Brown v. Louisiana Petition and Briefs

    The Supreme Court 
of the United States

Parnell Brown
versus

State of Louisiana

Petition and Briefs

Law Reprints
Criminal Law Series
Volume 11, no. 40 
1979/1980 Term



SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979

IN THE

N o.79-5364

D a r n e l l  B r o w n ,
Petitioner,

L o u is ia n a ,

Respondent.

o n  w r it  o f  c e r t io r a r i t o  the
SUPREME COURT OF THE STATE OF LOUISIANA

BRIEF FOR PETITIONER

J o h n  L aw rence

Attorney for Petitioner 
Orleans Indigent Defender Program 
2700 Tulane Avenue, Room 112 
New Orleans, Louisiana 70119

N u m a  V . B e r t e l , J r .

Director
Orleans Indigent Defender Program 

R o b e r t  B a r n a r d  

Head of Appeals
Orleans Indigent Defender Program



TABLE OF CONTENTS
Page

OPINION B E L O W ................................................................................. 1

JURISDICTION......................................................................................  1

CONSTITUTIONAL PROVISION INVOLVED..........................  2

QUESTION PRESENTED.........................    2

STATEMENT............................................................................................  2

ARGUMENT ............................................................................................  4

CONCLUSION .....................................     18

TABLE OF AUTHORITIES
Cases:

Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55
L.Ed.2d 234 ( 1 9 7 5 ) .......................................................  15, 16, 17

Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21
L.Ed.2d 508 ( 1 9 6 9 ) ...................................................... ...............1 0

Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20
L.Ed.2d 522 ( 1 9 6 8 ) ...............................................................  11, 12

Burch v. Louisiana, ____U .S ._____, 99 S.Ct. 1623, 60
L.Ed.2d 296 ( 1 9 7 9 ) ................................................................. passim

Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22
L.Ed.2d 248 ( 1 9 6 9 ) ............................     8

DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20
L.Ed.2d 1308 ( 1 9 6 8 ) ........................................................ 1 1 ,1 3 ,1 4

Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20
L.Ed.2d 491 ( 1 9 6 8 ) ................. .. ................... .................11, 12, 13

Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799 ( 1 9 6 3 ) ................................................   7

Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37
L.Ed.2d 873 ( 1 9 7 3 ) ...............................................................  12, 14

Griffin v. Illinois, 361 U.S. 12, 76 S.Ct. 585, 100 L.Ed.
89 (1956) ............................................................................................. 7



Page
Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct.

2339, 52 L.Ed.2d 306 (1 9 7 7 )...........................................  8 , 9 , 1 0

Ivan V. v. City o f New York, 407 U.S. 203, 92 S.Ct.
1951, 32 L.Ed.2d 659 (1 9 7 2 ) ....................................................... 10

Jackson v. Denno, 378 U.S. 365, 84 S.Ct. 1774, 12
L.Ed.2d 9081 ( 1 9 6 9 ) .....................................................................  7

Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16
L.Ed.2d 882 ( 1 9 6 6 ) .....................................................................  7 ,9

Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14
L.Ed.2d 601 ( 1 9 6 5 ) ........................................... .........................  6, 7

Mackey v. United States, 401 U.S. 667, 91 S.Ct. 1160,
28 L.Ed.2d 404 (1 9 7 1 ) .......................... .. .....................................  8

Mullany v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44
L.Ed. 2d 508 ( 1 9 7 5 ) ....................  9

O ’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23
L.Ed.2d 291 ( 1 9 6 9 ) ...............................................................  12, 13

State v. Darnell Brown, 371 So. 2d 746 (La. 1979) . . . .  1, 4, 18

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967,
18 L.Ed.2d 1199 ( 1 9 6 7 ) ........................................  passim

Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42
L.Ed.2d 690 ( 1 5 7 5 ) .......................... .. ..................................  13, 14

Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148,
28 L.Ed.2d 358 (1 9 7 1 ) ....................................................... 8, 9, 10

Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26
L.Ed.2d 446 ( 1 9 7 0 ) ...............................................................  17

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20
L.Ed.2d 776 ( 1 9 6 8 ) .................................................  10, 11, 14, 15

Statutes:

Louisiana Constitution of 1974 Article 1, Section 1 7 .................  4

Louisiana R.S. 1 4 :6 2 .............................................................................. 4

Louisiana C.Cr.Pro. Art. 7 79 ............................................................  4

Louisiana R.S. 15:529.1 ...............................    3



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1979

No. 79-5364

D a r n e l l  Bro w n ,

Petitioner,
v.

L o u isia n a ,

Respondent.

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

BRIEF FOR PETITIONER

OPINION BELOW

The opinion of the Louisiana Supreme Court rendered 
May 21, 1979 and entered on the same date, affirming 
the petitioner’s conviction is located in the Appendix of 
this case, reported in 371 So.2d 746 (La. 1979).

BASIS OF JURISDICTION

The petition for rehearing was denied June 25, 1979. 
A petition for writ o f certiorari was filed on September

1

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2

17, 1979, and was granted by this court on December 10, 
1979. Jurisdiction of this Court lies under 28 U.S.C. 
1257(3).

CONSTITUTIONAL PROVISION INVOLVED

The sixth Amendment to the United States Constitu­
tion provides:

“ In all criminal prosecutions, the accused shall 
enjoy the right to a speedy and public trial, by an 
impartial jury o f the State and district wherein the 
crime shall have been committed, which district 
shall have been previously ascertained by law, and 
to be informed of the nature and cause o f the 
accusation; to be confronted with the witnesses 
against him; to have compulsory process for obtain­
ing witnesses in his favor, and to have the Assistance 
o f Counsel for his defense.”

QUESTION PRESENTED

Whether the United States Supreme Court decision in
Burch v. Louisiana, ___  U.S. ___ , 99 S.Ct. 1623, 60
L.Ed.2d 96 (1979), striking down a state statute allowing 
convictions by nonunanimous six-person juries, is to be 
applied fully retroactively, or at least on review o f a State 
criminal conviction not yet final at the time the Burch 
decision was handed down.

STATEMENT

On July 22, 1978 at 10:00 a.m. the house located 
at 2930 Florida Avenue, New Orleans, Louisiana was 
allegedly broken into by the defendant. Kenella Dixon, 
who lived in the other half of this double at 2932 
Florida Avenue, heard some noises and called the police.

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3

Following a police investigation, Darnell Brown was 
apprehended.

The State o f Louisiana charged petitioner with viola­
tions o f Louisiana revised statutes 14:62 and 15:529.1, 
relative to the offenses of simple burglary and being a 
multiple offender, respectfully. A Bill of Information 
was filed July 31, 1978 charging petitioner with simple 
burglary. Before trial, petitioner filed a Motion to Quash 
the Jury pursuant to Louisiana Code o f Criminal Proce­
dure Article 532(9). The trial court denied this motion. 
On August 23, 1978 defendant was tried before a six- 
person jury. After a polling of the jury, the verdict was 
entered 5-1, guilty as charged.

On August 30, 1978 petitioner appeared with counsel 
before the trial court and argued for a Motion for a New 
Trial, which was based on the illegality of the jury size. 
The trial court denied this Motion. Petitioner next filed 
a Motion to Quash the Multiple Bill which the State had 
filed August 23, 1978. This motion was denied. Defend­
ant pled guilty as charged to a violation of Louisiana 
Revised Statutes 15:529.1 (the multiple offender law). 
The Court sentenced petitioner to serve 22 years at hard 
labor in the custody o f the Louisiana Department of 
Corrections with credit for time served.

Petitioner, through his counsel, filed a Motion for 
Appeal. The Louisiana Supreme Court affirmed peti­
tioner’s conviction and sentence on May 21, 1979. 
Petitioner applied for a rehearing based on Assignment of 
Error No. 1, which involved petitioner’s Motion to Quash 
the Jury. The Louisiana Supreme Court denied this 
rehearing application on June 25, 1979, thus maintaining 
the Burch rule would not be applied retroactively.

3



4

ARGUMENT

THE UNITED STATES SUPREME COURT DECI­
SION IN BURCH  v. LOUISIANA, ____ U.S. ____,
99 S.Ct. 1623, 60 L.Ed.2d 96 (1979), STRIKING 
DOWN A STATE STATUTE ALLOWING CON­
VICTIONS BY A NONUNANIMOUS SIX-MEMBER 
JURY, SHALL BE APPLIED RETROACTIVELY.

The bill o f information in this case charged the defend­
ant, Darnell Brown, with a violation o f La. R.S. 14:62, 
relative to the offense o f simple burglary. In Louisiana, 
the right to a jury trial attaches in all criminal offenses 
punishable by more than six months imprisonment. 
If an offense is not necessarily punishable at hard labor, 
the jury is composed o f six persons. Article 1, Section 
17, La. Constitution o f 1974; La. Code Criminal Pro., 
Art. 779. A jury of six persons found the defendant 
guilty as charged, the verdict being five to one.

In affirming defendant’s conviction by this six-person 
jury, the Louisiana Supreme Court found that Assign­
ment o f Error No. 1, which involved defendant’s motion 
to Quash the Petit Jury on the grounds that statutory 
provisions permitting less than a unanimous vote for 
conviction in six-person juries violated due process rights, 
dealt with a question o f retroactivity. The Louisiana 
Supreme Court correctly noted that the United States 
Supreme Court had recently ruled that convictions by 
a nonunanimous six-member jury in a state criminal trial 
for a non-petty offense deprives an accused of his 
constitutional right to trial by jury. Burch v. Louisiana,
___  U.S. ___ , 99 S.Ct. 1623, 60 L.Ed.2d 96 (1979).
After so noting, the Louisiana Supreme Court stated: 
“ the question presented in this assignment is whether 
Burch, supra, is to be applied retroactively. We think 
not.”  State v. Darnell Brown, 371 So.2d 746, at 748 
(La. 1979).

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5

This ruling fails to note the criteria set-up by the 
United States Supreme Court concerning the issue of 
retroactivity. Upon considering the circumstances o f a 
particular situation, a Court may determine whether an 
overruling decision should be given:

1) purely prospective effect, so as not even to apply 
it in the case in which it is announced;

2) limited retroactive effect, so that the new rule will 
govern the rights of the parties to the overruling 
case itself, but the old rule will govern the rights 
o f parties to all other pending litigation as well as 
litigation terminated by “ final” 1 judgment;

3) limited retroactive effect, so that the new rule will 
govern the rights o f the parties to the overruling 
case and the right of parties to other cases which 
were pending when the overruling case was de­
cided, but the old rule will govern the rights of 
parties to cases terminated by a “ final”  judgment 
prior to the time the overruling case was decided;

4) general retroactive effect, so that the new rule will 
apply even where “ final”  judgments had been 
obtained at the time the overruling case was 
decided as well as to apply in the case in which 
it is announced and in other cases pending at the 
time o f the announcement o f the new rule.

Defendant strongly contends that the rule announced 
in Burch fits in the fourth category; or, at least, the third 
category. A three-step thought process points to this 
conclusion. First, an overview o f the jurisprudence of

1 “ Final” here, and throughout this brief, refers to a judgment 
as to which the ordinary methods of review, such as appeal or 
certiorari, have already been exhausted or the right to utilize them 
has expired through passage of time.

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retroactivity supplies necessary background on relevant 
issues.2 Second, the Burch rule, which concerns the right 
o f an accused to trial by jury under the Sixth and Four­
teenth Amendments, necessitates a detailed analysis of 
how the United States Supreme Court has treated the 
retroactive issue in past Sixth Amendment right to jury- 
trial rulings. Finally, the criteria discovered in steps one 
and two must apply to the present situation. Throughout 
this process, basic questions and problems o f past prac­
tices regarding this retroactivity issue crop up. Such 
manifestations deserve special discussion. The resultant 
conclusion leads to full retroactive effect of the Burch 
rule; or, at least to limited retroactive effect, so that the 
Burch rule will govern defendant’s rights in the present 
case, since his case was pending when Burch was decided.

