Louisiana: Dalton Prejean, executed 1990-05-18, 1991

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\ECORD FILE
026&- 1000

UNITED STATES COURT OF APPEALS 4
FOR THE FIFTH CIRCUIT w

—_—— =e eS ae ee eee ee x ya
DALTON PREJEAN, |
Petitioner~Apnellant,

FRANK C. BLACKBURN, ect al.,
Respondents-Appeliees.

ss —_ —_ os —_ — - _— -—> o> <2 ame -~ <> ax ae 4

PALTON PREJEAN

2 See Soe - >= a —— = SS ae

JOBN H. HALL

MITCRELL A, KARLAN
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
(212) 909-6000

Astorneys for Appellant
Dalton Prejean
Of Counsel;

Martha J. Olson

Debevoise & Plimpton

G75 Third Avenue

New York, New York 10022

NAACP Legal Defense and Educational Fund, Inc.
John Charles Boger

Steven L. Winter

10 Columbus Circle

New York, New York 10019

Anthony G. Amsterdam
New York Uriversity School of Law
40 Washington Square South - Room 327

New York, New York 10012

Thomas Guilbeau
106 West Congress
Lafayette, Louisiana 70502

October 17, 1983
TABLE OF

TABLE OF CONTENTS

AUTHORITIES i eee et 2 ee

STATEMENT OF JURISDICTION li 2 ee

QUESTIONS PRESENTED a ee et oe ee Oe

STATEMENT OF THE CASE a ee ee oe

SUMMARY

Il.

OF ARGUMENT ecw wwe ewe eee eee ee eee eee e eee eee ees

THE EXECUTION OF DALTON PREJEAN WOULD
VIOLATE THE EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES
CONSTITUTION re

A. MODERN CRIMINAL JUSTICE SYSTEMS
HAVE DISPLAYED SPECIAL CONCERN
FOR JUVENILE OFFENDERS .......cccccccecs

B. CONTEMPORARY LEGISLATIVE, JUDICIAL
AND PHILOSOPHICAL JUDGMENTS REFLECT
SOCIETY'S REJECTION OF CAPITAL
PUNISHMENT FOR YOUNG PEOPLE ............

C. RECENT SENTENCING AND COMMUTATION
DECISIONS DEMONSTRATE THAT EXECUTION
OF YOUNG PEOPLE VIOLATES SOCIETY'S
EVOLVING NOTIONS OF DECENCY ............

D. ALL OBJECTIVE CRITERIA DEMONSTRATE
THAT DALTON PREJEAN SHOULD NOT BE
EXECUTED i ee ee ee 2 ee 2

THE LOUISIANA SUPREME COURT'S REVIEW OF
PREJEAN'S DEATH SENTENCE WAS CONSTITU-

‘TIONALLY INADEQUATE "Se 7 PPS ees esses escevew sess

23
Lil.

A. THE EIGHTH AMENDMENT REQUIRES REVIEW
OF CAPITAL SENTENCES SUFFICIENT TO
ENSURE THE EVENHANDED APPLICATION OF
THE DEATH PENALTY ......cccccccccccccece.

B. THE PROPORTIONALITY REVIEW IN PREJEAN'S
CASE WAS INADEQUATE eeeoeeeeeeeeeeeeeeeee

PREJEAN'S SENTENCE IS UNCONSTITUTIONAL
BECAUSE IT WAS AFFIRMED ON THE BASIS OF
INADMISSIBLE EVIDENCE EXCLUDED FROM THE
RECORD AT TRIAL Ce Cee meee rere ere ccrececcccces

THE DISTRICT COURT ERRED IN REFUSING TO
GRANT AN EVIDENTIARY HEARING ON PREJEAN'S
CLAIM THAT THE STATE SYSTEMATICALLY EXCLUDED
BLACKS FROM HIS JURY 2... cccccccccccccccucae

PREJEAN'S SENTENCE WAS THE RESULT OF
INTENTIONAL RACIAL DISCRIMINATION AGAINST
BLACKS CONVICTED OF KILLING WHITES Coccccccs

CONCLUSION SO SSPSCeSCP OSS HSSSAORECAHRHOSRMOTCHBEKCHSKC KOE OC CEES 6S

41
43
TABLE OF AUTHORITIES

CASES

Autry v. Estelle, No. A-242, 52 U.S.L.W. 3293
Oct. -- 1983) i ee ee es et ee

Baldwin v. Blackburn, 653 F.2d 942 (5th Cir.
1981), cert. denied, 456 U.S. 950 (1982) ........

Barclay v. Florida, 103 S. Ct. 3418 (1983) .........
Bell v. Ohio, 438 U.S. 637 (1978) ............0.e.
Bellotti v. Baird, 443 U.S. 622 (1979) .......... T

Brown v. Wainwright, 392 So. 2d 1327 (Fla. 1981),
cert. denied, 454 U.S. 1000 (1982) .......... cee.

California v. Ramos, 103 S. Ct. 3446 (1983) Tre Tee
Castaneda v. Partida, 430 U.S. 482 (1977) ..........
Coker v. Georgia, 433 U.S. 584 (1977) .icecc cc ccc
Cole v. Arkansas, 333 U.S. 196 (1948) ..............
Coleman v. State, 378 So. 2d 640 (Miss. 1979) .....
Coleman v. Zant, 708 F.2d 541 (llth Cir. 1983) .....

Dorszynski v. United States, 418 U.S. 424 (1974) ...

Dunn v. United States, 442 U.S. 100 (1979) ..... eee
Eddings v. Oklahoma, 455 U.S. 104 (1982) ...........
Enmund v. Florida, 458 U.S. 782 (1982) .............
Fay v. Noia, 372 U.S. 391 (1963) ....rcccc ccc ccc sua

1ii

24,27,28

oO 5 te
9,31
15

7,10,14,22,
23

Coe He
38
CASES Page

Ford v. Strickland, 696 F.2d 804 (llth Cir.)
en banc), cert. denied, 52 U.S.L.W. 3266
(Oct. 3, 1983) le ee ee ee 2 32,34

Furman v. Georgia, 408 U.S. 238 (1972) ............. 25
Gardner v. Florida, 430 U.S. 349 (1977) Stoeseneseee 31,32

Gilliard v. mississippi, No. 82-6775,
52 U.S.L.W. 3259 Sept. ra 1983) eeeeoeeeeeeeeeee 36

Godfrey v. Georgia, 446 U.S. 420 (1980) ............ 9,24
Gregg v. Georgia, 428 U.S. 153 (1976) .............. 9,15,24,25,
26

Grigsby v. Mabry, No. PB-C-78-32
(eb. Ark. Aug 5, 1983) ........ TTiTTrTTrer exeuns- €0
Guice v. Fortenberry, 661 F.2d 496 (5th Cir.
1981 en banc la ee 2 10,37,39

Harris v. Pulley, 692 F.2d 1189 (9th Cir.

1982), cert. granted, 103 S. Ct. 1425
1983) le ee ee Se 2 2 *eee#*e#ese# 29

Hicks v. Oklahoma, 447 U.S. 343 (1980) SSunneeseeeeu 25

Huffman v. Wainwright, 651 F.2d 347

5th Cir. 1981 eeeeeveeeeeeeeee eeeecece eeeeveveeveeee 40
In re Gault, 387 U.S. 1 (1967) eeeeeeeeoeeeeeece eeeecee Lip be
Jurek Ve Texas, 428 U.S. 262 (1976) eeceoeveeeeeeeeeeee Leto

Kent _v. United States, 383 U.S. 541 (1966) ......... 12

Lockett v. Ohio, 438 U.S. 586 (1978) ceoecccceseeeceee 15,23

May v. Anderson, 345 U.S. 528 (1953) ........ ‘aa hann 13
McCray v. New York, No. 82-1381, 51
U.S.L.W. 3855 (May BL, 1983) sunesaaeuseucactinnwx 35,34

Miller v. Illinois, No. 82-5840, 51 U.S.L.W.
3855 (May SL, 1983) eeee39eesee3eseeseene3e3eneee ®eee3#2e#2ee#e?e® 35

CASES

Perry v. Louisiana, No. 82-5910, 51 U.S.L.W.

3855 May ahs 1983) eeoeceeeeeoeeoeoeeeo eee eeaeweneeeeeoeecee
Perry v. Maggio, No. 83-1621 (W.A. La.,

July bes 1983) VS SSCSSSCSCCsss SECC EH KET OSS EO Se & Ee

Presnell v. Georgia, 439 U.S. 14 (1978) ol ee em eo ee
Proffitt v. Florida, 428 U.S. 242 (1976) TTTrrrrreyr

Roberts (Harry) v. Louisiana, 431 U.S. 633

Smith v. Balkcom, 660 F.2d 573 (Sth Cir.
1981), modified, 671 F.2d 858, cert. denied,
103 S. «4 181 (1982) le ee ee oe ee

Solem v. Helm, 103 S. Ct. 3001 (1983) TTTTTTTrTTrerTrr
Spencer v. Zant, No. 82-8408

(lith Cir. Sept. 30, 1983) TETITTTTTTTTrr Tree
Spinkellink v. Wainwright, 578 F.2d 582

(5th Cir. 1978), cert. denied, 440

oa 976 (1979) ii ee ee ee St ts i

State v. Andrews, 369 So. 2d 1049 (La. 1979) .......
State v. Aucoin, 362 So. 2d 503 (La. ATO! scaueuwaus
State v. Brown, 371 So. 2d 751 (La. 1979) ..........
State v. Cox, 369 So. 2d 118 (La. 1979) ............

state v. Lindsey, 428 So. 2d 420 (La. 1983) ........
Sta.e v. Manieri, 378 So. 2d 931 (La. 1979) ..... =

Page

36
Jy au poe
LS san

40,41,42,43

10,42,43

40,41,42
16
27
36
L5

33
33
16
CASES Page

State v. Mattheson, 407 So. 2d 1150
La. 1981), cert. denied, 103 S. ct. 3571
(1983) ..... cc tcc ww ee TTrrirrte ttre seu e Raw »- 16

State v. Moore, 432 So. 2d 209 (La. 1983) $att+roeee: Mee

State v. Narcisse, 426 So. 2d 118 (La. 1983) ....... 27

State v. Prejean, 379 So. 2d 240 (La. 1979),

cert. denied, 449 U.S. 891 (1980) .......... eoeee 3,4,5,6,21,
State v. Sawyer, 422 So. 2d 95 (La. 1982) ..... tiene oa
State v. Sepulvado, 367 So. 2d 762 (La. 1979) ...... 15
State v. Taylor, 422 So. 2d 109

(La. 1982), cert. denied, 103 S. Ct.

1803 (1983) *@*eeee#ee?e oeeoeoeeerewe eee eee eee ese eens *®*eeeeeees 15

State v. Williams, 383 So. 2d 369 (La. 1980),
cert. denied, 449 U.S. 1103 (1981) ............ ~.- 28

State v. Willie, No. 81-KA-0242 (La.,
June af 1983) eeeeeeeeeeeeeeeeee e®ee7#2ee#ee#es:e® @®ee*e#eee 33

Swain v. Alabama, 380 U.S. 202 (1965) cocccccccccses 35,38

Thomas v. Zant, 697 F.2d 977 (llth Cir.

1983) eee eeee2#e302e83s#ssese ®*eeeoeee¢se#e#7e?® @®eeee#ee#ese @®eeee#*ees?:e e¢ © 36,37,40
Townsend v. Burke, 334 U.S. 736 (1948) ............. 34

Townsend v. Sain, 372 U.S. 293 (1963) .............. 10,36,37,39

Trop v. Dulles, 356 U.S. 86 (1958) ............ seeee 10
United States v. Pearson, 448 F.2d 1207

PtH Cir. LOTL): «ceaece TrTTITLi TT Tree TtrTrrer 40
Vasil v. State, 374 So. 2d 465 (Fla. 1979) ......... 15

Village of Arlington Heights v.

vil

CASES Page

Vitek v. Jones, 445 U.S. 480 (1980) ... ee. ee cece eee) 29

Washington v. Davis, 426 U.S. 229 A1S76) ssicewencce. 42

Williams v. Maggio, 679 F.2d 381 (5th
Cir.) (en banc), cert. denied,

77 L.Ed.2d 1399 (1982) POPS COSC SESCHESRESHSDE OH KAHEKE ES BO 28

iii iit ttt tee eee a ee a Pn a ee 41

Zant _v. Stephens, 103 S. Ct. 2733 (1983) cocccccsccee 25,26

CODES

Federal Juvenile Deliquency Act, 18 U.S.C.
$s 5031-5037 titi titi thee ee er 2 2.) 2 oe 2 2 13

Federal Youth Corrections Act, 18 U.S.C.
SEN 5005-5026 'Hut-t-jii. 1 itt tte e eee et 2. a ? 2 a a iz

28 .U.S.C. § 2254(d) ee SOS PeSeseseeenaevwesese ees oeeaeess fear

28 U.S.C. § 1291 SW SSSSCCPCSOsCeosese St SOK KCSCCHEHRE OC EWESKEKE CD 1
La. Civ. Code Ann. art. 92 (West. Supp.

1983) ee ee |

La. Civ. Code Ann. art. 1477 (West 1952) jtteveenusa Lal
La. Civ. Code Ann. art. 1785 (West Supp. 1983) ..... 14

La. Code Civ. Proc. Ann. art. 683
(West Supp. 1983) eee eee ee ee ee 2 2 2 2 2 ee 14

La. Code Crim. Proc. Ann. art. 401 (West
Supp. 1983) TV SCSCSSSHCH ERP KSKHR AKO KETO HH HSK SKE DOE CS 14

La. Code Crim. Proc. Ann. art. 905.9
(West Supp. 1983) ..... J... eee eee ptevenna . 25

V1i
STATUTES AND RULES

La. Rev. Stat.
(West Supp.

La. Rev. Stat.

Ann. art

- 14 § 91.1

1982) VT FSESHSSCSCC FO SCCHHPECKCACEO EEC HHSC EHEC

Ann. art

- 23 $§ 161,

185, 215 (West Supp. 1982) ....................

La. Rev. Stat.
(West 1975)

La. Rev. Stat.
(West Supp.

La. Sup. Ct. Rule 28

CONSTITUTIONS

La. Const. art.

LAW REVIEWS

Bedau, Death Sentences in New Jerse
19 Rutgers L.

1, § 10

Rev. 1

LASTED) sieeve tna ntkceaeaewws

1907-1960,

Fox, Juvenile Justice Reform: An
Historical Perspective, 22 Stan.

See ewes AELOLMs An

L. Rev. 1187 (1970) li ee ee et 2 er 2 2
Patrick, The Status of Capital Punishment: A
| ow & P.S.

World Perspective, 56 J. Crin.
397 (1965)

OTHER SOURCES

American Convention on Human Rights,
entered into force July 18, 1978

0.A.S. Doc.

OEA/SER.

K/XVI/1.1

V1l1i

12
9,332

) &.

OTHER SOURCES

Doc. 65 (1970), reprinted in
[1969] Yearbook on Human Rights

390 (United Nations)

lt ee ee ee ee 18

American Law Institute, Model Penal

Code, § 210.6, Comment, 133 (Offi-
Cial Draft and Revised Comments
1980)

SSS PSPS SCHEER HE RD KE O EES EME DEO BES 16

American Law Institute, Model Penal

Code, § 210.6(1)(d) (Proposed
Official Draft, 1962)

a ee ee ee ee er 2 16

W. Bowers, Executions in America (1974) Shueeesaae 19
Bureau of Justice Statistics, U.S. Dep't of

Justice, Capital Punishment, Annual Reports
(Advance Rep. May 1l, 1983)

coerccccccccccccccese 20
International Covenant on Civil and

Political Rights entered into force

March 23, 1976, G.A.. Res. 2200A, 21

U.S. GAOR, Supp. (No. 16) 49, 52,

U.N. Doc. A/6316 art. 6(5) (1967) ............ 18

International Human Rights Treaties:
Hearings Before the Senate Comn.

on Foreign Relations, 96th Cong.,
lst Sess. 506 (1979)

eee eee cece ec ccec creer cccc cee 18

A. Platt, The Child Savers: The Invention of
Delinquency, 193-199 (2d ed. 1977

e®eeeoeeeee0eese8¢e ll

United Nations, Economic and Social Council, Report

of the Secretary General, Capital Punishment 10
(1973)

TOSSHSSCSSHSSSSSHECHCHOHC OHHH CEH HRECEHC HEROD OSE C6ES 18

CERTIFICATE OF INTERESTED PERSONS
—$—$—$—$—$——— ee 2 BY PERSONS

The undersigned counsel of record certifies
that the following listed persons have an interest in the
outcome of this case. DALTON PREJEAN, Appellant, and

FRANK C. BLACKBURN and the STATE OF LQUISIANA,, Appellees.

lL KK
He

Attorneys of record for Petitioner-Appellant

STATEMENT REQUESTING ORAL ARGUMENT
—$—$———— ARGUMENT

Appellant Dalton Prejean respectfully requests
Oral argument on this appeal. Counsel understands that

argument on this appeal has been scheduled for the week

of December 5, 1983.

STATEMENT OF JURISDICTION
A

This is an appeal from a denial of a petition

for a writ of habeas corpus, brought pursuant to 28

U.S.C. § 2254. This court has jurisdiction over the

appeal pursuant to 28 U.S.C. § 1291.

QUESTIONS PRESENTED

1. Would the execution of Dalton Prejean
for a crime committed when he was seventeen and had
the mental and social maturity of a thirteen-year-
Old violate the eighth amendment to the United
States Constitution?

2. Did the failure of the Louisiana Supreme
Court to compare Dalton Prejean's sentence to sen-

tences given for similar crimes or to similar defen-

3. Can the death sentence imposed on Dalton
Prejean by the State of Louisiana be sustained even
though the Louisiana Supreme Court based its ap-
proval of the sentence on inadmissible evidence that
had not been relied upon by the sentencing jury?

4. Did the district court err in refusing to
grant an evidentiary hearing on Dalton Prejean's
claim that peremptory challenges were deliberately

and systematically used to exclude blacks from his

jury?

9. Was Dalton Prejean, a black youth convicted

of killing a white police officer, sentenced to die

as the result of intentional racial discrimination?
STATEMENT OF THE CASE

On July 2, 1977, 17 year old Dalton Prejean was

arrested for the shooting death of a white state police
officer. Prejean was a deprived youth who, at the time,
had the mental and social maturity of a 13 year old. on
May 3, 1978, Prejean was convicted of first-degree murder
by an all-white jury in Ouachita Parish, Louisiana, and
Sentenced to die in the electric chair. On direct appeal
under Article 905.9 of the Louisiana Code of Criminal

Procedure, the Louisiana Supreme Court affirmed the con-

viction and sentence. State v. Prejean, 379 So. 2d 240
(La. 1979), cert. denied, 449 U.S. 891 (1980).1 There-

after, Prejean sought post-conviction relief in the state
courts on multiple grounds, including those raised before

this Court. All such relief was denied.

1 The Record on Appeal will be cited as "R. ". The
district court opinion appealed from (cited herein as

Slip op. at __), and the Louisiana Supreme Court opin-
ion in this case, are asso bound separately in the
Record Excerpt. A complete history of Prejean's state
post-conviction proceedings is set out in the opinion
of the court below, Slip op. at 1-3.

Dalton Prejean filed a petition for habeas
corpus in the United States District Court for the West-
ern District of Louisiana. On August 5, 1983, the dis-
trict court dismissed the petition without permitting an
evidentiary hearing and declined to enter a Stay of exe-
cution pending an appeal. Notice of appeal was filed on
August 25, 1983. On September 16, 1983, this Court en-

tered a stay of execution pending hearing and determina-

tion of that appeal.

A. Trial and Sentence.
Prejean was scheduled to be tried in Lafayette
Parish, Louisiana. After jury selection had begun, it

became clear, however, that prejudicial pretrial public-

Ouachita Parish. During jury selection in Lafayette and
again in Ouachita, the prosecutor used his peremptory
challenges to exclude otherwise qualified blacks from the
jury. R. 8, 120-27. Prejean's trial counsel objected to
the intentional exclusion of all black jurors and moved
to quash the venire in Ouachita Parish. He sought leave
to supplement the record with evidence that such exclu-
Sion was systematic. R. 9: 379 So. 2d at 243. The trial

court denied that request, denied the motion to quash on

the ground that counsel had failed to show a Systematic
pattern of exclusion over time, and ordered Prejean to
proceed immediately to trial. Id. Prejean was convicted
by the all-white jury on May 3, 1978. R. 2.

During the penalty phase of the trial, Prejean
established evidence in mitigation, including his youth,
troubled childhood, mental deficiencies, and intoxication
at the time of the crime. The Prosecutor attempted to
introduce in aggravation evidence of a homicide committed
when Prejean was 13 which resulted in a finding of juve-
nile delinquency. R. 235. The trial court properly
excluded such evidence, and it was not used by the jury

in imposing the death sentence. Id.

B. Review by the Louisiana Supreme Court.

AS required by Louisiana law, the Louisiana
Supreme Court reviewed Prejean's sentence to determine
whether it was excessive or disproportionate. In doing
So, it considered the information concerning Prejean's
prior juvenile record and expressly relied upon this non-
record material (as is apparent from its decision) in
approving the sentence. 379 So. 2d at 247-49.

In conducting the proportionality review of
Prejean's sentence under La. Sup. Ct. Rule 28, the Loui-

Siana Supreme Court limited itself to cases from the

parishes where the crime occurred and the trial was held.

Only three murder cases were available for comparison
from these parishes. None of them resembled Prejean's
case in the slightest. The Court did not compare
Prejean's sentence with sentences meted out for similar

crimes or to similar defendants. 379 So. 2d at 249 n.3.

C. State Post-Conviction Proceedings.

On March 31, 1981, following direct review of
his conviction and sentence, Prejean applied for post-
conviction relief in the Fourth Judicial District Court,
Ouachita Parish. R. 3. Among the issues raised in the
petition were the inadequacy of the Louisiana Supreme
Court's review of Prejean's death sentence and the ra-
cially discriminatory use of peremptory challenges.

On April 9, 1981, the Ouachita Parish District
Court held a non-evidentiary hearing on Prejean's claims.
His counsel did not develop or Present the facts support-
ing his claims, and the court Summarily denied each
claim. The Louisiana Supreme Court denied Prejean's
application for a stay of execution and for review of the

denial of post-conviction relief. R. 104.

D. Federal Habeas Corpus.

Prejean immediately filed a writ of habeas

corpus and sought a stay of execution in the court below.
The court granted a stay of execution pending its deci-
Sion on the merits. Subsequently, Prejean sought abate-

ment of the habeas proceedings pending disposition by the

Supreme Court of Eddings v. Oklahoma. The court dis-

missed Prejean's petition without prejudice to enable him
to exhaust his state remedies on the claim that he could
not be executed for conduct occuring before he was 18.
Prejean then reapplied to the Louisiana Supreme
Court and raised the three additional grounds included in
his appeal to this Court: (a) the claim based on his age
at the time of his offense; (b) his claim that the Loui-
Siana Court's previous affirmance of his death penalty
had been based on evidence not in the trial record; and
(c) the claim that his death sentence was the result of
intentional racial discrimination against blacks con-
victed of killing whites. The Louisiana Supreme Court
again summarily denied his application, but it granted a

Stay of execution to allow Prejean to reapply to the

federal court. R. 217.

On February 23, 1982, Prejean filed his second

petition for habeas corpus in the Western District, rais-

ing each of the issues asserted on this appeal. On Au-

gust 5, 1983, the district court denied his petition,

refusing to hold a hearing to consider the factual bases

of Prejean's claims.

SUMMARY OF ARGUMENT

Our society has matured to a point that our
Standards of decency prohibit the execution of a youth

who was under 18 when his crime was committed. Because

Dalton Prejean was only 17 and had the mental and social
maturity of a 13 year old when he committed the crime for

which he was sentenced to die, the death penalty in his

case is unconstitutional.

In addition to being excessive, Prejean's death

Sentence was imposed arbitrarily, not in an even handed,
proportionate manner. Although Prejean was sentenced
pursuant to a capital sentencing scheme requiring appel-
late review of each death sentence to determine "whether
the sentence is disproportionate to the penalty imposed
in Similar cases, considering both the crime and the
defendant," La. Code Crim. Proc. Art. 905.9, La. Sup. Ct.

R. 28 (West Supp. 1983), the state court examined neither

Similar crimes nor similar defendants.

See Godfrey Vv.
not in the trial court record. Consideration of this
evidence violated the well-settled rule that defendants
are entitled to have their convictions and sentences
“appraised on consideration of the case as it was tried
and as the issues were determined by the trial court."

Cole v. Arkansas, 333 U.S. 196, 201-02 (1948); Presnell

v. Georgia, 439 U.S. 14 (1978).

Finally, Prejean's sentence resulted from in-

tentional racial discrimination. At Prejean's trial, the
prosecutor deliberately used peremptory challenges to
exclude all blacks from the jury. Prejean's trial coun-
sel objected to the exclusion and Charged that it was
part of an intentional and systematic policy. Moreover,
Prejean is a black youth convicted of killing a white man
and was sentenced to death based on the combination of
his race and the race of his victin. Prejean is entitled
to an evidentiary hearing on both of these issues because
the material facts were never adequately developed in the

State courts. Townsend v. Sain, 372 U.S. 293, 313

(1963); Guice v. Fortenberry, 661 F.2d 496, 501 (5th Cir.

1981) (en banc); see Spencer v. Zant, No. 82-8408, slip

op. at 5155 (llth Cir. Sept. 30, 1983).

ARGUMENT

I. THE EXECUTION OF DALTON PREJEAN
WOULD VIOLATE THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION.

The cruel and unusual punishment clause of the
eighth amendment prohibits punishments that violate "the
evolving standards of decency that mark the progress of a
maturing society," Trop v. Dulles, 356 U.S. 86, 101
(1958) (plurality opinion), as those standards are re-
vealed by history and tradition, legislative enactments,

and actual case results. Enmund v. Florida, 458 U.S. 782

(1982); Coker v. Georgia, 433 U.S. 584, 592 (1977).2 The

execution of a boy for an offense committed when he was
under 18 violates contemporary norms and is therefore
unconstitutional.

The district court rejected this claim because
it believed, erroneously, that Prejean was pleading to

the court's "own subjective opinion as to the propriety

2 The Supreme Court granted certiorari in a case raising
this issue, but found it unnecessary to reach the

question. Eddings v. Oklahoma, 455 U.S. 104 (1982).

of the punishment for [Prejean]." Slip op. at 24. In

truth, the objective criteria specified in Enmund and

A. Modern Criminal Justice Systems

Have Displayed Special Concern
for Juvenile Offenders.

At common law, children over seven were consid-
ered capable of forming criminal intent and were compe-

tent to be convicted and imprisoned or executed. In re

Gault, 387 U.S. 1, 16 (1967).3 By the early nineteenth

century, however, death sentences of young children were
commonly overturned or commuted. *

In the 1820's, the treatment of juvenile of-

fenders changed fundamentally as several states opened

“separate juvenile correctional facilities.5 This trend

3 See generally, A. Platt, The Child Savers: The Inven-
tion of Delinquenc , 193-199 (2d ed. I977)

* It appears that only two children under age fourteen
were executed between 1806 and 1882 in this country,

both of them negro slaves. A. Platt, The Child Sav-
ers, 211-212.

> See generally Fox, Juvenile Justice Reform: An His-

torica erspective, 22 Stan. L. Rev. -187, 1189 972,
1207-11 (1970).

blossomed at the end of the century into the juvenile

court movement. See In re Gault, 387 U.S. at 14-15.

