the facts that there were women 
on the jury rolls in the county, and that efforts had been 
made to include all eligible women on the rolls. Thus, it 
could not be concluded that the jury commissioners had 
acted in any way to purposefully exclude women discrimi- 
natorily (368 U.S. at 68).

The record in this case presents a far different picture 
when the jury selection procedures utilized are examined. 
The jury commissioners used a variety of sources to obtain 
names of persons to whom preliminary questionnaires would 
be mailed. These questionnaires were not for the purpose 
of actually summoning persons to jury duty, but only to 
determine eligibility. Despite this, women were deliberately 
passed over as persons to whom questionnaires would be 
sent.23 Moreover, only preliminary attempts had been 
made to encourage women to declare their desire to serve 
on juries (A. 54). The result of these practices was that 
there were no women whatsoever on the jury lists. No 
explanation was given as to why it would not have been 
possible to send questionnaires encouraging women to vol­
unteer to serve and thereby to obtain at least some repre­
sentation on the jury rolls.

Thus, unlike Hoyt, the record in this case demonstrates 
that the jury selection procedures deliberately avoided 
placing women on juries. The affirmative actions of the

23 Questionnaires were sent to every eighth person on the registrar 
of voter’s list. However, if that person “was a doctor or i f  it was a 
lady or if it was a school bus driver” the name was passed over and 
no questionnaire was sent (A. 35-36).



25

commissioners were an important factor in there being no 
women on the jury lists at all.

B. The Total Exclusion of Women Violates the 
Requirement of Representative Juries Imposed 
by the Due Process Clause.24

In Carter v. Jury Commission o f  Greene County, 396 
U.S. 320 (1970), this Court defined “the very idea of a 
jury” as being ‘“ a body truly representative of the commu­
nity.’ ” (396 U.S. at 330.) Thus, the Court established 
firmly what it had earlier suggested in Smith v. Texas, 311 
U.S. 128 (1940), that the exclusion from jury service to 
any large, identifiable, and significant group in the commu­
nity violates the requirements of due process. See Labat v. 
Bennett, 365 F.2d 698, 719-24 (5th Cir. 1966.)25

It is clear that the practice approved by the courts of 
Louisiana in the case violated this fundamental requirement. 
First, as shown above, more than 50% of adults were auto­
matically and totally kept off the jury rolls. Second, the 
persons were excluded solely because they belonged to a 
particular group, women. Third, it is clear that women are 
a significant, identifiable group of the community within 
the meaning of the cases cited above.

This Court specifically so held in a case involving the 
administration of the federal jury selection statutes, Ballard 
v. United States, 329 U.S. 187 (1946).

24Since petitioner is male, his challenge arises under his due proc­
ess right to a jury venire from which no class has been arbitrarily ex­
cluded. See Labat v. Bennett, 365 F.2d 698, 723-24 (5th Cir. 1966).

25In Labat, the Fifth Circuit, in dealing with the total exclusion 
of wage earners as a class from Louisiana juries, read into the consti­
tutional requirement of representative jury rolls this Court’s holdings 
in Glasser v. United States, 315 U.S. 60 (1941), and Thiel v. South­
ern Pacific Co., 328 U.S. 217 (1946), which dealt with interpreta­
tions of federal jury statutes.



26

It is said, however, that an all male panel drawn 
from the various groups within a community will 
be as truly representative as if women were included. 
The thought is that the factors which tend to influ­
ence the action of women are the same as those 
which influence the action of men—personality, 
background, economic status—and not sex. Yet it 
is not enough to say that women when sitting as 
jurors neither act nor tend to act as a class. Men 
likewise do not act as a class. But, if the shoe were 
on the other foot, who would claim that a jury 
was truly representative of the community if all 
men were intentionally and systematically excluded 
from the panel? The truth is that the two sexes 
are not fungible; a community made up exclusively 
of one is different from a community composed of 
both; the subtle interplay of influence one on the 
other is among the imponderables. To insulate the 
courtroom from either may not in a given case make 
an iota of difference. Yet a flavor, a distinct quality 
is lost if either sex is excluded. The exclusion of 
one may indeed make the jury less representative o f  
the community than would be true i f  an economic 
or racial group were excluded. (329 U.S. at 193- 
94) (Emphasis added; footnotes omitted.)

Hence, it was concluded, the exclusion of women denied 
the right to a jury selection procedure that would result in 
rolls being representative of the community as a whole. 
Ballard, of course, involved the administration of the 
federal jury selection statutes. Petitioner urges, however, 
that its reasoning compels the same result under the con­
stitutional standard as enunciated in Carter. The right in 
both instances is to a jury list selected so as not to exclude 
a representative cross-section of the community; for the 
reasons set out in Ballard a selection process that excludes 
all women violates that fundamental right.

Thus, a three-judge federal district court struck down an 
Alabama statute which, by prescribing that one of the qual­
ifications for jury service was that the person be a male cit-



27

izen,26 totally excluded women for jury service (White v. 
Crook, 251 F.Supp 401 (M.D. Ala. 1966). The court said:

The time must come when a state’s complete 
exclusion of women from jury service is recognized 
as so arbitrary and unreasonable as to be unconsti­
tutional. 251 F. Supp. at 409.