In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 
14 L.Ed.2d 601 (1965), the United States Supreme 
Court rendered its first decision holding a previous 
constitutional ruling not to be wholly retroactive. The 
Court held the Mapp exclusionary rule was inapplicable 
to cases in which the conviction had become final before 
the date Mapp was handed down. Since this case, signifi­
cant evolution in the Court’s thinking on the subject 
has occurred, but all questions relating to the scope and 
application o f the concept, it is fair to say, have not as 
yet been settled. Nonretroactivity has not met with 
uniform acceptance; a shifting minority o f the Court’s 
members have expressed opposition to or at least reserva­
tions about the doctrine.

2 For a detailed discussion of relevant cases, see Ten Years of 
Nonretroactivity: A Critique and Proposal, 61 Va. L.R. 1557 
(1975), and Supreme Court Decision-Retroactivity, 22 L.Ed.2d 
821 (1969).

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7

In Linkletter, the Court began to identify the factors 
relevant to determining whether a particular decision 
should be given retroactive effect. The Court noted 
it must look to the prior .history o f the new rule in 
question, its purpose and effect, and whether retroactive 
operation will further or retard its operation. Also, the 
Court discussed three then-recent law-changing decisions 
which had been given full retroactivity, Griffin v. Illinois, 
361 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 89 (1956); Gideon 
v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 
799 (1963); and Jackson v. Denno, 378 U.S. 368, 84 
S.Ct. 1774, 12 L.Ed.2d 908 (1964). The Court referred 
to a factor that was to occupy a central role in the 
development o f standards for determining retroactivity. 
In the above three cases, the legal principle established 
went to the fairness o f the trial—the very integrity of 
the fact-finding process. The Court did not find this 
consideration applicable in Linkletter even though the 
case rule had already been applied to cases on direct 
review.

In holding new rules pertaining to custodial interroga­
tion were not retroactively applicable in Johnson v. New 
Jersey, 384 U.S. 719, 16 L.Ed.2d 882, 86 S.Ct. 1772 
(1966), the Court noted that whether a constitutional 
rule did or did not enhance the reliability of the fact­
finding process at trial was necessarily a matter of degree. 
Also in this case, the Court refined the definition of 
non-retroactivity. Disdaining any distinction between 
cases on direct review and those involving convictions 
that had become final by the date of the law-changing 
decisions, the Court found that the reliance and effect 
factors called for an application of the new rules only 
to trials begun after the standards were announced. 
Thus, Johnson moved the Court significantly beyond 
Linkletter and much closer to an approach of pure

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8

prospectivity through eliminating application o f the 
doctrine only to cases pending on direct review.

In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 
18 L.Ed.2d 1199 (1967), the United States Supreme 
Court clearly stated the considerations that affect the 
judgment whether a case reversing prior doctrines in 
the area of the criminal law should be applied only 
prospectively:

1) the purpose to be served by the new standards;
2) the extent o f the reliance by law enforcement 

authorities on the old standards; and
3) the effect on the administration of justice of a 

retroactive application of the new standards.
Once again, moreover, the Court in Stovall noted that 

for purposes o f deciding the issue of retroactivity, no 
distinction was justified between final convictions and 
convictions at various stages of trial and direct review. 
In denying retroactive effect to new rules involving 
identification at police lineups, the Court determined 
the facts of reliance and burden were entitled to such 
overriding significance as to make the above distinction 
unsupportable. The wisdom of limiting the retroactive 
application of a new rule so as to give the rule such 
effect in only the case in which the rule is announced 
has, however, been questioned in many dissenting and 
concurring opinions. Mackey v. United States, 401 U.S. 
667, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (Harlan, 
J., concurring); Desist v. United States, 394 U.S. 244, 
89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., 
dissenting); Williams v. United States, 401 U.S. 646, 
91 S.Ct. 1148, 28 L.Ed.2d 388 (1971) (Marshall, J., 
concurring in part and dissenting in part); Hankerson 
v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53

8



9

L.Ed.2d 306 (1977) (Marshall, J., concurring and Powell, 
J., concurring).

Thus, the United States Supreme Court set up the 
Stovall criteria to act as guidelines to resolve the retro­
activity issue. Using these guidelines, the United States 
Supreme Court has “ held to the course that there is 
no inflexible constitutional rule requiring in all cir­
cumstances either absolute retroactivity or complete 
prospectivity for decisions construing the broad language 
of the Bill o f Rights.” 3 Williams v. United States, 401 
U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971). 
This Court has noted that each constitutional rule of 
criminal procedure has its own distinct functions, its own 
background of precedent, and its own impact on the 
administration of justice. Going further, the way in 
which these factors combine must inevitably vary with 
the rule involved, so as to require that the issue o f retro­
activity be determined in each case by looking to the 
peculiar traits of the specific rule in question. Johnson 
v. New Jersey, supra.

In the latest retroactivity case, Hankerson v. North 
Carolina, supra, the United States Supreme Court 
followed its setting up of a hierarchy among the non­
retroactivity criteria with the foremost factor being the 
purpose to be served by the new rule, hi concluding the 
Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 
L.Ed.2d 508 (1975), rule, requiring States to establish 
all elements of a criminal offense beyond a reasonable 
doubt, should be given retroactive application, the United

3See footnote 3 of Williams v. United States, supra, for a list 
of cases and sources dealing with the retroactivity issue. To list 
every case where retroactivity or nonretroactivity was applied 
would prove too burdensome.

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10

States Supreme Court reiterated a principle previously 
announced in Ivan V. v. City o f  New York, 407 U.S. 203, 
92 S.Ct. 1951, 32 L.Ed.2d 659 (1972), and Williams v. 
United States, supra:

While in deciding whether a new constitutional 
rule is to be applied retroactively it is proper to 
consider the state’s reliance on the old rule and the 
impact of the new rule on the administration of 
justice if the degree to which the new rule enhances 
the integrity of the factfinding process is sufficiently 
small; where the major purpose of the new consti­
tutional doctrine is to overcome an aspect o f the 
criminal trial that substantially impairs its truth 
finding function and so raises serious questions 
about the accuracy of guilty verdicts in past trials, 
the new rule is given complete retroactive effect.
Thus, in applying the Stovall criteria, the Court must 

first look to the purpose o f the new constitutional 
doctrine. If such purpose enhances the integrity of the 
factfinding process, complete retroactivity applies.4 
If this issue is close, then the Court proceeds to the 
remaining criteria o f reliance and effect. Before applying 
the criteria to the new constitutional ruling in Burch, 
this new ruling requires an inquiry of how the Court has 
viewed the retroactive issue in past Sixth Amendment 
right to jury trial rulings. This necessity arises since the 
Burch ruling originated in the Sixth Amendment right to 
a jury trial.

4Examples of such findings included Hankerson v. North 
Carolina, supra; Ivan V. v. City o f New York, supra; Witherspoon 
v. Illinois, 391 U.S. 510, 88 S.Ct. 1921, 20 L.Ed.2d 1100; and 
Bereer v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 
(1969).

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11

In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 
1770, 20 L.Ed.2d 776 (1968), the United States Supreme 
Court established new rules for the composition o f juries 
in capital cases. The Court in footnote 22, rejected the 
losing party’s plea for pure prospectivity finding full 
retroactivity appropriate despite considerations of 
reliance and effect. The Court noted the jury selection 
standards employed in violation of the new rule neces­
sarily undermined the very integrity o f the process which 
decided an accused’s fate.

The Court denied retroactive effect to new rules 
guaranteeing the right to be tried by a jury rather than 
by a judge. In DeStefano v. Woods, 392 U.S. 631, 88 
S.Ct. 2093, 20 L.Ed.2d 1308 (1968), the Court noted 
the values implemented by the right to jury trial would 
not be served by retrying all persons convicted in the past 
by procedures not consistent with the Sixth Amendment 
right to jury trial. In denying the Duncan v. Louisiana, 
391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), 
rule retroactive effect, the Court applied the Stovall 
criteria. Duncan's purpose for jury trials generally tends 
to prevent arbitrariness and repression, but the Court 
stated that not every criminal trial or any particular trial 
held before a judge is unfair or that a defendant may 
never be as fairly treated by a judge as he would be by 
a jury. The Court found good faith reliance upon past 
Court opinions to the effect that the Sixth Amendment 
right to jury trial was not applicable to the States. 
Finally the Court found the impact on law enforcement 
and the administration o f justice to be significant since 
denial o f jury trials had occurred in large numbers.

De Stefano also ruled that the Bloom v. Illinois, 391 
U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), rule, 
which extended the right to jury trial to include trials

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for serious criminal contempt, is not to be applied 
retroactively. After noting the considerations are more 
evenly balanced with regard to this rule as opposed to 
the Duncan rule, the Court applied Stovall. The purpose 
factor proved very close. One ground for Bloom was 
the belief that contempt trials would be more fairly tried 
if a jury determined guilt. Unlike the judge, the jury 
will not have witnessed or suffered the alleged contempt, 
nor suggested prosecution for it. The Court, however, 
pointed out that the tradition o f nonjury trials for 
contempt was more established than the view that 
States could dispense with jury trials in normal criminal 
prosecution. Thus, reliance on past cases overturned 
by Bloom, was more justified. Also, the adverse effects 
on administration o f justice would be substantial.

The Court in Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 
2926, 37 L.Ed.2d 873 (1973), held non-retroactive the 
earlier decision in O’Callahan v. Parker, 395 U.S. 258, 
89 S.Ct. 1683, 23 L.Ed.2d 291 (1969), that persons 
in the armed forces are entitled to a civilian trial for 
offenses that are not service-connected. Applying the 
Stovall criteria, a plurality opinion noted that the fact 
that a new judicial rule tends incidentally to improve or 
enhance the reliability of the truthfinding process does 
not in itself mandate the rule’s retroactive application. 
Going further, the Court emphasized retroactivity is not 
required by a determination. The old standard was not 
the most effective vehicle for ascertaining the truth, 
or that the truth-determining process has been aided 
somewhat by the new standard, or that one o f several 
purposes in formulating the new standard was to prevent 
distortion in the process.

In concluding the purpose behind the rule enunciated 
in O ’Callahan does not mandate retroactivity, the Court

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stated that although O ’Callahan was critical of the 
military system of justice, and stressed possible command 
influence and the lack o f certain procedural safeguards, 
the decision there “ certainly was not based on any 
conviction that the court-martial lacks fundamental 
integrity in its truth-determining process.”  In concluding 
the reliance factor favors prospectivity, the Court 
absolved the military as not to be faulted for its reliance 
on the law as it stood before O ’Callahan and for not 
anticipating a clear break with the past. Finally, the 
Court concluded the effect on the administration of 
justice would be substantial.