"The early reformers were appalled by
adult procedures and penalties, and by the fact
that children could be given long prison sen-
tences and mixed in jails with hardened crimi-
nals. They were profoundly convinced that
society's duty to the child could not be con-
fined by the concept of justice alone. They
believed that society's role was not to ascer-
tain whether the child was ‘guilty’ or '‘inno-
cent’ but '[w]hat is he, how has he become what
he is, and what had best be done in his inter-
est and in the interest of the state to save
him from a downward career.' The child --
essentially good, as they saw it -- was to be
made ‘to feel that he is the object of [the

State's] care and solicitude,' not that he was
under arrest or on trial."

Id. at 15.
Every state now has a comprehensive juvenile
court system, see Kent v. United states, 383 U.S. 541,

954 n.19 (1966),. and at least 37 states currently make 18

year olds eligible for juvenile court jurisdiction.* The

federal government also accommodates the special needs of

young offenders. The Federal Youth Corrections Act, 18

U.S.C. S$ 5005-5026, provides Special sentencing alterna-

tives for youths between 16 and 22. It was "designed to

* The citations to those statutes are set forth in Ap-
pendix A to this brief.

provide a better method for treating young offenders

- + » in that vulnerable age bracket, to rehabilitate

them and restore normal behavior patterns." Dorszynski

v. United States, 418 U.S. 424, 432-33 (1974). See also

The Federal Juvenile Delinquency Act, 18 U.S.C. SS 5031-

Juvenile justice systems reflect our society's
concern for the legal status of teenagers. As Justice
Frankfurter observed: "Children have a very special
place in life which the law should reflect." May v.
Anderson, 345 U.S. 528, 536 (1953) (Frankfurter J., con-

curring). "({D]Juring the formative years of childhood and

adolescence, minors often lack the experience, perspec-
tive, and judgment to recognize and avoid choices that
could be detrimental to them." Bellotti v. Baird, 443
U.S. 622, 635 (1979).

Louisiana itself is protective of 17 year olds,
treating them as children, not as mature adults capable
of exercising judgment or discretion. Thus, for example,
a 17 year old cannot vote, enter into a contract, pur-

chase alcohol, sue or be sued, dispose of property by

will, or serve on a jury.” Without parental consent, a

17 year old may not enlist in the army, drive, obtain an
abortion, or, if a male, marry.® No 17 year old may work
without state permission, hold jobs "which may be hazard-

ous," or work for more than five hours without a break

for meals. 9?

B. Contemporary Legislative, Judicial
and Philosophical Judgments Reflect
Society's Rejection of Capital

Punishment for Young People.

In addition to the 13 states that have rejected
the death penalty in its entirety, at least six of the

States that allow it flatly prohibit the execution of

young people. 10 In the others, the sentencing authority

is constitutionally obligated to consider the defendant's

age in mitigation, Eddings v. Oklahoma, 455 U.S. 104

7’ La. Const. art. 1 § 10 (1974); La. Civ. Code Ann. art.

1785 (West Supp. 1983); La. Rev. Stat. Ann. art. 14 §
91.1 (West Supp. 1982); La. Code Civ. Proc. art. 683

(West Supp. 1983); La. Civ. Code Ann. art. 1477 (West
1952); La. Code Crim. Proc. Ann. art. 401 (West Supp.

1983).

& La. Rev. Stat. Ann. art 29, § 20 (West 1975); La. Rev.
Stat. Ann. art. 32 §$ 407 (West Supp. 1982); La. Rev.

Stat. Ann. art. 40 § 1299.35.5 (West +t 1982); La.
Civ. Code Ann. art. 92 (West Supp. 1983).

” La. Rev. Stat. Ann. art. 23 S§ 161, 185, 215 (West
Supp. 1982).

1° -The citations to these statutes are set forth in Ap-
pendix B to this brief.

.
(1982), which is among the factors that may most "miti-

gate against imposing capital punishment." Gregg v.

Georgia, 428 U.S. at 197.11 At least 24 States specifi-

cally designate an offender's youth as a Statutory miti-

gating factor,1!2

Society's special concern for juvenile offend-

ers is also reflected in judicial decisions reducing

Criminal sentences of young people on grounds of exces-

Siveness.13

11 See also Proffitt v. Florida, 428 U.S. 242, 251 (1976)

(sentencing judge must consider "whether the defen-
dant's youth argues in favor of a more lenient sen-
tence than might otherwise be imposed"); Jurek v.

Texas, 428 U.S. 262, 273 (1976) (statute permits jury

_to ""look to the age of the defendant'" in determining

sentence); Roberts (Harry) v. Louisiana, 431 U.S. 633,
637 (1977) (per curiam) (statute imposing capital
punishment on all offenders convicted of murdering a
police officer, with no provision for consideration of
"the youth of the offender" was unconstitutional): Cf.
Lockett v. Ohio, 438 U.S. 586, 197, 608 (1978) (age a

relevant mitigating factor); Bell v. Ohio, 438 U.S.
637, 640-41 (1978) (same). ,

See Appendix B.

See, e.g., Vasil v. State, 374 So. 2d 465 (Fla. 1979)
(reducing 15 year old defendant's death sentence);

State v. Sepulvado, 367 So. 2d 762 (La. 1979) (reduc-

ing Statutory rape sentence of an 18 year old); State
Vv. Cox, 369 So. 2d 118 (La. 1979) (reducing consecu-

tive sentences for armed robbery and attempted murder

where defendant was a 23 year old first offender with
no prior history of violence): Coleman v. State, 378
So. 2d 640 (Miss. 1979) (reducing death sentence of a

16 year old). Cf. State v. Taylor, 422 So. 2d 109,
(Footnote continued)

execution for crimes committed before age 18.1%

defendants may have been a mitigating factor in

State v. Mattheson, 407 So. 2d 1150, 1168 (La.

cert. denied, 103 S. Ct. 3571 (1983) (court notes
the youthfulness of the d

15 American Law Institute, Model P
Comment, 133 (Official Draft an
1980):

Since 1962, the Model Penal Code has barred

(Footnote 13 continued from previous page)

The ALI

recently reaffirmed that judgment, despite suggestions

that the minimum age be reduced.15 And last August, the

119 (La. 1982), cert. denied, 103 S. Ct. 1803 (1983)

(court refers to two murder cases, State v. Manie

ri,

378 So. 2d 931 (La. 1979), and State v. Andrews, 369

So. 2d 1049 (La. 1979), in which the youth of the

sentences of life imprisonment rather than death)

giving

e
a

1981),

that

efendant was a mitigating

factor in at least seventeen other first degree murder

prosecutions in which defendants were given life

imprisonment rather than death).

1* American Law Institute, Model Penal Code, § 210.6

(1)(d) (Proposed Official Draft, 1962).

"[T]here is at least one class of murder for

enal Code, § 210.6,
d Revised Comments,

which the death sentence should never be imposed.
This situation is murder by juveniles. The In-
Stitute believes that civilized societies will
not tolerate the spectacle of execution of chil-
dren, and this opinion is confirmed by the Ameri-
can experience in punishing youthful offenders.
Subsection (1)(d) therefore excludes the pos-
Sibility of capital punishment where the actor

was under 18 years of age at the time of the

homicide. Of course, any bright line of this
Sort 1S somewhat arbitrary, and many juveniles of
lesser years have the physical Capabilities and

mental ingenuity to be extremely lethal. The
Institute debated a motion to lower the age o

exclusion to 14 but rejected that proposal on
(Footnote continued)

f
the
American Bar Association passed a resolution Opposing

"the imposition of capital punishment upon any person for
any offense committed while under the age of eighteen,"
Eighteen is overwhelmingly recognized interna-
tionally as the appropriate threshold age for the imposi-
tion of capital punishment. Seventy-three of 93 coun-
tries reporting a minimum age for execution require the

offender to be at least 18.16 And "(t]he great majority

(Footnote 15 continued from previous page)
ground that, however dangerous some children may
be, the death penalty should be reserved’ for
mature adults. It should also be noted that 18
is the limit of juvenile court jurisdiction con-
templated in Section 4.10 of the Code. A more
difficult issue is the choice between an absolute
bar of capital punishment, as provided in Subsec-
tion (1)(d), and mere consideration of youth as a
mitigating circumstance, as indicated in Subsec-
tion (4)(h). The Institute defeated a motion to
delete the former provision altogether and rele-
gate the offender's age to evaluation as one of
several mitigating factors. This decision re-

flects the view that no juvenile should be exe-
cuted.”

16 Patrick, The Status of Capital Punishment: A World
Perspective, 56 J. CRIM. _— C. & P.S. 397, 398-403,
410 and Table 1 (1965). In addition, the following
countries prohibit capital punishment in peacetime:
Austria, Brazil, Canada, Colombia, Denmark, Federal
Republic of Germany, Finland, Great Britain, Iceland,
Israel, Italy, Luxembourg, Malta, Mexico, The Nether-
lands, New Zealand, Norway, Peru, Portugal, Spain,
Sweden, Switzerland and Uraguay.

of Member States [of the United Nations] report never

condemning to death persons under 18 years of age,"17

Two international human rights treaties, the

International Covenant on Civil and Political Rights! 8

and the American Convention on Human Rights,1% prohibit

execution for crimes committed before age 18. Both have
been ratified by numerous countries, the International

Covenant by at least 60, the American Convention by 14.

President Carter signed both treaties in 1977.20

C. Recent Sentencing and Commutation
Decisions Demonstrate that Execution
of Young People Violates Society's

Evolving Notions of Decency.

Transformed attitudes toward youthful offenders
have substantially affected society's willingness to

impose and execute capital sentences against young

17 United Nations, Economic and Social Council, Report of
the Secretary General, Capital Punishment 10 (1973).

18 International Covenant on Civil and Political Rights,
entered into force March 23, 1976, G.A. Res. 2200A, 21

U.S. GAOR, Supp. (No. 16) 49, 52, U.N. Doc. A/6316
art. 6(5) (1967).

19 American Convention on Human Rights, entered into
force July 18, 1978 0.A.S. Doc. OEA/SER. K/XV1I/1.1

Doc. 65 (1970), reprinted in [1969] Yearbook on Human
Rights 390 (United Nations).

20 See International Human Rights Treaties: Hearings
Before the Senate Comm. on Foreign Relations, 96th

Cong., lst Sess. 503-506, 520 (1979).

people. As the table below reveals, the number of teen-

agers executed declined markedly during the past half

century.?!

Executions of Young People in
the United States by Date, Race,

and Age at Execution: 1864-1967

1940-49 6 1 11 2 17 0 Ls 6 58
1950-54 0 0 2 0 2 0 8 2 14
L33a-o9 0 0 2 0 c 2 i. 1 9
1960-67 0 0 1 0 0 0 HM 0 2

10 3 32 8 93 10 =a 30 197

Moreover, whereas persons under 20 represented 4.7% of
the total number of persons executed during the 1940's
(58 of 1,174), they were only 3.38 of the total during
the 1950's (23 of 682), and only 1% in the 1960's (2 of
191).

Although we do not know how many juveniles were

sentenced to death but later spared, many more young

21 The table is based upon the most complete source of
relevant data available, the Teeters-Zibulka inven-

tory, “Executions Under State Authority: 1864-1967,"
published in W. Bowers, Executions in America (1974)
at 200-401. It collects information concerning 5,707
executions carried out between 1864 and 1967. Age
information for those persons executed is available in
approximately 55% of the cases. Reproduced at R. 375-
80 is a table which lists in chronological order, by
State, the name, age, race and crime of all persons
under the age of twenty listed in that inventory.

people were condemned than were executed. Studies of

executive clemency decisions indicate that the youth of
the offender is a decisive factor.22
As of 1981, only 17 of the 794 inmates on death

row were under 18 at the time of the crime for which they

were condemned.?3 According to the Department of Jus-

tice, among the 1050 persons on death row as of Decem-

ber 31, 1982, only 18 (1.7%) were under 20 years old.24

#2 One study of 232 persons receiving death sentences
between 1907 and 1960 in the State of New Jersey re-

veals that teenagers received commutations at "a sig-
nificantly higher rate" than those in their early

twenties. Bedau, Death Sentences in New Jersey 1907-
1960, 19 Rutgers L. Rev. 1, 25 (1964).

23
Juveniles Under Sentence of Death by Age
At Time of Commission of Crime
| As of May 1, 1981
Age B W H NA Totals
15 0 1 0 0 1
16 3 2 0 0 5
17 7 4 0 0 11
18 S 3 1 0 13
19 14 i 3 i 33
—eeeeeeeeeeSSeeeeeeeeeSSSSSC#
W= White H= Hispanic
B= Black NA=Native American

See Petitioner's Brief to the United States Supreme

Court in Eddings v. Oklahoma, at p. 65, submitted at
R. 328.

2* Bureau of Justice Statistics, U.S. Dep't of Justice,
Capital Punishment, Annual Reports (Advance Rep.

May 11, 1983).

D. All Objective Criteria Demonstrate That

Dalton Prejean Should Not Be Executed.

All objective indicia of contemporary standards
of decency show that our society has advanced to a point
where executions for crimes committed during adolescence
are a relic of a harsh and now forgotten era. In the
light of current psychological, penological and jurispru-
dential thought, killing teenagers, even for murder, is
almost barbaric. In nineteen states, the District of
Columbia and most Western nations, Prejean's death sen-
tence would not have been possible. Even in those states
where such a sentence may be imposed, the youth of the
defendant is a primary mitigating factor and must be
considered, — In practice, young people are sentenced to
death with ever increasing infrequency, and those sen-
tences are almost never carried out. Indeed, the execu-
tion of Prejean would be so notable as to render the
Sentence not merely excessive, but freakish and arbitrary

as well.

As Justice Powell wrote for the Court in

Eddings:

"{YJouth is more than a chronological
fact. It is a time and condition of life when

a person may be most susceptible to influence

Eddings v. Oklahoma, 455 U.S. at 115-16. Imposing the

death penalty upon any young person violates the very.

core of that human dignity protected by the eighth amend-

ment. This Court should not permit such a violation to

occur in this case.

The execution of Dalton Prejean would be a

Cruel and unusual punishment. Not only was he seventeen

379 So. 2d at 248. His intoxication further impaired his
already immature judgment. Id. He had been diagnosed as

mentally disturbed and "likely to get himself killed in

the near future", Id. Thus, Prejean was not even func-

the maturity of an adult. Eddings v. Oklahoma, 455 U.S.

at 115-16.25 Rather, Prejean was a Psychologically and
mentally disturbed child of 13 at the time of the crime.

25 In its review of Prejean's death sentence, the Louisi-
ana Supreme Court committed the Same error regarding

Prejean's intoxication that required vacating the

Sentence in Eddings v. Oklahoma. In Eddings, the
(Footnote continued)

For all of the foregoing reasons, this court
Should grant Dalton Prejean's petition and issue a writ
of habeas corpus.

II. THE LOUISIANA SUPREME COURT'S REVIEW

OF PREJEAN'S DEATH SENTENCE

WAS CONSTITUTIONALLY INADEQUATE,

The Louisiana Supreme Court affirmed Dalton
Prejean's sentence of death without comparing his case
with similar crimes or similar defendants. The eighth
amendment bars Louisiana from executing Prejean without
Such a comparison, Had the Louisiana Court made a le-
gitimate examination of similar cases, it Surely would
have concluded that Prejean's sentence was excessive and

disproportionate.

(Footnote 25 continued from previous page)
Oklahoma court "considered only that evidence to be
mitigating which would tend to Support a legal excuse
from criminal liability." 455 U.S. at 113 fomgheatl
added). The Louisiana Supreme Court, in discussing
Prejean's intoxication, stated "Voluntary intoxication
does not excuse." 379 So. 2d at 249. The Supreme ,
Court concluded in Eddings that such a limitation
placed by the court upon the mitigating evidence it
would consider violated the rule in Lockett v. Ohio,
438 U.S. 586 (1978). Eddings, 455 U.S. at 1l3. In-
deed, the Louisiana Court considered Prejean's mental
State and intoxication as evidence in aggravation, not
mitigation. The Court stated, "[{t]Jhe combination of
dull mentality, alcohol and handguns could reasonably

be said to increase the probability of tragic repe-
tition.” 379 So. 2d at 249.

A. The Eighth Amendment Requires Review
of Capital Sentences Sufficient to
Ensure the Evenhanded Application

of the Death Penalty.

The eighth amendment requires that Capital

sentencing procedures eliminate any substantial risk of

arbitrary or capricious results. Godfrey v. Georgia, 446
U.S. 420, 427-28 (1980); Gregg v. Georgia, 428 U.S. at

189 (1976) (plurality opinion). If the death penalty

cannot be imposed fairly, and with reasonable consis-

tency, it may not be imposed at all. Eddings v. Okla-

homa, 455 U.S. at 112. Thus, capital sentencing schemes

must provide some mechanisn, generally mandatory appel-
late review, "to insure evenhanded disposition of cases
imposing the death penalty ...." Baldwin ir Black
burn, 653 F.2d 942, 953 (Sth Cir. 1981), cert. denied,

456 U.S. 950 (1982).

aren eee onal ity revies substantially
eliminates the possibility that a person will

be sentenced to die by the action of an aber-
rant jury. If a time comes when juries gener-
ally do not impose the death sentence in a
certain kind of murder case, . .. no defendant
convicted under such circumstances will suffer
a sentence of death."

Gregg v. Georgia, 428 U.S. at 206 (plurality opinion);
see Godfrey v. Georgia, 446 U.S. at 432-33,

The three capital sentencing schemes that have
withstood scrutiny by the Supreme Court since Furman
provide for automatic review of all death sentences by an
appellate court of Statewide jurisdiction to determine
whether the sentence is disproportionate compared to
those jeatences imposed in similar cases.26 The Supreme
Court's "approval of Georgia's capital sentencing proce-

dure rested primarily on two features of the scheme:

[one of which was] that the state supreme court reviewed

the record of every death penalty proceeding to determine

whether the sentence was arbitrary or disproportionate."

Zant _v. Stephens, 103 S. Ct. 2733, 2749 & n.19 (1983).27

26 Gre v. Georgia, 428 U.S. at 206; Proffitt v. Flor-
ida, 428 U.S. 242, 258-59 (1976): and Jurek v-~ Texas,
428 U.S. 262, 276 (1976). In 1976, the Louisiana
Statute was found to be unconstitutional in part be-
cause "there [was] no meaningful appellate review of

the jury's decision." Roberts v. Louisiana, 428 U.S.
325, 335-36 (1976).

27 See also Barclay v. Florida, 103 S. Ct. 3418, 3424
(1983) (plurality opinion); id. at 3429, 3436 (Ste-
vens, J., concurring) (referring to the Florida Su-
preme Court's "constitutionally-mandated responsibil-
ity to perform meaningful appellate review"): Califor-
nia v. Ramos, 103 S. Ct. 3446, 3452 (1983) (in Gregg,
the plurality concluded that the Georgia scheme "met
the concerns of Furman by providing . . . meaningful
appellate review of each death sentence"). Cf. Solem
v. Helm, 103 S. Ct. 3001, 3011 (1983) (eighth amena-
ment analysis invoives comparison of sentence with
"the sentences imposed for commission of the same

crime in other jurisdictions") (emphasis added).

That safeguard affects the Court's willingness to uphold

other aspects of the System.

B. The Proportionality Review in

Prejean's Case Was Inadequate.

The Louisiana Supreme Court must review every

death sentence "to determine if it is excesSive." La.

Code. Crim. Proc. Art. 905.9. Louisiana Supreme Court

Rule 28 requires that court to judge "whether the [death]

sentence is disproportionate to the penalty imposed in
Similar cases, considering both the crime and the defen-

dant." The review iS meant to focus On "other cases

tended to limit its proportionality review to sentences

imposed within the same parish.28 In Baldwin, this Court

concluded that this procedure satisfies constitutional

requirements, noting, "the [State] court's scrutiny is

directed initially to those murder cases within a given

judicial district, [but] the review is not limited to

such." Baldwin v. Blackburn, 653 F.2d at 953.29

In Prejean's case, the Louisiana Court's pro-
portionality review was limited to three other cases, all
from the districts where the crime was committed or where
the trial was held. None of these three cases was simi-
lar to Prejean's by crime or by defendant. All three

involved killings of a family member. None involved a

28 379 So. 2d at 249-52 (Dennis, J., dissenting from the
denial of a hearing).

29 The Louisiana Court has, in several cases, looked
beyond the relevant parish to sustain a death sentence

when it found no cases "similar to this case in fact,
verdict or sentence" within that parish. State v.
Moore, 432 So. 2d 209 at 226-28: State v. Narcisse,
426 So. 2d 118 (La. 1983). In Narcisse, it stated:

"If the review of proportionality is limited
to cases in Lafayette Parish, the sentence in
this case can only be compared with the sentence
in -the Aucoin case (life imprisonment), because
the known facts in the two cases show a great
Similarity. A review of cases from other par-
ishes, however, will justify the death sentence."

Id. at 139.

27
teenage defendant. None presented the Mitigating circun-

Stances of this case. Most Significantly -- not one
resulted in a death sentence. In Spite of this, no ef-

fort was made to look to other parishes for similar

cases.
Even under Baldwin and Williams v. Maggio, 679
F.2d 381, 395 (5th Cir.) (en banc), cert. denied, 77 L.
Ed. 2d 1399 (1982), the review granted Prejean was insuf-
ficient. In Williams, the Louisiana Court compared Wil-
liams' case with twenty-eight other murder prosecutions,
eleven of which resulted in first degree murder convic-
tions, and three of which led to death sentences. The
court concluded that these three cases were Strikingly
Similar to the Williams case itself, each involving a
murder committed by the defendant in the course of an

armed robbery. State v. Williams, 383 So. 24 369, 375

(La. 1980), cert. denied, 449 U.S. 1103 (1981).

In contrast, the Louisiana Court did not deter-
mine whether Prejean's sentence was "disproportionate to
the penalty imposed in similar cases, considering both
the crime and the defendant." tt did not look at any
Similar cases. The dissimilar cases reviewed provided no
basis for a proportionality determination. As discussed

above in Part I, youthful defendants -- even when con-

28
victed of murder -- are rarely condemned to death. See

n.13 supra.

Even if statewide proportionality review is not

constitutionally required (and we submit it 1s3°), the

eighth amendment requires a review which in fact ade-

quately compares each death sentence with similar

cases.?! Meaningful appellate review to ensure even-

handed and non-excessive application of the death penalty
1S an important procedural safeguard against the arbi-
trary infliction of capital punishment. The Louisiana
Court's failure renders Prejean's sentence unconstitu-
tional. This case should be remanded to the district

court with instructions to grant the writ subject to

9° In light of Harris v. Pulley, 692 F.2d 1189 (9th Cir.

1982), cert. granted, 103 S. Ct. 1425 (1983), and
Autry v. Estelle, No. A-242 52 U.S.L.W. 3293, (Oct. 5,
1983 White, J.), we reserve for presentation to this
court sitting en banc and to the United States Supreme
Court the argument that the constitution requires a

Statewide proportionality review.

31 The procedure in this case would violate due process
even if the eighth amendment did not require any pro-

portionality review at the appellate level. Louisiana
law creates a liberty interest in an adequate review
entitled to the procedural protections of the due
process clause of the fourteenth amendment. See Vitek
v. Jones, 445 U.S. 480, 488 (1980). Such an arbitrary
disregard of this state created right is a denial of

due process. See Hicks v. Oklahoma, 447 U.S. 343, 346
(1980).

III. PREJEAN'S SENTENCE IS UNCONSTI-
TUTIONAL BECAUSE IT WAS AFFIRMED
ON THE BASIS OF INADMISSIBLE
EVIDENCE EXCLUDED FROM THE
RECORD AT TRIAL.

When Prejean was 13 years Old, he confessed to

killing a taxi driver and was adjudicated a delinquent.
The trial judge properly excluded evidence of this inci-
dent at Prejean's sentencing hearing, R. 234-35, and it
played no role in the jury's decision to impose the death
Sentence. However, the trial judge transmitted a con-
fidential sentencing report containing the same informa-
tion to the Louisiana Supreme Court, which expressly
relied upon this prejudicial information in affirming
Prejean's death sentence. That affirmance, based on
information neither relied upon by the sentencing jury
nor made a part of the trial record, violated Prejean's
right to due process of law.

An appellate court must base its review of a
criminal judgment on evidence presented to and considered

by the trial court. "To conform to due process of law,

[appellants are] entitled to have tae validity of their

convictions appraised on consideration of the case as it

was tried and as the issues were determined in the trial

court.” Cole v. Arkansas, 333 U.S. 196, 201-02 (1948);
see Dunn v. United States, 442 U.S. 100, 106-07 (1979).

This rule applies in the sentencing phase of capital

proceedings as well. Presnell v. Georgia, 439 U.S. 14
(1978); see Gardner v. Florida, 430 U.S. 349, 357-62

(1977).

In Presnell, the Georgia Supreme Court affirmed

a death sentence based on a lesser included felony even
though the trial jury's sentencing decision had not been
based on that evidence, and the defendant had not been
convicted of that offense. 439 U.S. at 15-16. The
United States Supreme Court held that the sentence was

unconstitutional even though there was evidence in the

record of the included offense. Id. at 17.

The error here is even more egregious than that
committed in Presnell. Not only did the Louisiana Su-
preme Court affirm based on a theory not considered by
the sentencing jury, but it compounded the error by rely-
ing on information that had been ruled inadmissible by
the trial judge. The Louisiana Court's use of this in-
formation was clearly unconstitutional. See opinion of
the court below, slip op. at n.17: Ford v. Strickland,

696 F.2d 804, 810 (llth Cir.) (plurality opinion), cert.

denied, 52 U.S.L.W. 3266 (Oct. 3, 1983); id. at 820

(Godbold, C.J.); id. at 846-49 (Kravitch, J.); id. at
872-74 (Johnson, J.); at 877 (Anderson and Clark, JJ.).
The procedure denied Prejean an Opportunity to present
factual evidence which might have explained, interpreted
or rebutted the material in the sentencing report. Had
evidence of Prejean's juvenile record been presented to
the sentencing jury, counsel would certainly have submit-
ted testimony and documentary evidence to counterbalance
it or place it in context. By adding this information to
the case at the appellate level, after leading counsel to
believe it had been stricken, the Louisiana courts intro-
duced an intolerable degree of unreliability into the
proceeding. See Gardner v. Florida, 430 U.S. 349 (1977).

The district court summarily rejected this

claim, observing cryptically that "{mjaterial outside the

record can have no effect in the imposition of sentence."
Slip op. at 21. If by this remark, the district court
meant that it would be impermissible for such material to
have such an effect, it was Clearly correct. If instead
it meant that it is factually impossible for such mate-
rial to have such an effect, it was clearly wrong as is
demonstrated by the opinion of tne Louisiana Supreme

Court itself. In the section of the opinion entitled

"Proportionality of the Sentence," the Louisiana court

states;

"In June of 1974 Dalton was arrested for the
killing of John Doucet, a taxi driver. Dalton ad-
mitted the killing and was committed once again to
the Louisiana Training Institute. Ina later state-
ment about the incident Dalton stated that he and
two friends called a cab with the intention of rob-
bing the driver. One of his companions was carrying
agun. The three directed the driver to a quiet
part of town and persuaded him to Stop while they
Searched for an address. Dalton insisted on taking
the gun from his companion because the other youth
appeared to be nervous. Dalton approached the
driver, and believing that the driver was reaching
for a gun of his own, fired twice and began running.
While fleeing he told a passerby to call an ambu-
lance because someone had been shot. Dalton later

turned himself in to the police and admitted that he
had killed the driver."

379 So. 2d at 248. The court then discussed Prejean's

release from juvenile custody, noting that "[wJithin

seven months Dalton was once more under arrest for kill-
ing a human being." Id.