Therefore, the court held, the Alabama statute violated 
the Fourteenth Amendment.

This case, of course, like Hoyt, involves a statute which 
is not on its face an absolute prohibition on women serving 
on juries.27 Petitioner urges, however, that on the factual 
showing made here the statute operates as such a prohibi­
tion, so that this case is in all essentials the same as White 
v. Crook.

The Louisiana statute singles out women and excludes 
them automatically unless they volunteer to serve by filing 
a declaration to that effect with the court. Presumably, 
the state will seek to justify a scheme which operates to 
exclude all women on the ground that it is not wholly 
irrational in light o f assumptions concerning the general 
role of women in society. Petitioner contends, on the 
other hand, that once a denial of a constitutional right has 
been shown—here, to jury selection methods that result in 
jury lists representative of the community as a whole—the 
State must be put to a much stricter test of justifying what 
it has done. Thus, it must show that its legitimate goal- 
exempting women with family responsibilities who would 
suffer hardships if forced to serve on juries—cannot be

26Title 30, § 21, Code of Alabama, Recompiled 1958.

27At the present time, no state has such an absolute prohibition. 
The three states that barred women totally at the time of the deci­
sion in Hoyt have since amended their statutes. Compare the stat­
utes cites in Hoyt, 368 U.S. at 62, n. 5, with Ala. Code 1940, Tit.
30, §§ 21, 21.1, as amended 1966 Ex. Sess. p. 429, § 4, p. 427, § 1; 
Mississippi Code 1942 Ann. (1956), § 1762, as amended by laws, 
1968, Ch. 335, § 1; and South Carolina Code 1962, § 38-52, as amend­
ed, 1967 (55) 895.



28

accomplished by more narrow means that will not result 
in fact in a denial of constitutional rights. In other words, 
a compelling need for Article 402 must be shown. Shapiro 
v. Thompson, 394 U.S. 618, 634 (1969).

It is submitted that such a showing simply cannot be 
made. Rather, Louisiana is now in the position, along 
with one other state, New Hampshire,28 as having a jury selec­
tion scheme most likely to keep all women from serving 
on juries. As pointed out above, Alabama, Mississippi, and 
South Carolina no longer exclude women from jury serv­
ice,29 and Florida, the state involved in Hoyt, now calls 
women for jury service on the same basis as men and limits 
its special exemption to women who are pregnant or who 
have children under eighteen who affirmatively request 
exemptions.30 Of the sixteen jurisdictions (excluding Louis­
iana and New Hampshire) noted by this Court in H oyt31 
that allowed women an absolute exemption based on their 
sex i f  requested, five states have now placed women on 
essentially the same basis as men and allow exemptions 
only for specific occupations.32

Thus, the vast majority of states either treat women no 
different than men, or allow women to be excused from 
jury duty by focusing specifically on the question of 
whether family duties in the particular case require an ex­
emption. Even those states which allow a blanket exemp-

“ N.H. Rev. Stat. Ann., 1955 § 500:1.

29 See footnote 27, supra.

^Fla. Stat. Ann. § 40.01, as amended, Laws 1967, C. 67-154, § 1. 

31368 U.S. at 62, n. 6.

32Idaho (Idaho Code § 2-411 has been rep ea led Minnesota (Minn. 
Stat. Ann., § 593.02, as amended); North Dakota (North Dakota Cent. 
Code § 27-09-04, repealed by S.L. 1967, Ch. 251, § 1); Virginia (Va. 
Code § 8-178(30) amended, now exempts housewives rather than wo­
men); Washington (Wash. Rev. Code, § 2.36.080, amended to remove 
exemption of women per se).



29

tion based on sex call women for jury duty and put the 
burden on them to request the exemption. Such a scheme 
is at least far more likely to result in women being on jury 
rolls in some numbers in contrast to the operation of the 
Louisiana statute as shown here.

In sum, the Louisiana statutory scheme simply goes 
much further than necessary to achieve any legitimate goal 
of the state. It very well may be permissible to excuse 
women with family obligations from jury duty. But the 
statute does not focus with sufficient particularity on this 
restricted objective. Rather, it rests on the wholly unwar­
ranted assumption that all women are bound to be so en­
meshed in family obligations that they can be assumed not 
to be able to serve on juries. Recently, this Court has 
rejected such an assumption as a basis for denying employ­
ment to women because of the operation of the Civil Rights 
Act of 1964. Phillips v. Martin Marietta Corp., 400 U.S. 
542 (1971). Surely the Constitution’s requirement that 
jury rolls be representative of the community as a whole 
compels the same result.33 This is particularly true in 
light of the fact that virtually every other state has found 
it possible to achieve the legitimate state purpose of exempt­
ing those women nwho would actually suffer hardships be­
cause of family responsibilities without resorting to a statu­
tory scheme whose result is to have no representation of 
women on jury rolls whatsoever.