In Daniel v. Louisiana, the United States Supreme 
Court, per curiam, ruled the Taylor v. Louisiana, 419 
U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), rule, 
that exclusion o f women from jury venire deprives a 
criminal defendant o f his Sixth Amendment right to trial 
by an impartial jury drawn from a fair cross-section of 
the community, is not to be applied retroactively. After 
citing DeStefano v. Woods, supra, the Court applied the 
three Stovall factors. The Court found the purpose to 
be served by this new standard, as in Duncan, concerned 
the function played by the jury to prevent arbitrariness 
and repression. The Court concluded this purpose did 
not rest on the premise that every criminal trial, or any 
particular trial, was necessarily unfair because it was 
not conducted in accordance with the Sixth Amendment. 
In Taylor, the Court stated:

“ It should also be emphasized that in holding 
that petit juries must be drawn from a source fairly 
representative of the community we impose no 
requirement that petit juries actually chosen must 
mirror the community and reflect the various 
distinctive groups in the population. Defendants 
are not entitled to a jury o f any particular compo­

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sition [citations omitted]; but the jury wheels, 
pools of names, panels or venires from which juries 
are drawn must not systematically exclude distinc­
tive groups in the community and thereby fail to 
be reasonably representative thereof.”
Taylor was not so much concerned with the actual 

make-up of a particular jury, as with the opportunity 
for women to be empaneled on a jury. Thus, not every 
criminal trial or any particular trial held before a jury 
whose jury venire did not discriminate against women is 
unfair or any particular trial held before such a jury may 
never be as fairly treated by such a jury as he would be 
by a jury venire which had discriminated against women.

Thus, when dealing with a retroactive issue for rulings 
arising out o f the Sixth Amendment s right to a jury 
trial, the United States Supreme Court characteristically 
applies the Stovall criteria. When the purpose to be 
served by the new standard goes to the heart of the 
truth-finding function and so raises serious questions 
about the accuracy o f guilty verdicts in past trials, 
the Court applies the new ruling retroactively—as in 
Witherspoon v. Illinois, supra. When this first criteria 
presents a close issue, the Court considers the remaining 
two criteria—as in De Stefano v. Woods, supra; Gosa v. 
Mayden, supra; and Daniel v. Louisiana, supra. In each 
of these cases, the Court based its nonretroactive decision 
on the general purpose o f the right to jury trial tending 
to prevent arbitrariness and repression without going 
into the inner, more specific, operations of a particular 
jury. The Court hinted at this more narrow consideration 
in Witherspoon, stating jury-selection standards could 
undermine the integrity o f the guilt-determining process. 
This leads to the third and final step in the thought 
process which leads to a retroactive application of the 
Burch ruling.

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15

In the present situation, the United States Supreme 
Court clearly states the purpose o f its decision in Burch 
v. Louisiana, supra:

However, much the same reasons that led us in 
Ballew to decide that use o f a five member jury 
threatened the fairness o f the proceeding and 
proper role of the jury, lead us to conclude now 
that conviction for a non-petty offense by only 
five members o f a six person jury presents a similar 
threat to preservation o f the substance o f the jury 
trial guarantee and justifies our requiring verdicts 
rendered by six person juries to be unanimous.
This Burch rule greatly enhances the integrity of the 

factfinding process by preserving the substance of the 
jury trial and the uprightness o f the guilt-determining 
conduct (as was found in Witherspoon v. Illinois, supra). 
This new rule raises serious questions concerning the 
accuracy o f guilty verdicts in past trials. The Court in 
Burch relied on Ballew v. Georgia, 435 U.S. 223, 98 
S.Ct. 1029, 55 L.Ed.2d 234 (1978). The Court in 
Ballew held the purpose and functioning o f the jury in 
a criminal trial is seriously impaired to a constitutional 
degree by a reduction in size below six members. In so 
concluding, the Court went beyond considering only the 
general purpose of jury trials of preventing arbitrariness 
and repression, and delved into the more specific opera­
tions and functioning o f a jury. The Court drew on five 
specific concerns. First, recent empirical data suggest 
that progressively smaller juries are less likely to foster 
effective group deliberations. Second, the data raises 
doubts about the accuracy o f the results achieved by 
smaller and smaller panels. Third, the data suggests the 
verdicts o f jury deliberation in criminal cases will vary 
as juries become smaller; and that the variance amounts 
to an imbalance to the detriment of one side, the defense.

15



16

Fourth, the data suggests the minority viewpoint will 
adhere to his position more frequently when he has at 
least one other person supporting his argument, which 
foretells problems not only for jury decision making, 
but also for the representation o f minority groups in the 
community. Fifth, several researchers have identified 
methodological problems tending to mask differences 
in the operation o f smaller and larger juries.

These narrow concerns lead to one conclusion—as the 
jury size decreases, the reliability o f the jury decreases 
along with the accuracy o f a guilty verdict. Thus, to 
improve this accuracy the Court in Ballew struck down 
five-person juries; likewise the Court in Burch struck 
down nonunanimity in six-person juries. The Court, in 
these two cases, recognizes the general jury trial purpose 
as opposed to a judge trial; but, the Court recognizes 
more specific purposes linked to the workings and 
deliberations o f a jury trial which need to be considered 
once an accused chooses the jury trial over a judge trial. 
As Ballew and Burch point out, these specific purposes 
originate in the Sixth Amendment. Thus, the first, and 
foremost, criteria points toward retroactive application 
in the present situation.

Although the United States Supreme Court has not 
formally ruled on the retroactivity issue concerning the 
rule announced in Ballew, the Court has, in effect, 
applied Ballew retroactively. In Robinson v. Georgia, 
435 U.S. 991 (1978), where defendant raised the jury 
size issue, the United States Supreme Court vacated the 
lower court’s judgment and remanded the case in light 
o f Ballew v. Georgia, supra. Since the Court is willing 
to treat Ballew retroactively, then the Court must be 
willing to treat Burch retroactively since Burch relied 
on Ballew''s rationale.

16



17

The final two considerations also point towards 
retroactive application o f the Burch rule. Although law 
enforcement authorities may have relied on authority 
for nonunanimous verdicts, petitioner contends Ballew 
v. Georgia, supra, and Williams v. Florida, 399 U.S. 78, 
90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), clearly fore­
shadowed in holding in Burch, thus obviating any good 
faith reliance. Finally, the effect on the administration 
of justice would be small. The Court in Burch pointed 
out only two states had previously allowed nonunani­
mous six-person juries. Within these states, the issue 
raised here would be moot in all convictions rendered 
by a 6-0 verdict. Also, most cases tried before six-person 
juries in Louisiana usually do not merit long prison 
terms. Thus, most defendants who were improperly 
convicted have probably served their terms and left 
prison. Unfortunately, no Louisiana State Agency 
compiles statistics on the needed information. Therefore, 
there is no method o f accurately determining how many 
prisoners this opinion will affect.

It is impossible, in the present situation, to guage the 
precise effect o f a retroactive ruling, but States have no 
justifiable interest in convicting the innocent, or in 
overriding the defendant’s right to a trier o f fact who will 
carefully weigh and scrupulously balance every item of 
proof. In any event, if the Court must decide between 
fundamental constitutional rights and administrative 
convenience, surely constitutional rights should go 
wrongly to jail.

Even if the Court applies the ruling in this case pros­
pectively, the petitioner here should be afforded the 
benefit of the rule. There is no equitable consideration 
which should impel the Court to distinguish among the 
litigants whose cases serve as the vehicle to adjudication

17



18

of a new rule o f constitutional law. Every party whose 
case is involved, including those whose cases were not 
final at the time o f the new ruling, should be treated 
alike. Thus, cases still pending on direct review should 
receive full benefit o f the Court’s supervening con­
stitutional decision. In the present case, petitioner’s 
conviction was not yet final when the United States 
Supreme Court handed down its opinion in the Burch 
case. That opinion is dated April 17, 1979, whereas 
the Louisiana Supreme Court didn’t affirm petitioner’s 
conviction until May 21, 1979. This raises the basic 
question o f why should the Constitution mean one thing 
to the defendant in Burch and another to the present 
petitioner, particularly when both litigants are situated 
similarly in all pertinent respects.

Petitioner submits the answer to this question lies in 
the fact the situation in the present case points towards 
full retroactivity of the rule handed down in Burch v. 
Louisiana, supra. The Louisiana Supreme Court erred 
in not so ruling.

CONCLUSION

It is respectfully requested that the ruling handed 
down by the Louisiana Supreme Court in State v. Darnell 
Brown, 371 So.2d 746 (1979), be reversed. Thus, the 
rule announced in Burch v. Louisiana, supra, striking 
down a state statute allowing convictions by a nonunani- 
mous six-person jury, should be given full retroactive

18



19

effect. If this Honorable Court is unwilling to give 
full retroactive effect to this ruling, it is respectfully 
requested this ruling should apply to the petitioner’s 
case and all cases which have not yet become final which 
raise this same constitutional issue.

John  L awrence

Attorney for Petitioner 
Orleans Indigent Defender Program 
2700 Tulane Avenue, Room 112 
New Orleans, Louisiana 70119 
(504) 821-8101

N u m a  V. Ber t e l , J r .

Director
Orleans Indigent Defender Program

Robert  Bar n a r d  

Head o f Appeals
Orleans Indigent Defender Program

19



IN THE

Supreme Court of the United States
OCTOBER TERM, 1979

No. 7 9 -5 364

DARNELL BROWN,
Petitioner,

versus

STATE OF LOUISIANA,
Respondent.

On Writ of Certiorari to the 
Supreme Court of Louisiana

BRIEF OF STATE OF LOUISIANA, 
RESPONDENT

William J. Guste, Jr.
Attorney Genera! of Louisiana 
Harry F. Connick 
District Attorney of 
Orleans Parish 

Louise Korns
Assistant District Attorney 
of Orleans Parish 

Thomas Chester 
Assistant District Attorney 
of Orleans Parish 

Criminal Courts Building 
2700 Tulane Avenue 
New Orleans, LA 70119 
Telephone: (504) 822-2414



TABLE OF CONTENTS

Statement of the Case ..................................................... 1

Argument .............................................  4

I. The Law of Retroactivity in General ........ 4

II. Purpose of Burch v. Louisiana ...................... 13

III. Reliance on the Pre-existing Standard ------- 20

IV. The Impact on the Administration of
Justice ................................................................. 24

Rebuttal ............................................................................. 29

Conclusion......................................................................... 31

Certificate ......................................................................... 32

TABLE OF AUTHORITIES

Adams v. Illinois, 495 U.S. 278 (1972) .................... 19,28

Apodaca v. Oregon, 406 U.S. 404 (1972) .. 15,16,21,22 

Arsenault v. Massachusetts, 393 U.S. 6 (1968) .. . .9,18

Baldwin v. New York, 399 U.S. 66 (1970) . .. .14,21,22

Ballewv. Georgia, 435 U.S. 223 (1978) .................. 16,22

Barber v. Page, 390 U.S. 719 (1968) .............................23

Benton v. Maryland, 395 U.S. 784 (1969) .....................6

Berger v. California, 393 U.S. 314 (1 9 6 8 ).................9,23

Bloom v. Illinois, 391 U.S. 194 (1968) .................... 9,19

Bruton v. United States, 391 U.S. 123 (1968) ............ 9,23

Page



TABLE OF AUTHORITIES (Continued) „Page
Burch v. Louisiana,____U .S .------- , 99S.Ct. 1623

(1979) ..........................................................  16,17,20,21

Chicot County Drainage District v. Baxter State Bank,
308 U.S. 371 (1 9 4 0 )....................................................... 5