Other Louisiana Supreme Court opinions make
Clear that it routinely and openly relies upon the in-
formation contained in the confidential Sentencing report

submitted to it, regardless of whether such information

was part of the record before the sentencing jury.32

Indeed, Supreme Court Rule 28, § 3 codifies the use of

the extra-record materials, requiring their submission to

the court.

Brown v. Wainwright, 392 So. 2d 1327 (Fla.
1981), cert. denied, 454 U.S. 1000 (1982), upon which the

court below relied, is irrelevant because the Florida
Supreme Court denied that it had employed the non-record

materials in reviewing death sentences. Ford v. Strick-

land, 696 F.2d at 810-11 (plurality opinion); id. at 832
(Tjoflat, J.). Here, however, the Louisiana Supreme
Court has not only failed to deny using the non-record

material, but it has also made plain from its opinions in

this and other cases that the information was used. 33

32 FE State v. Willie, No. 81-KA-0242 (La., June 27;
I9 35 ("the presentence report Clearly concludes that
Willie constitutes a serious and clear threat to so-

ciety"); State v. Knighton, No. 82-KA-0097 (La.,
May 23, 1983) (juvenile record); State v. Lindse , 428
So. 2d 420 (La. 1983) (juvenile record); State v.
Sawyer, 422 So. 2d 95, 105 (La. 1982) (proportionality

review based on "facts presented to the jury and the
other materials submitted to us on review").

33 If there is any doubt that the prior offense impermis-
sibly factored in the Louisiana Court's review, this

Court should either remand for an evidentiary hearing,
grant the writ conditioned upon Louisiana affording
Prejean a new direct appeal, or certify the question
to the Louisiana Supreme Court. This latter approach
was suggested by Chief Judge Godbold in his opinion in
Ford v. Strickland, 696 F.2d at 821. See also, id. at
837-38 & n. 30 (Tjoflat, J.).

34
"We are not at liberty to assume that items given such

emphasis by the sentencing court did not influence the

sentence ... ." Townsend yv. Burke, 334 U.S. 736, 740
(1948).

IV. THE DISTRICT COURT ERRED IN REFUSING
TO GRANT AN EVIDENTIARY HEARING ON
PREJEAN'S CLAIM THAT THE STATE SYSTE-
MATICALLY EXCLUDED BLACKS FROM HIS JURY.
—_—$—$—$—$—$————— ii TRUM iS JURY

At Prejean's trial, the State deliberately used

peremptory challenges to exclude all blacks from the

jury. This intentional discrimination violated his con-

trial. The district court erroneously denied Prejean a
hearing because it concluded that Prejean had failed to
State a claim for relief. Slip op. at 7. Prejean al-

leged, however, that the "prosecution deliberately exer-

cised his peremptory challenges so as to exclude members

of the defendant's race from the. petit jury" and also

alleged the "systematic exclusion of blacks." R. 26.

These allegations state a claim,3% and, under well estab-

3* Swain v. Alabama, 380 U.S. 202, 223 (1965), is the
Ieading case on this question. Swain was an equal
protection case, decided before the sixth amendment

right to be tried by an impartial jury selected from a
fair cross section of the community became applicable
to the states. For that reason, the vitality of its

(Footnote continued)

i
(Footnote 34 continued from previous page)

requirement that the exclusion be Systematic is in
question.

A majority of the Supreme Court recently agreed that
Swain should be reassessed. McCray v. New York, No.
82-1381; Miller v. Illinois, No. 82-5840; Perry v.
Louisiana, No. 82-5910, 51 U.S.L.W. 3855 (May 31,
1983) (Stevens, Blackmun and Powell, JJ., concurring
in denial of certiorari); id. (Marshall and Brennan,
JJ., dissenting from denial of certiorari). The deci-
Sion "has been the subject of almost aha and
often scathing criticism." McCray, Supra (Marshall,
J., dissenting). See Gilliard v. Mississi 1, No. 82-
6775, 52 U.S.L.W. 3259 (Sept. 27, 1983) (Marshall, J.,

dissenting from denial of certiorari).

Indeed, following the Supreme Court's denial of cer-
tiorari in Perry v. Louisiana, No. 82-5910, 51
U.S.L.W. 3855 (May 31, 1983), the federal habeas court
ordered that an evidentiary hearing be held on Perry's
identical claim. Perry v. Maggio, No. 83-1621 (W.D.
La., July 22, 1983) (order attached as Appendix C to
this brief).

Prejean's evidence in support of this claim will in-
clude (a) the race of prospective jurors, (b) the
number of strikes exercised by the prosecutors against
blacks in the parish in which the prosecutor practices
and in which Prejean was tried, and (c) testimony from
attorneys who have appeared in cases in which the
Prosecutor used his peremptory strikes to eliminate
blacks from the jury. The proven racially discrimina-
tory practices of the authorities and citizenry gener-
ally within Ouachita Parish, see Ausberry v. City of
Monroe, 456 F. Supp. 460, 463 (W.D. La. 1978), also
provide a basis for meeting the burden imposed by
Swain. See also State v. Brown, 371 So. 2d 751 (La.

1979) (discussing racial prejudice in the selection of
juries in the East Baton Rouge Parish).

Federal courts must grant an evidentiary hear-

ing to a habeas applicant if any of the following circum-

Stances are present:

"(1) the merits of the factual dispute were not
resolved in the state hearing; (2) the state factual
determination is not fairly Supported by the record
as a whole; (3) the fact-finding procedure employed
by the state court was not adequate to afford a full
and fair hearing; (4) there is a substantial allega-
tion of newly discovered evidence; (5) the material
facts were not adequately developed at the state-
court hearing; or (6) for any reason it appears that
the state trier of fact did not afford the habeas
applicant a full and fair fact hearing."

Townsend v. Sain, 372 U.S. 293, 313 (1963); Thomas v.

Zant, 697 F.2d 977, 984 (llth Cir. 1983): Guice v.

Fortenberry, 661 F.2d 496, 501 (5th Cir. 1981) (en

banc) .36

Townsend mandates an evidentiary hearing be-

cause the material facts pertaining to Prejean's claim

were never adequately developed at a full hearing in the

3¢ At the evidentiary hearing, no presumption of correct-

ness should be given under 28 U.S.C. § 2254(d) to the
State court's decision regarding this issue because

several of the statutory exceptions are present in
this case. The fact finding procedure employed by the
State court was not adequate to afford a full and fair
hearing, id. at (d)(2), the material facts were not
adequately developed at the state court hearing, id.
at (d)(3), and the applicant did not receive a full,

fair and adequate hearing in the state court proceed-
ing, id. at (d)(6).

State courts. "The duty to try the facts anew exists in

every case in which the state court has not after a full

hearing reliably found the relevant facts." 372 U.S. at
318.

"If, for any reason not attributable to the inexcus-
able neglect of petitioner, see Fay v. Noia [372

U.S. at 438], evidence crucial to the adequate con-
Sideration of the constitutional claim was not de-

veloped at the state hearing, a federal hearing is

compelled."

Id. at 317. (emphasis added); see also Thomas v. Zant.

Clearly, the crucial facts of Prejean's claim
were not developed before or even presented to the state
courts. The trial court refused to conduct a hearing and
made no‘findings. On direct appeal, the Louisiana Su-
preme Court stated only that there was no evidence to

meet the Swain burden. 379 So. 2d at 244. At the state

post-conviction hearing, counsel raised the claim, but he
presented no witnesses, and no evidence concerning other
cases, and the court made no findings of fact. R. 127.
Because counsel's failure to develop the issue in the
State court was not for strategic or tactical reasons
and, it was not due to "inexcusable neglect." Such ne-
glect exists only where a habeas applicant understand-

ingly and knowingly foregoes the vind.cation of his fed-

eral claims in the state courts.

Guice v. Fortenberry,
661 F.2d at 507.

In Guice, this Court held that the unexplained

failure of petitioners to develop the crucial facts sup-
porting their claim of racial discrimination in the se-
lection of grand jury foremen was not "inexcusable" for
several reasons. First, there was no substantial allega-
tion in the district court that they had made a tactical
decision to leave the evidence undeveloped. Second, the

record did not explain their failure to develop the

facts. And finally, this Court concluded, "{1]t appears

more likely that, based on the inartful and scattershot
nature of the various motions, the defendants and their
attorneys did not appreciate fully the relevance of the
missing evidence." Id. Likewise, in Townsend v. Sain,
372 U.S. at 317, the Supreme Court concluded that the
"inexplicable" failure of an expert witness to develop
certain crucial facts was not attributable to the peti-

tioner's inexcusable default. See also Coleman v. Zant,

708 F.2d 541 (llth Cir. 1983).

Prejean's trial counsel made the Swain objec-

tion and moved to quash the jury venire as soon as it was
apparent that the prosecutor had deliberately used his

peremptory challenges to exclude blacks from the jury.

39
He requested leave to supplement the record with evidence

necessary to support this claim.3?’ The trial court de-

nied both motions. Counsel challenged that denial
throughout the state court Proceedings. Accordingly, the

district court was required to conduct an evidentiary

hearing on the claim.38 This Court should now remand for

that hearing. 39

37 This Court has suggested that proof of such a claim
"Might require checking the docket for a reasonable

period of time for the names of defendants and their
attorneys, investigation as to the race of the various
defendants, the final composition of the petit jury
and the manner in which each side exercised its pe-
remptory challenges." United States v. Pearson, 448
F.2d 1207, 1217 (5th Cir. 1971). The difficulty of
able timing of the
claim: it does not arise until the jury is picked, at

38 At the very least, the district court should have
conducted an evidentiary hearing to determine whether

the failure to develop the material facts at the state
proceeding was attributable to inexcusable neglect or
deliberate bypass. Thomas v. Zant, 697 F.2d at 988-
89; see Huffman v. Wainwright, 651 F.2d 347 (Sth Cir.

1981).

39 Jury selection was also unconstitutional because mem-
bers of the venire with conscientious Scruples against

the death penalty were Systematically excluded from
the guilt/innocence jury, yielding a jury which was
neither neutral and impartial nor representative of a
cross-section of the community. Prejean should be
granted an evidentiary hearing at which *o substanti-
ate his claim. See Griqsby v. Mabr , No. PC-C-78-32
(‘E.D. Ark. Aug. 3.1383) (granting the writ after an
evidentiary hearing). Prejean respectfully submits
that the rulings of this court in Smith v. Balkcom,

(Footnote continued)

40
V. PREJEAN'S SENTENCE WAS THE RESULT
OF INTENTIONAL RACIAL DISCRIMINATION

AGAINST BLACKS CONVICTED OF KILLING

WHITES.
oo eeeeeeeeSeSeSSSSSSeeeeSFsSFseses

Prejean, a black youth convicted of killing a

white man, was sentenced to death as a result of inten-

tional racial discrimination based on the combination of

his race and the race of his victim.*° The state courts

refused to give Prejean a hearing on this clain. Prejean

Should be given a hearing now.*1 Because he is black and

(Footnote 39 continued from previous page)

660 F.2d 573 (5th Cir. 1981), modified, 671 F.2d 858,
cert. denied, 103 S. Ct. 181 (1982); and Spinkellink
v. Wainwright, 578 F.2d 582 (5th Cir. 1978) cert.

denied, 440 U.S. 976 (1979), are erroneous, directly
conflict with the opinion of the Supreme Court of the

United States in Witherspoon v. Illinois, 391 U.S. 510
(1968), and should be considered by this Court sitting

en banc.

Prejean's evidence at a hearing on this claim will
include data being prepared by Robert Mauro, a social

scientist at Stanford University, and expert witnesses
who would present more detailed and refined analyses
of the information to rebut any inference that the
disparities are caused by factors other than race.
Prejean's evidence is qualitatively and quantitatively
different from that rejected by this Court as insuffi-
cient in Smith v. Balkcom, 660 F.2d 973, modified, 671
F.2d 858, 860 n.33 (5th Cir.), cert. denied, 103 S.
Ct. 181 (1982). R. 272-76.

The district court erroneously cited Spinkellink v.
Wainwright, 578 F.2d 582, 604-05 (5th ore L978),
cert. denied, 440 U.S. £76 (1979), for the proposition
that the Louisiana statute was conclusively not arbi-
trary, and Smith v. Balkcom, 660 F.2d at 573 for the

| (Footnote continued)

41
the victim was white, his case involves the classic situ-

ation in which courts traditionally infer discriminatory
motive from statistically demonstrable impact, and give

the minority plaintiff full opportunity to develop evi-

dence of that disproportionate impact. See Castaneda v.

Partida, 430 U.S. 482 (1977); Spinkellink v. Wainwright,
978 F.2d at 615, quoting Washington v. Davis, 426 U.S.

229, 242 (1976).42 "[C]ircumstantial or statistical

evidence of racially disproportionate impact may be so
Strong that the results permit no other inference but
that they are the product of a racially discriminatory

intent or purpose." Smith v. Balkcom, 671 F.2d at 859,

(Footnote 41 continued from previous Page)
conclusion that Prejean's "mere conclusory allega-
tions" are insufficient to compel an inference of
racially discriminatory intent. The district court
erred on both counts and should be reversed.

Spinkellink "merely established that in the absence of
proof of ‘some specific act or acts evidencing inten-

tional or purposeful .. . discrimination against [the
petitioner]' on the basis of race, sex, or wealth, a
petitioner is not entitled to relief on habeas

corpus." Smith, 660 F.2d at 585, quoting Spinkellink,
978 F.2d at 614 n.40. Smith, in turn, made clear that
. the merits of an attack on the constitutionality of

the death penalty as applied turn on the quality of
the evidence presented.

*? As discussed above, Prejean's case als» involves ra-
clally discriminatory acts by the prosecutor in elimi-

nating all blacks from the jury through peremptory
challenges.

42
citing Village of Arlington Heights v. Metropolitan Hous-
ing Development Corp., 429 U.S. 252, 266 (1977).

The Eleventh Circuit recently remanded a habeas

petition to the district court for an evidentiary hearing

on an identical claim. Spencer v. Zant, No. 82-8408,
Slip op. at 5155 (llth Cir. Sept. 30, 1983).

"{IJ]n the absence of any specific findings by the
district court and without any opportunity given to

the petitioners to present their evidence we con-
clude that the district court did not adequately
analyze the data. . .. The merits of this allega-
tion cannot be assessed without a more detailed

consideration of the evidence proffered by the peti-
tioners below."

—_
—)

Id. The Spencer panel relied heavily upon this Court's

decision in Smith v. Balkcom in concluding that an evi-
dentiary hearing was required. Because Prejean has suf-
fered from the same type of intentional discrimination as

alleged in Spencer, he too should be given the opportu-

nity to prove his claim at an evidentiary hearing.

CONCLUSION

For the reasons set forth above, the decision
of the court below should be reversed in all respects,
and a writ of habeas corpus should be issued. Alterna-
tively, this case should be remanded for evidenticry

hearings on the prosecutor's use of peremptory challenges

43
and the racially discriminatory imposition of the death

penalty.

Dated: New York, New York
October 17, 1983

Of Counsel:

Martha J. Olson
Debevoise & Plimpton
875 Third Avenue

New York, New York . 10022

Respectfully submitted,

JOHN H. HALL

MITCHELL A. KARLAN
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
(212) 909-6000

Attorneys for Appellant
Dalton Prejean

NAACP Legal Defense and Educational Fund, Inc.

John Charles Boger
Steven L. Winter
10 Columbus Circle

New York, New York 10019

Anthony G. Amsterdam

New York University School of Law
40 Washington Square South - Room 327
New York, New York 10012

Thomas Guilbeau
106 West Congress
Lafayette, Louisiana

70502

44
APPENDIX A

STATUTES SETTING 18 AS
MAXIMUM AGE FOR JUVENILE
COURT JURISDICTION

Ala. Code § 12-15-1(3) (Supp. 1982); Alaska Stat.

S 47.10.010(a) (Supp. 1982); Ariz. Rev. Stat. § 8-201.5
(Supp. 1982-83); Ark. Stat. Ann. § 45-406.1 (Supp. 1983);
Cal. Welf. & Inst. Code § 300 (West Supp. 1983): Colo.
Rev. Stat. §$ 19-1-103 (3)(1978); Conn. Gen. Stat.

S 46b-121 (1981); Del. Code Ann. tit. 10, § 901(3) (Supp.
1982); Fla. Stat. Ann. § 39.01(7) (West Supp. 1983);
Hawaii Rev. Stat. § 571-11(1) (Supp. 1982); Idaho Code

S 16-1802(c) (Supp. 1983); Ind. Code Ann. § 31-6-1-2(1)
(Supp. 1982); Iowa Code Ann. § 232.2.3 (Supp. 1983-84);
Kan. Stat. Ann. § 38-802(b) (1981); Ky. Rev. Stat. Ann.

S 208.010(2) (Baldwin Supp. 1982-83); Me. Rev. Stat. Ann.
tit. 15, § 3003(14) (Supp. 1982-83): Md. Cts. & Jud.
Proc. Code Ann. § 3-801(d)(1982); Minn. Stat. Ann.

S 260.015(2) (Supp. 1983); Miss. Code Ann. § 43-21-15]
(Supp. 1983); Mont. Code Ann. § 41-5-103(10) (1981); Neb.
Rev. Stat. § 43:202 (1978); Nev. Rev. Stat. § 62.040
(1981); N.H. Rev. Stat. Ann. § 169:2 III (1981); N.J.
Stat. Ann. § 2A:4-46.c (Supp. 1983-84); N.D. Cent. Code

S 27-20-02(1) (Supp. 1981); N.M. Stat. Ann. § 32-1-3(A)
(1981); Ohio Rev. Code Ann. § 2151.01.1(B)(1) (Page
1982); Okla. Stat. Ann. tit. 10, § 1101(a) (Supp. 1983-
84); Or. Rev. Stat. § 419.476(1)(1981): Pa. Stat. Ann.
tit. 42, § 6302(1) (Purdon 1983-84): R.I. Gen. Laws

§ 14-1-3(c) (Supp. 1982); S.D. Codified Laws Ann. § 26-8-
1(3) (Supp. 1983); Tenn. Code Ann. § 37-202(1) (Supp.
1983); Utah Code Ann. § 78-3a-2(3) (Supp. 1981): Va. Code
Ann. §$ 16.1-228 (Supp. 1983); vt. Stat. Ann. tit. 33,

S 632(a)(1) (Supp. 1983); Wash. Rev. Code Ann.

S 13.40.020(11) (Supp. 1983-84); W. va. Code § 49-5-1(a)
(1982); Wis. Stat. Ann. § 48.02(2) (West Supp. 1983-84);
Wyo. Stat. § 14-6-201(a) (Supp. 1982).
Appendix B

CAPITAL SENTENCING STATUTES
PROHIBITING EXECUTION OF
YOUTHFUL OFFENDERS

Under 18

Cal. Penal Code § 190.5 (West Supp. 1983)

Colo. Rev. Stat. § 16-11-103(5)(a) (1978)

gr he 4: Stat. Ann. § 53a-46a(f)(1) (West Supp.
1 -84

Ill. Rev. Stat. ch. 38, § 9-1(b) (Smith-Hurd Supp.
1983-84)

Mass. Gen. Laws Ann. ch. 265, § 2 (West Supp. 1983-84)

N.M. Stat. Ann. § 31-18-14.A (Supp. 1981)

NY Penal Law § 125.27(b) (McKinneys Supp. 1982-83)

Ohio Rev. Code Ann. § 2929.03(D) (1) (Page 1982)
Under 17

N.H. Rev. Stat. § 630:1 IV (1974)

Texas Penal Code Ann., S$ 8.07(d) (Vernon Supp.
(1982-83)

Under 16
Nev. Rev. Stat. § 176.025 (1979)

CAPITAL SENTENCING STATUTES
SPECIFICALLY LISTING YOUTH
AS A MITIGATING FACTOR

Ala. Code § 13A-5-51(7) (1982)

Ariz. Rev. Stat. Ann. § 13-703G.5 (Supp. 1982-83)

Ark. Stat. Ann. § 41-1304(4) (Supp. 1979)

Cal. Penal Code § 190.3(i) (West Supp. 1983)

Colo. Rev. Stat. § 16-11-103 (5.1)(£) (1982)

Conn. Gen. Stat. Ann. § 53a-46a(f)(1) (West Supp.
1983-84)

Fla. Stat. Ann. § 921.141(6)(g) (West Supp. 1983)

Ky. Rev. Stat. Ann. § 532.025(b)(8) (Bobbs-Merrill Supp.

1982)

Md. Ann. Code art. 27, § 413(g)(5) (1982)

Mass. Gen. Laws Ann. ch. 279, § 69(b)(5) (West Supp.
1983-84)

Miss. Code Ann. § 99-19-101(6)(g) (Supp. 1982)

Mo. Ann. Stat. § 565.012.3(7) (Vernon Supp. 1983)

. Mont. Code Ann. § 46-18-304(7) (1981)
Neb. Rev. Stat. § 29-2523(2)(d) (1979)

Nev. Rev. Stat. § 200.035(6) (1979) |

N.H. Rev. Stat. Ann. § 630:5II(b)(5) (Supp. 1979)
N.J. Stat. Ann. § 2C:11-3(5)(c) (West Supp. 1983-84)
N.M. Stat. Ann. § 31-20A-6.I (Supp. 1981) ~

N.C. Gen. Stat. § 15A-2000(£)(7) (1981)

Ohio Rev. Code Ann. § 2929.03(D) (1) (Page 1982)

18 Pa. Cons. Stat. Ann. § 9711(e)(4) (Purdon 1981)
eet; ia Ann. $ 16-3-20(c)(b)(7) (Law. Co-op. Supp.
Tenn. Code Ann. § 39-2-203(5)(7) (1982)

Utah Code Ann. § 76-3-207(i)(e) (Supp. 1982)

Va. Code § 19.2-264(B)(v) (Supp. 1982)

Wash. Rev. Code Ann. § 10.95.070(7) (Supp. 1983-84)
Wyo. Stat. § 6-4-102(j)(vii) (Supp. 1980)

0. S. DISTRICT Court

APPENDIX C WESTERN DISTRICT CF LCL"

FILER:
JUL 22 1982

IN THE UNITED STATES DISTRICT COURT FOR ae
ROBERT H: SH

THE WESTERN DISTRICT OF LOUISIANA BY.
LAKE CHARLES DIVISION

JOE LOUIS PERRY

vs. CIVIL ACTION NO. 83-1621

ROSS MAGGIO, Warden,
Louisiana State Peniten-
tiary, Angola, and the
ATTORNEY GENERAL OF THE
STATE OF LOUISIANA |

KEKE KKK KE KEK

ORDER

On motion of Joe Louis Perry, petitioner in the
above captioned matter, and upon suggesting to the court in
support of his application for habeas corpus under 28 U.S.C.
Section 2254 that an evidentiary hearing is necessary so
as to include additional evidence relevant to petitioner's

asserted claims, especially and more specifically:
Whether:

1) He was denied his constitutional rights,
(a) by reason of exclusion of all black
prospective jurors from his jury for reasons
of race and why, (b) by reason of the State's
-* | Systematic exclusion of prospective jurors
| for reasons of race over a significant
period of time;

2) He was denied his right to effective
assistance of counsel; and,

LL. CLEFT:

DEPUTY

ar 4
3) Admission of his alleged statement of ©
confession was in violation of his rights
under the constitution.

The foregoing motion and his reasons in support
thereof being considered:
IT IS ORDERED that an evidentiary hearing be granted

SO as to receive evidence and determine whether:

1) He was denied his constitutional rights,
(a) by reason of exclusion of all black
prospective jurors from his jury for
reasons of race and why, (b) by reason
of the State's systematic exclusion of
prospective jurors for reasons of race
over a significant period of time;

2) He was denied his right to effective assistance
of counsel; and,

3) Admission of his alleged statement of con-
fession was in violation of his rights
under the constitution,
and, accordingly,

IT IS ORDERED that an evidentiary hearing for the
taking of such testimony be and it is hereby set-for the
8th day of August, 1983, at 10:00 A.M. in the courtroom of
the Federal Court Building, located Second Floor, 921 Moss
Street, Lake Charles, Louisiana.

THUS DONE AND SIGNED in Chambers at Lake Charles,

Louisiana, on this 22nd day of July, 1983.

Lut £ Ven

“EARL E. VERON
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

The undersigned certifies that, on October 17,
1983, she caused a copy of the Brief of Appellant Dalton

Prejean, together with all Appendices and the Record on
Appeal, to be mailed by Federal Express to Nathan
Stansbury, Counsel of Record for Appellees

utha ll. Heo

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

a as . \ U
. w yh
DALTON PREJEAN, a
¢ P,
Petitioner-Appellant, \
VS. No. 83-4548
FRANK C. BLACKBURN, et al.,
Respondent-—Appellees.
—_—— ee ee cee ee ee ce ee ee ce ee ee ee ce ee ee ee es ee ee es ee xX

REPLY BRIEF OF APPELLANT DALTON PREJEAN

JOHN H. HALL

MITCHELL A. KARLAN
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
(212) 909-6000

Attorneys for Appellant
Dalton Prejean
Of Counsel:

Martha J. Olson
Debevoise & Plimpton

875 Third Avenue

New York, New York 10022

John Charles Boger
Steven L. Winter

99 Hudson Street

New York, New York 10013

Anthony G. Amsterdam

New York University School of Law
40 Washington Square South

New York, New York 10012

Thomas Guilbeau
106 West Congress
Lafayette, Louisiana 70502

November 10, 1983
TABLE OF CONTENTS

PAGE
TABLE OF AUTHORITIES oes © @ © = ww wee wee heh 3
Le THE EXECUTION OF CHILDREN IS
CRUEL AND UNUSUAL ¢e oO e a e Ss e e e € e ce a 1
Lea THE LOUISIANA SUPREME COURT'S
FAILURE TO COMPARE PREJEAN'S
CASE TO SIMILAR CASES RENDERS
HIS DEATH SENTENCE VOID .......... 4
III. THE USE OF INADMISSIBLE, NON-RECORD
EVIDENCE TO AFFIRM PREJEAN'S DEATH
SENTENCE WAS UNCONSTITUTIONAL ....... 6
LV. THE STATE'S RACIALLY DISCRIMINATORY
USE OF PEREMPTORY CHALLENGES WAS
UNCONSTITUTIONAL . ..... 6 «© «© © « ew 9
A. This Court's Precedents Entitle
Prejean to an Evidentiary Hearing ... 9
B. The Sixth Amendment Also Protects
Prejean from the State's Use of
Peremptory Challenges to Exclude
Blacks J ® @ & @ e o e @e e o e o c c e s 1l
V. PREJEAN'S DEATH SENTENCE RESULTED FROM
INTENTIONAL RACIAL DISCRIMINATION ..... 16

CONCLUSION es © £4 * ee ee ee ee Oe wh hkl hee | CO
TABLE OF AUTHORITIES

CASES Page

Ausberry v. City of Monroe, 456 F. Supp.
460 (W.D. La. 1978)... cc ccc cece ccc cece cee 19
Ballard v. United States, 329 U.S. 187

eoeeoeee0nreoe50e3eese3@#e3nreoee3e3@eeeeeeeee @ eee eeee#se#eve«® 12

Cole v. Arkansas, 333 U.S. 196 (1948) .......... 7, 8

Commonwealth v. Soares, 387 N.E.2d 499,

(Mass.), cert. denied, 444 U.S. 881

(A970! adkea cede ca wena eee TITTTLILILrrrrrirerteee 13, 14,
15
Duren v. Missouri, 439 U.S. 357 (1979) ......... 12, 13
Eddings v. Oklahoma, 455 U.S. 104 (1982) ....... 2, 8
Furman v. Georgia, 408 U.S. 238 (1972) ......... 17, 18
Gardner v. Florida, 430 U.S. 349 (1977) ........ 7, 8

Gregg v. Georgia, 428 U.S. 153 (1976) .......... 2

Guice v. Fortenberry, 661 F.2d 496 (5th Cir.
1981) (en banc) .........-. TrRrTrrTrrrrrrrrrrer » 9, LO,

ll
Hall v. United States, 168 F.2d 161 (D.C.