33As the Court in White v. Crook found and held:
[T] he exclusion of women from jury service in Alabama by 
a statutory provision is arbitrary in view of modem political, 
social, and economic conditions . . . .” 251 F.Supp. at 409.



30

III

THE INTRODUCTION OF PETITIONER’S ALLEGED 
CONFESSION VIOLATED HIS RIGHTS TO DUE PRO­
CESS OF LAW.

It is clear from the record that the requirements of Mir­
anda v. Arizona, 384 U.S. 436 (1966), were not complied 
with in two important respects before petitioner’s state­
ment was taken.34 Unquestionably, an attempt to give a 
Miranda warning was made;35 however, the interrogating 
officer failed to inform petitioner that he was entitled to 
have an attorney present at the time a statement was given. 
Indeed, he testified explicitly that he had not informed 
petitioner of that right.36 In Miranda, however, this 
Court held that that specific warning was “an absolute pre­
requisite to interrogation.” 384 U.S. at 471.

The second failure to comply with Miranda arose from 
the fact that there was no affirmative, intelligible waiver of 
the defendant’s rights, and that such a waiver does not 
appear on the record. This Court specifically rejected the 
notion that waiver could be inferred by the silence of the 
accused, or by the fact that he responded to questioning 
after the warning was given:

Moreover, where in-custody interrogation is involved, 
there is no room for the contention that the privi­
lege is waived if the individual answers some ques­
tions or gives some information on his own prior to 
invoking his right to remain silent when interrogated. 
384 U.S. at 475-76.

Here, however, the interrogating officer testified that after 
he gave petitioner a warning, petitioner simply began answer-

34Petitioner was tried in 1968, after the effective date of Miranda. 

35See, A. 70, 74, 85, 100-101.

36A. 157-158 (quoted supra, in footnote 9).



31

ing questions. There clearly was no affirmative waiver of 
his rights as required by Miranda. 37

Hence, the conclusion is inescapable that the testimony 
of the officers themselves establishes a failure to comply 
with Miranda, and the conclusions of the courts below to 
the contrary rested on a misunderstanding of that decision. 
If, therefore, the confession had been introduced as part 
of the prosecution’s case in chief, rather than for impeach­
ment purposes, the conviction would have to be reversed.38

However, after the petition for writ of certiorari was filed 
in this case, this Court handed down its decision in Harris
v. New York, 401 U .S .____ , 28 L.Ed.2d 1 (Feb. 24, 1971).
Harris held that, even though a confession was taken in 
violation of Miranda, it could be used to impeach the tes­
timony of a defendant. Petitioner urges that his case is dis­
tinguishable from Harris, and that that decision should be 
limited to circumstances where there is no question but 
that the confession to be introduced is fully reliable.

Harris relied on the decision in Walder v. United States, 
347 U.S. 62 (1954). Walder involved the admissibility of 
physical evidence seized in violation of the Fourth Amend­
ment to impeach testimony given by a defendant. Walder, 
who was being jlrosecuted for violation of the federal nar­
cotics laws, testified that he had never sold or possessed 
any narcotics in his life. The government then put in evi­
dence concerning a heroin capsule seized from Walder’s 
home, including testimony of a chemist who had analyzed 
the capsule. As is the case in virtually all cases involving 
the admissibility of physical evidence, there was no ques­
tion as to the reliability of the particular piece of evidence; 
as to that issue, the illegality of the search had no bearing.

37(A. 78-79; 90; 92; 158.) See footnote 10, supra, for the Offi­
cer’s testimony.

38 As will be discussed below, the impact of the confession was 
such so that its introduction could not said to be harmless error under 
the rule of Chapman v. California, 386 U.S. 18 (1967).



32

Confessions, on the other hand, present an entirely dif­
ferent question. Miranda is rooted in this Court’s long 
experience in grappling with problems of the inescapable 
uncertainties that arise when it is claimed that a defendant 
has confessed in a police station, in the presence of officers 
only, and without aid of counsel or any other assistance. 
The circumstances of this case vividly illustrate the validity 
of that concern.

Petitioner, a black teenager, was placed alone in an inter­
rogation room with three armed police officers at about 
2:30 a.m. He was charged with a serious crime—the rape 
of a white woman. He was without counsel and had not 
contacted his parents. The interrogating officer failed to 
inform him fully of his constitutional rights, and the rec­
ord shows that he did not waive those rights. There was 
no stenographer to take down his statement and no tape 
recording was made, even though court reporters and record­
ing machines were available (A. 93-94). One officer asked 
questions and responses were given; the officer jotted down 
notes and then typed a statement.

When the officer read the statement to petitioner, he 
refused to sign it. The officers testified that he said he 
would not sign it because he didn’t have his shoes; petitioner 
testified that he refused because the statement was not what 
he said. He contended that he did not commit the crime, 
while the statement was an admission of his participation 
in it. The next morning he gave a statement to a detective 
that, he claimed, substantially agreed with the version he 
gave at trial.