Chimel v. California, 395 U.S. 752 (1969) .................. 10

Coleman v. Alabama, 399 U.S. 1 (1970) ........... 19,28,29

Daniel v. Louisiana, 419 U.S. 31 (1975) ...................... 17

Desist v. United States, 394 U.S. 244 (1 9 6 9 )........................9

DeSlefano v. Woods, 392 U.S. 631 (1968) . . .  9,12,15,19

Duncan v. Louisiana, 391 U.S. 145 
(1968) ..................................................  9,13,15,19,21,22

ii

Escobedo v. Illinois, 378 U.S. 378 (1964) . .............. 7,8,19

Fuller v. Alaska, 393 U.S. 80 (1 9 6 8 ).............................. 9

Furman v. Georgia, 408 U.S. 238 (1972) ...................... 6

Gideon v. Wainwright, 372 U.S. 335 (1 9 6 3 )............. 6,18

Gilbert v. California, 388 U.S. 263 (1967) ............... 8,19

Gosa v. Mayden, 413 U.S. 655 (1973) ..............11,19,28

Great Northern Railway v. Sunburst Oil and Refining
Co., 287 U.S. 358 (1 9 3 2 ) ...................................... .. 5

Griffin v. California, 380 U.S. 609 (1965) ......... 6,19,29

Griffin v. Illinois, 351 U.S. 12 (1 9 5 6 ) ............................ 6

Grosso v. United States, 390 U.S. 62 (1968) .................11
Hankerson v. North Carolina, 432 U.S. 233

(1977) ................................................................ 12,18,30

24



Ill
TABLE OF AUTHORITIES (Continued) Page

In re Winship, 397 U.S. 358 (1970) ............................ 12

Ivan v. City of New York, 407 U.S. 203 (1972) ......... 12

Jackson v. Denno, 378 U.S. 368 (1964) .................  6,9,18

Johnson v. Louisiana, 406 U.S. 356 (1972) . . .  .15,21,23

Johnson v. New Jersey, 384 U.S. 719
(1966) .................................................  7,14,17,19,21,30

Katz v. United States, 389 U.S. 347 (1967) ...................  9

Lee v. Florida, 392 U.S. 378 (1 9 6 8 ) ................................ 9

Linkletter v. Walker, 381 U.S. 618 (1 9 6 5 )................. 5,29

McConnell v. Rhay, 393 U.S. 3 (1968) .......................... 9

Mackey v. United States, 401 U.S. 667 (1 9 7 1 ).........11,30

Mapp v. Ohio, 367 U.S. 643 (1961) ......................... 5,29

Marchetti v. United States, 290 U.S. 39 (1968) ............ 11

Miranda v. Arizona, 384 U.S. 436 (1966) ..........  7,8,19

Mullaney v. Wilber, 421 U.S. 684 (1 9 7 5 )...................  12

O'Callahan v. Pprker, 395 U.S. 258 (1969) . . .  11,19,20

Pointer v. Texas, 380 U.S. 400 (1 9 6 5 ).......................... 23

Roberts v. Russel, 392 U.S. 293 (1968) .......................  23

Robinson v. Georgia, 435 U.S. 991 (1978) .................  16

Robinson v. Neil, 409 U.S. 505 (1973) .......................... 6

Stovall v. Denno, 388 U.S. 293 (1967) ................8,19,30

Taylor v. Louisiana, 419 U.S. 293 (1975) .................... 17

25



TABLE OF AUTHORITIES (Continued)
Page

Tehan v. United States ex rel. Shott, 382 U.S. 406
(1966) ............................................................. . . .6 ,1 9 ,2 9

United States v. United States Coin and Currency, 401 
U.S. 715 (1 9 7 0 )..............   6,11

United States v. Wade, 388 U.S. 218 (1 9 6 7 ) ........... .8,19

Waller v. Florida, 397 U.S. 387 (1 9 7 0 )..................   6

Williams v. Florida, 399 U.S. 78 (1970 ). .13,15,16,21,22

Williams v. United States, 401 U.S. 646 (1971) . . .  .10,30

Witherspoon v. Illinois, 391 U.S. 510 (1968) .................. 9

La. Const., Art. I, sec. 1 7 ................................................. 2

La. Code Crim. Pro. Art. 775 (West Supp.
1979) ..............   27,28

La. Code Crim. Pro. Art. 779(A) (West Supp.
1979) ...............................................................................  3

La. Code Crim. Pro. Art. 782 (West Supp.
1979) ...............................................................................  3

La. Code Crim. Pro. Art. 782(A) (West Supp.
1979) .............................................................................. 3/4

La. Code Crim. Pro. Art. 812 (West Supp.
1979) .............................................................................  27

La. R.S. 14:28 (West 1974) ..........................................25

La. R.S. 14:32 (West 1974) .......................................... 25

La. R.S. 14:34 (West Supp. 1979) ................................25

iv

26



TABLE OF AUTHORITIES (Continued) r,Page
La. R.S. 14:34.1 (West Supp. 1 9 7 9 ).......................... 25

La. R.S. 14:38.1 (West Supp. 1 9 7 9 ).......................... 25

La. R.S. 14:43 (West Supp. 1979) ...........................  25

La. R.S. 14:45 (West 1974) ....................................... 25

La. R.S. 14:53 (West 1974) ....................................... 25

La. R.S. 14:55 (West 1974) ....   25

La. R.S. 14:56 (West 1974) ....................................... 25

La. R.S. 14:57 (West 1974) ....   25

La. R.S. 14:58 (West 1974) ....................................... 25

La. R.S. 14:62 (West Supp. 1979) ....................3,25,27

La. R.S. 14:63 (West 1974) ......................................... 3

La. R.S. 14:65 (West 1974) ....................................... 25

La. R.S. 14:67 (West 1974) .................................. 3,25

La. R.S. 14:69 (West 1974) .................................. 3,25

La. R.S. 14:71 (West Supp. 1979) ..............................25

La. R.S. 14:72 (West 1974) ....................................... 25

La. R.S. 14:76 (West 1974) ....................................... 25

La. R.S. 14:77 (West 1974) .............................   25

La. R.S. 14:78 (West 1974) .  ..................................... 25

La. R.S. 14:80 (West Supp. 1979) ............................ 25

La. R.S. 14:81 (West Supp. 1979) ...........................  25

V

27



TABLE OF AUTHORITIES (Continued) Pagg

La. R.S. 14:82 (West Supp. 1979) ............................  25

La. R.S. 14:84 (West Supp. 1979) ............     25

La. R.S. 14:86 (West Supp. 1979) ............................ 25

La. R.S. 14:87.4 (West 1 9 7 4 ).............................   25

La. R.S. 14:89 (West Supp. 1979) ............................  25

La. R.S. 14:92 (West Supp. 1979) ............................ 25

La. R.S. 14:93 (West Supp. 1979) ............................  25

La. R.S. 14:94 (West 1974) ........................................  25

La. R.S. 14:95 (West Supp. 1979) ............................  25

La. R.S. 14:96 (West Supp. 1979) ............................  25

La. R.S. 14:98 (West Supp. 1979) ............................  25

La. R.S. 14:106 (West Supp. 1979) ..........................  25

La. R.S. 14:110 (West Supp. 1979) .........................3,25

La. R.S. 14:111 (West 1974) .........................................25

La. R.S. 14:118 (West 1974) .........................................25

La. R.S. 14:118.1 (West 1974) ..................   25

La. R.S. 14:119 (West 1974)  25

La. R.S. 14:119.1 (West 1974) ..........   25

La. R.S. 14:120 (West 1974) .........................................25

La. R.S. 14:122 (West Supp. 1979) .......................... 25

La. R.S. 14:125 (West 1974) .................................   25

La. R.S. 14:126.1 (West 1974) ..................................  25

vi

28



Vll

TABLE OF AUTHORITIES (Continued) Page 
La. R.S. 14:126.2 (West 1974) ................................... 2t>

La. R.S. 14:131 (West 1974) ......................................... 26

La. R.S. 14:132 (West 1974) ......................................... 26

La. R.S. 14:133.1 (West Supp. 1 9 7 9 ).........................26

La. R.S. 14:138 (West 1974) .........................................26

La. R.S. 14:140 (West Supp. 1979) .............................26

La. R.S. 14:141 (West 1974) ..............   26

La. R.S. 14:201 (West 1974) ......................................  26

La. R.S. 14:202 (West 1974) ......................................  26

La. R.S. 14:207 (West 1974) ......................................  26

La. R.S. 14:209 (West 1974) ......................................... 26

La. R.S. 14:210 (West 1974) ......................................  26

La. R.S. 14:211 (West 1974) ......................................  26

La. R.S. 14:212 (West 1974) ......................................  26

La. R.S. 14:219 (West 1974) ......................................  26

La. R.S. 14:220 (West 1974) ......................................  26

La. R.S. 14:221 (West 1974)........................................... 26

La. R.S. 14:222 (West 1974) ..........   26

La. R.S. 14:227 (West Supp. 1979) .......................... 26

La. R.S. 14:285 (West 1974) ......................................  26

La. R.S. 14:351 (West 1974) ......................................  26

La. R.S. 14:352 (West 1974) ......................................  26

29



TABLE OF AUTHORITIES (Continued)
Page

La R.S. 14:356 (West 1974) ......................................  26
La. R.S. 14:401 (West 1974) .................................... . . 2 6

|.a. R.S. 14:402 (West 1974) ......................................  26

La. R.S. 14:402.1 (West Supp. 1 9 7 9 )........................ 26

La. R.S. 14:511 (West Supp. 1979) ..........................  26

L.a. R.S. 14:512 (West Suppl. 1 9 7 9 ) .......................... 26

l a. R.S. 14:513 (West Supp. 1979) ..........................  26

l a. R.S. 15:529.1 (West Supp. 1 9 7 9 ).....................  3,27

viii

30



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1979

No. 79-5364

DARNELL BROWN,
Petitioner,

versus

STATE OF LOUISIANA,
Respondent.

O n Writ o f Certiorari to the 
Supreme Court of Louisiana

BRIEF OF THE STATE OF LOUISIANA, 
RESPONDENT

STATEMENT OF THE CASE

O n July 20, 1978 Levertes Dorsch and her daughter, 
Kenella Dixon were living, respectively, at 2930 and 
2932 Florida Avenue, in a double "shotgun"-type 
house, located in New Orleans, Louisiana. On the



morning of July 20, Ms. Dixon drove her mother to her 
job as a domestic maid, ran some errands, and returned 
home at about 10:00 A.M. Upon her arrival she heard 
footsteps coming from her mother's side of the duplex 
structure. Noticing that a rear window had been 
broken, she called the police. Petitioner was arrested 
inside Ms. Dorsch's apartment, as he attempted to flee. 
At the time of arrest, Petitioner was wearing rubber 
gloves. Investigation revealed that the residence had 
been ransacked, and that various items such as 
cameras, a television, and a radio had been packed into 
boxes and positioned at the rear door.

Consequently, on July 31, 1978 Petitioner was 
charged by Bill of Information with simple burglary, 
La. R.S. 14:62. Before trial, a Motion to Quash the jury 
was filed, and was denied by the court. On August 23, 
1978 a six-member jury was empanelled, and after due 
proceedings, a verdict of guilty as charged was 
returned. A poll of the jury revealed that their vote was 
five guilty, one not guilty.1 Thereafter, Petitioner filed

2

1 At the time of Petitioner's trial, Article I, Section 17 of the 
Louisiana Constitution of 1974 provided in pertinent part:

A criminal case in which the punishment may be capital 
shall be tried before a jury of twelve persons, all of whom 
must concur to render a verdict. A case in which the 
punishment is necessarily confinement at hard labor 
shall be tried before a jury of twelve persons, ten of 
whom must concur to render a verdict. A case in which 
the punishment may be confinement at hard labor or 
confinement without hard labor for more than six 
months shall be tried before a jury of six persons, five of 
whom must concur to render a verdict.