Cir.), cert. denied, 334 U.S. 853 (1948) ..... 14
Hicks v. Oklahoma, 447 U.S. 343 (1980) ......... 6
Huffman v. Wainwright, 651 F.2d 347 (Sth

Cir. 1981) ci. ccc cc cc ccc ce ccc ewes osseeun saan cu
Lockett v. Ohio, 438 U.S. 586 (1978) ..... ssacae §

Logan v.
422

Maggio v. Williams, No. A-301l
CA? POGOe: 7, Aaa! «suse vee uevessa’s TT TTT 5

Zimmerman Brush Co., 455 U.S.

TEELT TCE LETTE TTTITTiirTe TETTTiT? 6

CASES Page

McClesky v. Zant, CA No. C81-2434A
(Sept., 1983 N.D. Ga.)

(sub judice) ........ Te fué¢eeresenannn. Be
McCray v. New York, No. 82-1381, 51

U.S.L.W. 3855 May She 1983) eevee eeeeeeeceece @ 10, 16
People v. Payne, 436 N.E.2d 1046

(Ill. App. 1982) ...... TrITTTrrrrrirrrriree one 4

LS
Peters v. Kiff, 407 U.S. 493 (1972) ............ 12
Presnell v. Georgia, 439 U.S. 14 (1978) ........ 7, 8

Smith v. Balkcom, 660 F.2d 573, modified,
671 F.2d 858 (5th Cir. 1981), cert.
denied, 103 S. Ct. 181 (1982) v..v............ 19, 20

Spinkellink v. Wainwright, 578 F.2d 582
(Sth Cir. 1978), cert. denied,

440 U.S. 976 (1979) ...... 7 wc wwe TTTTTTiCrre 16, 17,
19
State v. Brown, 371 So. 2d 751 (La. 1979) ...... 15

State v. Crespin, 612 P. 2d 716 (N.M. 1980) .... 14
State v. Moore, 432 So. 2d 209 (La. 1983) ...... 6

State v. Narcisse, 426 So. 2d 118 (La. 1983) ... 6

State v. Prejean, 379 So. 2d 240 (La. 1979),
449 U.S. 891 (1980) ...........2.2. inoue eu pues oc «

State v. Williams, 383 So. 2d 369 (La. 1980),
cert. denied, 449 U.S. 1103 (1981) ........... 6

111

CASES Page

Swain v. Alabama, 380 U.S. 202 (1965) .......... MUe Li,
Le, Ld,
L@, iS,
16

Taylor v. Louisiana, 419 U.S. 522 (1975) ....... 12, 13
Thomas v. Zant, 697 F.2d 977 (llth Cir. 1983) .. 11

United States v. Jenison, 485 F.Supp. 655

(S.D. Fla. 1979) ....csececee TrTTLTTILITSeT CC eee 12
Vitek v. Jones, 445 U.S. 480 (1980) ............ 6

Woodson v. North Carolina, 428 U.S. 280

CONSTITUTIONS

U.S. Const. amend. XXVI ....ccccccccccccccccceces 4

CODES AND RULES
La. Civ. Code Ann. art. 37 (West Supp. 1983) ... 3

La. Code Crim. Proc. Ann. art. 905.9
(West.Supp. 1983) ..csssessecaas wreTrerrrre cre 5

La. Sup. Ct. Rule 28 ..... TITITLITiTlrrrrereeerrre 5

LAW REVIEWS
Zeisel, Race Bias in the Administration

of the Death Penalty: The Florida
Experience, 95 Harv. L. Rev. 456 (1981) ...... 17

OTHER SOURCES

Bowers & Pierce, Arbitrariness and
Discrimination Under Post-Furman

lv
Radelet, Racial Characteristics and the
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

ai eh tin da aimererecescreinranenn siasmemeesianmamaaaiaten x
DALTON PREJEAN,
Petitioner-Appellant,
vs. No. 83-4548
FRANK C. BLACKBURN, et al.,
Respondent-Appellees.
ee x

REPLY BRIEF OF APPELLANT DALTON PREJEAN

Appellant Dalton Prejean submits this Brief in
reply to the Brief of Appellees Frank C. Blackburn and
the State of Louisiana, dated October 24, 1983, and in
further support of his appeal from the dismissal, without
hearing, of his petition for a writ of habeas corpus.

I. THE EXECUTION OF CHILDREN

IS CRUEL AND UNUSUAL.

The State offers neither data nor argument on
the central issue raised on this appeal: do society's
evolving standards of decency make execution an
unacceptably excessive sanction for crimes committed

during youth? The State's Brief provides no evidence

that contemporary standards of civilized conduct will
tolerate the death penalty for adolescents. Indeed, the

State makes no reference whatever to any of the factors

that this Court must assess in adjudicating this claim.}!

As set forth in Prejean's Main Brief at 11-22,
all the objective indicia upon which the Supreme Court
bases its excessiveness rulings -- history and tradi-
tional usage, legislative and philosophical pronounce-
ments, and actual case results -- indicate that our soci-
ety now views killing children who commit crimes as re-

pugnant to "the basic concept of human dignity at the

core of the [eighth amendment]." Gregg v. Georgia, 428
U.S. 153, 182 (1976). There has been an unmistakable,

inexorable trend away from resort to this drastic re-

sponse to youth crime. Killing youthful offenders has

1 The State devotes the bulk of its response to an ut-
terly irrelevant comparison of the facts of this case

with those in Eddings v. Oklahoma, 455 U.S. 104
(1982). (St. Br. 8-10.) Yet, on the one point where
Eddings is controlling, the State is silent. The
Lou1lsiana Court, like the Oklahoma courts in Eddings,
believed itself unable to consider mitigating evidence
unless it rose to the level of a defense to the crime
alleged. (See Prejean's Main Brief 22 n.25.) The
State concedes that Prejean was intoxicated at the
time of the crime. (St. Br. 1.) Yet, the Louisiana
Supreme Court treated that fact as irrelevant because
it did not constitute legal "excuse." State v.
Prejean, 379 So. 2d 240, 249 (La. 1979), cert. denied,
449 U.S. 891 (1980). The State makes no, and appar-

ently has no, response to this obvious and dispositive
error.

been repudiated by every other major nation, by leading

legal and psychiatric professional associations, and by
America's largest religious groups. The laws of nearly
half the states and several international covenants for-
bid it. It is infrequently authorized and almost never
actually carried out. Our research indicates that Loui-
Siana has executed only five juveniles in its history,
only one after 1910, and none in the last 36 years. All
five youths were black.

Rather than respond to these points, the State
erroneously grafts equal protection analysis onto the
cruel and unusual clause, noting that young people are
not a "suspect class". (St. Br. 11-12.) It is unclear
why the State draws comfort from this fact. The Supreme
Court has approved special treatment for young people for
the same reasons that we urge that Louisiana may not
execute Prejean. Children are different than adults and
must often be so treated. See Prejean's Main Brief 1l-
18.

The State also erroneously asserts that, at age
17, Prejean was "an adult under Louisiana law." (St. Br.
8.) Prejean was a minor under Louisiana law, La. Civ.

Code Ann. art. 37 (West Supp. 1983), subject to the re-

strictions and protections every state places on its

children. See Main Brief 13-14.

The age at which Louisiana chooses to try ad-
Olescents as adults, rather than juveniles, is irrele-
vant. The issue here is the normative standard under the
eighth amendment, which must have a uniform meaning na-
tionwide. A cruel and unusual clause that did not pro-

hibit executing children below some minimum age would be

inconceivable. Age 18 is that appropriate age because it
is well recognized as the appropriate dividing line be-
tween childhood and adult legal status. See Prejean's
Main Brief 12-18; cf. U.S. Const. amend. XXVI.

Because the execution of children violates our
society's norms, it is an excessive, cruel and unusual
punishment under the eighth amendment. Accordingly,
Dalton Prejean may not be executed.

II. THE LOUISIANA SUPREME COURT'S

FAILURE TO COMPARE PREJEAN'S
CASE TO SIMILAR CASES RENDERS
HIS DEATH SENTENCE VOID.

The State admits -- as it must -- that the
Louisiana Supreme Court did not compare Prejean's case to
any case involving similar facts. (St. Br. 14-15.) Yet

the State concedes that the Constitution requires that

the death penalty be imposed in a consistent, evenhanded

manner, and that Louisiana law requires the Louisiana

Supreme Court to assure that application.2

This case starkly reveals the need for a com-

parison of capital verdicts with similar cases in order
to avoid the freakish imposition of the death penalty.
Whether the similar cases come from the trial parish

exclusively, from the entire state, or, when necessary,

from other jurisdictions, is irrelevant to this appeal.3

The fact is that no comparison was made in this case.

Any comparison would undoubtedly have yielded a different

sentence.* According to the State, only one young person

The State misstates its own statute. (St. Br. 15.)

La. Code Crim. Proc. Ann. art. 905.9 (West Supp. 1983)
and La. Sup. Ct. Rule 28 make no reference to parish-
wide proportionality review. Rather, they enjoin the
Court to compare each capital case with similar cases.

Maggio v. Williams, No. A-301 (U.S. November 7, 1983),
1S inapposite to this case because, unlike Williams,

Prejean does not challenge the Louisiana Court's prac-
tice of conducting a parish-wide, rather than state-
wide, review where the parish-wide review yields simi-
lar cases. As discussed in Prejean's Main Brief

at 28, the Louisiana Supreme Court compared Williams'
case with twenty-eight other murder prosecutions,
three of which led to death sentences. Each of those
three cases was similar to the Williams case itself.
State v. Williams, 383 So. 2d 369, 375 (La. 1980),
cert. denied, 449 U.S. 1103 (1981). No such propor-
tionality review was given Prejean.

Moreover, the State Court's failure to examine Similar
cases, even if that required looking beyond the trial

parish, was an arbitrary denial of a right to appel-
(Footnote continued)

other than Prejean has been sentenced to death in Louisi-
ana in recent times, and no youth other than Prejean has
been.condemned under the current statute. (St. Br. 14.)
The vast majority of juvenile homicides result either in
adjudications of delinquency or prison terms. (See
Prejean's Main Brief 15 n.13.) Accordingly, Prejean's
death sentence is disproportionate and therefore uncon-

Stitutional.

III. THE-USE OF INADMISSIBLE, NON-RECORD
EVIDENCE TO AFFIRM PREJEAN'S DEATH
SENTENCE WAS UNCONSTITUTIONAL.
The court below erroneously believed that the
Louisiana Supreme Court had not used non-record evidence
to affirm Prejean's sentence but apparently agreed with
Prejean that such use would render the sentence invalid.
Slip Op. at 21 & n.17. (See Prejean's Main Brief 32.)
The State now admits that in affirming

Prejean's sentence the Louisiana Supreme Court reviewed

and relied upon evidence of another killing that had been

(Footnote 4 continued from previous page)
late review guaranteed by statute and provided to
other capital defendants. See State v. Moore, 432 So.
2d 209 (La. 1983); State v. Narcisse, 426 So. 2d 118
(La. 1983). This denied Prejean due process. Vitek
v. Jones, 445 U.S. 480 (1980); Hicks v. Oklahoma, 447

U.S. 343 (1980); see Logan v. Zimmerman Brush Co., 455

U.S. 422 (1982).
excluded from consideration by both the guilt and sen-

tencing juries. The State further admits that this prac-
tice is routine, and indeed mandatory, under Louisiana's
capital sentencing law. (St. Br. 15-16.) According to
the State, the Louisiana Court "reviewed many matters
that were not part of the evidence presented to the
jury", and used this evidence in its "thorough tracing of

the life of Dalton Prejean in its proportionality

review." Id.5 This information was submitted to the

Louisiana Supreme Court, not by the parties, but by the

trial judge. This case is thus indistinguishable in

principle from Presnell v. Georgia, 439 U.S. 14 (1978),
Gardner v. Florida, 430 U.S. 349 (1977), and Cole yv.

Arkansas, 333 U.S. 196 (1948).

Appellate courts cannot conduct a de novo re-

trial of the merits of criminal judgments, particularly
where the defendant's life is at stake. Capital sentenc-
ing procedures must insure "reliability in the determina-

tion that death is the appropriate punishment in a spe-

5 According to the State, "[mMJost" but apparently not
all of this extra-record evidence came from the con-

fidential sentencing reports submitted by the trial
judge. (St. Br. 15.) Prejean is not aware of the
Origins of any non-record material other than that
contained in the sentencing reports and urges the
State to be forthcoming on the subject.

cific case." Woodson v. North Carolina, 428 U.S. 280,

305 (1976).® Accordingly, a death sentence must not be

affirmed, as it was here, on the basis of the appellate
court's post-hoc supplementary findings, or the trial
judge's compilation of relevant data. Rather, it must be
limited to the evidence as it was forcefully presented by
the parties, tested by the adversarial system, and delib-
erated upon by the jury. It is upon those procedures
that our judicial system has always relied for the as-
certainment of truth.

In addition to violating the principles enunci-

ated in Cole, Presnell and Gardner, the Louisiana Court's

reliance on non-record evidence renders illusory any
commitment to satisfy by appellate review the constitu-
tional requirement of evenhandedness and proportionality.
The Louisiana Court can scarcely guarantee that different
juries do not reach divergent sentencing judgments on the
basis of similar evidence if its proportionality review

is not limited to the evidence those juries consider.

6 Reliability in the fact-finding aspect of sentencing
is the cornerstone of the Supreme Court's capital

punishment decisions. E.g., Lockett v. Ohio, 438 U.S.
586, 604 (1978); Eddings v. Oklahoma, 455 U.S. at 112;
Gardner v. Florida, 430 U.S. at 359-60; id. at 363-64

(White J. concurring); Woodson, Supra.
The court below erroneously assumed that the

Louisiana Supreme Court had not used inadmissible, non-
record evidence. Prejean and the State both read the
Louisiana Court's opinions in this and other cases to the

contrary. That use was unconstitutional, and the writ

must issue.

IV. THE STATE'S RACIALLY DISCRIMINATORY
USE OF PEREMPTORY CHALLENGES WAS
UNCONSTITUTIONAL.

The State does not contest that it excluded all
blacks from the jury through its use of peremptory chal-
lenges. This violated Prejean's rights to equal protec-
tion and to a jury drawn from a fair cross section of the
community. The court below erred in denying Prejean an

Opportunity to prove these violations.

A. This Court's Precedents Entitle

Prejean to an Evidentiary Hearing.
In Guice v. Fortenberry, 661 F.2d 496 (Sth Cir.

1981) (en banc), this Court held that an evidentiary

hearing is required if (i) a habeas petitioner alleges
facts that, if proved, would entitle him to relief, and
(ii) the merits of the factual dispute were not resolved
by the state court, or if for any reason not attributable
to the petitioner's inexcusable neglect, evidence con-

cerning the constitutional claim was not developed at the
state court hearing. Id. at 503, 506. The district

court failed to follow Guice; the State ignores it.

Under Guice, Prejean must receive an eviden-

—— hearing on his claim that the State deliberately
excluded blacks from the jury that convicted him and
sentenced him to death. The State does not deny that
Prejean's allegations state an equal protection claim
under Swain v. Alabama, 380 U.S. 202 (1965), or that the
evidence crucial to this claim was never developed at a
State court hearing. (See Prejean's Main Brief 38-40;
St. Br. 16-17.)

Counsel's failure to develop the facts neces-
Sary to meet Prejean's burden under Swain v. Alabama, 380
U.S. at 223, cannot be held "inexcusable neglect" under

Guice. As in Guice, the State does not -- and could not

-- allege that the lack of evidence results from a tacti-
cal decision; nor does the record explain the failure to

develop the necessary proof. 661 F.2d at 507. Because

Prejean states a constitutional claim,’ the facts of

’ Although Prejean adequately pleads an equal protection

violation under Swain, the Supreme Court has openly
questioned whether Swain's requirement that the defen-
dant prove consistent historic exclusion should be
eliminated or modified. See McCray v. New York, No.
82-1381, 51 U.S.L.W. 3855 (May 31, 1983 opinions
respecting the denial of certiorari). The reason for
(Footnote continued)

which were not developed at the state court hearing for
reasons not attributable to inexcusable neglect, Guice v.
Fortenberry requires an evidentiary hearing on this
claim. §& |

B. The Sixth Amendment Also Protects
Prejean from the State's Use of Peremp-

tory Challenges to Exclude Blacks.

Even if Prejean were not entitled to a hearing

on his equal protection claim under Swain -- which he is

-- the sixth amendment would entitle him to relief. ?

There is no dispute that, both in Lafayette Parish, and
again in Ouachita Parish, the prosecutor refused to let a
Single black juror be empaneled. This violated Prejean's
Sixth amendment right to a jury drawn from a fair cross

section of the community, regardless of the prosecutor's

(Footnote 7 continued from previous page)
dissatisfaction is plain. The Swain rule has had the
disastrous effect of condoning what it sought to con-
demn: the deliberate selection of all white juries
through manipulation of a prosecutor's peremptory
Challenges. See p.16 & n.12, infra.

* At the least, the district court must conduct an evi-
dentiary hearing on the issue of inexcusable neglect.

See Thomas v. Zant, 697 F.2d 977, 988-89 (llth Cir.

1983): Huffman v. Wainwright, 651 F.2d 347 (5th Cir.
1981).

9 Because Swain was decided on equal protection grounds
before the sixth amendment was binding on the States,

it does not govern the resolution of this claim.

1l
conduct in other prosecutions. Duren v. Missouri, 439

U.S. 357, 364 (1979); Taylor v. Louisiana, 419 U.S. 522,
527 (1975).

"When any large and identifiable segment of the
community is excluded from jury service, the effect

is to remove from a jury room qualities of human
nature and varieties of human experience, the range
of which is unknown and perhaps unknowable. It is
not necessary to assume that the excluded group will
consistently vote as a class in order to conclude,
as we do, that its exclusion deprives the jury of a
perspective on human events that may have unsus-

pected importance in any case that may be pre-
sented.”

Id. at 532 n.12, quoting Peters v. Kiff, 407 U.S. 493,
503-04 (1972) (Marshall, J.); see Ballard v. United
States, 329 U.S. 187, 193-94 (1946). When, as here, the
State eliminates all black members of the venire because
they are black, the resulting panel fails to represent a
fair cross section of the community as much as if all
blacks had been excluded from the jury pool to begin
with.

This sixth amendment claim requires no evidence
concerning other prosecutions because discriminatory
intent is irrelevant. Duren v. Missouri, 439 U.S. at
364, 368 n.26; see Taylor v. Louisiana, 419 U.S. at 533-
34; United States v. Jenison, 485 F. Supp. 655, 660 (S.D.

Fla. 1979). A sixth amendment fair cross section claim

focuses simply on whether the jury selection system will

12
produce a microcosm of the community which fairly repre-

sents the views of all persons within the society. Tay-
lor v. Louisiana, 419 U.S. 522.

Acknowledging a sixth amendment right to be
free from racially based peremptory challenges will not,

as the Swain court feared, eliminate a prosecutor's abil-

ity to employ peremptory challenges. See Swain v. Ala-

bama, 380 U.S. at 220-21. The state courts that have

recognized such a claim have established a workable rule
which effectively protects both a prosecutor's interest
in peremptory challenges and a defendant's right to a
representative jury. A presumption exists that peremp-
tories are being used properly, but that presumption is
rebuttable by showing that several challenged jurors are
members of a discrete group and that there is a likeli-
hood that they are being excluded from the jury because

of their group membership.!° The burden then shifts to

the State to demonstrate that the exclusions were based

1° In Commonwealth v. Soares, defendant demonstrated that
blacks were being excluded disproportionately, sug-

gesting that they were being challenged because of
race. It is significant if the defendant can demon-
Strate that the excluded jurors, as a group, are het-
erogeneous except for their race. People v. Wheeler,
983 P.2d 748, 764 (Cal. 1978). It is also probative
if the defendant and those excluded, and the victim
and remaining jurors, are members of the same group.
Soares, 387 N.E.2d at 517.

13
Bs pen eee oe 0k

on the jurors' individual qualities, not their group
association. If the State cannot sustain this burden of
justification, the jury fails to satisfy the fair cross
section requirement. Commonwealth v. Soares, 387 N.E.2d

499, 517 (Mass.), cert. denied, 444 U.S. 881 (1979);

People v. Wheeler, 583 P.2d 748 (1978); see State v.

Crespin, 612 P.2d 716 (N.M. 1980); People v. Payne, 436
N.E.2d 1046 (Ill. App. 1982); cf. Hall v. United States,

168 F.2d 161, 165-66 (D.C. Cir.) (Edgerton, J., dissent-

ing), cert. denied, 334 U.S. 853 (1948) (urging that the

racially based use of peremptory challenges violates due

process). States which have departed from the Swain test

under their own constitutions have not experienced the
wholesale disruption of peremptory challenges which the

Swain court envisioned.

Under this analysis, Prejean meets his prima
facie burden of rebutting the presumption that the pe-
remptory challenges were valid under the sixth amendment.
All eligible blacks in Prejean's jury venire were sys-
tematically struck by the prosecutor. The voir dire
makes clear that they could have been excluded only be-

cause of their race, as they were otherwise as heteroge-

14
neous as the jury venire as a whole.!! Moreover, Prejean

and the excluded jurors were all black, and the victim
and remaining jurors were all white. Under Wheeler and

Soares, the State now bears the burden of demonstrating

that the black veniremen were not struck from the jury

because of their race.

* * *

This Court should not allow the burden of prov-

ing an equal protection claim under Swain to destroy

Prejean's sixth amendment right to a jury drawn from a
fair cross section of the community. To our knowledge,

in the eighteen years since Swain was decided, only two

defendants have met its insuperable burden. Signifi-

cantly, both cases were in Louisiana.!2 As the Califor-

nia Supreme Court stated in Wheeler, "[i]t demeans the

Constitution to declare a fundamental personal right

under that charter and at the same time make it virtually

11 R. 424; Trial transcript at 237, 241, 259-65, 315,

366-67, 372-78, 391, 393, 395, 399-403, 410, 454-60.

12 State v. Brown, 371 So. 2d 751 (La. 1979): State v.
Washington, 375 So. 2d 1162 (La. 1979). In Brown, the

judge had witnessed the same prosecutor use peremptory
Challenges in nine previous cases to eliminate black
prospective jurors. In Washington, defendant did not
need to resort to difficult proof because the prosecu-

tor admitted that his use of peremptory challenges was
based purely on race.

impossible for an aggrieved citizen to exercise that

right." 583 P.2d at 768.

A majority of the Supreme Court has indicated
that either the lower courts should serve as "labora=
tories" on the issue of unconstitutional use of peremp-

tory jury challenges or that Swain should be overruled.

McCray, supra. This Court should accept the challenge to
develop jurisprudence on this issue, and recognize that
Prejean's sixth amendment rights were violated in this
case. Alternatively, this Court should remand this case
to the district court for an evidentiary hearing to be
followed by reconsideration and argument on the basis of

the fully developed record.

V. PREJEAN'S DEATH SENTENCE RESULTED FROM
INTENTIONAL RACIAL DISCRIMINATION.

Prejean, a black youth convicted of killing a
white man by an all-white jury, was sentenced to death
because of his race and the race of his victim, in viola-

tion of his eighth amendment right to be free from cruel

and unusual punishment!3 and his fourteenth amendment

guarantee of equal protection of the laws.

13 This Court has recognized that the eighth amendment
forbids the racially discriminatory imposition of the

death penalty. Spinkellink v. Wainwright, 578 F.2d
(Footnote continued)

16
As stated in Prejean's brief to the court be-
low, preliminary results of a study based on publicly
available information indicate that only 9% of the homi-
cides in Louisiana involve black offenders and white
victims. Yet such defendants account for 39% of the
persons sentenced to death under Louisiana's current
Capital punishment statute. R. 272-76. Whites are vic-
tims in only 32% of Louisiana homicides, yet 84% of those
currently on death row were sentenced for killing whites.
Id. |

These preliminary results indicate a trend
confirmed by national and regional studies on the imposi-
tion of the death penalty. Bowers & Pierce, Arbitrari-

ness and Discrimination Under Post-Furman Capital Stat-
utes, Crime & Deling. 563 (Oct. 1980); Radelet, Racial

Characteristics and the Imposition of the Death Penalty,
46 Amer. Soc. Rev. 918 (Dec. 1981); Zeisel, Race Bias in

the Administration of the Death Penalty: The Florida
Experience, 95 Harv. L. Rev. 456 (1981).

(Footnote 13 continued from previous page)
982, 613 n.38, 614 n.40 (5th Cir. 1978), cert. denied,

440 U.S. 976 (1979); see Furman v. Georgia, 408 U.S.
238 (1972).

17
Each of these authors concluded, drawing ona

wide variety of data, and controlled for various factors,
that there are gross differences in the treatment of
Capital offenders by race of the victim. These studies
indicate that blacks are far more likely to be sentenced
to death for killing whites than whites are for killing
whites or blacks, or blacks for killing blacks. Bowers

and Pierce, for example concluded:

"In the first five years after the Furman deci-
Sion, racial differences in the administration of
Capital statutes have been extreme in magnitude,
Similar across states and under different statutory
forms, pervasive over successive stages of the judi-
Cial process, and uncorrected by appellate review.
Moreover, these differentials have been fully con-
Sistent with the pattern of racial disparity occur-
ring under capital statutes invalidated by the
Furman decision. That is, differential treatment by
race of offender and victim has been shown to per-
Sist post-Furman to a degree comparable in magnitude
and pattern to the pre-Furman period. It is not
that the new statutes have failed to eliminate all
Or most of these racial differences; it is, rather
that they have failed to alter in any substantial
way the cumulative pattern of differential treatment
by race that was present under the now unconstitu-
tional pre-Furman capital statutes."

Bowers & Pierce, supra, at 629.
Contrary to the opinion of the court below and

the contentions of the State, this Court's rulings offer

Prejean an opportunity to substantiate this claim.!* See
Smith v. Balkcom, 660 F.2d 573, 585, modified, 671 F.2d

858 (5th Cir. 1981), cert. denied, 103 S. Ct. 181 (1982);

Spinkellink v. Wainwright, 578 F.2d at 615. However

while those cases leave open the possibility of proving a

claim based on the arbitrary imposition of the death
penalty, they make it virtually impossible to do so on
the basis of easily obtainable, public information.

Rather, Smith requires extensive, sophisticated analysis,

necessitating expert witnesses and access to information
maintained by a multitude of government agencies. 671
F.2d at 860 n.33.

The preliminary statistics cited above, when
combined with the intentional acts of racial discrimina-

tion which occurred during Prejean's trial through the

State's use of peremptory challenges!5, demonstrate that

'* The State also errs in stating that Prejean had not
previously raised this claim. He raised it in both

his state and federal habeas petitions, R. 186, 233-
34.

15 Unlike Spinkellink or Smith, Prejean can show "some
specific act or events evidencing intentional or pur-

poseful discrimination against [him] on the basis of
race... ." Smith v. Balkcom, 660 F.2d at 584-85;

see Spencer v. Zant, 715 F.2d 1562, 1580-81 (llth Cir.
1983). Prejean was tried in a parish in which "open,
flagrant, unsophisticated discrimination against

blacks has been the long time pattern.” Ausberry v.
City of Monroe, 456 F. Supp. 460, 463 (W.D. La. 1978).