Thus, this case presents a classic example of the circum­
stances Miranda sought to avoid. Although it cannot be 
said that the statement was coerced, the atmosphere in 
which petitioner was placed, together with his adamant 
refusal to sign the alleged confession must give rise to seri­
ous doubt as to what in fact went on and what in fact 
was said by petitioner. The inherent and inescapable ques­
tions as to the reliability of the statement compel the con-



33

elusion that, in the absence of proper Miranda warnings, it 
was inadmissible for any purpose.

This result under these facts would not mean, of course, 
that confessions unaccompanied by proper Miranda warn­
ings, would necessarily be unreliable. The use of a court 
reporter or the tape recording of a statement or the sign­
ing of a statement by a defendant would create the same 
kind of reliability that attaches to physical evidence such 
as was involved in Walder and other search and seizure cases. 
Absent such objective indicia of reliability, however, the con­
cerns that prompted the decision in Miranda must prevail.

Finally, it is clear that the use of the alleged confession 
was not harmless error within the meaning of Chapman v. 
California, 386 U.S. 18 (1967). Petitioner gave in his de­
fense a story that was consistent with his presence at the 
scene of the crime but which exculpated him. Whether the 
jury would have believed him without the confession being 
introduced is, of course, impossible to tell. But there can 
be no doubt that the introduction of a confession to the 
crime that directly contradicted his direct testimony could 
only have had a devastating impact against him that made 
it improbable in the extreme that the jury would accept 
his story.



34

CONCLUSION

For the foregoing reasons, the indictment against peti­
tioner should be dismissed and his conviction reversed.

Respectfully submitted,

lack Greenberg 
James M. Nabrit, III 
Charles Stephen Ralston 
Margrett Ford

10 Columbus Circle
New York, New York 10019

Charles Finney
P.O. Box 3463 
Lafayette, Louisiana 70501

Attorneys for Petitioner



la

APPENDIX

1. STATUTES OF LOUISIANA RELATING TO JURY SELECTION
Louisiana Code of Criminal Procedure, Vol. 1, pp. 317- 

391, articles 401 -04, 408, 410-411, 413-417, 419. Note:
In 1968, following the trial of petitioner, amendments were 
made to certain of these statutes. Following is the text of 
the statutes as of the time of petitioner’s trial. The amended 
statutes are set out in a footnote to each of the altered sec­
tions.

Art. 401 — In order to qualify to serve as a juror, a per­
son must:

(1) Be a citizen of the United States and of this state 
who has resided within the parish in which he is to serve 
as a juror for at least one year immediately preceding his 
jury service;

(2) Be at least twenty-one years of age;
(3) Be able to read, write, and speak the English language;
(4) Not be under interdiction, or incapable of serving as 

a juror because of a mental or physical infirmity; and
(5) Not be under indictment for a felony, nor have 

been convicted of a felony for which he has not been par­
doned.

Art. 402 -  A woman shall not be selected for jury serv­
ice unless she has previously filed with the clerk of court 
of the parish in which she resides a written declaration of 
her desire to be subject to jury service.

Art. 403 -  The following persons are exempt from jury 
service, but the exemption is personal to them and is not 
a ground for challenge:

(1) The governor, lieutenant governor, state comptroller, 
state treasurer, secretary of state, superintendent of public 
education, their clerks and employees, the members, offi­
cers, and clerks of the legislature, and the judges and active 
officers of the several courts of this state;



2a

(2) Any other public official, if jury service would seri­
ously interfere with the performance of his official duties;

(3) Attorneys-at-law, peace officers, ministers of the 
gospel, physicians and dentists actively engaged in the prac­
tice of their professions, school teachers, school bus drivers, 
pharmacists, members of paid fire departments, chiefs and 
their first assistants of bona fide volunteer fire departments, 
and persons who are required to travel regularly and routinely 
in the course and scope of their employment;

(4) Persons who because of age, sickness, or other phys- 
incal infirmity would suffer serious detriment if required to 
serve as a juror; and

(5) Persons who have served as grand or petit jurors in 
criminal cases or as trial jurors in civil cases during a period 
of twelve months immediately preceding their selection for 
jury service. Amended by Acts 1968, No. 108. S i . 1

1 Art. 403 — The following persons are exempt from jury service, 
but the exemption is personal to them and is not a ground for chal­
lenge:

(1) The governor, lieutenant governor, state comptroller, state 
treasurer, secretary of state, superintendent of public education, their 
clerks and employees, the members, officers, and clerks of the legisla­
ture, and the judges and active officers of the several courts of this 
state;

(2) Any other public official, if jury service would seriously 
interfere with the performance of his official duties;

(3) Attorneys-at-law, peace officers, ministers of the gospel, 
physicians and dentists actively engaged in the practice of their pro­
fessions, school teachers, school bus drivers, pharmacists, members of 
paid fire departments, chiefs and their first assistants of bona fide 
volunteer fire departments, and persons who are required to travel 
regularly and routinely in the course and scope of their employment;

(4) Persons who because of age, sickness or other physical 
infirmity would suffer serious detriment if required to serve as a juror; 
and

(5) Persons who have served as grand or petit jurors in criminal 
cases or as trial jurors in civil cases during a period of three years 
immediately preceding their selection for jury service.