32



a Motion for New Trial, based on the illegality of the 
jury verdict, which was denied. Subsequently, the 
State filed a Bill of Information alleging that Petitioner 
was a third felony offender.2 At the Multiple-Offender 
Hearing, the Petitioner plead guilty as charged, and 
was accordingly sentenced to serve twenty-two years 
at hard labor.

O n appeal, the Louisiana Supreme Court affirmed 
the conviction and sentence. State v. Brown, 371 So.2d 
746, (La. 1979). Brown then petitioned this Honorable 
Court for Certiorari, complaining that Burch v. Louisiana,
—— U .S .------ , 99 S.Ct. 1623 (1979) should be applied
retroactively to reverse his conviction. Certiorari was 
granted on December 10, 1979.

Louisiana Code of Criminal Procedure Article 779 (a) provided:
A. A defendant charged with a misdemeanor in 

which the punishment may be a fine in excess of five hun­
dred dollars or imprisonment for more than six months 
shall be tried by a jury of six jurors, five of whom must 
concur to render a verdict.

Louisiana Code of Criminal Procedure Article 782 (a) provided:
A. Cases in which punishment maybecapitalshallbe 

tried by a jury of twelve jurors, all of whom must concur 
to render a verdict. Cases in which the punishment is 
necessarily confinement at hard labor shall be tried by a 
jury composed of twelve jurors, ten of whom must con­
cur to render a verdict. Cases in which the punishment 
may be confinement at hard labor shall be tried by a jury 
composed of six jurors, five of whom must concur to 
render a verdict.

2 La. R.S. 15:529.1. Petitioner had been previously convicted of 
felony theft on two occasions, La. R.S. 14:67; receiving stolen 
things, La. R.S. 14:69; simple escape, La. R.S. 14:110; criminal 
trespass, La. R.S. 14:63; and attempted simple burglary, La. R.S. 
14(27)62.

3

33



ARGUMENT

The Decision o f the United States Supreme
Court in Burch v. Louisiana, ____ U .S ._____, 99
S.Ct. 1623 (1979) Should be Given Prospec­
tive Application O nly

Darnell Brown was charged in the instant 
proceeding with simple burglary, as defined in Article 
62 of the Louisiana Criminal Code, for which the 
penalty was imprisonment in the parish prison or the 
state penitentiary for no more than twelve years.

Article I, Section 17, of the Louisiana Constitution of 
1974 provided that a case in which the punishment may 
be in excess of six months shall be tried by a six- 
member jury, five of whom must concur to render a 
verdict. Article 782 of the Louisiana Code of Criminal 
Procedure implemented that constitutional provision.

Petitioner was convicted by the five-to-one vote of a 
six-member jury on July 20, 1978. This Honorable
Court decided Burch v. Louisiana, ------ U.S---- -— , 99 S.Ct.
1623, on April 17, 1979. The State respectfully urges 
this Honorable Court to deny retroactive application to 
Burch, and affirm Petitioner's conviction.

I.
The Law of Retroactivity In General

The notion that judicial decisions involving 
constitutional criminal procedure might be given

4



prospective, rather than retrospective effect, was first 
specifically articulated in Linkletter v. Walker, 381 U.S. 
618 (1965).3 In Linkletter, the Court held that the 
exclusionary rule announced in Mapp v. Ohio3 4 was 
inapplicable to cases in which the convictions had 
become final before Mapp was decided.5 In reaching its 
decision, the Court stated:

Once the premise is accepted that we are 
neither required to apply, nor prohibited from 
applying a decision retrospectively, we must 
then weigh the merits and demerits in each 
case by looking to the prior history of the rule 
in question, its purpose and effect, and 
whether retrospective operation will further 
or retard its operation.
381 U.S., at 629.

5

The Court determined that since the purpose of 
Mapp was to deter improper police activity, this 
deterrent function would not be served by retroactive

3 Prior to U n k le tte r , this Honorable Court had held that State 
Courts might apply new rules prospectively or retroactively. See, 

e .g ,,  C h ico t C o u n ty  D r a in a g e  D is t r ic t  v . B a x te r  S ta te  B a n k , 3 0 8  U S. 371 
(1940); G r e a t  N o r th e rn  R a i lw a y  v. S u n b u r s t  O i l  a n d  R e fin in g  C o ., 287 U.S. 
358 (1932). L in k le tte r, differed in that it was a criminal procedure 
case in which the defendant sought the benefit of a newly an­
nounced procedural rule. Further, it involved a federal con­
stitutional question; whereas earlier cases had come from State 
Courts, or had involved statutory or common-law matters.
4 367 U.S. 643 (1961).
5 L in k le tte r involved only convictions on collateral review. M a p p  
had previously been applied to cases on direct review, by its own 
terms. 381 U.S., at 622.



application. The Court went on to discuss three recent 
retroactive decisions,6 and isolated the factor that 
occupies a central role in the law of retroactivity: Does 
the legal principle involved go to the “ fairness of the 
trial, the very integrity of the fact-finding process"? 
381 U.S., at 639.7 8

In Tehan v. United States ex rel. Shott, 382 U.S. 406 (1966) 
the Court held that the Fifth Amendment rule ar­
ticulated in Griffin v. California,* was to be given prospec­
tive effect. The Court characterized the privilege 
against self-incrimination as safeguarding values other 
than the fairness of the fact-finding process.9 It

6 Jac k so n  v . D e n n o , 378 U.S. 368 (1964) (right to a preliminary 
de termination by a judge of the voluntariness of a confession); G i ­

deon v. W a in w r ig h t , 372 U.S. 335 (1963) (right to appointed counsel 
in a felony case); G r if f in  v. I ll in o is , 351 U.S. 12 (1956) (right to a free 
trial transcript on appeal).
7 B u t see : R ob in son  v. N e il , 409 U.S. 505 (1973) where the court gave 
retroactive effect to Benton  v . M a r y la n d , 395 U.S. 784 (1969) and 
W a lle r  v. F lo r id a , 397 U.S. 387 (1970), which established double 
jeopardy rules of the federal constitution are applicable to the 
States. The Court found the L in k le tte r analysis inappropriate, since 
Benton and W a lle r  did not raise issues of evidence or mode of trial. 
See a l so :  F u r m a n  v . G e o rg ia , 408 U.S. 238 (1972); U n ite d  S ta te s  v . U n ite d  

S ta te s  C oin  a n d  C u rre n c y , 401 U.S. 715 (1970).
8 G r if f in  v . C a l i fo r n ia , 380 U.S. 609 (1965) (prohibiting adverse 
comment on a defendant’s failure to testify). T e h a n  denied 
retroactivity to only those cases on collateral review, because 
G r if f in , by its terms, applied to cases pending on direct review at 
the time of its decision. See note 5 su p r a .

9 "First, the basic purposes that lie behind the privilege against 
self-incrimination do not relate to protecting the innocent from 
conviction, but rather to preserving the integrity of a judicial 
system in which even the guilty are not to be convicted unless the 
prosecution shoulder the entire load!" 382 U.S. at 414, 415.

6

36



em phasized countervailing factors: reliance o f
prosecutors on the prior jurisprudence and the 
profound impact on the administration o f justice that 
retroactivity would involve. 382 U.S., at 417.

The Court's decision in Johnson v. New Jersey, 384 U.S. 
719 (1966) denied retroactive application10 to Escobedo v. 
Illinois11 and Miranda v. Arizona12 and further refined the 
relevant inquiry. Arguably, the purpose of Miranda and 
Escobedo did in fact go to the "essence of the fact-finding 
process." That is, to exclude coerced, and therefore 
suspect confessions. Significantly, the Court stated:

. . . .  the question whether a constitutional 
rule of criminal procedure does or does not 
enhance the reliability of the fact-finding 
process at trial is necessarily a matter of 
degree.

. . . . We are thus concerned with a question of 
probabilities and must take account, among 
other factors, of the extent to which other 
safeguards are available to protect the integri­
ty of the truth determining process at trial.
384 U.S., at 728-29.

7

10 The Court ruled, specifically, that M ir a n d a  and Escobedo applied 
only to trials begun after the dates of those decisions. 384 U.S., at 
732. Additionally, the court rejected any distinction between cases 
on direct or collateral review for the purposes of retroactivity. Id .

1 1  378 U.S. 478 (1964).
12 384 U.S. 436 (1966).

37



Additionally, the Court emphasized the disruptive 
impact o f retroactivity on the administration of the 
criminal laws. 384 U.S., at 731. For the first time it 
recognized that reliance on prior law was justified 
Because Escobedo and Adiranda had not Been 
"foreshadowed" by earlier holdings. Id.

In Stovall v. Denno, 388 U.S. 293 (1967) the Court 
denied retroactive application13 14 to United States v. Wade 
an d  Gilbert v. California, 14 and established the so-called 
"three-pronged "  test for retroactive application:

The criteria guiding resolution of the question 
implicate (a) the purpose to be served by the 
new standards, (b) the extent of the reliance 
by law enforcement authorities on the old 
standards, and (c) the effect on the ad­
ministration of justice of a retroactive applica­
tion of the new standards. 388 U.S., at 297.

As to the first factor, the Court noted that the pur­
pose of Wade and Gilbert was to avoid unfairness by 
enhancing the reliability o f the fact-finding process. 
However, balancing "purpose" against the "reliance"

13 The Court focused' its attention on the time of the 
constitutional violation, not on the start of the trial, as it had in 
Jo h n so n , 388 U.S. at 296.

Significantly, as in Jo h n so n , s u p r a , the Court refused to 
distinguish cases pending on direct review from cases on collateral 
review. 388 U.S. at 300, 301.
14 U n ite d  S ta te s  v . W ad e , 388 U.S. 218 (1967) and G ilb e r t  v . 

C a lifo r n ia , 388 U.S. 263 (1967) involved the right to counsel at 
pretrial line-ups.

8

38



and "effect" factors, the Court found retroactive 
application inappropriate, and noted:

The extent to which a condemned practice in­
fects the integrity of the truth-determining 
process at trial is a 'question of probabilities'
. . . . Such probabilities must in turn be weigh­
ed against the prior justified reliance upon the 
old standard and the impact of retroactivity on 
the administration of justice. 388 U.S., at 
298.15

Desist v. United States, 394 U.S. 244 (1969) denied 
retroactive effect to Katz v. United Stales,16 since its

15 In the 1968 Term, the Court applied the S to v a ll balancing test 
to numerous questions of constitutional criminal procedure. In 
W ith ersp oon  v . I l l in o is , 391 U.S. 510 (1968) the Court determined 
that improper jury selection could undermine the integrity of the 
fact-finding process, and that this factor outweighed reliance and 
effect. In R ob erts v . R u sse ll , 392 U.S. 293 (1968) the Court ruled that 
B ru ton  v. U n ite d  S ta te s , 391 U.S. 123 (1968) applied retroactively 
because the prohibited procedure threatened the reliability of the 
verdict. Significantly, the Court determined that B ru to n  should 
have been anticipated after the decision in Ja c k so n  v. D e n n o , 378 U.S. 
368 (1964).

See a l s o :  A r s e n a u lt  t>. M a s sa c h u s e t t s , 393 U.S. 6 (1968) (right to 
counsel at certain preliminary hearings); B e rg e r  v . C a li fo r n ia , 393 
U.S. 314 (1968) (constitutional right of confrontation); M c C o n n e ll  
v. R h a y , 393 U.S. 3 (1968) (right to counsel at sentencing).

B u t C .F . :  F u lle r  v . A la s k a , 393 U.S. 80 (1968) (holding L ee v . F lo r id a ,  

392 U.S. 378 (1968) to have prospective effect since its purpose 
was to encourage enforcement of federal law); D e S te fa n o  v . W oods, 
392 U.S. 631 (1968) (holding D u n c a n  o . L o u is ia n a , 391 U.S. 145 
(1968) and B loom  v. I ll in o is , 391 U.S. 194 (1968), involving the right 
to jury trial, to be prospective only). For a detailed discussion of 
D e S te fan o , see text at note 29, in fr a .