19
this claim is not frivolous and that Prejean deserves an
Opportunity to develop the evidence supporting it. See
spencer v. Zant, 715 F.2d 1562, 1580-81 (llth Cir. 1983)
(remanding for an evidentiary hearing on this point);
McClesky v. Zant, CA No. C81-2434A (Sept. 1983 N.D. Ga.)
(sub judice after full evidentiary hearing on this
issue). Accordingly, this Court should remand this claim
to the district court, order the court to permit Prejean
access to the relevant data in the possession of the
State, and appoint experts to assist in the analysis and

presentation of that data.
CONCLUSION

For the reasons set forth above and in
Prejean's Main Brief, the decision of the court below
should be reversed, and the petition for a writ of habeas
corpus should be granted. Alternatively, this case

Should be remanded to the district court for evidentiary

hearings on the issue of the prosecutor's use of peremp-
tory challenges and the racially discriminatory imposi-

tion of the death penalty.

Dated: New York, New York
November 10, 1983

Respectfully submitted,

JOHN H. HALL

MITCHELL A. KARLAN
Debevoise & Plimpton
875 Third Avenue
New York, New York 10022
(212) 909-6000

Attorneys for Appellant
Dalton Prejean

Of Counsel:

Martha J. Olson
Debevoise & Plimpton

875 Third Avenue

New York, New York 10022

John Charles Boger
Steven L. Winter

99 Hudson Street

New York, New York 10013

Anthony G. Amsterdam

New York University School of Law
40 Washington Square South

New York, New York 10012

Thomas Guilbeau
106 West Congress
Lafayette, Louisiana 70502

21
CERTIFICATE OF SERVICE

The undersigned certifies that, on November 10,
1983, she caused a copy of the Reply Brief of Appellant
Dalton Prejean to be mailed by regular U.S. Mail to J.
Nathan Stansbury, Counsel of Recor@ for Appellees.

31744V

RECOKw riLlkE

GO2k§-/c0O0

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

DALTON PREJEAN,

Petitioner-Appellant,

VS.

FRANK C. BLACKBURN, et al.,

Respondents-Appellees.

RECORD EXCERPTS TO
BRIEF OF APPELLANT
DALTON PREJEAN

No.

83-4548

TABLE OF CONTENTS

Exhibit Tab

The Docket Sheet for the Record on Appeal i
The Judgment Appealed from, Prejean v.
Blackburn, C.A. No. 81-0632 (W.D. La.
Aug. 5, 1983) 2

Decision of the Louisiana Supreme Court, State
v. Prejean, 379 So.2d 240 (La. i979) 3

ene bal |.
"3.46 r 2} SL] 0632 04 | 13!

- wey

PLAINTIFFS

PREJEAN, DALTON

"| face lat ag 4 + OSMAN {| sing. wo] SOME
= Mearest $1.0.
3605
30 1
Py . =

DEFENDANTS

BLACKBURN, FRANK €C., “Warden, |

Louisiana State Penitentiary
and

GUSTE, WILLIAM J., JE.,

Attorney General, State of

Louisiana

CAUSE

!
(CITE THE U.S. CIVIL STATUTE UNDER WHICH THE CASE
IS FILED AND WRITE A BRIEF STATEMENT OF CAUSE)

Habeas Corpus and Application for Stay of Execution

_—_—_———_---————————————————

THOMAS E. GUILBEAU

P. O. Box 3331

Lafayette, Louisiana 70562
(318) 232-7240

JOHN CHARLES BOGER
DEBORAH FINS

Suite 2030

10 Columbus Circle

New York, New York 10019
(212) 586-8397

| GUILBEAU & JOY

ANTHONY G. AMSTERDAM

Stanford University Law School
Stanford, California 93405

PH#

_——_-- -- -— ee ee .

——— ee e+ ww eee

x] CHECK

MERE CATE
-{F CASE WAS =e
‘FILED IN
‘SORMA

' PAUPERIS

“NITED STATES DISTRICT COURT DOCKET

RECEIPT NUMBER

ATTORNEYS

J. NATHAN STANSBURY
: District Attorney
P. O. Box 3306
Lafayette, Louisfana 70502
(318) 232-5170

Ceouty Clerk, U.S. Districs Court
Western District cf Louisiana

FILING FEES PAID STATISTICAL CARDS

C.O.NUMBER CARD DATE MAiLEes

sei
48-6

—$$—$—__—

OC-1313 (Rew 7 So

MONROE PROCSEDINGS

——_ ~——_——_

PETITION for Writ of H

aveas Cor

pus. (om) ?i 3

+ et *

1
4-13-81 | 2 | MOTION (P) for Leave to Proceed IFP. (om) »2) _
4-13-51 | 3 | AFFIDAVIT ia Support of Request to Proceed IFP. (on) is)
4-13-3L | 4 ) ORDER granting leave to proceed IFP. (NSS) (om) NOE AO iG:
4-13-51 | 5 | APPLICATION (P) for Stay of Execution. (om), ) i
4-13-81 | 6 | ORDER granting a stay of execution and ordering that execution of Petitioner

be stayed pending further order of this Court. Further ordered thet Cleri of
this Court give immediate telephonic notice to Frank C. Blackburn, Warden;
Secretary of Corrections; William J. Guste, Attorney Generals David C. Treen,
Governor of the State of La.; and to the Clerk of the Supreme Court of La.
Further ordered that a certified copy ofthis order be served upon these persons

4-13-81; 7 | MEMORANDUM (P) tn Support of Application for Stay of Execution. (om)...
4-13-81) 8 | ME, Counsel are instructed to submit authcrities on both the procedural and legal
; issues before this court within 30 days of date. Should either counsel require
a response brief, application should be made to this court _for additional time
in which to submit further authorities. (NSS) (om) NOE AO:
4-13-81, 9 | CLERK'S record of telephone calls re Order of Court #6. (om):=2>
4-13-81) 10 | SUMMONS directed to Frank Cc. Blackburn. Certified copy of above filings mailed
by certified mail, return receipt requested, to District Attorney, Attorney

General and Governor of State of Loutsteana. (om). 23.

—
&. .
’ — .

4-21-81; 11/ MR, re Order Governor David C. Treen served 4-14-81. (om) 35 -.

4-21-81 12 | MR, re Order Frank C. Blackburn, Warden served 4-15-81. (om) 55 ws, Lee ee.
4-21-81; 13/| MR, re Order C. Paul Phelps, Secy. of Corrections served 4-14=81. Com} =.
4-21-81/| 14/ RECEIPTS re Petition for Writ of HC: Hon. Dave Treen, Wm. J. Guste,_Jr., Frank

Blackburn rec'd 4-20-81; District Attorney rec'd UNDATED. (om} =~:

5-7-81 | 15+ MOTION (P) for Additional Time to Submit Authorities. (om)‘a.)
17
3-7-81 | 18] ME, Counsel are given until 6-1-81 to submit authorities on both the procedural
3 and legal issues presently before this court. (NSS) (om) NOE AO -:°-
5-11-81 19} MR, re Order Clerk of Court, La. Supreme Court, served 4-16-81. (om) -:1.

3-29-81 | 20 | MEMORANDUM of Law (P) in Support of Abatement of Proceeding Pending Disposition
of Eddings v. Oklahoma. Com} Sy . —
6-1-81 | 21 |MEMORANDUM (D) in Opposition to Application for Writ of Habeas Corpus. Com} --

6-17-81|; 22} REPLY Memorandum (P) In Support of Abatement of Proceedings Pending Disposition
of Eddings v. Oklahoma. (om)... 33; 7
6-19-81! 23] LETTER (J. Nathan Stansbury) to Judge Scott stating that he does not intend to
file a reply brief. (om): : +2. :
9-2-81 | 24 | RULING on Ptg Applications for a Stay of Execution and for a Writ of HC. (NSS) (om)
NOE AO 3? . |
9-2-81 | 25 | JUDGMENT dismissing P's Application for Writ of HC and further ordering that the

Temporary Stay of Execution, rendered by this,Court on 4-13-81, expire on

10-15-81, at 12:00 NOON. (NSS) (om) NOE A+». g_->-3)
10-13-81} 26] ME, The Temporary stay of execution, ordered by this court to expire on 362%
October 15, 1981, at 12:00 noon,. is hereby extended: to November 6, 2

1981, at 12:00 Noon. (NSS) (om) NOE AOQxi >>.
12-4-81 | 27! APPLICATION (P) for Stay of Execution. (om), «i.

12-4-81 | 28} ORDER that P's application for a stay of execution is GRANTED. Clerk ordered
to give telephonic notice and that copies be served by U. S. Marshal. (NSS)

(om) NOE AO += i |
|

Se re ee ee ee ee ee PS te Ort Om hes re mew Bite

;
=

12-29-81 | 29 MR, re Stay of Execution Order - Clerk, La. Supreme Court served 12-10-81. (om) -.
"2-29-81 | 30 RETURN on Service re Stay of Execution Order - Atty. Dept. of Corrections,
Attorney General's Office and Gavernor'’s Staff served 12-7-81, also
Warden, LSP, Angola, La. (om) Ae !
1-26-82} 31 |ORDER - Counsel for P is to submit briefs, etc, re the merits of P’s HC application
within 30 days of date. Counsel for D is to respond within 30 days thereafter. |

(NSS) (om) NOE AO +=.

=e *

—_

(CONTINUED)

WWIL OK ET CONTINUATION SHE TT
: ee

PLAINTIe = | | DEFENDANT ]
DOCKET No. _81-0632-!.
DAL?ON PREJEAN FRANK C. BLACKBURN, Warden, La. State |
Penitentiary, et al PAGE ___ OF PARAS

igs ee
DATE | NR. | PROCEEDINGS

2-23-82] 32 |SUPPLEMENTAL and Amending Petition (P). (om)240) —_—
2-23-82 33-|MOTION (P) for Extension of Time to File Memorandum. (om).2 2;

34 —

2-23-82} 35 |ORDER granting P an additional 30 days from 2-25-82 to submit authorities on

both the procedural and legal issues as referred to in ME dated 1-26-82. (NSS)
(om) NOE AO‘! i434)

2-25-82 ~~ {CERTIFIED copies of Supplemental and Amending Petition mailed by certified

mail return receipt requested to Mr. Stansbury and Mr. Blackburn. (om)
3-1-82 36 RETURN RECEIPT: Re Supp. Pet. = Rec'd by Frank C. Blackburn on 2-26-82. (om) -s 2:
3=-5-82 37 RETURN RECEIPT: Re Supp. Pet. — Rec'd by J. Nathan Stansbury, Dist. Atty. on
3-4-82. Com) ce ~ F
3-30-8238-39 MEMORANDUM (P}) in Support of HC Relief. (om). 25; ¢ __
4-26-82 40 {MOTION (D) for Extenston of Time to File Memorandum. (om)-72= :

Vv@

4-26-82 41 |ORDER granting D an additional 30-days from 4-26-82 to file his response to
P's Brief. (NSS) (om) NOE AO‘=%5; ,

—

. | | arian
3-26-82} 42 |MEMORANDUM (Respondent) in Opposition to Habeas Corpus Relief. (om)- °°

—

—_

7-11-83 | 43 List of exhibits filed into evidence & marked as Court Exhibits on 7-11-83 (as) --]-
8-5-83 | 44 OPINION on P's application for HC relief. It is hereby DENIED and it is -

ordered that the stay of execution previously rendered by this Court expires
on 9-1-83 at 10:00 A.M. (NSS) (om) NOE 8=8-83 ~ 3% |
8-5-83 45 JUDGMENT that the Stay of Execution previously rendered by this Court expires
on 9-1-83 at 10:00 A.M. (NSS) (om) NOE 8-8-83 ~3'3i
8-25-83) 46 |MEMORANDUM in support of petitioner's application for certificate of probable

cause to appeal fer a Stay pending appeal in forma pauperis and for certification
of appeal. (om) +22) —

8-25-83] 47 |APPLICATION for stay of execution. (om) <:305. |
8-25-83} 48 |PROPOSED Order to stay execution. (om).7>° :

—_—_

8-25-83} 49 |APPLICATION for certificate of probable cause to authorize appeal. (om) ~1-.,
8-25-83} 50 |APPLICATION for certificate of appeal in forma pauperis. (om) 4 .. —

v-25-83} 51 |AFFIDAVIT in support of application for certificate of appeal in forma pauperis “(on

fe,

3-31-83 | 52 |ORDER granting certificate of probable cause on claim number 2 and denying it |

on all other grounds. Thé court grants leave to appeal IFP. The court

refuses to stay’ the execution of the sentence of death on 10-7-83. If the |
delay proves to be insu*ficient for the purpose of appeal, the Court of —_ |
Appeals is the proper authority to grant the stay. (NSS) (om) NOE AO ae

8-25-83} 23 NOTICE of Appeal (P) from judgment and opinion entered on 8-5-83, which denied
his request for an evidentiary hearing on a number of his constitutional
| claims and denied those claims. (om) Certified copy of Notice of Appeal and
|

Clerk's Docket Sheet mailed to the-Clerk of the U. S. Court of Appeals for the
Fifth Circuit. (om) NOE 9-8-83--+-2.

—

| OC-It!tA REV. (1/78)
IN THE UNITED STATES DISTRICT COURT FOR

THE WESTERN DISTRICT OF LOUISIANA

MONROE DIVISION

i ee ee 7

U. Sd. Vidinewi WOURT
hg ce _ WESTERN ah c see
F
- 5 i. = 793%
DALTON PREJEAN ites | ~ ioe,
.
ROBERT H. SHEMWELL; CLERK
versus BY. Au

DEPUTY

FRANK C. BLACKBURN, ET AL

kok eR kK ke ke Kk KR Rk Rk RR RR RR RR RR RR RR RR RR RR RR
FOR PLAINTIFF THOMAS E. GUILBEAU

P. O. Box 3331
Lafayette, LA 70502

JOHN CHARLES BOGER
DEBORAH FINS

Suite 2030

10 Columbus Circle

New York, New York 10010

ANTHONY G. AMSTERDAM
Stanford University Law School
Stanford, California 93405

FOR DEFENDANTS J. NATHAN STANSBURY
District Attorney
P. O. Box 3306
Lafayette, LA 70502

Tee Ee PRESSES E SESE SELES ESE EERE SESSA SSSR ERASER ESR ASR AREAS SESS See eee ee

NAUMAN S. SCOTT
CHIEF UNITED STATES DISTRICT JUDGE

KeKKKKRK KK KKK KKK KKK KKK KKK KKK KR RRR KRKKRKRKRRRKRKRKRKRKRKRKRKRRKEEE
OPINION

1. BACKGROUND

Dalton Prejean, a 17 year old black male, was
convicted by a jury in the Fourth Judicial District Court,
Ouachita Parish, Louisiana, of first degree murder for the
shooting death of Louisiana State Police Officer Donald
Cleveland. At the sentencing phase of the trial, the jury

1
found one statutory aggravating circumstance, and after

considering the mitigating circumstances,unanimously recommended

the death penalty--a verdict binding upon the trial judge.

See La.C.Cr.Pr.art.905 et.seq.

Prejean's conviction and sentence were appealed to
and affirmed by the Louisiana Supreme Court. State v.
Prejean, 379 So.2d 240 (La. 1979), reheartng dented January 28,
1980. Petitioner then sought relief from the United States
Supreme Court by writ of certiorari which was denied.
Prejean v. Loutstana, 449 U.S. 891, 101 S. Ct. 253, 66
L.Ed.2d 119, reheartng dented 449 U. S. 1027, 101 S. Ct.
598, 66 L.Ed. 2d 489 (1980).

Petitioner next sought post-conviction relief by
filing an application for a writ of habeas corpus in the
Fourth Judicial District Court, Ouachita Parish. After
hearing on April 9, 1981, said application was denied.

Thereafter petitioner filed an application for a stay of

execution and for review of an application for post-conviction

relief which were denied by the Louisiana Supreme Court.
State of Loutstana, ex rel. Prejean v. Blackburn, 397 So.2a
517 (La. 1981).

Petitioner immediately sought a stay of execution
and filed an application for writ of habeas corpus before
this court. 28 U.S.C. §§2251, 2254. Considering the time
constraints and the facial substantiality of the claims
presented, we stayed the execution pending our determination
of the merits. 28 U.S.C. §2251. See Rosenburg v. United
States, 346 U.S. 273, 73 S.Ct. 1152, 97 L.Ed. 1607 (1953)
(per curtum). See also Evans v. Bennett, 440 U.S. 1301, 99
S. Ct. 1481, 59 L.Ed. 2d 756 (1979); Shaw v. Martin, 613
F.2d 487 (4th Cir. 1980).

Subsequently, petitioner filed a motion seeking
abatement of our consideration of his Section 2254 motion,
pending disposition by the United States Supreme Court of
Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct 869, 71 L.Ed.
2d 1 (1982), alleging that the Fddtngs case presented a

question of constitutional law, the answer to which would

undoubtably pertain to the instant case. Due to the prerequisite

of exhaustion of remedies found in 28 U.S.C. §2254(b) and
(c), we dismissed Prejean's application for writ of habeas
corpus without prejudice and ordered a temporary stay of
execution, to expire on October 15, 1981, to afford Prejean

an opportunity to present his unexhausted claim which was
based on Eddings to the Louisiana Supreme Court. On October 13,

1981, we extended our temporary stay of execution until
November 6, 1981.
Petitioner reapplied to the Louisiana Supreme
Court for supervisory writs. The application was denied
on November 27, 1981, and that court granted a stay order
to permit ——— apply to Federal Court for further
relief. State ex rel Prejean v. Blackburn, 407 So.2d 1189

(La. 1981).
Again considering the time constraints and ‘the

facial Substantiality of petitioner's claims, we stayed the

execution pending our determination on the merits. Petitioner's

application for habeas corpus relief under Section 2254 is

now before this court.

II. STANDARD OF REVIEW

In Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66

L.Ed.2d 722 (1981), the United States Supreme Court elucidated

the review guidelines of the federal habeas court, under

28 U.S.C. §2254(d). There is a presumption of correctness

in a State court's factual findings unless one of the seven
conditions specifically set forth in § 2254(d) is found to
exist by the federal habeas court. See Williams v. Blackburn,
649 F.2d 1019 (5th Cir. 1981); Germany v. Estelle, 639 F.2a
1301 (Sth Cir. 1981); Thomas v. Estelle, 582 F.2d 939 (5th

Cir. 1978). So long as there are "written Findings, written

|
j
‘
|

opinion, or other reliable and adequately written indicia,"

the court's findings are sufficient. Sumner v. Mata, supra
at 546-47, 101 S.Ct. at 769, 66 L.Ed.2d at 730-31.

Petitioner has exhausted his State remedies regarding
the many claims presented to us. In our review of the State
court record, we have found that many of petitioner's claims
have been factually determined, as evidenced by an opinion of
the trial judge, written findings by the Louisiana Supreme
Court, and findings by the State court in its review application
for post-conviction saline. The petitioner's burden of
proof is not as great where no written findings support a State
court's habeas decision. For both categories of claims we have
endeavored to thoroughly investigate the record of the case.
However, our disposition of the latter group of issues
necessarily entails a more independent degree of findings
under Sumner and the language of § 2254(d). We then are
guided .by the dictates of Jackson v. Vtrgtnta, 443 U.S. 307, 3
99 S.Ct. 2781, 61 L.Ed. 2d 560 (1979). Based upon the record et |
the nature of petitioner's claims, no evidentiary hearing at

which testimony is introduced is necessary.
IIIf. CLAIMS

Petitioner has raised eleven separate claims for
us to consider: (1) the admission of gory photos, (2) the

systematic exclusion by the prosecutor of prospective black

jurors, (3) the exclusion from the jury venire of a certain

socio-economic class, (4) the death qualification of the
jury, (5) the exclusion of a prospective juror in violation
of Witherspoon, (6) the illegality of the sentencing
instructions, (7) the prospective rebuttal of mitigating
circumstances, (8) the intentional racial discrimination in

the imposition of the death sentence, (9) the limiting of

mitigating circumstances, (10) the denial of due process in

the affirmance of the death sentence, and, (11) the excessiveness

and disproportionality of the death sentence. Due to either
their factual or legal similarity, we have combined several
of these claims in our discussion below.

Prejean contends that his rights to a fair trial
under the Sixth Amendment, as applied to the states through

the Fourteenth Amendment, and his rights to due process

under the Fourteenth Amendment were violated by the introduction

into evidence of two photos of the victim, alleged to be
gruesome and inflammatory to the jury. The standard to be
utilized by the Federal Court in a habeas corpus case in
reviewing the state trial court's actions in admitting
evidence was recently discussed by the Fifth Circuit in

Nettles v. Watnurtght, 677 F.2d 410 (5th Cir. 1982):

As a general rule, a federal court in a habeas
corpus case will not review the trial court's
actions in the admission of evidence. Ltsenba v.
Caltfornta, 314 U.S. 219.228, 62 S.Ct. 280, 286,
86 L.Ed. 166 (1941); Gebhart v. Beto, 441 F.2d
319, 321 (5th Cir. 1971). While it is true that
an evidentiary ruling which deprives a state court
defendant of fundamental fairness is cognizable

on habeas corpus, see Barnard v. Henderson, 514 F2d
744 (Sth Cir. 1975), the federal court will make
inquiry "only to determine whether the error

was of such magniture as to deny fundamental fairness
to the criminal trial." gills ». Henderson, 529 F.2d

397, 401 (Sth Cir. 1976). The admission of prejudicial
evidence justifies habeas corpus relief only if the

evidence "is material in the sense of a crucial, critical,

highly significant factor." Htlls, 529 F.2d at 401

(quoting Corpus v. Beto, 469 F.2d 933, 956 (Sth Cir. 1972),

cert. dented 414 U.S. 932, 94 S.Ct. 236, 38 L.Ed. 2d 162
(1973)). Id.at 414-415,

The prosecution introduced the photographs for
the purpose of showing the exact location of the body after
the shooting and the identity of the decedent The manner
of the shooting and the decedent's identification asa
police officer are relevent to the crime of first degree
murder with a sentence of death=ana although these facts may
have been able to be established by other means, we find
that upon reviewing the photographs we can not conclude that
the admission of the photog#aphe constituted an abuse of
discretion of the magnitude needed to deprive petitioner of
a fair trial or due process.

The next group of claims, numbers two through five
in the above list, deal with alleged violations of petitioner's
Sixth and Fourteenth —— ns rights allegedly occurring
due to the jury's composition and/or the manner in which the
jury was selected.

Prejean alleges that at his trial the prosecutor,

in a parish with alleged historical racial prejudice, used

peremptory challenges to exclude all prospective black jurors

6 | 4 t

resulting in petitioner's trial before an all white jury.

This contention without more, is not sufficient to support a
constitutional claim for habeas corpus relief. See
generally Huffman v. Watnwrtght, 651 F.2d 347 (5th Cir. 1981).
However, — Swatn v. Alabama, 380 U.S. 202, 85 S. Ct.
824, 13 L. Ed. 2d 759 (1965), followed by the Fifth Circuit
in Untted States v. McLaurin, 557 F.2d 1064 (5th Cir. 1977),
if there is a showing that over a period of time the prosecutor
used peremptory challenges for the systematic exclusion of
blacks from jury service, then = equal protection claim is
raised under the 14th Amendment. The petitioner has had
ample opportunity in the past to introduce the evidence
needed to substantiate this claim, and has failed to do so.
At trial, Prejean objected to the jury panel but offered no
evidence in support of his claim of systematic exclusion.
Again on motion for new trial and at the hearing on post-
conviction relief, Prejean had an opportunity to substantiate
his claim and failed to do so. In petitioner's memorandum
before this court no evidence is offered that would support
an inference of any constitutional violation. Conclusory
allegations such as those in petitioner's memorandum do not
state a basis for relief. See Sumner v. Mata, 449 U.S.
939, 101 S. Ct. 764, 66 L.Ed. 2d 722 (1981); Faster v.
Estelle, 609 F.2d 756 (5th Cir. 1980). We agree with the

state courts that this contention is without merit.

Prejean's second basis for relief in this group of

claims is that his Sixth Amendment right to a fair and
impartial jury drawn from a cross-section of the community

was violated when the commissioners in charge of jury

selection intentionally excluded all doctors and lawyers
from the general venire. Under Louisiana Code of Criminal
Procedure Article 532(9) a Motion to Quash is the proper
method for challenging the composition of the jury venire.
State v. Ramos, 390 So.2d 1263 (La. 1980), reheartng dented,
Dec. 15, 1980; State v. Durr, 343 So.2d 1004 (La. 1977). No
Motion to Quash was filed on behalf of petitioner at trial.
Due to principals of federalism and comity, a defendant's
failure to follow this state procedure acts as a waiver of
his right to raise a constitutional claim at a later federal
proceeding -anless the petitioner shows there was cause for
failing to utilize the proper state procedures and there was
resulting prejudice affecting the outcome. Watnwrtght v.
Sykes, 433 U.S. 72, 97 S.Ct. 249, 53 L.Ed. 2d 594 (1977);
Bass v. Estelle, 696 F.2d 1154 (5th Cir. ee Huffman v.
Watnwrtght, 651 F.2d 347 (5th Cir. 1sa1).”

Petitioner's contention that "cause" in this case
derives from his counsel's ineffectiveness in failing to
investigate and raise the issue pretrial is without merit.
The Fifth Circuit standard for constitutionally affective

assistance of counsel is "not errorless counsel, not counsel

judged ineffective by hindsight, but counsel reasonably

likely to render and rendering reasonably effective assistance."

Herring v. Estelle, 491 F.2d 125, 127 (5th Cir. 1974).
Having examined the performance of counsel and considering the
totality of the circumstances and the entire record, we
conclude that petitioner's representation was more than adequate
to pass constitutional standards. In fact, counsel had
previously filed a Motion to Quash the venire, alleging the
same constitutional violation alleged here, but with
different facts as to who had mean Seedy unconstitutionally
excluded from the general venire.~ “there was a change of
venue, however, from Lafayette, LouiSiana to Monroe, Louisiana,
and subsequently a new jury venire. Counsel's previous
challenge to the composition of the jury venire indicated
his awareness as to the proper procedure for objecting to
the jury panel. This court will not scrutinize counsel's
decisions in shesedéia to pursue a particular course of
action. Nor will we judge such experienced counsel by
hindsight Lovett v. Flortda, 627 F.2d 706 (5th Cir.
1980). We thus find there is no adequate cause for failing
to object as require by state law.

Even if adequate cause for failing to object had
been established, the second requirement for waiver would
not have been established in that sufficient prejudice has
not been shown. Under LouiSiana Supreme Court Rule 25,

the Supreme Court of LouiSiana has found as a matter of law

that it is in the public interest to exempt from jury duty

Such occupational classes as doctors and lawyers. There is

an inadequate foundation to hold that these court mandated
exemptions deprived this defendant of a fair trial. The
record indicates an extensive voir dire by defense counsel,
insuring the existence of a fair and impartial jury. The

mere fact that two particular occupations were not represented
on petitioner's jury did not deprive him of a fair trial.

There being no adequate cause for counsel's
failure to object, and also no resulting prejudice, we find
that petitioner's failure to object to the composition of
the jury in accord with the proper state procedures, acted
aS a waiver of his right to assert the claim for federal
habeas relief.

Next, petitioner alleges that the death qualification .
of his jury--that is, the process of excluding those jurors
who could not under any circumstances vote for a death
penalty because of religious or conscientous scruples--
violates his right to a fair and impartial jury drawn from
a cross-section of the community, as required by the Sixth
and Fourteenth Amendments. The Fifth Circuit has held that
"unalterable opposition to the death penalty is a legitimate
disqualification and that the exclusion of such disqualified
jurors does not violate the fair cross-section principle
of the sixth amendment." Smith v. Balkeom, 660 F.2d 573,
583 (5th Cir. 1981), modified 671 F.2d 858 (5th Cir. 1982),

677 F.2d 20 (5th Cir. 1982). To raise the same issue here is

frivolous, and without merit.