3a

Art. 404 — The jury commission of each parish shall con­
sist of five members, each having the qualifications set forth 
in Article 401.

In Orleans Parish the jury commission shall be appointed 
by the governor, and the commissioners shall serve at his 
pleasure. In other parishes the jury commission shall con­
sist of the clerk of court or a deputy clerk designated by 
him in writing to act in his stead in all matters affecting 
the jury commission, and four other persons appointed by 
written order of the district court, who shall serve at the 
court’s pleasure.

Before entering upon their duties, members of the jury 
commission shall take an oath to discharge their duties 
faithfully.

Three members of the jury commission shall constitute 
a quorum.

Meetings of the jury commission shall be open to the 
public.

Art 408. — In parishes other than Orleans, the jury com­
mission shall select impartially at least three hundred per­
sons having the qualifications to serve as jurors, who shall 
constitute the general venire.

A list of the persons so selected shall be prepared and 
certified by the clerk of court as the general venire list 
and shall be kept as part of the records of the commission.

The name and address of each person on the list shall 
be written on a separate slip of paper which shall be placed 
in a box labeled “General Venire Box.”

After the jury commission has selected the general venire, 
it shall lock and seal the general venire box and deliver it 
to the clerk of the court, as the custodian thereof.

The jury commission shall meet at least once every six 
months and when ordered by the court, and may meet at 
any time to select or supplement the general venire. The 
commission may select a new general venire at any meeting,



4a

and shall do so when ordered by this court. Amended by 
Acts 1968, No. 140, § l .2

Art. 410 — At each commission meeting to revise and 
supplement the general venire, the commission shall exam­
ine the general venire list prepared at the previous selection 
of the general venire, and shall delete therefrom the names 
of those persons who:

(1) Have served as civil or criminal jurors since the pre­
vious selection of the general venire; or

(2) Are known to have died or who have become dis­
qualified to serve as jurors since their selection on the gen­
eral venire.

The slips bearing the names of those persons deleted 
from the general venire list shall be removed from the gen­
eral venire box.

The commission shall then supplement the list prepared 
at the previous commission meeting and the corresponding 
slips in the box by selecting a sufficient number of addi­
tional persons in compliance with Article 408 or 409, which­
ever is applicable.

2 Art. 408 -  In parishes other than Orleans, the jury commission 
shall select impartially at least three hundred persons having the 
qualifications to serve as jurors, who shall constitute the general 
venire.

A list of the persons so selected shall be prepared and certified by 
the clerk of the court as the general venire list, and shall be kept as 
part of the records of the commission.

The name and address of each person on the list shall be written 
on a separate slip of paper, with no designation as to race or color, 
which shall be placed in a box labeled “General Venire Box.

After the jury commission has selected the general venire, it shall 
lock and seal the general venire box and deliver it to the clerk of 
court, as the custodian thereof.

The jury commission shall meet at least once every six months and 
when ordered by the court, and may meet at any time to select or 
supplement the general venire. The commission may select a new 
general venire at any meeting, and shall do so when ordered by the 
court.



5a

Art. 4 1 1 — Upon order of the court the jury commission 
in parishes other than Orleans shall select by drawing indis­
criminately and by lot from the general venire box the 
names of at least twenty but not more than fifty persons, 
with the number to be specified by the court in its order, 
who shall constitute the grand jury venire. A grand jury 
venire shall not be drawn from a general venire containing 
fewer than three hundred names.

The name of each person so selected shall be written on 
a slip of paper, with no designation as to race or color, in 
the presence of the commission, which shall place the slips 
in an envelope, seal the envelope, and write thereon the 
words “Grand Jury Venire.”

The sealed envelope shall be placed in a box labeled 
“Grand Jury Box,” which shall be locked and sealed and 
placed in the custody of the clerk of court for use at the 
next term of court, subject to the orders of the district 
court, as hereinafter provided. Amended by Acts 1968,
No. 141, § l .3

3 Art. 411 -  Upon order of the court the jury commission in par­
ishes other than Orleans shall select by drawing indiscriminately and 
by lot from the general venire box the names of at least twenty but 
not more than fifty persons, with the number to be specified by the 
court in its order, who shall constitute the grand jury venire. A grand 
jury venire shall be not drawn from a general venire containing fewer 
than three hundred names.

The slips containing the names of the persons so drawn shall be 
placed in an envelope, which shall be sealed and the words “Grand 
Jury Venire” written thereon.

The sealed envelope shall be placed in a box labeled “Grand Jury 
Box,” which shall be locked and sealed and placed in the custody of 
the clerk of court for use at the next term of court, subject to the 
orders of the district court, as hereinafter provided.

The clerk shall prepare subpoenas directed to the persons on the 
grand jury venire, ordering their appearance in court on the date set 
by the court for the selection of the grand jury, and shall deliver the 
subpoenas to the sheriff for service.