16 K a tz  o. U n ited  S ta te s , 389 U.S. 347 (1967) involved electronic 
surveillance activities, and overruled the pre-existing rules which 
turned on theories of physical intrusion.

9



10
deterrent purpose would not be served by retroactivi­
ty. Importantly, the Court ranked the first part of the 
Stovall test — purpose — as foremost among the fac­
tors to be considered:

It is to be noted also that we have relied heavi­
ly on the factors of the extent of reliance and 
consequent burden on the administration of 
justice only when the purpose of the rule in 
question did not clearly favor either retroac­
tivity or prospectivity. 394 U.S., at 252.

Williams v. United States, 401 U.S. 646 (1971) dealt, as 
did Desist, with a Fourth Amendment question. In deny­
ing retroactive application to Chimel v. California17 the 
Court succinctly stated the relevant inquiry:

In both Johnson and Stovall, we frankly acknowl­
edged that 'the extent to which a condemned 
practice infects the integrity of the truth­
determining process at trial is a "question of 
probabilities" ' .  . . . Where we have been un­
able to conclude that the use of such a 
'condemned practice' in past criminal trials 
presents a substantial likelihood that the 
results of a number of those trials were fac-

17 C h im e l v . C a l i fo r n ia , 395 U.S. 752 (1969) involved warrantless 
searches incident to arrests.

40



tually incorrect, we have not accorded 
retroactive effect . . . 401 U.S., at 656, n7.1S

The Court's decision in Gosa v. Mayden, 413 U.S. 655 
(1973) denied retroactive effect to O'Callahanv. Parker.18 19 
That case established that military personnel are en­
titled to a civilian trial for non-service related offenses. 
In a plurality opinion the court characterized the 
O'Callahan principle as a "prophylactic rule" which only 
"incidently" enhanced the reliability o f the fact-finding 
process. 413 U.S., at 680.

The Court stated:

11

Thus, retroactivity is not required by a deter­
mination that the old standard was not the 
most effective vehicle for ascertaining the 
truth, or that the truth-determining process 
has been aided somewhat by the new stand­
ard, or that one of several purposes in for­
mulating the new standard was to prevent dis­
tortion in the process. Id.

18 In M a c k e y  v. U n ite d  S ta te s , 4 0 1  U.S. 667 (1971), decided the same 
day as W illia m s , the Court denied retroactive effect to M a r c h e t t i  v . 

U n ite d  S ta te s , 290 U.S. 39 (1968) and G r o sso  v . U n ite d  S ta te s , 390 U.S. 
62 (1968). The Court reasoned these decisions involved protection 
of the Fifth Amendment privilege, not the truth-seeking function 
of the trial. B u t see : U n ite d  S ta te s  v . U n ite d  S ta te s  G i n  a n d  C u rre n c y , 401 
U.S. 715 (1970) (holding M a r c h e t t i and G ro sso  retroactive to the 
extent that they control conduct that cannot itself be 
constitutionally punished).
19 395 U.S. 258 (1969).



In reaching its decision, the Gosa Court placed heavy- 
reliance on DeStefano v. Woods,20 392 U.S. 631 (1968), 
reasoning that the validity of convictions by military 
tribunals was not sufficiently in doubt to require 
retroactivity. 413 U.S., at 676.

The decisions in Ivan v. City of New York, 407 U.S. 203 
(1972)21 22 and Hankerson v. North Carolina, 432 U.S. 233 
(1977),22 when read together, further sharpen the 
issue before this Court. The essential question in both 
cases turned on "reasonable doubt," which the Court 
characterized as a "bedrock principle" whose enforce­
ment lies "at the foundation of the administration of 
our criminal law." 432 U.S., at 241.

Ivan and Hankerson establish that:

Where the major purpose of a new con­
stitutional doctrine is to overcome an aspect of 
the criminal trial that substantially impairs its 
truth-finding function and so raises serious 
questions about the accuracy of guilty verdicts 
in past trials, the new rule is given complete 
retroactive effect. 432 U.S., at 243.

Since reasonable doubt is "substantial", retroactivity 
was determined in both cases.

12

20 S ee  text at note 3 0 ,  in fr a .

21 Holding In re  W in sh ip , 397 U.S. 358 (1970) to be retroactive.
22 Holding M u lla n e y  v . W ilb u r , 421 U.S. 684 (1975) to be retroac­
tive.

42



13

In summary, when a constitutional rule of criminal 
procedure is at issue, the first inquiry should be 
directed to its "major" purpose. Retroactivity is ap­
propriate if that purpose is to overcome as aspect of the 
trial that "substantially" impairs the truth-finding 
function and raises "serious" doubts about past ver­
dicts. However, if the rule is "prophylactic" in nature, 
and only "incidently" enhances the reliability of the 
trial, the three-pronged Stovall test should determine its 
reach.

II. Purpose of Burch v. Louisiana

The State submits that the purpose of the Sixth 
Amendment right articulated in Burch does not man­
date retroactive application.

The jurisprudence of this Honorable Court teaches 
that the purpose of trial by jury is to prevent govern­
ment oppression by providing "a safeguard against the 
corrupt or overzealous prosecutor and against the 
compliant, biased, or eccentric judge."23 The jury's es­
sential feature lies in the interposition, between the ac­
cused and his accuser, of the common-sense judgement 
of a group of laymen and in the community participa­
tion and shared responsibility that results from that 
group's determination of guilt or innocence."24 By its 
nature, the right to jury trial involves the integrity of

23 D u n c a n  v. L o u is ia n a , 391 U.S. 145, 156 (1968)
24 W illia m s  v . F lo r id a , 399 U.S. 78, 100 (1970).

43



14

the fact-finding process. However, the extent to which 
the condemned practice adversely affected that process 
is a question of degree.25

Respondent respectfully presents that the ultimate 
issue before this Honorable Court is whether the use of 
nonunanimous six-member juries in the past presents 
a substantial likelihood that the results o f a number of 
trials were factually incorrect. Respondent maintains it 
does not.

This Honorable Court first considered the right to 
jury trial in the state courts in Duncan v. Louisiana, 391 
U.S. 145 (1968). Duncan struck down a Louisiana 
statute which provided that a crime punishable by up to 
two years imprisonment was triable by the judge alone. 
The Court held that because trial by jury in "serious"26 
criminal cases is "fundamental to the American scheme 
o f justice" and essential to due process, the Fourteenth 
Amendment guarantees a state criminal defendant the 
right to a jury trial in any case, which if tried in federal 
court, would require a jury under the Sixth Amend­
ment. Id, at 149, 158-159. Similarly, in Bloom v. Illinois, 
391 U.S. 194 (1968) the Court held that the right to 
jury trial extends to trials for serious criminal con­
tempt.

25 Joh n son  v. N e w  Je rse y , 384 U.S. 719, 728-29 (1966).
26 B a ld w in  v. N e w  Y o rk , 399 U.S. 66 (1 9 7 0 ) held "serious" offenses 
to be those punishable by more than six months imprisonment.

44



15

In Johnson v. Louisiana, 406 U.S. 356 (1971) the Court 
held that the nine-to-three vote of a nonunanimous 
jury is not, per se, violative of due process.27

The Court's decision in Williams v. Horida, 399 U.S. 78 
(1970) held that six-member unanimous juries are not 
violative of the Sixth Amendment. The purpose of trial 
by jury, as noted in Duncan, is to prevent government 
oppression. The jury's essential feature lies in the 
"interposition between the accused and his accuser of 
the commonsense judgement of a group of laymen and 
in the community participation and shared respon­
sibility that results from that group's determination of 
guilt or innocence." 399 U.S, at 100. These purposes 
can be fulfilled if the jury is of sufficient size to promote 
group deliberation, free from outside intimidation, and 
to provide a fair possibility that a cross-section of the 
community would be represented. Id.

In Apodoca v. Oregon, 406 U.S. 404 (1972) the court up­
held a state law authorizing ten out of twelve verdicts. 
The Court held that unanimity does not materially 
contribute to the exercise of the "commonsense judge­
ment" identified in Williams. The judgement of the 
defendant's peers will be interposed between him and 
the State whether the verdict is unanimous or 
nonunanimous. 406 U.S., at 412. Additionally, the

27 The trial at issue occurred before Duncan v. Louisiana, 391 U.S. 
145 (1968) and therefore the Sixth Amendment itself was mot 
involved. DeStefano v. Woods, 392 U.S. 631 (1968).

45



Court ruled that unanimity is not a necessary precondi­
tion for application of the "cross-section" requirement. 
406 U.S. at 413.

In Ballew v. Georgia, 435 U.S. 223 (1978) the Court, in 
separate opinions, held that juries composed of five 
persons violate the Sixth Amendment.28 Admitting the 
difficulty of drawing a line between five and six 
member juries, ". . . . at least five members o f the 
Court believed that reducing a jury to five persons in 
nonpetty cases raised sufficiently substantial doubts as 
to the fairness o f the proceeding and the proper func­
tioning of the jury . . Statev. Burch,------ U.S. a t------- ;
98 S.Ct., at 1038. Essentially, Ballew established that 
when juries are composed of fewer tha six persons 
their ability to deliberate effectively becomes 
questionable, and their representative character is 
doubtful.

Apodaca, Williams, and Ballew, when read together, in­
dicate that effective group deliberation, as well as com ­
munity representation are functions of the absolute size 
of a jury, rather than the count of its final verdict.

However, in Burch v. Louisiana,------ U.S..------, 99 S.Ct.
1623 (1979) the Court held that:

28 Petitioner contends in brief that the Court has applied B a lle w , 

retroactively, citing R o b in so n  v. G e o rg ia , 435 U.S. 991 (1978) which 
was vacated and remanded for consideration in light of B a lle w . 
Respondent submits that this action is not be to equated with a 
finding of retroactivity. Further, that while B a lle w  and B u rch  are 
similar, application of the S to v a ll balancing test might well yield 
differing results.

16

46



. . . .  much the same reasons that led us in 
Ballew to decide that use of a five-member jury 
threatened the fairness of the proceeding and 
the proper role of jury, lead us to conclude 
now that conviction for a nonpetty offense by 
only five members o f a six-person jury 
presents a similar threat to preservation o f the
substance of the jury trial guarantee . -----------
U.S. a t____ , 99 S.Ct., at 1628.

The Court freely admitted that its decision involved 
a line-drawing process which was not wholly satisfac­
tory, but noted that lines must be drawn somewhere if
the right to jury trial is to be preserved.------ U.S. at
____ ; 99 S.Ct., at 1627.

For the following reasons the State submits that the 
purpose of Burch does not mandate retroactivity.

First, it is clear that the involvement of the right to 
jury trial is not a talisman that automatically implies 
retroactivity. See e.g., Daniel v. Louisiana, 419 U.S. 31 
(1975) (holding Taylor v. Louisiana, 419 U.S. 522 (1975) 
to have prospective application). That is, the choice 
between retroactivity and nonretroactivity in no way 
turns on the "value" o f the constitutional guarantee in­
volved. E.g., Johnson v. New jersey, 348 U.S. 719, 728 
(1966).