10 Go.

Finally, the last claim alleging violations of

petitioner's Sixth and Fourteenth Amendment rights with
respect to jury makeup, is that a prospective juror was
excused for cause because of her general opposition to the
death penalty in violation of Witherspoon v. Itltnots,
391 U.S. 510, 88 S. Ct. 1770, 20 L.Ed. 2d 776 (1968).
Wetherspoon and its progeny establish that a member of the venire
may not be excused for cause if he expresses only a general
objection to the death penalty. However, a prospective juror
may be excused for cause if he states that he would automatically
vote against the imposition of capital punishment’ that is,
that he would be unable to follow the law in assessing
punishment. The trial transcript reveals that the prospective
juror challenged, Ertha Taylor, voiced more than a general
objection to the death penalty. Initially, the question
addressed to the jury panel was:

"With regard to the question of this being a

capital offense, are there any of you that have

scruples against capital punishment to the point

wnere you would, under no circumstances, be able

to find the defendant and impose that penalty,

even if it were justified by the facts?
Transcript, page 368.

When Eretha Taylor was called for the next
panel she was asked about her beliefs concerning capital

punishment with respect to the initial question posed to

prospective jurors.

Q: O.K. Not at all?

A: I don't believe I could do it.

Q: Not at all.

A: No sir.

Transcript, page 398.

Taken into conjunction with the prosecutor's first
question, in which the entire jury venire was present, the
follow-up questions to Miss Taylor elicited responses that
indicated her unequivocal opposition to the death penalty.
See Wrlltams v. Maggto, 679 F.2d 381 (5th Cir. 1982). We,
thus, find no violation of the Witherspoon rules and petitioner's
claim is without merit.

| Petitioner's remaining six claims, claim numbers
6 through 11 outlined above, deal with the imposition of the
death sentence.

Petitioner alleges violations of his Eighth and
Fourteenth Amendment rights with respect to the court's
instructions to the jury. Specifically, Prejean contends
a constitutional flaw resulted from the trial judge's
failure to clearly communicate in his sentencing instructions
the role of mitigating factors, and the requirement to
return a life sentence if there was not a unanimous finding
for the death sentence.

The trial judge must clearly instruct the jury

about mitigating circumstances as well as the option to

recommend against death. Spivey v. Bant, 661 F.2d 464,

470 (5th Cir. 1981); Chenault v. Stynchcombe, 5981 F.2d 444,

448 (Sth Cir. 1978). In order to determine whether a defendant
has been accorded his constitutional rights, the trial

court's instructions are accorded reasonable interpretation.
Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450,

61 L.Ed. 2d 39 (1979); Washtngton v. Watkins, 655 F.2d 1346,
1369 (Sth Cir. 1981). This interpretation must not be
accomplished in piecemeal fashion, but rather by examining

the entire charge to determine its adequacy. Davts v.
McAlltster, 631 F.2d 1256 (5th Cir. 1980). Furthermore, a
deficiency, if found, must have violated some right guaranteed
by the constitution, and it must so infect the entire trial
that a resulting conviction or sentence violates due process.

Kupp v. Naughten, 414 U.S. 141, 94 S. Ct. 396, 38 L.Ed.
2d 368 (1973).

The trial judge clearly instructed the jury pursuant

to Louisiana Code of Criminal Procedure Art. 905 that if

aggravating circumstances were found, all mitigating factors
must be considered before recommending the sentence of

death:

"Even if you find the existence of an aggravating
circumstance, you must also consider any mitigating
circumstances before you decide a sentence of

death should be imposed. The law specifically
lists certain mitigating circumstances.

Trial transciipt, page 858.

4.
13

The trial judge then proceeded to outline the mitigating

13/
circumstances which are provided for by statute.

Petitioner's allegation that the trial judge
failed to inform the jury that if they should fail to agree
on a death sentence then life imprisonment without probability

of parole would be imposed is not true. The trial judge

instructed the jury:

"B. Before you decide that a sentence of death
should be imposed you must unanimously find,
beyond a reasonable doubt, that at least one
statutory aggravating circumstance exists.

C. If you find, beyond a reasonable doubt
that any of the statutory aggravating circumstances
existed you are authorized to consider imposing
a sentence of death. If you do not unanimously
find beyond a reasonable doubt that any of the
Statutory aggravating circumstances existed, then
life imprisonment without benefit of probation,
parole, or suspension of sentence is the only

sentence that may be imposed.

Transcript, page 857. Later in the instructions the trial

judge explained the verdict forms:

"The first forms reads - - the first form of
the verdict reads:

"Having found the below listed statutory
aggravating circumstances or circumstances beyond
a reasonable doubt and, after consideration of the
mitigating circumstances offered, the jury recommends
the the defendant be sentenced to death.'

In the event that you unanimously decide the
death penalty should be imposed, a space is provided
to write out the statutory aggravating circumstance
or circumstances you unanimously find to exist.

The Foreperson must sign the form.

The second form of the verdict reads:

14 Wag

‘The jury unanimously recommends that the
defendant be sentenced to life imprisonment without

benefit of probation, parole or suspension of
sentence. '

If the jury decides that a life sentence without
benefit of probation, parole or suspension of sentence
should be imposed, the Foreperson need only sign
that form of verdict. No listing of aggravating
or mitigating circumstances is required.

Transcript, pages 859-60.

Taken in their entirety, the instructions and
verdict forms, as explained by the trial judge, informed the
jurors that failure to reach a unanimous decision for the
death penalty would result in a life sentence, without benefit
of Probation, parole or suspension of sentence. See Baldwin v.
Blackburn, 653 F.2d 942, (5th Cir. 1981), cert. dented 456,

U. S. 950, 102 S.Ct. 2021, 72 L.Ed.2d 475, rehearing dented
U.S. , 102 S.Ct. 2918, 73. L.Ed 24 1323. (1982).

Petitioner's allegation that the jury charges,
during the sentencing phase of the capital case, must contain
a charge that the aggravating circumstances must outweigh
the mitigating circumstances, beyond a reasonable doubt, is ill-
founded, Ford v. Strtekland, 676 F.2d 434 (llth Cir. 1982) %

"While the existence of an aggravating or mitigating

circumstance is a fact susceptible of proof

under the reasonable doubt or preponderance

Standard, . . . the relative weight is not. The

process of weighing circumstances is a matter

for judge and jury, and, unlike facts, is not
susceptible to proof by either party."

Id. at 442 (emphasis in original). See also Zant v. Stephens,
51 U.S.L.W. 4891 (1983); Gray v. Lucas, 677 F.2d 1086 (5th

Cit, Apoe) »

15 aa

Petitioner also calls into question the constitutionality

of the statute because it fails to provide the guidelines
requested above, and because the Louisiana Supreme Court has
not instituted procedures to cure the defects. We find this
contention to be without merit. Zant, supra; Blackburn, supra;
and Gray, supra.

Petitioner next alleges error by the trial court
in allowing the prosecution, during the penalty phase of the
trial, to put on evidence prospectively rebutting mitigating
factors, because this was not the correct order of procedure.
Louisiana Code of Criminal Procedure Art. 905.2 provides, in
pertinent part, that "Evidence relative to aggravating or
mitigating circumstances shall be relevant irrespective of
whether the dufendeant places his character in issue" and
that "The jury may consider any evidence offered at the
trial on the issue of guilt." The statute clearly indicates
the relevancy of aggravating and mitigating circumstances,
in addition to the ability of the jury to consider evidence
introduced at the guilt determination stage. Consequently,
it was permissable for the prosecutor, at the penalty phase,
to offer evidence to rebut the intoxication defense, which
had been raised at the trial stage. The order in which
evidence is admitted is within the discretion of the trial
court. This discretion will not be disturbed unless there
is a showing of extraordinary circumstances. Untted States v.
Leaman, 546 F.2d 148 (Sth Cir. 1977). Considering the

record as a whole and the LouiSiana Code of Criminal Procedure

16 4s

l
|
|
|
|

Article 905.2, we cannot find any extraordinary circumstances

which would justify our intervention into the matter, and,
thus, this claim is without merit.

Petitioner alleges intentional racial discrimination
in the imposition of the death penalty in violation of the
Eighth and Fourteenth Amendments.

Nothing in petitioner's brief we that he is
going beyond conclusory allegations of racial discrimination |

in the imposition of the death penalty. The statistics

offered to show discriminatory application of the death
penalty would purport to demonstrate that defendants who
murdered whites have received the death penalty when other
defendants who have murdered blacks have received a life
sentence. The Fifth Circuit has made it clear that we need
must venture on a case by case comparison to ascertain the
truth or falsity of petitioner's claim. "We need not repeat
the myriad of difficult problems, legal or otherwise,
generated by such federal court intrusion into the sihehankive
decision making of the sentencing process which is reserved
to the . . . state courts... ."Spinkellink v. Watnwrtght, supra.
Consequently, "if a state follows a properly drawn statute
in imposing the death penalty, then the arbitrariness and
capriciousness - and therefore the racial discrimination-
condemned in Furman have been conclusively removed."

14/
Id. at 613-14.

ha
Louisiana Code of Criminal Procedure Articles 905 et seq.,
require the jury to find at least one aggravating factor
before it may impose a death sentence. As mentioned above,
it must also consider factors in mitigation. This channeling
of discretion prevents any freakish imposition of the death
penalty. In addition, the automatic Louisiana Supreme Court
review of each sentence, to determine if it is is excessive,
in relation to similar crimes, is a further safeguard against
an arbitrary imposition of a death sentence based on nothing
more than race. Just a resulting disproportionate impact on
blacks, therefore, does not raise an equal protection claim.
Id. See also generally washington v. Davis, 426 U.S. 229,
99 S.Ct.2040, 48 L.Ed 2d 597 (1976).

The statistical data that petitioner intends to
rely on, to show discriminatory intent, are similar to
those proffered in Smtth v. Balcom, supra. Nothing in
petitioner's brief suggests that the evidence he would
introduce would be more probative than that in Smtth. The
Smtth court's conclusion that Smith did not consider "countless
racially neutral variables" which led to its finding of
unsupported assumptions, applies equally to the case at bar.
The mere conclusory allegations in petitioner's brief
is not the type of evidence of racially disproportional
impact which would compel us to infer racially discriminatory

intent.

18 G+

For all of these reasons we find that petitioner
was not the subject of racial discrimination in the imposition
of the death penalty violative of the Eight and Fourteenth
Amendments.

Petitioner next alleges that the Louisiana
Supreme Court considered only that mitigating evidence which
would excuse criminal — ee as a matter of law in violation
of the Eighth and Fourteenth Amendments as defined by the
courts in Eddings v. Oklahoma, 455 U.S. 104, 102 S. Ct. 869,
71 L.Ed. 2d 1 (1982), and Lockett v. Ohto, 438 U.S. 586, 98
S. Ct. 2954, 57 L.Ed. 2d 973 (1978). In Eddtngs, the United
States Supreme Court held that the sentencing authority >
could nee restrict its consideration of mitigating circumstances
to only those that create a legal excuse.

In the case at ag the jury, which was the
sentencing authority, was instructed to consider specific
Mitigating circumstances as enumerated in Louisiana Code of
Criminal Procedure Article 905.5 as well as "any other
relevant mitigating circumstance." Transcript, page 859.

Furthermore, the jury was given a written list of the
mitigating circumstances, as listed in Louisiana Code of |
Criminal Procedure Art. 905.5. Subpart (h) of this article
reads "Any other relevant mitigating circumstance." Consequently,

this is not a case where the sentencer was restricted only

to certain delineated mitigating circumstances upon which to

impose a death sentence. See Lockett, supra. Also, this

19 > + +:

is not a situation, as in Eddings, where the sentencing |

authority did not consider mitigating evidence which would

not excuse criminal behavior as a matter of law. The jury

was instructed to consider all possible mitigating circumstances
in the penalty phase of the trial. Even though the defense

was unable to pursuade the jury on the intoxication defense,

the jury was in no way precluded from considering the intoxication

evidence in mitigation of Prejean's actions.

The Louisiana Supreme Court was not the sentencer
but only a reviewer of the sentence to determine if it was

imposed according to the statutory procedures and was not

imposed in an arbitrary or capricious manner or as the result

of passion or prejudice. Louisiana Code of Criminal Procedure
Article 905.9.1 requires that the Louisiana Supreme Court

review every death sentence to determine if it is excessive.

The reviewing court ascertains whether or not the sentence
resulted from prejudice or passion, whether the evidence

supported a finding of an aggravating circumstance, and |
also compares similar cases, including cases with similar
mitigating circumstances. Because the function of the
Supreme Court is that of review, and not imposition of
sentence, it need not make an independent determination of
the mitigating circumstances. It must only decide if the
sentencing authority adhered to the statutory guidelines in
imposing sentence and whether or not it is excessive. See
Louisiana Code of Criminal Procedure Art. 905.9.1; Ford,

Supra; and Spitnkelltnk, supra. The Louisiana Supreme Court

20 4 ey
does not impose the sentence. The Lockett/Eddings ryle applies

to sentencing authorities. As a result, petitioner's argument
must fail.

Petitioner next alleges that in its review of the
propriety of the death sentence, the Louisiana Supreme Court
considered evidence outside — ee in violation of the
Eighth and Fourteenth Amendments. The trial judge had
deemed inadmissable evidence of a prior offense committed by
the petitioner while a juvenile, which had not resulted in a
conviction but in an adjudication of delinquency. Since the
Louisiana Statute properly confines evidence of prior criminal
activity to actual conviction the judge precluded any
mention of the prior offense at trial. The offense was part
of the secret pre-sentence report which was provided to

the trial judge and which was submitted under seal to the

Louisiana Supreme Court in its review of the matter. The

Louisiana Supreme Court's opinion contains a detailed discussion

of petitioner's past history. As part of his history, the

Louisiana Supreme Court mentions the offense and discusses the

“pyschiatric evaluations of petitioner which resulted from the

court procedures for the offense. State v. Prejean, supra.
The imposition of sentence and subsequent review

are two distinct phases of a capital trial. Petitioner's

allegation relates to the review phase. Material outside

the record can have no effect in the imposition of sentence.

21 46

Brown v. Watnwrtght, 392 So.2d 1327 (La. 1981); Ford v.
16/

Strickland, supra. The Louisiana Supreme Court followed the

review guidelines set out in Louisiana Code of Criminal
Procedure Article 905.9.1 in reviewing and affirming the

death sentence. Petitioner does not substantiate his claim
that the sentence was affirmed through the use of outside
evidence. Mere mention by the Louisiana Supreme Court of this
aspect of petitioner's history does not indicate that the
Supreme Court relied upon this fact to affirm the death
sentence which was imposed by a jury which had no evidence

as to the commission of the offense. The overwhelming evidence
is that the death sentence was imposed and affirmed to the
cold blooded manner in which Prejean killed a peace officer
engaged in his lawful duties. Petitioner's claim is without

17/
merit.

Finally, petitioner presents an Eighth Amendment
claim, alleging that the imposition of his death sentence
was excessive and disproportionate.

Petitioner first contends that death is an excessive
and inappropriate punishment per se when imposed on a
person under the age of 18. Although the Supreme Court
granted certiori in Zddings to consider the issue of whether
imposing the death penalty on a person under 18 years of age
was unconstitutional, this matter was not addressed in the
Zinal opinion. Eddings v. Oklahoma, supra. Petitioner

appears to rely on Civil Statutes which make him a "major"

at 18 years of age.

We first note the differences in the Eddings case

and in Prejean's situation. The petitioner in Fddings was
16 years of age and was considered a juvenile when he
committed the murder; he was subsequently certified to stand
trial as a adult. See Oklahoma Statutes Annotated, Title 10,

§1112. Under Louisiana law, however, Prejean did not have

to be certified as an adult. He was 17 years of age and an adult |

for purposes of criminal court jurisdiction. Art. 4, §19,
La. Constitution of 1974; LSA-R.S.13:1570; State ex rel

Coco, 363 So.2d 207 (La. 1978). Louisiana Revised Statute
14:30 constitutes a legislative classification that the

crime of murder, in certain instances, is a capital offense.
State v. Whatley, 320 So.2d 123 (La. 1975), rehearing

denied, 1975. This classification, along with the policy of
adult treatment of juveniles over a certain age convicted of
that crime, indicates a legislative or to punish persons
such as petitioner, to the full extent permitted by the
Constitution. Smtth v. Johnson, 458 F.Supp. 289, 296 (E.D.La.
1977). "Therefore in assesSing a punishment selected by a
democratically elected legislature against the Constitutional
measure, we presume its validity." Greg v. Georgta, supra.
at 174, 96 S.Ct. at , 49 L.Ed. 2d at 876. See also
Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed. 2d
982 (1977). We must also consider the importance of the
prohibition on feder~l courts from imposing their own

subjective preferences upon the judgment of the state and

23 4c

the community, as enunciated in Greg, supra, and Coker,
supra. To compare the severity of a punishment with the
evidence proferred by the petitioner with regard to age

we would be succumbing to reliance on our own subjective
Opinion as to the propriety of the punishment for the
petitioner in question. Martin v. Blackburn, 521 F.Supp.

685 (E.D.La. 1981). Traditionally, the primary purpose of
the Eighth Amendment's cruel and unusual punishment provision

has been directed towards the kind of punishment or on the

Severity of the punishment in relation to the type of the

crime. See Solem v. Helm, Oy is , 51 USLW 5019, 5021;

Powell v. Texas, 392 U.S. 514, 20 L.Ed. 2d 1254, 88 S. Ct.
2145 ripest” te generally is not directed to the propriety
of the punishment on a particular person, as long as it is
not imposed as the result of bias or passion. Through proper
sentencing and review procedures any bias and prejudice has
been remoed here. This petitioner's Eighth Amendment claim
that the death penalty is unconstitutional per se as app; ted
to individuals under 18 years of age is without merit.
Petitioner further argues that whether or not
death is per se excessive and disproportionate when inflicted
on a defendant who was under the age of 18 at the time of
the offense, it is excessive and disportionate in this case
due to improper review 2f petitioner's case by the Louisiana

Supreme Court. The purpose of review by tue Supreme court is

to make sure that death sentences are being imposed fairly,

4 “+ ,

24.

rationally and without discrimination throughout the state.
Proffttt v. Flortda, 428 U.S. 242, 260 (1976).

Louisiana Code of Criminal Procedure Article
905.9.1 requires the Louisiana Supreme Court to review all
first degree murder cases within the same district being
reviewed. The Louisiana Supreme Court considered the relevant
first degree murder convictions in the district where the
offense occurred,and where the trial was held. We cannot
conclude that this review violated any Constitutional prohibition.

Willtams v. Maggto, 679 F.2d 381, 394-95 (5th Cir. 1982) (en

bane).

For the foregoing reasons, petitioner's application
for habeas corpus relief, pursuant to 28 USC 2254, is hereby

denied, and it is hereby ordered that the stay of execution

x
previously rendered by this Court expires on Sep? [= ’

1983 at /0°.0oAM' clock.

Thus done and signed in Alexandria, Louisiana, on

this the S day of August, 1983

ITED STATES DISTRICT JDUGE

25 i=!

FOOTNOTES

Lf
7 The victim of the crime was a peace officer engaged in
his lawful duties. La.C.Cr.P. art. 905.4(b).

a Findings are included in the Transcript of the hearing
which as part of the record may be used by the District Court
to determine if there was a full hearing. Thomas v. Beto,
452 F.2d 1072 (5th Cir. 1971).

Also, see Sptnkeltnk v. Watnwrtght, 578 F.2d 582 (5th Cir.
1978), in which claims similar to some of those presented by
the petitioner herein were presented. The court found them to
be of a legal nature only, and subsequently, there was no need
for an evidentiary hearing on those claims. :

The prosecutor showed Trooper Legendre the pictures in
Order for him to testify as to where the victim was found.
Trial Transcript, p. 565.

S/ :
7 La.R.S. 14:30(2) defines first degree murder as the

killing of a human being where the offender has the specific
intent to kill or to inflict great bodily harm upon a Fireman

or Police Officer engaged in the performance of his lawful
duties. As noted previously, one of the aggravated circumstances
which can be found in order to consider imposition of the

death sentence is that the victim was a Peace Officer engaged

in his lawful duties. See n. 1, supra. The photos showed

that it was evident Cleveland was a Police Officer and that

he was dressed in full uniform.

- A review of the record indicates that the overwhelming
evidence presented by the prosecutor was the basis of the
guilty verdict and the imposition of the death sentence
rather than any inflammatory effect the photographs may have

had on the jury. |

Prejean argues that while systematic exclusion of blacks
through the use of preemptory challenges is one way to meet the
Swatn burden, the use of discriminatory practices generally
thoughout the parish is also sufficient. This contention is
Without merit.

F-1 db 3, °
8/

This failure to object does not act as a waiver if the
State does not raise the waiver issue, and addresses the issue
directly on the merits. In this case, the State did raise the
issue of waiver.

7 Petitioner's argument that the ordinary waiver rules of
Watnwrtght v. Sykes, supra, do not apply in a capital case is
without merit. In spite of petitioner's arguments, there is
only one system of justice in this country and it does not
change if an individual is charged with a capital crime. The !
difference is that there are added safeguards to be applied in the
sentencing phase to insure that the sentence is imposed in

accordance with constitutional requirements.

1o/
In the motion to quash the jury venire petitioner alleged
that he was deprived of a fair and impartial jury because there

were more men than women on the panel. See Trial Transcript,
p. 109.

Lis
- The record indicates defense counsel's trial experience,

specifically ten years of general legal practice. Trial
Transcript p. 187.

12/
Petitioner's reliance on G»anviel v. Estelle, 655 F.2d
673, (Sth Cir. 1981) is misplaced. There the questions asked

by the prosecutor were not the type to elicit unequivocal
responses:

Q: The defendant in this case is charged with capital
murder. There are only two punishments for the
offense of capital murder and that is either death
or life in the penitentiary. Now do you have any
conscientious scruples against the infliction of
the death penalty as a punishment for crime?

13/
~The judge instructed the jury, in accordance with Louisiana
Statutory law, that the following were mitigating circumstances:

(a) the offender has no significant prior history of
criminal activity;

.b) the offense was committed while the offender was under
the influence of extreme mental or emotional dis-
turbance;
———

(d) the offense was committed under circumstances which
the offender reasonably believed to provide a moral
justification or extenuation for his conduct;

(e) at the time of the offense the capacity of the offender

to appreciate the criminality of his conduct or to
conform his conduct to the requirements of law was
impaired as a result of mental disease or defect or
intoxication;

(f) the youth of the offender at the time of the offense;

(g) the offender was a principal whose participation was
relatively minor;

(_h) any other relevant mitigating circumstance.

See Trial Transcript, p. 858; Louisiana Code of Criminal
Procedure, art. 905.

In Sptvey, supra, the instructions failed to mention factors
to be considered as mitigating. Hence, it is inapposite.

14/

«See Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.
346 (1972). See also Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950,
49 L.Ed. 929 (1976); Woodson v. North Carolina, 428 U.S. 280,

96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Gregg v. Georgta, 428 U.S.
153, 96 S.Ct. 2909, 47 L.Ed.2d 859 (1976); Proffitt v. Flortda,

428 U.S. 242, 96 S.Ct. 2690, 49 L.Ed. 2d 913 (1976); Roberts v.
Loutstana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

Leaf
~The Supreme Court mentioned petitioner's juvenile record.

16/
~ In Ford v. Strickland, supra, the Fifth Circuit stated:

"We reject the contention both generally and specifically
as made for Ford. The function of the Supreme Court of
Florida in these cases is to review sentences for proce-
dural regularity and proportionality. The court does
not '‘impose' sentence, and for that reason there cannot

exist a due process violation under Gardner v. Flortda,
430 U.8.. 349, 37 S.Cté LLi37, SL G.EG.20 393 (1980).
As the Florida Supreme Court aptly stated:

The record of each proceeding, and precedent,
necessarily frame our determinations in sentence

review. Our opinions, of course, then expound our

Ao
F=-3

analysis. Factors or information outside the record
play no part in our sentence review role. Indeed,
our role is neither more nor less, but precisely

the same as that employed by the United States
Supreme Court in its review of capital punishment
cases. Illustrative of the Court's exercise of the
review function is Godfrey v. Georgta, 446 U.S. 420,
100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

It is evident, once our dual roles in the
capital punishment scheme are fully appreciated, that
non-record information we may have seen even though
never presented to or considered by the judge, the
jury, or counsel, plays no role in capital sentence
'review'. That fact is obviously appreciated by the
United States Supreme Court, for it very carefully
differentiated the sentence 'review' process of |
appellate courts from the sentence 'imposition' function
of trial judges in Profftt and Gregg v. Georgia,

428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

Id. at 444. In Louisiana, as in Florida, the Supreme Court
only reviews sentences; it does not impose the sentence.

Lif ,
—_ It would have been incredible for the probation officer

to omit known past criminal behavior of petitioner, including .

his arrest for the killing of Doucet. This occurrence

accounts for his incarceration in the Louisiana Training

Institute and his subsequent psychiatric examinations. This
information had been available to the trial court, and was
necessary for the Louisiana Supreme Court's review of petitioner' s
sentence. That reviewing authority was certainly aware of

the fact that this information was not in evidence, was not
considered by the jury in its deliberations on the sentence,

and therefore, could not be considered by that authority in
reviewing the sentence.

18/ |

~ In Solem, the Supreme Court enumerated three objective
criteria to aid a court in its reivew of a sentence under

the Eighth Amendment: (1) the gravity of the offense and

the harshness of the penalty; (2) the sentences imposed on
other criminals in the same jurisdiction; and (3) the sentences
imposed for commission of the same crime in other jurisdictions.
Solem, supra at , SL USLW at 5023. None or these factors lenc
Support to petitioner's contention that the death penalty is pe»
s2 unconstitutional when imposed against a person who was under
the age of eighteen years at the time of the offense.
19/

a Mitigating factor under Louisiana Code of Criminal Procedure,

art.

Youth is specifically mentioned by the trial judge as

905.5(f£).

F=5

U. >. LJIDirh.wi witesidet i

TERN DISTRICT OF LOUISIANA
IN THE UNITED STATES DISTRICT COURT re) = ; L a D

THE WESTERN DISTRICT OF LOUISIANA aU 5 196

MONROE DIVISION
| , ROBERT H: SHEMWELL: CLERK

BY DEPUTY

DALTON PREJEAN

CIVIL ACTION NO. 81-0632

FRANK C. BLACKBURN, ET AL.

JUDGMENT

For written reasons assigned this date, it is
ORDERED, ADJUDGED AND DECREED that petitioner's
application for habeas corpus relief be and it is hereby

DENIED: it is further

ORDERED, ADJUDGED AND DECREED, that the Stay of
Execution previously rendered by this Court expires on

September 1, 1983 at 10:00 A. M. o'clock.

Thus done and signed on this the 5th day of

August, 1983, in Alexandria, Louisiana.

UNITED STATES DISTRICT JUDGE

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240 La.

are his representations and agreements,
that this policy is issued in reliance upon
the truth of such representations and
that this policy embodies all agreements
existing between himself and the compa-
ny or any of its representatives relating
to this insurance.”

Bi ARE A Nate Meat eae bere he

Thus, the parties clearly and unambigu-
ously agreed that the property damage cov-
erage of the policy would be in effect dur-
ing flight only if the plane was piloted by a
named operator. The parties also specifi-
cally agreed to be bound by their agree-
ments contained in the declarations.