6a

Art. 413 — The grand jury shall consist of twelve persons 
qualified to serve as jurors, selected or drawn from the 
grand jury venire.

In parishes other than Orleans, the court shall select one 
person from the grand jury venire to serve as foreman of 
the grand jury. The sheriff shall draw indiscriminately and 
by lot from the envelope containing the remaining names 
on the grand jury venire a sufficient number of names to 
complete the grand jury. The envelope containing the re­
maining names shall be replaced into the grand jury box 
for use in filling vacancies as provided in Article 415.

In the parish of Orleans, the court shall select twelve 
persons from the grand jury venire, who shall constitute 
the grand jury. The court shall thereupon select one of 
the jurors to serve as foreman.

Art. 414 — A grand jury shall be impaneled twice a 
year in each parish, except in the parish of Cameron, in 
which at least one grand jury shall be impaneled each 
year.

In parishes other than Orleans, the court shall fix the 
time at which a grand jury shall be impaneled, but no grand 
jury shall be impaneled for more than eight months, nor 
less than four months, except in the Parish of Cameron in 
which the grand jury may be impaneled for a year.

In Orleans Parish, a grand jury venire shall be drawn by 
the jury commission not earlier than the fifteenth nor later 
than the twentieth day of February and August of each 
year. On the next legal day following the drawing, the jury 
commission shall submit the grand jury venire to the presid­
ing judge, who shall impanel the grand jury. A grand jury 
in Orleans Parish shall be impaneled on the first Wednesday 
of March and September of each year.

A grand jury shall remain in office until a succeeding 
grand jury is impaneled. A court may not discharge a 
grand jury or any of its members before the time for the 
impaneling of a new grand jury, except for legal cause.



7a

Art. 415 -  When a vacancy occurs on a grand jury, 
the court shall fill the vacancy as follows:

(1) In parishes other than Orleans, by ordering the sheriff 
to draw indiscriminately and by lot from the envelope con­
taining the remaining names on the grand jury venire a suf­
ficient number of names to complete the grand jury. If the 
names in the envelope be exhausted before the grand jury 
is completed, or if a vacancy occurs on the grand jury and 
no names remain in the envelope, the court shall order the 
jury commission to withdraw indiscriminately and by lot 
from the general venire box and additional number of names 
sufficient to complete the grand jury.

(2) In Orleans Parish, by ordering the jury commission 
to draw indiscriminately and by lot from the general venire 
box twelve or more names, as specified by the court, from 
which the court shall select the persons necessary to fill the 
vacancy.

(3) If the foreman of the grand jury is, for any reason, 
unable to act, the court shall designate some member of 
the grand jury to serve as acting foreman or to serve as a 
new foreman of that grand jury. An acting foreman has 
the powers and duties of the foreman.

Art. 416 -  Upon order of court the jury commission in 
parishes other than Orleans shall draw a petit jury venire. 
The commission shall draw indiscriminately and by lot 
thirty name slips from the general venire box, unless directed 
by the court order to draw a larger number. The persons 
whose names are so drawn shall be subject to serve as petit 
jurors for the first week of the next criminal session of 
court.

The court may also order the commission to draw indis­
criminately and by lot as many additional name slips, not 
less than thirty, as it may direct for each additional week 
that a petit jury venire may be required, not to exceed two 
additional weeks. The persons whose names are so drawn 
shall be subject to serve as petit jurors for the week for 
which their names were drawn.



8a

A petit jury venire for the first week of a session shall 
not be drawn from a general venire containing less than two 
hundred fifty names, and no petit jury venire for any sub­
sequent week shall be drawn from a general venire contain­
ing less than one hundred fifty names.

The commission shall place the slips bearing the names 
of the petit jury venire for each week in a separate enve­
lope. It shall seal each envelope and write thereon the 
words “Petit Jury Venire No. 1,” “Petit Jury Venire No.
2,” and “Petit Jury Venire No. 3 .” Each envelope shall 
be placed in a box labeled “Petit Jury Box.”

If a petit jury venire does not serve during the week for 
which it was drawn, the court may order that it serve dur­
ing any other week of that session of court.

Art. 417 -  In parishes other than Orleans, the clerk of 
court shall make a proces verbal of the selection of the 
general venire and of the drawing of the grand jury venire 
and of the petit jury venire. It shall be certified to by a 
member of the commission and shall be filed in the clerk’s 
office as a public record.

The clerk shall make a list of the names on the grand 
jury venire and on the petit jury venire, showing the week 
for which each petit jury venire is to serve. The lists, 
together with the general venire list, shall be a part of the 
proces verbal.

The clerk shall c%se a copy of the petit jury venire list 
and grand jury venire list to be published in the official 
journal of the parish, if there be one, or in some other news­
paper published in the parish, or, if there is no official 
journal or other newspaper in said parish, he shall post a 
copy of the lists on the door of the courthouse.