Second, Respondent suggests that while Burch 
teaches that the vote of a unanimous six-member jury

17

47



is constitutionally preferrable to that of a nonunan- 
imous jury, it does not stand for the proposition that 
nonunanimous verdicts have been per se wrongly- 
decided or unfair in the past. Although the Constitu­
tion requires demarcation lines to be drawn at some 
point, the same cross-section of the community inter­
poses itself between accused and accuser whether all 
members or only five concur in the final judgment. 
Although a unanimous verdict may imply that a more 
perfect deliberation process has occurred, the fact that 
rational men disagree is not in itself equivalent to a 
failure of proof.

Third, the State submits that the nonunanimous six- 
member jury was not an institution that substantially im­
paired the truth finding process to such an extent that 
serious doubts are raised about the accuracy of past 
verdicts. See Hankerson v. North Carolina, 432 U.S., at 243. 
If it had been, the question presented in Burch would 
not have been as close as the Court characterized it: 
"W e agree with the Louisiana Supreme Court that the 
question presented is a 'close' one." Burch v. Louisiana,
____ U.S., a t _____, 99 S.Ct., at 1625. Compare, Burch v.
Louisiana with e.g., Hankerson v. North Carolina, 432U.S.223 
(1977) (burden of State to prove guilt beyond a 
reasonable doubt); Arsenault v. Massachusetts, 393 U.S. 6 
(1968) (right to counsel at preliminary hearing where 
guilty plea entered); Jackson v, Denno, 378 U.S. 368 (1964) 
(right to preliminary determination of voluntariness of 
confession outside presence of the jury); Gideon v. 
Wainwright, 372 U.S. 335 (1963) (right to counsel in 
felony trial).

18

48



Fourth, Respondent maintains that the purpose of 
Burch was to enhance the reliability of the jury verdict. 
However, this Honorable Court has refused retroac­
tive application to numerous constitutional rules that 
are likewise directed at the reliability of the fact-finding 
process. See e.g., Gosa v. Mayden, 413 U.S. 665 (1973) 
(denying retroactive application to O'Callahan v. Parker, 
395 U.S. 258 (1969)). Adams v. Illinois, 405 U.S. 278 
(1972) (Coleman v. Alabama, 399 U.S. 1 (1970) not 
retroactive); Stovall v. Denno, 388 U.S. 293 (1967) (United 
States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 
388 U.S. 263 (1967) not retroactive). Johnson v. New 
Jersey, 384 U.S. 719 (1966) (Escobedo v. Illinois, 378 U.S. 
478 (1964) and Miranda v. Arizona, 384 U.S. 436 (1966) 
not retroactive); Tehan v. United States ex rel Shott, 382 U.S. 
406 (1966) (Griffin v. California, 380 U.S. 609 (1965) not 
retroactive).

As dem onstrated  by the above mentioned 
authorities, "retroactivity is not required by a deter­
mination that the old standard was not the most effec­
tive vehicle for ascertaining truth, or that the truth 
determining process was aided somewhat by the new 
standard." Gosa v. Mayden, 415 U.S., at 680.

Finally, Respondent submits that the decisions of the 
Court in DeStefano v. Woods, 392 U.S. 631 (1968) and Gosa 
v. Mayden, 413 U.S. 655 (1973) control the issue before 
the bar. In DeStefano, the Court, per curiam, applied the 
three-pronged test and denied retroactive application 
to Duncan v. Louisiana,29 and Bloom v. Illinois.30 These cases

29 391 U.S. 145 (1968).
30 391 U.S. 194 (1968).

19

49



involved serious criminal convictions where no jury, 
unanimous or nonunanimous, had interposed its com- 
monsense deliberations between accused and accuser. 
Nevertheless, the Court stated: “ The values im­
plemented by the right to jury trial would not 
measurably be served by requiring retrial o f all per­
sons convicted in the past by procedures not consistent 
with the Sixth Amendment right to jury trial." 392 
U.S., at 634.

O'Callahan, was applied prospectively despite the fact 
that Petitioner, having been denied trial by jury, was 
convicted by tribunal which the Court criticized as 
lacking procedural safeguards and being susceptible to 
improper "command influence", 413 U.S., at 680.

The State submits that since the complete lack of a 
jury is not a sufficient impairment of the fact-finding 
process as to require retroactivity, then the presence of 
one dissenting juror should likewise not trigger 
retroactive application.

In summary, the purpose of Burch v. Louisiana does not 
automatically mandate retroactive application. 
Therefore, examination of the second and third com­
ponents of the Stovall test; "reliance" and “ impact" are 
appropriate.

III. Reliance on the Pre-existing Standard

The second prong of the Stovall test addresses the 
reliance of law enforcement authorities and state

20

50



courts on the pre-existing law. The essential inquiry is 
whether the State should have forseen the new con­
stitutional ruling, and changed the existing practices in 
anticipation of an inevitable Supreme Court 
pronouncement.31

Respondent maintains that at the time of Petitoner's 
conviction the State of Louisiana was conducting trials 
in good-faith reliance on existing law, and that the 
State cannot be charged with having anticipated Burch
V. Louisiana.

At the time o f Petitioner's trial, Article I, Section 17 
o f the Louisiana Constitution of 1974 provided that a 
crime punishable by more than six months imprison­
ment in the Parish jail was triable by a six member jury, 
five o f whom must concur to render a verdict. Articles 
779(A) o f the Louisiana Code o f Criminal Procedure 
implemented that constitutional provision.32 These 
rules were enacted after, and in apparent reliance on, 
this Honorable Court's decisions in Duncan v. Louisiana, 
391 U.S. 145 (1968); Baldwin v. New York, 399 U.S. 66 
(1970); Williams v. Florida, 399 U.S. 78 (1970); Apodaca v. 
Oregon, 406 U.S. 404 (1972), and Johnson v. Louisiana, 406 
U.S. 356 (1972).

The decisions of this Honorable Court had put the 
State on notice that:

21

31 See  e .g .,  Jo h n so n  v. N e w  Je rse y , 384 U.S. 719, 730 (1966).
32 S ee  note 1, s u p r a , for text of these provisions.



I. The Constitution requires that defen­
dants charged with offenses punishable 
by more than six months imprisonment 
are entitled to a jury trial.33

II. Six-member juries are large enough to 
accomplish the purpose of the Sixth 
Amendment: prevent government op­
pression, deliberate effectively, and 
represent a cross-section o f the com ­
munity.34

III. Five-member juries are violative of the 
Sixth Amendment, because a demarca­
tion line must be drawn at some point; 
statistical studies indicate that as jury size 
diminishes, commonsense deliberation 
become less likely, and the jury becomes 
less representative of the community.35

IV. Nonunanimous twelve-member juries 
(83.3% vote) can prevent oppression, ex­
ercise group commonsense and represent 
a fair cross section, just as unanimous 
juries.36

22

33 D u n c a n  v. L o u is ia n a , 391 U.S. 145 (1968); B a ld w in  v. N e w  Y o rk ,  

399 U.S. 66 (1970).
34 W illia m s  v . F lo r id a , 399 U.S. 78 (1970).
35 B a lle w  v. G e o rg ia , 435 U.S. 223 (1978). B a lle w  was decided after 
the statutory framework, at Note 1 , s u p r a , was enacted.
36 A p o d a c a  v . O re g o n , 406 U.S. 404 (1972).

52



23
V. The nine-to-three vote (75%) o f a non- 

unanimous jury is not violative o f due 
process.37

The State submits that the jurisprudence existant at 
the time of Petitioner's conviction cannot reasonably 
be interpreted as "foreshadowing" the Burch decision.

For example, in Roberts v. Russel,38 the Court applied 
the three-factor Stovall test to Bruton v. United States,39 
and determined that long and widespread attack on the 
old rule by the lower courts "foreshadowed" Bruton.
392 U.S., at 294. In Berger v. California,40 the Court gave 
retroactive effect to the confrontation-clause rule o f 
Barber v. Page,41 noting that Barber had been "clearly 
foreshadowed if not preordained" by Pointer v. Texas.42
393 U.S., at 315.

In contrast, the converted issue in Burch had not 
engendered attacks in the lower courts, nor can this 
Court's decisions be said to have "clearly foreshadow­
ed" the ruling.

Indeed, as the majority opinion in Burch states: "W e 
agree with the Louisiana Supreme Court that the ques-

37 Jo h n so n  v. L o u is ia n a , 406 U.S. 356 (1972).
38 392 U.S. 293 (1968).
39 391 U.S. 123 (1968).
40 393 U.S. 314 (1979).
41 390 U.S. 719 (1968).
42 380 U.S. 400 (1965).

53



24

tion presented is a 'close' one." -------U.S., a t ------- , 99
S.Ct., at 1625. Further, the Court explained:

As in Ballew, we do not pretend the ability to 
discern a priori a bright line below which the 
number of jurors participating in the trial or in 
the verdict would not permit the jury to func­
tion in the manner required by our prior 
cases."____ U.S., a t _____, 99 S.Ct. at 1627.

IV. Effect on the Administration of Justice

The State submits that a retroactive application of 
Burch would have a devastating effect on the ad­
ministration of criminal justice in Louisiana.43

First, Respondent takes issue with Petitioner s con­
tention that: ". . . . most cases tried before six-person 
juries in Louisiana usually do not merit long prison 
terms. Thus, most defendants w ho were improperly 
convicted have probably served their terms and left 
prison." (Brief of Petitioner, page 17) Numerous

43 No statistics are available concerning the number of persons 
currently in custody following convictions by nonunanimous 
six-member juries. Internal records of the Office of the District 
Attorney for Orleans Parish indicate that thirty-nine defendants 
were convicted in New Orleans by six-member juries during the 
period between January 1, 1979 and April 17, 1979, the date of 
B u r c h . Whether these convictions were unanimous or 
nonunanimous cannot be ascertained. See text at note 48, in fr a .

54



serious felonies have historically been triable by six- 
member juries in Louisiana.44 Penalties range up to

25

44 See, e .g ., La. R.S. 14:28, inciting a felony, (West 1974); La, R.S. 
14:32, negligent homicide, (West 1974); La. R.S. 14:34, aggravated 
battery, (West Supp. 1979); La. R.S. 14:34.1, second degree 
battery, (West Supp. 1979); La. R.S. 14:38.1, mingling harmful 
substances, (West Supp. 1979); La. R.S. 14:43, simple rape, (West 
Supp. 1979); La. R.S. 14:45, simple kidnapping, (West 1974); La. 
R.S. 14:53, arson with intent to defraud, (West 1974); La. R.S. 
14:55, aggravated criminal damage to property, (West 1974); La. 
R.S. 14:56, simple criminal damage to property, (West 1974); La. 
R.S. 14:57, damage to property with intent to defraud, (West 
1974); La. R.S. 14:58, contaminating water supplies, (West 1974); 
La. R.S. 14:62, simple burglary, (West Supp. 1979); La. R.S. 14:65, 
simple robbery, (West 1974); La. R.S. 14:67, theft, (West 1974); La. 
R.S. 14:69, receiving stolen things, (West 1974); La, R.S. 14:71, 
issuing worthless checks, (West Supp. 1979); La. R.S. 14:72, 
forgery, (West 1974); La. R.S. 14:76, bigamy, (West 1974); La. R.S. 
14:77, abetting bigamy, (West 1974); La. R.S. 14:78, incest, (West 
1974); La. R.S. 14:80, carnal knowledge of a juvenile, (West Supp. 
1979); La. R.S. 14:81, indecent behavior with juveniles, (West 
Supp. 1979); La. R.S. 14:82, prostitution, (West Supp. 1979); La. 
R.S. 14:84, pandering, (West Supp. 1979); La. R.S. 14:86, enticing 
minors into prostitution, (West Supp. 1979); La. R.S. 14:87.4, 
abortion advertising, (West 1974); La. R.S. 14:89, crime against 
nature, (West Supp. 1979); La. R.S. 14:92, contributing to the 
delinquency of juveniles, (West Supp. 1979); La. R.S. 14:93, cruel­
ty to juveniles, (West Supp. 1979); La. R.S. 14:94, illegal use of 
weapons or dangerous instrumentalities, (West 1974); La. R.S. 
14:95, illegal carrying of weapon, (West Supp. 1979); La. R.S. 
14:96, aggravated obstruction of a highway of commerce, (West 
Supp. 1979); La. R.S. 14:98, operating a vehicle while intoxicated, 
(West Supp. 1979); La. R.S. 14:106, obscenity, (West Supp. 1974); 
La. R.S. 14:110, simple escape; aggravated escape, (West Supp. 
1979); La. R.S. 14:111, assisting escape, (West 1974); La. R.S. 
14:118, public bribery , (West 1974); La. R.S. 14:118.1, bribery of 
sports participants, (West 1974); La. R.S. 14:119, bribery of voters, 
(West 1974); La. R.S. 14:119.1, bribery of parents of school 
children, (West 1974); La. R.S. 14:120, corrupt influencing, (West 
1974); La. R.S. 14:122, public intimidation, (West Supp. 1979); La. 
R.S. 14:125, false swearing, (West 1974); La. R.S, 14:126.1, false