If I understand the majority opinion on
rehearing correctly, it ultimately depends
upon an arguable ambiguity when the
named pilot exclusion is construed with the
liability coverage provisions ofthe policy.
However, this suit is not based upon the
liability coverage of the policy. It does not
seem to me to be fair, just or proper con-
tractual interpretation, therefore, to decide
the case on the basis of an ambiguity that is
not relevant to a genuine issue in the litiga-
tion.

° 3 KEY NUMBER SYSTEM

STATE of Louisiana
Vv.

Dalton PREJEAN.
No. 64813.

Supreme Court of Louisiana.

Nov. 29, 1979.
Concurring Opinion Jan. 28, 1980.

Dissenting Opinion on Denial of
Rehearing Jan. 28, 1980.

Defendant was convicted in the Fourth
Judicial District Court, Parish of Ouachita,
Hugh E. Brunson, J., of first-degree murder
and was sentenced to death. Defendant

379 SOUTHERN REPORTER, 2d SERIES

appealed. The Supreme Court, Dixon, J.,
held that: (1) jurors voicing an innbility to
impose the death penalty under any circum-
stances were properly challenged for cuuse;
(2) use of peremptory challenges to exclude
blacks from the jury did not deny cqual
protection, absent a showing of systematic
exclusion over period of time; (3) there was
no error in admitting two allegedly grue-
some photographs of the victim; (4) absent
evidence that a juror had falsely answered
on voir dire, defendant was not entitled to a
new trial on the basis of the alleged fuilure
of the juror to disclose during voir dire his
relationship with law enforcement officers;
and (5) imposition of the death sentence
was not excessive.

Affirmed.

Calogero, J., and Dennis, J., concurred
and assigned reasons.

Dixon, Calogero and Dennis, JJ., would
grant a rehearing on the penalty portion
only.

Dennis, J., filed an opinion dissenting
from denial of rehearing.

1. Criminal Law @1030(1)

In absence of contemporancous objec-
tion, alleged error or irregularity in pro-
ceedings cannot be availed of by defendant
after verdict is rendered. LSA-C.Cr.P. art.
841.

2. Jury 108

In capital case, prospective jurors voic-
ing inability to impose death penalty under
any circumstances were properly excused
for cause. LSA-C.Cr.P. art. 798(2).

3. Criminal Law @641.13(2)

In capital case, defense counsel was not
incompetent for failing to object to chal-
lenges for cause of prospective jurors who
voiced inability to impose death penalty un-
der any circumstances or in failing to tra-
verse testimony of those prospective jurors.

LSA-C.Cr.P. art. 798(2).

4. Constitutional Law @=221(4)

Prosecutor’s use of peremptory chal-
lenges to exclude blacks in particular case
Surt, Dixon, J.,

‘ an inability to
der any circum-
‘nged for cause;
nges to exclude
‘ot deny equal
g of systematic
e; (3) there was
allegedly grue-
‘tim; (4) absent
alsely answered
not entitled to a
> alleged failure
ng voir dire his
‘ement officers;
death sentence

is, J.. concurred

‘nnis, JJ., would
penalty portion

‘tion dissenting

)

oraneous objec-
Zularity in pro-
vf by defendant
ssA-C.Cr.P. art.

tive jurors voic-
h penalty under

roperly excused
t. 798(2).

(2)

-counsel was not
- object to chal-
“tive jurors who
cath penalty un-
in failing to tra-
“ospective jurors.

221(4)

temptory chal-
" particular case

STATE v. PREJEAN La. 241
Cite as, La., 379 So.2d 240

did not establish equal protection violation,
but showing of systematic exclusion over a
period of time was necessary.

5. Criminal Law ¢=671

In murder prosecution, trial court did
not err in sustaining, in absence of jury,
objection to prosecutor's question of widow
of victim as to how many children she had
where defense counsel made objection to
question only after question had been an-
swered, jury was removed at request of
defense counsel, and defense counsel made
no request that court repeat its ruling to
jury and made no objection to its failure to
do so.

6. Criminal Law @=438(6)

In murder prosecution, it was not erro-
neous to admit two allegedly gruesome pho-
tographs of victim, despite defendant’s stip-
ulation, where pictures were relevant to
show number and nature of wounds and
offered stipulation contained no reference
to those facts.

7. Criminal Law *=680(4)

In capital case, allowing prosecution, at
sentencing phase, to offer evidence that
defendant did not appear to be intoxicated
when arrested did not amount to offering
proof out of order where, during guilt de-
termination stage of trial, defense had
sought to show that defendant had been

intoxicated as defense to murder charge.
LSA-C.Cr.P. art. 905.2.

8. Criminal Law s=918(3)

In prosecution for murder of police of-
ficer, defendant was not entitled to new
trial on basis of alleged failure of juror to
disclose during voir dire his relationship
with law enforcement officers where there
was no evidence to support defendant’s con-
tention that juror had falsely answered
question on that matter on voir dire.

9. Criminal Law #959

Defendant was not entitled to delay to
seek and produce evidence to support his
allegations in motion for new trial that

juror lied. voir dire where defendant took
no measures to bring any witnesses into
court to support his motion, did not allege
he only had short period of time to prepare
motion, and did not show any good cause
for delay.

10. Criminal Law 2884
In capital case, trial court was required

to sentence defendant in accordance with __

recommendation of jury and had no option

as to sentence imposed. LSA-C.Cr.P. art.
905.8.

11. Criminal Law @=1208(1)

In deciding whether death sentence is
excessive, Supreme Court must consider
whether sentence is imposed under influ-
ence of passion, prejudice or any other arbi-
trary factor; whether evidence supports
jury’s finding of statutory aggravating cir-
cumstance; and whether sentence is dispro-
portionate to penalty imposed in similar
cases, considering both crime and defend-
ant. LSA-C.Cr.P. art. 905.9; LSA—Const.
art. 1, § 20.

12. Homicide 354

On consideration of aggravating and
mitigating circumstances, imposition of
death penalty for first-degree murder was
not excessive. LSA-C.Cr.P. art. 905.9;
LSA-—Const. art. 1, § 20.

William J. Guste, Jr., Atty. Gen., Barbara
Rutledge, Asst. Atty. Gen., J. Nathan
Stansbury, Dist. Atty., for plaintiff-appel-
lee.

Thomas E. Guilbeau, Lafayette, for de-
fendant-appellant.

DIXON, Justice.°

At about five o'clock in the morning of
July 2, 1977 the defendant, his brother Jo-
seph, Michael George and Michael Brous-
sard left Roger's Nite Club in Lafayette
Parish. The four had spent the night
drinking in various lounges in the vicinity.

*Chief Judge Paul B. Landry, Retired, is sitting by assignment as Associate Justice Ad Hoc in

place of Tate, J.

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242 La.

They left Roger’s Nite Club in a 1966 Chev-
rolet driven by the defendant, with his
brother in the front seat and the other two
in the back. The car’s taillights were not

working, and within a few hundred-feet of —-

the lounge, State Trooper Donald Cleve-
land, who was on his way to work driving
his police vehicle, signaled the Chevrolet to
stop. The defendant and his brother at-
tempted to switch places in the front seat
because the defendant had been driving
without a license. The officer noticed the
switch and ordered the occupants out of the
car. He told Michael George and Michael
Broussard to get back in, however, and
began to search Joseph Prejean. Dalton
Prejean, back in the car, stated, “I don’t
like the way he’s doing my brother.” (This
was a reaction to the trooper’s pushing Jo-
seph against the car, over Joseph’s protest).
Defendant then took a .38 caliber revolver
from under the car seat, got out of the car
and approached the officer with the gun
hidden against his leg. As he neared the
trooper he fired without warning. Trooper
Cleveland was struck by two bullets and
was killed. The defendant and his compan-
ions fled the scene but were apprehended
several hours later.

Dalton Prejean was charged by grand
jury indictment with first degree murder in
violation of R.S. 14:30. The trial was trans-
ferred from Lafayette Parish to Ouachita
Parish because of pretrial publicity. After
a three day bifurcated trial beginning on
May 1, 1978 a jury of twelve persons found
the defendant guilty as charged and unani-
mously recommended that the death penal-
ty be imposed. The defendant now appeals
the verdict and sentence, relying on eleven
assignments of error.

Assignments of Error Nos. 1 and 2

In his first assignment the defendant
urges as error the challenges for cause
granted by the court against jurors voicing
an inability to impose the death penalty.
By his second assignment the defendant
contends that his counsel at trial was in-
competent and erred in not objecting to the
challenges for cause and in failing to tra-

379 SOUTHERN REPORTER, 2d SERIES

verse the testimony of witnesses that they
would not vote for the death penalty.

C.Cr.P. 798(2) provides:
“It is good cause for challenge on the

the defendant, that:

(2) The juror tendered in a capital case
who has conscientious scruples against
the infliction of capital punishment and
makes it unmistakably clear (a) that he
would automatically vote against the im-
position of capital punishment without
regard to any evidence that might be
developed at the trial of the case before
him, or (b) that his attitude toward the
death penalty would prevent him from
making an impartial decision as to the
defendant’s guilt.”

In Witherspoon vy. State of Illinois, 391
U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776
(1968), the United States Supreme Court
held that a sentence of death cannot be
carried out if the jury that recommended it
was chosen by excluding veniremen for
cause simply because they voiced general
objections to the death penalty or expressed
conscientious or religious scruples against
its infliction. The defendant asserts that
the exclusion of prospective juror Ertha
Taylor was contrary to the standard of

Witherspoon.

The prospective jurors were examined in
panels. Twelve were selected for the initial
panel and new jurors were led in to replace
those excluded during the voir dire. The
jurors were asked to raise their hands in
response to questions asked of them. In
response to an inquiry by the prosecuting
attorney as to whether any of the jurors
had scruples against capital punishment to
the point where he would under no circum-
stances be able to impose that penalty, even
if it were justified by the facts, Ms. Taylor
raised her hand. Ms. Taylor further stated,
“I don’t believe I could do it.” The prosecu-
tor responded, “Not at all?” to which Ms.
Taylor answered, “No sir.” The counsel for
the defendant was asked if he wished to
traverse, but he declined to do so.

[1,2] No objection was made to the
challenge for cause of Ms. Taylor. In the

part of the state,-but not on the part of -—_—— -- —
sses that they
penalty.

ilenge on the

yn the part of

a capital case
uples against
nishment and
. (a) that he
zainst the im-
nent without
1at might be
ie case before
le toward the

, at him from

ion as to the

f Illinois, 391

L.Ed.2d 776
ipreme Court
+h cannot be
commended it
eniremen for
oiced general
y or expressed
‘uples against
~ asserts that
juror Ertha

standard of

» examined in
for the initial
| in to replace
‘y dire. The
heir hands in
of them. In
e prosecuting
of the jurors
sunishment to
ler no circum-

“penalty, even

ts, Ms. Taylor
urther stated,

The prosecu-
to which Ms.
he counsel for

“2 wished to

0 SO.

made to the
iylor. In the

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ere

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ements

STATE v. PREJEAN

Cite as, La., 379 So.2d 240

absence of a contemporaneous objection, an
alleged error or irregularity in the proceed-
ings cannot be availed of by the defendant
after the verdict is rendered. C.Cr.P. 841;
State v. Mitchell, 356 So.2d 974 (La.1978);

State v. Williams, 343 So.2d 1026 (La.1977).

——

In any event the record indicates clearly
that Ms. Taylor was properly excused for

cause. Ms. Taylor did more than voice a
general objection or conscientious or reli-
gious scruples against the death penalty.
She stated her honest opinion that she could
under no circumstances impose that penal-
ty. Therefore, she was properly excused
under C.Cr.P. 798(2) and Witherspoon.

[3] The defendant in brief asserts that
the defense counsel’s failure to object to the
exclusion of Ms. Taylor amounted to inef-
fective and incompetent assistance of coun-
sel. This contention is without merit. The
record indicates that defense counsel was
experienced in the practice of criminal law.
As noted above, the exclusion of Ms. Taylor
was proper. Trial counsel cannot be said to
be incompetent for failing to object to what
was not objectionable. Nor does counsel’s
failure to traverse or seek to rehabilitate
the excluded witness amount to incompe-
tence. When asked if he wished to question

‘the nine prospective jurors excluded under

C.Cr.P. 798(2), defense counsel typically re-
plied that he was in complete agreement
with the sentiments expressed by the ex-
cluded jurors. In all other respects his voir
dire was competent and able. The defense
counsel apparently chose to forego rehabili-
tation of the excluded jurors in the hope of
impressing upon the remaining jurors the
moral scruples some members of society
have against imposition of the death penal-
ty. The purpose of post-trial review of the
effectiveness of counsel is not to second
guess the tactical decisions of trial counsel.

These assignments are without merit.
Assignments of Error Nos. 3 and 4

[4] By these assignments the defendant,
who is black, urges error in the denial of his
motion to quash the petit jury panel on the
grounds that the prosecutor deliberately ex-
ercised his peremptory challenges so as to
exclude members of the defendant’s race

SR RR ee ere

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Ma ¢ Pe vem.
ye” -AS OS. P
eee . ‘oat a
- *
e.
* Sf

Pe
$e Boer. es

Rate
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age j
~ Tae ee Pern a

from the petit jury. Defendant also assigns
error in the trial court’s denial of a continu-
ance to permit him to gather information to
establish an historical pattern of discrimina-
tion.

__Immediately after the selection of twelve
white jurors, the defendant moved to quash
the panel. He contended four out of the
nine peremptory challenges exercised by
the state were against blacks. Arguments
were made on the motion the following
morning, at which time the defendant’s
counsel stated that the records as to persons
challenged by the prosecuting attorney
were in Lafayette Parish, and, therefore,
the only evidence he had to support his
motion was the fact that the state had
exercised four of its nine peremptory chal-
lenges against blacks. The defendant asked
to introduce evidence from those records at
a later date. The court stated that it could
not simply leave the door open for the de-
fendant to introduce that evidence at any
time. The trial court then denied the mo-
tion to quash the petit jury panel. The
defendant did not urge discrimination in
the use of the state’s peremptory challenges
in his motion for a new trial, in which he
could have introduced any evidence obtaina-
ble from the Lafayette Parish records.

The excellent per curiam notes of the
trial judge discuss the habitual thorough
preparation of defense counsel, and that his
active criminal practice would have given
him knowledge of any racial discrimination
by the district attorney. To this the trial
judge added that, to his knowledge, there
was no systematic exclusion of blacks in the
Fifteenth Judicial District, by any means:

As noted in State v. Washington, 375
So.2d 1162 (La.1979) and State v. Brown,
371 So.2d 751 (La.1979), this court has held
that a defendant is not denied equal protec-
tion by the state’s use of peremptory chal-
lenges against blacks unless there is a sys-
tematic exclusion of blacks over a period of
time. In so doing, we adhered to the princi-
ple of Swain v. Alabama, 380 U.S. 202, 85
S.Ct. 824, 13 L.Ed.2d 759 (1965), in which
the United States Supreme Court held that
a showing that peremptory challenges were

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Cpe 6 Pee et Cer for ete fh

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‘ 4 ° qe ee

*>aai, Aw
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244 La.

used to excl. blacks in a particular case
did not establish a violation of equal protec-

tion under the Fourteenth Amendment of
the United States Constitution. Rather, a

showing of a systematic exclusion over a
period of time is required to present a con-
stitutional issue. In the present case, the
defendant introduced no evidence to show
that exclusion of blacks by peremptory
_challenge_had_occurred_ over a_ period of
time. Therefore, his motion to quash the
petit jury panel was properly denied.

These assignments are without merit.
Assignment of Error No. 5

(5] At the beginning of the trial the
prosecutor asked the widow of the victim
how many children she had. Defense coun-
sel objected to that question but only after
the witness’ response was entered in the
record. The court ordered the jury re-
moved while argument was made on the
defense objection. The court sustained the
objection on the grounds that the number
of the witness’ children was _ irrelevant.
The jury was brought back in and examina-
tion of the witness continued.

—_——-—-+-

The defendant now assigns as error the
action of the trial court in sustaining the
objection. His reasons for doing so are
unclear. The argument in the defense brief
merely repeats the language of the assign-
ment. The defendant apparently objects to
the fact that the court’s ruling was made
out of the presence of the jury. That fact
does not warrant reversal. Defense counsel
made the objection only after the question
had been answered. The trial court ruled
on the objection at the instance of the de-
fendant, and after the defense counsel re-
quested that the jury be removed. Defense
counsel made no request that the court
repeat its ruling to the jury. Counsel like-
wise made no objection to the court’s fail-
ure to do so. The defendant cannot there-
fore avail himself of any error in the court’s
ruling out of the presence of the jury.

This assignment is without merit.
Assignment of Error No. 6
[6] By this assignment defendant urges

error in the trial court’s decision to admit
two allegedly gruesome photographs.

, S see oe Resa

379 SUUTHERN REPORTER, 2d SERIES

During the :timony of State Trooper
Tommy Legendre the state sought to intro-
duce into evidence photographs of the vic-
tim taken at the scene of the crime. The
two 3'4” X 5” pictures of the victim show
the chest and jaw wounds suffered by the
victim, along with a certain amount of
blood. The photographs are unpleasant,
but are not excessively gruesome. Defense
counsel objected to the admission- of the

photographs, but the trial court overruled
the objection.

In State v. George, 346 So.2d 694 at 702-3
(La.1977), this court stated:

“It is well established that the test of
admissibility of allegedly gruesome pho-
tographs is whether their probative value
outweighs the possible prejudice that
may result from their display to the jury.
State v. Williams, No. 58,679, 343 So.2d
1026 (La.1977); State v. Cooper, 334
So.2d 211 (La.1976); State v. Smith, 327
So.2d 355 (La.1975). Generally, photo-
graphs are admissible which illustrate
any fact or which shed light on an issue,
or are relevant to describe the person,
place or thing involved. State v. Holl-
ingsworth, 337 So.2d 461 (La.1976). More
particularly, photographs of the body of a
deceased victim depicting fatal wounds
have generally been held relevant to
prove the corpus delicti; to corroborate
other evidence of the manner in which
death occurred; to establish the location,
severity and number of wounds; and to
establish the identity of the victim.
State v. Cooper, supra; State v. Beach,
320 So.2d 142 (La.1975).”

The photographs in question here are rele-
vant to prove corpus delicti and to show the
number and nature of the wounds inflicted
on the victim. Since the probative value of
the photographs outweighs their prejudicial
effect, the trial court did not abuse its
discretion in admitting them.

The defendant contends, however, that in
light of the stipulation he offered as to the
circumstances of the case the pictures had
no probative value whatsoever. In State v.

Gilmore, 332 So.2d 789 (La.1976), we dis-

y of State Trooper
tate sought to intro-

tographs of the vic-
' of the crime. The
of the victim show

nds suffered by the. --

certain amount of
‘hs are unpleasant,
gruesome. Defense
_ admission of the
rial court overruled

6 So.2d 694 at 702-3
ted:

-d that the test of
_dly gruesome pho-
heir probative value
ble prejudice that
‘display to the jury.
0. 58,679, 343 So.2d
te v. Cooper, 334
State v. Smith, 327

Generally, photo-
le which illustrate
-d light on an issue,
escribe the person,
‘ed. State v. Holl-
'61 (La.1976). More
phs of the body of a
cting fatal wounds

held relevant to
icti; to corroborate
2 manner in which
tablish the location,
vf wounds; and to
ty of the victim.
"a; State v. Beach,
5).”

‘stion here are rele-
icti and to show the
.@ wounds inflicted
e probative value of
ths their prejudicial
did not abuse its
them.

ds, however, that in
,.2 offered as to the
se the pictures had

soever. In State v.
(La.1976), we dis-

STATE v. PREJEAN
Cite as, La., 379 So.2d 240

cussed the proposition that where a defend-
ant stipulated to all the facts to which
allegedly gruesome photographs would be
relevant, the trial court would act properly
in excluding the photographs from evi-

-- dence.— We- noted that it would be for the-.

trial court to determine whether the prof-
fered stipulation was so complete as to ren-
der the photographs wholly needless, con-
sidering the legitimate moral force which
photographs may have in favor of the state.
See State v. Harvey, 358 So.2d 1224 (La.
1978).

In the present case the stipulation was
offered by the defendant far in advance of
the state’s effort to introduce the photo-
graphs, and it was offered for a purpose
unrelated to them. In addition, the stipula-
tion fails to give all of the information
contained in the pictures. The pictures
were relevant to show the number and na-
ture of the wounds. The offered stipula-
tion contained no reverence to those facts.
There was no error in the ruling of the trial
judge.

Assignment of Error No. 7

[7] The defendant contends that the tri-
al court erred in allowing the state to
present evidence out of order in the sen-
tencing phase of the trial.

Following the jury’s verdict of guilty, the
trial court moved into the sentencing phase.
The second witness called by the state, Offi-
cer Joseph Cormier of the Lafayette City
Police Department, testified, over defense
objection, that when arrested the defendant
did not appear to be intoxicated. The de-
fendant argues that when the state opens
the sentencing phase of the trial, it should
be restricted to presenting evidence of ag-
gravating circumstances, and should not be
allowed to introduce evidence relating to
mitigating circumstances until after the de-
fense attempts to establish that such cir-
cumstances exist. That argument, how-
ever, is based on a misinterpretation of the
Code of Criminal Procedure articles relating
to the sentencing hearing.

C.Cr.P. 905.2 provides:

“The sentencing hearing shall focrs on
the circumstances of the offense and the

La. 245

character and propensities of the offend-
er. The hearing shall be conducted ac-
cording to the rules of evidence. Evi-
dence relative to aggravating or mitigat-
ing circumstances shall be relevant irre-
spective of whether the defendant places
his character at issue. Insofar as applica-
ble, the procedure shall be the same as
that provided for trial in the Code of
Criminal Procedure. The jury may con-
sider any evidence offered at the trial on
the issue of guilt. The defendant may
testify in his own behalf. In the event of
retrial the defendant’s testimony shall
not be admissible except for purposes of
impeachment.”

That article clearly states that evidence
as to mitigating circumstances shall be rele-
vant. It does not limit the introduction of
such evidence to the defense. In addition,
during the guilt determination stage of the
trial the state had established one aggra-
vating circumstance—the killing of a law
enforcement officer engaged in his lawful
duties. The defense had sought to show
that the defendant had been intoxicated as
a defense to the crime charged. Since the
jury is authorized by C.Cr.P. 905.2 to con-
sider evidence offered at the trial on the
issue of guilt, the issue of whether the
defendant was intoxicated was already be-
fore the jury. It was therefore proper for
the state to offer evidence on that issue
when it opened the sentencing phase of the
trial.

This assignment lacks merit.
Assignments of Error Nos. 8 and 9

[8] The defendant asserts that the trial
erred in refusing to grant his motion for a
new trial, based on the alleged failure of
juror David Howell to disclose during voir
dire his relationship with law enforcement
officers. The defendant also claims that
the trial court erred in denying him time
before sentencing to substantiate his claims.

On voir dire, defense counsel asked Mr.
Howell if he “had any friends in law en-
forcement,” and if he had any “ties” to
someone in law enforcement. Mr. Howell
answered that he did not, and was accepted

, ae,
—- Memes.

246 La.

as a member of the jury at a time when
defendant had three peremptory challenges
remaining. On May 11, 1978, the day set
for sentencing, defense counsel filed a writ-
ten motion for a new trial, alleging that “it
is understood that” Mr. Howell was actually

Se eneesenmneneatiietinessttiedtianimn es ee ee

a personal friend of an employee of the
Louisiana State Police. Defense counsel
claims that, even if that were not grounds
to challenge Mr. Howell for cause, he would
have exercised one of his remaining per-
emptory challenges against him. Defense
counsel also filed an oral motion for a delay
in sentencing to allow him to produce wit-
nesses to substantiate his allegations that
Mr. Howell had answered falsely on voir
dire. The court was told that a third per-
son, an attorney, had provided defense
counsel with the information as to the jur-
or’s ties with law enforcement, but that
defense counsel had not been able to corrob-
orate the information. The court denied

the motion for a delay and the motion for a
new trial.

The motion for a new trial was made
under C.Cr.P. 851(4) which provides that a
new trial shall be granted if the defendant
discovers, after the verdict, a prejudicial
error or defect in the proceedings that, not-
withstanding the exercise of due diligence
by the defendant, was not discovered before
the verdict. Even if the false testimony of
a juror, depriving the defendant of the ef-
fective use of his peremptory challenges, is
an error or defect cognizable under C.Cr.P.
851, the motion for a new trial was properly
denied.! The defendant introduced no tes-
timony whatsoever to support his conten-
tion that the juror had falsely answered on
voir dire. In the absence of such evidence
the trial court acted properly in denying the
motion.

1. See State v. Daniel, 378 So.2d 1361 (La.1979),
which held that where the juror’s inaccurate
testimony was the result of misunderstanding
and the juror’s relationship to the case was not
a necessary grounds for a challenge for cause,
there were no grounds for reversal. Cf. State
v. Square, 257 La. 743, 244 So.2d 200 (1971),
which suggested that discovery of the fact that
a juror had lied or supplied erroneous informa-
tion on voir dire would be grounds for a new
trial. See also State v. Buggage, 351 So.2d 95
(La.1977).

379 SOUTHERN REPORTER, 2d SERIES

[9] The defendant asserts, however,
that the trial court erred in not allowing a
delay for the defendant to seek and produce
evidence to support his allegations in the
motion for a new trial. C.Cr.P. 853 pro-

vides that a trial court, for good cause ——_-__.__ --_. __ ..

shown, may postpone imposition of sentence
in order to give the defendant time to pre-
pare and file a motion for a new trial.?
There is considerable question as to wheth-
er that article was meant to apply where
the motion for a new trial has already been
made and the defendant merely seeks time
to gather evidence in support of that mo-
tion. In any event the defendant did not at
the hearing on the motion show good cause
for a delay. He did not allege that he had
only had a short period of time to prepare
his motion. He merely stated that he had
not yet been able to corroborate his factual
allegations. In addition, there was no
showing that the defendant took any meas-
ures to bring any witnesses into court to
support his motion. The defendant did not
offer to produce any witnesses. In short,
the defendant failed to show good cause
why a delay should have been granted.

These assignments lack merit.

Assignments of Error Nos. 10 and 11

[10] By these assignments the defend-
ant urges error in the trial court’s concur-
rence with the death sentence recom-
mended by the jury. These assignments
are specified but not argued in brief.

~C.Cr.P. 905.8 provides that “the court
shall sentence the defendant in accordance
with the recommendation of the jury.”
The trial court therefore had no option as to
the sentence to be imposed.

2. In State v. Passman, 345 So.2d 874 (La.1977),
the court used the standard for determining if a
continuance should have been granted under
C.Cr.P. 709 to decide if the trial court properly
denied defendant a delay based on the absence
of witnesses. A continuance is granted at the
sound discretion of the trial court. It is clear
that the defendant in the instant case moved
for a delay under C.Cr.P. 853 rather than a
continuance under C.Cr.P. 709.

sserts, however,

n not allowing a
eek and produce

legations in the

C.Cr.P. 858 pro-
for good cause
ition of sentence
ant time to pre-

“ @ new trial.?

ion as to wheth-
to apply where
las already been
rely seeks time
ort of that mo-
_.dant did not at
how good cause
ege that he had
time to prepare
‘ed that he had
‘rate his factual

here was no
took any meas-
s into court to
fendant did not
sses. In short,
ow good cause
_ 1 granted.

erit.
os. 10 and jj

ts the defend-
court’s concur-
ntence recom-
se assignments
in brief.

at “the court
in accordance
of the jury.”
-9 option as to

:d 874 (La.1977),
determining if a
1 granted under
il Court properly
1 on the absence
- Zranted at the
ourt. It is clear
ant case moved
» rather than a

oo ee ee

STATE v. PREJEAN
Cite as, La., 379 So.2d 240

Sentence Review

(11,12) This court reviews every death

sentence to determine if it is excessive.
Art. 1, § 20, La.Const.; C.Cr.P. 905.9. In

deciding whether a death senténce Is exces.
sive we must consider whether the sentence
was imposed under the influence of passion,
prejudice, or any other arbitrary factor;
whether the evidence supports the jury’s
finding of a statutory aggravating circum-
stance; and whether the sentence is dispro-
portionate to the penalty imposed in similar
cases, considering both the crime and the

defendant.