The clerk shall prepare subpoenas directed to the persons 
on the petit jury venire and deliver them to the sheriff for 
service. ■ ■ - -



9a

Art. 419 -  A general venire, grand jury venire, or petit 
jury venire shall not be set aside for any reaosn unless fraud 
has been practiced or some great wrong committed that 
would work irreparable injury to the defendant.

This article does not affect the right to challenge for 
cause a juror who is not qualified to serve.

2. PORTION OF DECISION OF SUPREME COURT 
OF LOUISIANA IN STATE OF LOUISIANA V.
PRATT, 255 La. 919, 233 So. 2d 883 (1970), 
DEALING WITH JURY SELECTION.

HAMLIN, Justice.
By bill of indictment filed September 15,1967, Lee Perry 

Pratt was jointly charged with Claude Alexander with the 
crime of aggravated rape upon a young woman on Septem­
ber 4, 1967—the record reveals that the victim was sixteen 
years of age at the time the alleged crime was committed. 
LSA-R.S. 14:42. A severance was granted on November 10, 
1967, after the hearing of preliminary motions.1 Defendant 
was tried by jury, found guilty without capital punishment, 
and sentenced to a term at hard labor in the Louisiana State 
Penitentiary for the remainder of his natural life. He appeals

'Minutes of the trial court, January 15, 1968, recite in part, “In 
accordance with the District Attorney’s filing his new indictments and 
in view of the language of Code 705 stating that the proceedings under 
the original indictment are not affected except that it may be incon­
sistent with the indictment under the provisions of this code, in 
order to protect the rights of the accused, counsel for the accused 
moves that all of the proceedings under the original indictment, includ­
ing but not limited to the motion for severance, application for Bill 
of Particulars, motion to quash and all proceedings in connection 
therewith, be made a part of the new indictment, and further, that 
the accused, James [Lee Perry] Pratt, reserves his rights as a pauper, 
as provided under the Code of Civil Procedure, to obtaining the 
transcript of the entire proceedings.”



I

10a

to this Court from his conviction and sentence, presenting 
for our consideration twelve bills of exceptions.2

* * * * *

Bill of Exceptions No. 2.
Bill of Exceptions No. 2 was reserved when the trial court 

overruled defendant’s motion to quash the indictment filed 
against him for the following reasons:

1. The Jury Commission which selected the Grand Jury 
list and venire excluded women and members of the Negro 
race.

2. The Grand Jury list and Venire from which the Grand 
Jury was empaneled and the Grand Jury which found the 
indictment excluded women.

3. Citizens of the Negro race were included in the Grand 
Jury list and Grand Jury venire in such small numbers as to 
constitute only a token, having no relationship to the num­
ber of citizens of the Negro race as compared to' the number 
of citizens of the Caucasian race in the general population 
in the Parish of Lafayette and in the Fifteenth Judicial 
District of the State of Louisiana.

4. The indictment filed against Lee Perry Pratt is invalid 
and illegal and should be quashed because it was returned 
by a Grand Jury empaneled from a Grand Jury venire made 
up contrary to the provisions of the Fifth, Sixth, Fourteenth, 
and Fifteenth Amendments to the Constitution of the United 
States.

Counsel for the defendant urges herein that Bill of 
Exceptions No. 2 contains three propositions, each of which 
is sufficient to quash the indictment: (1) There were no 
Negroes on the Jury Commission which selected the Grand 
Jury which indicted the defendant; (2) There were no

2 The appeal of Claude Alexander was also argued in this Court on 
the day we heard the instant appeal. Bills of exceptions reserved to 
the denial of preliminary motions are similar in both appeals.



11a

Negroes on the Grand Jury which indicted the defendant; 
and (3) There were no women on the Jury Commission, 
Grand Jury, or Petit Jury.

Oliver J. LeBlanc, Clerk of Court, Lafayette Parish, 
Lafayette, Louisiana, testified that Members of the Jury 
Commission herein were of the Caucasian race; that there 
had never been any Negroes on the Commission. This Com­
mission of five members, including the Clerk of Court, is 
appointed by the district judge, who makes his own selec­
tion or secures recommendations from the Clerk of Court. 
Mr. LeBlanc stated that he had never made any recommen­
dations to the judge, and that he did not know whether the 
names of any Negroes had been submitted to the judge for 
appointment.

Despite the fact that the Jury Commission included no 
Negroes in its composition, the evidence discloses no preju­
dicial exclusion. Under the circumstances, we find that the 
following from State v. Barksdale, 247 La. 198, 170 So. 2d 
374 (Cert, denied), 382 U.S. 921, 86 S.Ct. 297, 15 L. Ed.
2d 236, is controlling:

“Another complaint is that no Negro has ever 
served as Jury Commissioner or as Foreman of the 
Grand Jury in Orleans Parish. These are appointive 
offices filled by the governor and judges, respectively, 
based upon their evaluation of the qualification of 
the individual appointee. The absence of Negroes in 
those offices at this time is not evidence of syste­
matic discrimination against Negroes in the selection 
of juries.” See, State v. Marks, 252 La. 277, 211 So$ 
2d 261.