26

swearing for purpose of violating public health or safety, (West 
1974); La. R.S. 14:126.2, false statements concerning denial of 
constitutional rights, (West 1974); La. R.S. 14:131, compounding a 
felony, (West 1974); La. R.S. 14:132, injuring public records, (West 
1974); La. R.S. 14:133.1, obstruction of court orders, (West Supp. 
1979); La. R.S. 14:138, public payroll fraud, (West 1974); La. R.S. 
14:140, public contract fraud, (West Siupp. 1979); La. R.S. 14:141, 
prohibited splitting of profits, fees, or commissions, (West 1974); 
La. R.S. 14:201, collateral securities, unauthorized use or 
withdrawal prohibited, (West 1974); La. R.S. 14:202, contractors, 
misapplication of payments prohibited, (West 1974); La. R.S. 
14:207, motor vehicles, alteration or removal of identifying 
numbers prohibited; sale, etc. of motor vehicle with altered iden­
tifying numbers prohibited, (West 1974); La. R.S. 14:209, seals, 
breaking prohibited, (West 1974); La. R.S. 14:210, taxicabs, 
tampering with meter forbidden, (West 1974); La. R.S. 14:211, 
timber, wilful purchase when not paid for by seller prohibited, 
(West 1974); La. R.S. 14:212, timber, false statement by seller 
prohibited, (West 1974); La. R.S. 14:219, removal of building or 
structure from immovable property subject to a conventional 
mortgage or vendor's privilege, (West 1974); La. R.S. 14:220, 
rented or leased motor vehicles; obtaining by false representation, 
etc.; failure to return, (West 1974); La. R.S. 14:221, avoiding pay­
ment for telecommunication services, (West 1974); La. R.S. 
14:222, possession, manufacture, sale or transfer of devices for 
avoidance of payment for telecommunications service or related 
offenses; seizure of devices, (West 1974); La. R.S. 14:227, iden­
tification number, personal property, alteration or removal 
prohibited, (West Supp. 1979); La. R.S. 14:285, telephone com- 
mupjcations, improper language, harassment, (West 1974); La. 
R.S. 14:351, bail, sale, etc. of real estate securing, prohibited, 
(West 1974); La. R.S, 14:352, bribery of withdrawn candidates for 
office prohibited, (West 1974); La. R.S. 14:356, sheriffs, etc., 
solicitation of legal business prohibited, (West 1974); La. 14:401, 
demonstrations in or near building housing a court or occupied as 
residence by judge, juror, witness or court officer, (West 1974); La. 
14:402, taking contraband to or from correctional institutions, 
(West Supp. 1979); La. 14:402.1, taking of contraband to state 
owned hospitals, (West 1974); La. R.S. 14:511, loansharking, 
(West Supp. 1979); La. R.S. 14:512, aggravated loansharking, 
(West Supp. 1979); La. R.S. 14:513, possession of loanshark 
records, (West Supp. 1979).

56



terms of twelve years at hard labor.45 In the case of 
habitual felons, a conviction by a six-member jury can 
ultimately result in a sentence of life imprisonment.46 
Indeed, Petitioner's own sentence was twenty-two 
years at hard labor.47 The logical conclusion of 
Petitioner's argument is, therefore, that those inmates 
serving the longest sentences, habitual felons, are the 
persons most likely to benefit from retroactive applica­
tion.

Second, in many individual cases, it is impossible to 
determine whether or not a jury verdict was unan­
imous. Jury polls are not mandated by law, but must be 
requested by counsel.48 When counsel did request a

45 See e .g ., La. R.S. 14:62, simple burglary, (West Supp. 1979).
46 La. R.S. 15:529.1
47 Appendix, page 3
48 Article 812, La. Code Crim. Pro. (West Supp. 1980) provides:

The Court shall order the clerk to poll the jury if re­
quested by the state or the defendant. It shall be within 
the discretion of the court whether such poll shall be con­
ducted orally or in writing by applying the procedures of 
Paragraph (l) or Paragraph (2) of this Article.

(1) Oral polling of the jury shall consist of the clerk's 
calling each juror, one at a time, by name. He shall an­
nounce to each juror the verdict returned, and ask him,
"Is this your verdict?" Upon receiving the juror's answer 
to the question, the clerk shall record the answer.

If, upon polling all of the jurors, the number of jurors 
required bylaw to find a verdict answer "Yes", the court 
shall order the clerk to record the verdict and the jury 
shall be discharged. If, upon polling all of the jurors, the 
number required to find a verdict do not answer "Yes", 
the jury may be remanded for further deliberation, or the 
court may declare a mistrial in accordance with Article 
775.

(2) The procedure for the written polling of the jury 
shall require that the clerk hand to each juror a separate

27

57



poll the result was not necessarily made part of the 
record.49 The reconstruction of the voting count from a 
silent record would be an onerous if not impossible
task.50

Third, Respondent submits that retroactive applica­
tion would involve not only expense and effort, but the 
wholesale release of prisoners found guilty by 
truthworthy evidence in conformity with previously 
established standards. In Gosa v. Maydeti, 413 U.S. 665, 
685 (1973) the Court observed:

We must necessarily also consider the impact 
of a retroactivity holding on the interests of 
society when the new constitutional stand­
ard promulgated does not bring into question 
the accuracy of guilt. Wholesale invalidation

piece of paper containing the name of the juror and the 
words "Is this your verdict?" Each juror shall write on the 
slip of paper the words "Yes" or "No" along with his 
signature. The clerk shall collect the slips of paper and 
make them available for inspection by the court and 
counsel, and record the results. If a sufficient number of 
jurors as required bylaw to reach a verdict answer "yes" 
the clerk shall so inform the court. Upon verification of 
the results, the court shall order the clerk to record the 
verdict and order the jury discharged. If an insufficient 
number required to find a verdict answer "Yes", the court 
may remand the jury for further deliberation, or the 
court may declare a mistrial in accordance with Article 
775.

4° It has been the practice of some courts in Orleans Parish to 
conduct a written poll, examine the ballots, then merely note for 
the record that the verdict is lawful, without disclosing thecount. 
The written ballots do not necessarily become part of the record. 
50 C.F.; A d a m s  v. Illin o is , 405 U S. 278 (1972) where the Court
held that C o lem an  v . A la b a m a , 399 U.S. 1 (1970) was to be given 
prospective effect. In discussing the effect retroactivity might

28

58



of convictions rendered years ago could well 
mean that convicted persons would be freed 
without retrial, for witnesses, . . .  no longer 
may be readily available, memories may have 
faded, records may be incomplete or missing, 
and physical evidence may have disappeared. 
Society must not be made to tolerate a result 
of that kind when there is no significant ques­
tion concerning the accuracy of the process by 
which judgment was rendered or, in other 
words, when essential justice is not involved.

For the above-mentioned reasons, Respondent sub­
mits that retroactive application of Burch would 
seriously disrupt the administration of the criminal 
laws of the State of Louisiana.

Rebuttal
In brief, Petitioner argues that if the Court denies 

retroactive effect to Burch, then it should exhume the 
distinction* 51 between cases pending on direct review

29

have on the administration of justice, the Court noted;
"The task of conducting such hearings would be im­
measurably complicated by the need to construct a rec­
ord of what occurred. In Illinois, for example, no court 
reporter was present at pre-Coleman preliminary hearings 
and the proceedings are therefore not recorded".

51 The Court's decisions in Linkletter v. Walker, 381 U.S. 618 
(1965) and Tehan v. United States ex rel Shott, 382 U.S. 406 (1966) 
applied only to cases on collateral review; cases pending on direct 
review received the benefit of the newly articulated rule. 
However, this result was a foregone conclusion. Both Mapp v. 
Ohio, 367 U.S. 643 (1961) and Griffin v. California, 380 U.S. 609 
(1965) had been specifically applied to cases on direct review 
without discussion, before Linkletter was decided.

59



30
and those on collateral review. (Brief of Petitioner, 
page 17, 18) Essentially, he argues that it is unfair that 
Burch, a "chance beneficiary,"52 should benefit from the 
Court's decision, while Petitioner similarly situated, 
does not.53

Respondent submits that it is well-settled that cases 
on direct review and collateral review are to be treated 
similarly for the purpose of the issue before the bar. 
Johnson v. New Jersey, 384 U.S. 719, 732 (1966); Stovall v. 
Denno, 388 U.S. 293, 300 (1967). The countervailing fac­
tors of "good-faith reliance" and the "impact on the ad­
ministration of justice" which mandate prospectively 
as discussed above, admit no distinction. Further, 
Respondent submits that distinguishing cases on the 
basis suggested by Petitioner is not in any measure 
more equitable than the settled rule. Petitioner 
proposes no reason why those who have exhausted 
direct appellate avenues are less deserving of newly 
recognized constitutional rules than those who have 
not.

52 S tovall v. Denno, 388 U.S. 293, 301 (1966).
53 Petitioner's contention has received consistent, although 
minority support throughout the jurisprudence of retroactivity. 
Se ee .g ., H ankerson v. N orth  C aro lin a , 432 U.S. 233, 246 (1977) (Powell 
J., concurring in the judgment); M a c k e y  v . U n ite d  S ta te s , 401 U.S. 667, 
675-702 (Harlan, ]., separate opinion); W ill ia m s  v . U n ite d  S ta te s , 401 
U.S. 646, 665 (1971) (Marshall, J., concurring in part and dissen­
ting in part).

60



31

CONCLUSION

Respondent urges that the purpose of Burch v.
Louisiana_____ V S ______, 99 S.Ct. 1623 (1979) was to
enhance the reliability of six-member jury verdicts. 
Retroactivity is inappropriate because the accuracy of 
prior verdicts is not in serious doubt. A prospective 
application of Burch is justified by the good-faith 
reliance of the criminal justice system on the pre­
existing rules, and by the serious impact a retroactive 
ruling would have on the administration of the criminal 
laws of the State of Louisiana.

THOMAS CHESTER 
Assistant District Attorney 

for the Parish of Orleans 
2700 Tulane Avenue 
New Orleans, La. 70119 
Telephone: (504) 822-2414

LOUISE KORNS 
Assistant District Attorney 

for the Parish of Orleans
2700 Tulane Avenue 
New Orleans, La. 70119 
Telephone: (504) 822-2414

61



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