The testimony attached to the instant bill discloses that 
the jury venire herein was selected from a cross-section of 
the Parish of Lafayette, and that names placed in the venire 
were chosen from various lists, such as the Telephone Direc­
tory, the City Directory, and the voting list of the Registrar 
of Voters. No conscious effort was made to include or 
exclude members of any race. Questionnaires were sent to



12a

prospective jurors under a system of selecting one out of 
eight names. Answers included a designation of race, but 
the testimony affirms that race was not considered when 
names gathered from the questionnaires were placed in the 
jury venire box. Pertinent testimony of Mr. LeBlanc is as 
follows:

“Q. Was any conscious effort made to include mem­
bers of the Negro race?

“A. We do not make selection from race. We just 
go to the questionnaries or by recommendations, one 
way or the other.

“Q. Now you said that list was put in the venir box. 
What list?

“A. The slips or list that are put in the general venire 
box are made from questionnaires that I mailed out.

“Q. Questionnaires?
“A. Yes.
“Q. That are mailed out to whom?
“A. To different people in the Parish.
“Q. And these questionnaires ask them to recom­

mend—
“A. No, no, to fill in questionnaires to get their 

qualifications and occupations to see if they are 
qualified to serve on the jury.

“Q. Now, who is this questionnarie sent to? How is 
that determined?

“A. To the different people in the Parish by the 
registrar of voter’s list and the telephone book, city 
directory, different lists that are submitted by school 
board or any list that we can find that we think we 
got address for the mixed race one way or the other.

“Q. In this instance here of this grand jury venire, 
the last one that we’re talking about, was the list of 
registered voters from Mr. Eraste Landry’s office 
used?

“A. It was.



13a

“Q. Did that include the list of colored voters as well 
as white voters?

“A. It did.
“Q. Were any selections made from the list of colored 

voters?
“A. No selections were made from colored voters or 

white voters. They were taken if we thought that 
they were qualified to serve on the jury.”

The fact that the Grand Jury included no members of the 
Negro race is, in our opinion, a matter of coincidence and 
not purposeful exclusion. As stated supra, the composition 
of the general venire was indiscriminate; the names of the 
Grand Jury venire were drawn from the general venire. It 
follows that race was not a factor in selection. See, Article 
411, Louisiana Code of Criminal Procedure.

Article 402 of the Code of Criminal Procedure provides, 
“A woman shall not be selected for jury service unless she 
has previously filed with the clerk of court of the parish in 
which she resides a written declaration of her desire to be 
subject to jury service.” In State v. Comeaux, 252 La. 481, 
211 So. 2d 620, we stated the reason for the exclusion of 
women from mandatory jury service as follows:

“Nor can we conclude that the statute exempting 
women from jury service on the basis of their sex is 
not based upon a reasonable classification. Women 
by nature are the center of home and family life. 
Louisiana, acting in pursuit of the general welfare, 
may conclude that women may be relieved from the 
civic duty of jury service. Hoyt v. State o f  Florida, 
368 U.S. 57, 82 S.Ct. 159, 7 L.Ed. 2d 118 (1961). 
See also State v. Reese, 250 La. 151, 194 So. 2d 729 
(1967).”

In Hoyt v. State o f  Florida, supra, the United States 
Supreme Court considered a Florida statute similar to 
Article 402, supra. It held the statute constitutional and 
concluded:



14a

“ * * * Given the reasonableness of the classifica­
tion involved in Sec. 40.01(1), the relative paucity 
of women jurors does not carry the constitutional 
consequence appellant would have it bear. ‘Circum­
stances or chance may well dictate that no persons 
in a certain class will serve on a particular jury or 
during some particular period.’ Hernandez v. Texas, 
supra, 347 U.S. 475, at 482, 74 S.Ct. 667, at 672, 
98 L.Ed. 866.”

We conclude that defendant herein suffered no deprivation 
of his constitutional rights by the omission of women from 
the Jury Commission, Grand Jury, and Petit Jury. No 
women volunteered for jury service; the following testimony 
of Mr. LeBlanc affirms this fact:

“Q. In drawing up the list of three hundred names, 
were any citizens of the female sex included?

“A. No.
“Q. In fact, all women were excluded, isn’t that right?
“A. We didn’t have any names submitted to us of any 

with the intention of willing to serve.
*  *

“ Q. Were any invitations or notices sent to women 
advising that they had a right to declare their desire 
to serve on the jury?

“A. I’ve discussed that with the Assistant District 
Attorney and I’ve sent her at different women’s 
clubs to explain to the women the possibility of 
being on the jury. The reason so far that the women 
have not served is because facilities and accommoda­
tions for ladies were not available in the old court­
house. But since the new place is being constructed 
we’re working on the women to submit names and 
intention to serve.”

Defendant had the burden of proving unreasonable race 
and class discrimination under the assertions and contentions 
averred in this bill of exceptions. Hernandez v. Texas, 347 
U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866. This he failed to



X .

15a

do; likewise, he proved no violation of his constitutional 
rights.

Bill of Exceptions No. 2 is without merit.
* * * * *



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