A. Aggravating Circumstance

There is ample evidence to support a
finding by the jury that the victim of the
crime was a peace officer engaged in his
lawful duties, an aggravating circumstance
to the crime of first degree murder under
C.Cr.P. 905.4. Mrs. Cleveland testified that
her husband left for work about five fifteen
in the morning of July 2, 1977. A witness
testified that the defendant’s car had no
taillights, and that Trooper Cleveland fol-

lowed the defendant’s car for several hun-

dred feet, and then signaled for it to stop.
Captain Clifton Cabell of the Louisiana
State Police testified that his officers are
always on call, and are considered on duty
when they first climb into their units to go
to work. The evidence therefore provided
the jury with a basis to find that the victim
was a peace officer engaged in his lawful
duties.

B. Passion, Prejudice or Other Arbitrary
Factors

The murder was committed in Lafayette
Parish. Although an initial motion for a
change of venue was denied, the difficulty
encountered in selecting jurors unbiased by
journalistic accounts of the case caused the
court in Lafayette Parish to grant the mo-
tion when it was reurged. Venue was ac-
cordingly shifted to Ouachita Parish, where
a jury was selected relatively easily.

The jury chosen in Ouachita Parish was
composed of twelve white persons. There
is no evidence, however, that the prosecutor

La. 247

Purposely sought to exclude blacks from the
jury. There is no indication that the prose-
cutor made any appeal to racial prejudice
which influenced the jury in making its
recommendation that the death penalty be
imposed. Therefore, we cannot say that
the jury’s decision was made arbitrarily be-
cause of racial prejudice.

The testimony and presence in the court
room of the victim’s widow cannot be said
to be an arbitrary factor influencing the
jury’s decision. Although the sight of Mrs.
Cleveland may have had an effect on the
jury, her testimony was relevant to the
issues, and there is no evidence that her
appearance as a witness caused the jury to
act unreasonably or capriciously.

Nor can it be said that an inference of
arbitrariness arises from the jury’s recom-
mendation of death in light of the mitigat-
ing circumstances presented to the jury. In
the sentencing phase of the trial, defense
counsel argues, as mitigation, that the de-
fendant’s capacity to appreciate the crimi-
nality of his conduct or to conform his
conduct to the requirements of the law was
impaired as a result of the defendant's nat-
ural mental condition, aggravated by intox-
ication at the time of the offense. The
defense also argued that the defendant's
youth militated against the recommenda-
tion of the death penalty. Those factors,
although significant, are not so numerous
and persuasive as to clearly outweigh the
aggravating circumstance of the case, and
are discussed in greater detail below.

C. Proportionality of the Sentence

Dalton Prejean was born in December,
1959, the second of four children. When he
was two weeks old his parents sent him
from their home in Lafayette to live with
his aunt and uncle in Houston, Texas. Dal-
ton was unaware of his true parentage until
the age of eleven. When Dalton’s father
left his mother and moved to Houston, the
aunt decided that Dalton had to be told that
he was not her child. About this time he
began creating problems of an unknown
nature, and was sent to live with his mother
in Lafayette. -~.-:

<p ei orien 3 ~~ me ee
Be oss SP oe
Ya Nee as" ey
ee a 248 La. 379 SOUTHERN REPORTER, 2d SERIES
Be Re eS =
= ve eA SF oe .
os eae ae ¥ Dalton began skipping his school classes defendant until he was twenty-one. RS.
r So eae a i i following his return to Lafayette. In 13:1572, now Article 89 of the Code of Juve-
«¢ a ie — March of 1972 he was committed to the nile Procedure. Dr. Dowling’s recommen-
ee ! Louisiana Training Institute for truancy at dation would have served to keep the de-
eR oot - the instance of his mother. Released only fendant confined until December, 1980.
Bas OES 4 ; Seven months later, he soon came into con: ___, 1976-h ae —
Bae 5. ¢ flict with the authorities on charges of bur- " wren sy af OE SOE
20-9 ret glary, theft and “false firearms.” In March ed a psychiatric evaluation of the defendant
ay of 1974 he was committed to the Lafayette 2d recommended that he be discharged.
Juvenile Youth Authority, a residential pro- He concluded that the defendant's values
gram for delinquents. He ran away from had changed, but cautioned that “suitable
+ that facility after a month; upon his return conditions [should be] imposed to be sure he
his commitment was terminated and he was ad adequate supervision and is going to
released on probation to his mother. live in a fairly stable environment.” That
In June of 1974 Dalton was arrested for ee also suggested that fairly rigid pro-
r the killing of John Doucet, a taxi driver. pation "1. iat - ie ae On De-
: Dalton admitted the killing and was com- a J h - “rr — a al
mitted once again to the Louisiana Training eased to the cute 7 OF OM Aunt in *20US-
Institute. In a later statement about the ‘") apparently without any probation re-
incident Dalton stated that he and two Uirements. Within seven months Dalton
friends called a cab with the intention of WS Once more under arrest for killing a
robbing the driver. One of his companions human being. He had lived in the relative-
was carrying a gun. The three directed the ly stable environment of his aunt’s house
driver to a quiet part of town and per- for only three months before returning to
suaded him to stop while they searched for Lafayette to live with his mother and her
an address. Dalton insisted on taking the ©ommon law spouse. He worked offshore
gun from his companion because the other for a period of time but was discharged
youth appeared to be nervous. Dalton ap- When it was discovered that he was only
proached the driver, and believing that the seventeen. Dalton was unemployed at the
driver was reaching for a gun of his own, time of the killing of Trooper Cleveland.
: fired twice and began running. While flee- Dalton was once again given psychologi-
ing he told a passerby to call an ambulance a) tests during pretrial confinement. On
because satan had been shot. Dalton the basis of the Wechsler Intelligence Scale,
; later turned himself in to the police and the Stanford Binet Vocabulary Subtest and
admitted that he had killed the driver. the Bender-Gestalt Test, Dr. William Haw-
r Dr. Patrick Dowling conducted a psychi- kins determined that the defendant func-
sie atric evaluation of Dalton Prejean in 1974. tioned at the dull normal level in the verbal
a He found the defendant to be intellectually area but in the borderline mental retardate
; limited and to have very poor judgment. area in the performance area. He had a
In his opinion Dalton was a borderline men- verbal I.Q. of 82 and a performance I.Q. of
tal retardate, and it was questionable if he 72. His full scale I.Q. is 76, with a full scale
knew the difference between right and mental age of thirteen years and six
wrong. He considered the boy to be “a months.
definite danger to himself and others, and ; ;
3 his dream content suggests that it is a . aimee was presenied ty ihe a4 nie
; ; intoxication would cause a change in the
matter of accident that the cab driver was = a
: ‘ behavior of such a “borderline” retardate,
killed rather than the boy being killed. He eerie. “ital
3 is equally likely to get himself killed in the and would reduce his inhibitions, making it
: near future.” Dr. Dowling therefore rec- ™°Fre likely that he might “act out his inner
<i ane ommended a lengthy confinement, followed feelings.
ae aa i by transfer to permanent facilities. The Whether this evidence was considered
3 oS juvenile courts had jurisdiction over the mitigative by the jury is questionable. Vol-
BN aye Ae
ARIE
rea ghee rn RY Rare sr RE vt aon i a ig ise IS tS Ce scope ee
ptm Rak ie FR vs Bi ar OR GS See ae Snowe, eee ee Mac anette gS
ee cefenkee aN re ge Smee IR Blas CC sen EE eee tee ae
ARC oa in ctetottee.” er es CFS. Sot ecati ts ee yeaa inn ines sien Cs A are ; hss 3.3.5 te — he aageee ee
Nag PORES Le EE en, sn RT Se gOS Warts Bese, 3 NS Nigar’ ate RS et ge ee
GP a ah 8 EEO ETE IO RE er eC oT Sa ET ae
Se 5 cic ania aia iad RD Sires iS ae Sr ae pe haa RS Sa a att Oh OE Sti nt Sania tia
snip aE SONU IES LIME II es EA RN ron ke Basen ee ae ere ee on ae ne ee ee
i CA ee eet Sieh: doa Se io oa eh Digs LO A we te 2 eee Ea spa 4: — pala Bae TNE pert SaaS
y ~ a ale 6 A A +z 2 Li 8 seo 5! ee ate —— atti + ms atin as ae ~ See

-y-one. RS.
‘ode of Juve-
. recommen-
<eep the de-
er, 1980.
>tor conduct- |
ne defendant
discharged.
lant’s values
iat “suitable
to be sure he
is going to
nent.” That
‘ly rigid pro-
ed. On De-
_an was re-
int in Hous-
‘robation re-
inths Dalton
for killing a
the relative-
int’s house
returning to
-her and her
xed offshore
s discharged
he was only
'oyed at the
r Cleveland.

1 psychologi-
1ement. On

igence Scale,
Subtest and
“liam Haw-
‘ndant func-
in the verbal
tal retardate
He had a
1ance I.Q. of
h a full scale
..3 and six

he jury that
ange in the
2” retardate,
is, making it
..at his inner

3 considered
ynable. Vol-

ee
a ee

STATE v. PREJEAN
Cite as, La., 379 So.2d 240

untary intoxication does not excuse. The
combination of dull mentality, alcohol and
handguns could reasonably be said to in-
crease the probability of tragic repetition.

The actual degree of intoxication suf-
fered by the defendant is not without some
doubt. He had drunk beer and a glass of
wine over an entire night. He retained
sufficient control of his physical functions
to drive, shoot and escape.

The record will not support a conclusion
that defendant's capacity to appreciate the
criminality of his conduct was so impaired
because of his mental condition and intoxi-
cation that the death sentence was, for that
reason, excessive. Nor does a comparison
with similar cases in the district establish
that the sentence was disproportionate, con-
sidering both the crime and the defendant.’

The conviction and sentence are affirmed.

CALOGERO and DENNIS, JJ., concur
and assign reasons.

CALOGERO, Justice, concurring.

I concur in the affirmance of defendant’s
conviction and sentence. However, I be-
lieve that if defendant seeks a writ of habe-
as corpus, he is entitled to attempt to prove
the systematic exclusion of blacks from his
jury.

While defendant argued that blacks were
excluded from the jury, he presented no
evidence of the exclusion as required by our
decisions in State v. Washington, 375 So.2d
1162 (La.1979) and State v. Brown, 371

So.2d 751 (La.1979). And although he re-
quested a twenty-four hour continuance in

3. Since January 1, 1976 there have been two
first degree murder verdicts rendered in the
Fifteenth Judicial District, where the crime was
committed. Gloria Aucoin, a twenty-six year
old married woman, was convicted of the first
degree murder of her eight year old daughter.
The state argued as an aggravating circum-
Stance that the killing had been committed in a
heinous, atrocious and cruel manner. The de-
fendant claimed that she had acted as a result
of mental disease or defect and drug addiction
resulting from prior medical treatment. The
jury recommended a sentence of life imprison-
ment. This court affirmed the conviction and
sentence in State v. Aucoin, 362 So.2d 503
(La.1978). Theres. Thibeaux was convicted of
the first degree murder of her husband. Prior

=J 7p. wwe
3 a, : > :
ns ‘ 5 . S ne 7 “as
5 ‘~ j . “ . Pe
2 ; an. pet. fo. -
* - -
~~. : . : Lie 3 %
‘ —<.. = . rp ~ >, ~ St aan tT a. <
‘ - a ee Ce ee > ms 4
¢ 3% tl ee ~
‘ RS . me) . wis.
¥ tee’ i Le 4 nt = ‘ ee
- >
‘

La. 249

order to obtain evidence his request was
denied. Because this assignment presents a
possible violation of defendant’s constitu-
tional rights, and although he has a difficult
burden of proof under Washington and

Brown, defendant is entitled to make a
showing of the systematic exclusion.

DENNIS, Justice, concurring (in majority
opinion on original hearing).

I respectfully concur. I continue to disa-
gree, however, with the majority of this
Court in its insistence upon following the
federal jurisprudential rule in Swain v. Ala-
bama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d
759 (1965), instead of Article 1, § 3 of the
Louisiana Constitution in determining
whether a defendant has been denied equal
protection by the state’s use of peremptory
challenges on the basis of race. See State
v. Eames, 365 So.2d 1361, 1364 (La.1979)
(Dennis, J., concurring); State v. Kelly, 362
So.2d 1071, 1079 (La.1978) (Dénnis, J., con-
curring). Nevertheless, the trial court rul-
ing in this case did not violate our state
constitution because a prima facie case of
racially discriminatory peremptory chal-
lenges was not established.

DIXON, CALOGERO and DENNIS, JJ.

would grant a rehearing on the penalty
portion only.

ON APPLICATION FOR REHEARING

DENNIS, Justice, dissenting from denial
of rehearing.

I respectfully dissent from the majority’s
refusal to grant a rehearing in this case
with respect to the death penalty.

to the killing the couple had quarreled and the
husband had struck Mrs. Thibeaux several
times. No evidence of aggravating circum-
Stances was offered and the defendant was
sentenced to life imprisonment. This court re-
versed the conviction because of errors com-
mitted by the trial court as to the admissibility
of evidence of prior physical abuse of the de-
fendant by her husband. State v. Thibeaux,
366 So.2d 1314 (La.1978).

In the Fourth Judicial District, where the de-
fendant was tried, there has been only one first
degree murder verdict rendered since January
1, 1976. Charlie Lee Carter shot Alfred C.
Carter several times with a .38 caliber revolver.
On the recommendation of the jury Carter was
sentenced to serve life imprisonment.

et
Saeed
at

i. °
= ae —~
mt ee
I Fy . i

——— See A et

a 3

“

4 *s “, . ie ee van OS.
. Pied ¥ ’ » , “ 72 ;
: »% . Reig Si en. Dee . ekg
. bs + 5 a ys) a rig yr rf he s
\ A

we SS

250 La.

In his application for rehearing the de-

fendant has pointed out a fatal constitu-
tional flaw in our scheme for imposing the
death sentence. The statute mandating re-
view of every sentence to determine if-it-is—— 428 U.S. at 276, 96 S.Ct. at 2958 [empha-
excessive, La.C.Cr.P. art. 905.9, and the rule
of this Court establishing procedures for
such review, La.Sup.Ct. Rule 28, do not
provide for a review of the proportionality
of each sentence in comparison with sen-
tences in similar cases throughout the state.

In fact, at present, this Court does not have

the capability of this type of review, be-
cause it merely requires that the district
attorney in each death case reviewed file a
synopsis of each first degree murder case in

his district (comprised usually of one or two
Parishes) in which sentence was imposed

after January 1, 1976. Furthermore, a ma- .
jority of this Court has today adamantly

refused to expand the basis of its propor-
tionality review by either granting a
rehearing in this case or by amending its
rule to require annual reporting of capital
sentence proceedings results throughout the

- state. Apparently, a majority of this Court

is of the opinion that state-wide proportion-
ality review is not required as part of a
constitutional capital punishment scheme.
In my opinion, my fellow members of the
Court have fallen into error which could
ultimately require the United States Su-
preme Court to set aside the death penalty
in this and many other cases.

Louisiana’s first degree murder statute
was adopted in the wake of the United
States Supreme Court decisions in Gregg v.
Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49
L.Ed.2d 859 (1976), Proffitt v. Florida, 428
U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913
(1976), and Jurek v. Texas, 428 U.S. 262, 96
S.Ct. 2950, 49 L.Ed.2d 929 (1976). Each of
the statutes at issue in those cases provided
a varying degree of appellate review of
sentencing decisions.

The Texas scheme appears to have been
the least detailed. The United States Su-
preme Court was nevertheless satisfied
that,

“By providing prompt judicial review of

the jury’s decision in a court with state-,

379 SOUTHERN REPORTER, 2d SERIES

wide jurisdiction, Texas has provided a
means to promote the evenhanded, ra-
tional, and consistent imposition of death
sentences under law.” Jurek v. Texas,

sis supplied].

Apparently, the Supreme Court regarded as
important the moderating and evening ef-
fect that an appellate court with state-wide
jurisdiction would have in ensuring the fair
administration of the death penalty. In
Florida, though the state statute was ap-
parently silent on sentence review, the state
courts had assumed jurisprudentially an ob-
ligation to review sentences and to ensure
the even-handed application of the death
penalty. Describing the sentencing review
framework, the Supreme Court said:

“The statute provides for automatic re-
view by the Supreme Court of Florida of
all cases in which a death sentence has
been imposed. . . The law differs
from that of Georgia in that it does not
require the court to conduct any specific
form of review. Since, however, the trial
judge, must justify the imposition of a
death sentence with written findings,
meaningful appellate review of each such
sentence is made possible and the Su-
preme Court of Florida like its Georgia
counterpart considers its function to be to
‘(guarantee) that the (aggravating and
mitigating) reasons present in one case
will reach a similar result to that reached
under similar circumstances in another
case. . . .’” Proffitt v. Florida, 428
U.S. at 250-251, 96 S.Ct. at 2966.

By far the most detailed of the appellate
review schemes was that provided by the
Georgia statute. The Supreme Court de-
scribed the Georgia statute as follows:

“In addition to the conventional appellate
process available in all criminal cases,
provision is made for special expedited
direct review by the Supreme Court of
Georgia of the appropriateness of impos-
ing the sentence of death in the particu-
lar case. The court is directed to consider
‘the pu.ishment as well as any errors
enumerated by way of appeal’ and to
determine: | -

ee ee eg es -

— | |

STATE v. PREJEAN La. 25]
Cite as, La, 379 So.2d 240

is provided a
»nhanded, ra-
ition of death

.ek v. Texas,
2958 [empha-

d evening ef-
ith state-wide
- ring the fair
penalty. In
tute was ap-
iew, the state
ntially an ob-
ind to ensure

f the death
-ncing review
“t said:

iutomatic re-
of Florida of
sentence has
‘2 law differs
it it does not
t any specific
ever, the trial
position of a
ten findings,
‘ of each such
“and the Su-
e its Georgia
‘ction to be to
ravating and
in one case
that reached
in another
. Florida, 428
2966.

the appellate
vided by the
ne Court de-
“ollows:

mal appellate
iminal cases,
ial expedited
me Court of
ess of impos-
\. the particu-
-d to consider
S any errors
peal’ and to

‘(1) Whether the sentence of death was
imposed under the influence of passion,
prejudice, or any other arbitrary factor,
and

‘(2) Whether, in cases other than trea-

——__-________..son or. aircraft highjacking,- the evi-.

dence supports the jury’s or judge’s
finding of a statutory aggravating cir-
cumstance . . . and
‘(3) Whether the sentence of death is
excessive or disproportionate to the
penalty imposed in similar cases, con-
sidering both the crime and the defend-
ant. . ..
“If the court affirms a death sentence, it
is required to include in its decision refer-
ence to similar cases that it has taken
into consideration. ;
“A transcript and complete record of the
trial, as well as a separate report by the
trial judge, are transmitted to the court
for its use in reviewing the sentence.
The report is in the form of a
6'%-page questionnaire, designed to elicit
information about the defendant, the
crime, and the circumstances of the trial.
It requires the trial judge to characterize
the trial in several ways designed to test
for arbitrariness and disproportionality of
sentence.” Gregg v. Georgia, 428 U.S. at
166—167, 96 S.Ct. at 2922.

Upon a state constitutional provision that
in any event already provided for excessive-
ness review, this state by both statute and
rule has adopted a death penalty review
framework that is almost identical to the
one described in Gregg v. Georgia, supra.
La.C.Cr.P. art. 905.9 enjoins this Court to
“review every sentence of death to deter-
mine if it is excessive” and directs the
Court to “establish such procedures as are
necessary to satisfy constitutional criteria
for review.” Acting pursuant to that di-
rection, this Court adopted Rule 28, § 1 of
which places upon this Court the same bur-
den and manner of review imposed upon
the Georgia Supreme Court by statute.
The language of Section 1, virtually identi-
cal to the. Georgia statute, provides:

“Every sentence of death shall be re-

viewed by this court to determine if it is

excessive. In determining whether the

sentence is excessive the court shall de-
termine:

(a) [W]Jhether the sentence was imposed
under the influence of passion, prejudice
or any other arbitrary factors, and

-“(b) [W]hether the evidence supports the
jury’s finding of a statutory aggravating
circumstance, and
“(c) [WJhether the sentence is dispropor-
tionate to the penalty imposed in similar
cases, considering both the crime and the
defendant.” Rule 28, § 1; Rule 905.9.1.

In State v. Sonnier, 379 So.2d 1336 (La.

1979), this Court recognized that, “This is
the same procedure for review authorized

by Georgia statute approved by the United
States Supreme Court in Gregg v. Georgia,

”

supra.” This Court having been directed to
adopt constitutional criteria for sentencing

review, and having chosen those criteria
used in Georgia and approved by the Unit-

ed States Supreme Court, it is appropriate
to refer to the Georgia framework to divine

the full nature of this Court’s obligation
under its adopted rule. The Supreme Court

in Gregg v. Georgia, supra, described how

the Georgia system operated and approved

it.
“In performing its sentence-review func-
tion, the Georgia court has held that ‘if
the death penalty is only rarely imposed
for an act or it is substantially out of line
with sentences imposed for other acts it
will be set aside as excessive.’ Coley v.
State, 231 Ga. [829], at 834, 204 S.E.2d
[612], at 616. The court on another occa-
sion stated that ‘we view it to be our duty
under the similarity standard to assure
that no death sentence is affirmed unless
in similar cases throughout the state the
death penalty has been imposed generally

.’ Moore v. State, 233 Ga. 861,

864, 213 S.E.2d 829, 832 (1975). See also
Jarrell v. State, supra, 234 Ga. [410] at
425, 216 S.E.2d [258], at 270 (standard is
whether ‘juries generally throughout the
state have imposed the death penalty’);
Smith v. State, 236 Ga. 12, 24, 222 S.E.2d
308, 318 (1976) (found a ‘clear pattern’ of
jury behavior).
“It is apparent that the Supreme Court of
Georgia has taken its review responsibil-
ities seriously. In Coley, it held that
-——~ —— — —-

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Y, he Lae 4 : ; rd t a Ke, Jee } «4 eae 4 Pe oe Jae A) es. Gs ce hae. vers vf as”) A RRS
wet , ae the . Pu * re 6£ Ae SRR. g8 . : . TA ae Oe Te Te ON: ree chs Ty Soe 2 Ee? J iigy.*. *
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| gh : ray ie: 2 A ‘ “ P 5 Se ant; ; ie. et a / ee, ae =a f ; . MP sv vt .
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252 = La.

‘(t]he prior cases indicate that the past
practice among juries faced with similar
factual situations and like aggravating
circumstances has been to impose only

379 SOUTHERN REPORTER, 2d SERIES

scheme, premised upon the same language
as the Louisiana scheme, is one that pro-
vides for state-wide comparisons with all
“similar cases,” whether or not death was

— = ee +

ge eee ee

the sentence of life imprisonment for the
offense of rape, rather than death.’ 231
Ga., at 835, 204 S.E.2d, at 617. It there-
upon reduced Coley’s sentence from death
to life imprisonment. Similarly, although
armed robbery is a capital offense under
Georgia law, § 26-1902 (1972), the Geor-
gia court concluded that the death sen-
tences imposed in this case for that crime
were ‘unusual in that they are rarely
imposed for (armed robbery). Thus, un-
der the test provided by statute,

they must be considered to be excessive
or disproportionate to the penalties im-
posed in similar cases.’ 233 Ga., at 127,
210 S.E.2d, at 667. The court therefore
vacated Gregg’s death sentences for arm-
ed robbery and has followed a similar
course in every other armed robbery
death penalty case to come before it .

“The provision for appellate review in the
‘Georgia capital-sentencing system serves
as a check against the random or arbi-
trary imposition of the death penalty. In
particular, the proportionality review
substantially eliminates the possibility
that a person will be sentenced to die by
the action of an aberrant jury. If a time
comes when juries generally do not im-
pose the death sentence in a certain kind
of murder case, the appellate review pro-
cedures assure that no defendant convict-
ed under such circumstances will suffer a
sentence of death.” Gregg v. Georgia,
428 U.S. at 204-206, 96 S.Ct. at 2940.

[emphasis supplied]

Plainly, the Georgia Supreme Court has
interpreted its statute, identical to our rule,
as requiring it to compare any case before it
with all “similar cases” not simply those
from one particular court but those from
throughout the state. Additionally, the
Georgia Supreme Court considers not only
those murder cases in which a capital con-
viction was obtained but also those murder
cases in which life imprisonment was rec-
ommended. Gregg v. Georgia, supra, 428
U.S. 204, 96 S.Ct. 2909. The Georgia

recommended, and it is this scheme, and
this scheme alone, that was approved by the
United States Supreme Court in Gregg vy.
Georgia as providing a sufficient format for
appellate review of jury sentencing deci-
sions.

As I read Gregg, Jurek and Proffitt, this
Court must give the same meaning to its
rule as the Georgia court gave to its stat-
ute; this Court should, accordingly, judge
the proportionality of each death penalty by
comparing it with all “similar cases”
throughout the state, both those in which
death was recommended and those in which
life was recommended. The language of
the rule itself, the policies underlying that
rule, and the aberrations that would flow
from any other interpretation require such
a result.

+4ums

STATE of Louisiana
¥.
Don RIPTOE.
No. 66290.

Supreme Court of Louisiana.

Dec. 20, 1979.
Dissenting Opinion Feb. 4, 1980.

On Writ of Review to lst Judicial District
Court, Parish of Caddo; C. J. Bolin, Jr.,

Judge.

Donald R. Minor, Indigent Defender Of-
fice, Shreveport, for defendant-relator.

William J. Guste, Jr., Atty. Gen., Barbara
Rutledge, Asst. Atty. Gen., Paul J. Car-
mouche, Dist. Atty., Charles W. Kelly, IV,
Asst. Dist. Atty., Shreveport, for plaintiff-
respondent.

PER CURIAM.

The ruling of the trial court is reversed.
No probable cause having been established

‘eyes oO

St <2,

ee
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

DALTON PREJEAN,
Petitioner-Appellant,

VERSUS NO. 83-4548

FRANK C. BLACKBURN, et al,

Respondents—Appellees.

BRIEF ON BEHALF OF RESPONDENTS-APPELLEES

J. NATHAN STANSBURY
DISTRICT ATTORNEY

P. O. Box 3306
Lafayette, La. 70502

Telephone (318) 232-5170
Of Counsel:

John H. Hall
Mitchell A. Karlan
Martha J. Olson
Debevoise & Plimpton
875 Third Avenue

New York, New York 10022

Thomas E. Guilbeau
Attorney at Law
P. 0. Box 3331
Lafayette, La. 70502
TABLE OF CONTENTS

Table of Authorities-------------------------------~-~-
Statement of Jurisdiction ------—------—---------—---~---~-
Questions presented ----------------------—-------------
Statement of the Case -------------—------------------~-
Summary of Argument ---------------—-------------------~-
Argument ----------------------------------------------
bs The Sentence Violates the Eighth and
Fourteenth Amendment to the United States
Constitution---------------------=-----------

II. The Louisiana Supreme Court's Review of
Death Sentences is Unconstitutionally
Inadequate ----------------------------------

III. The Louisiana Supreme Court Affirmed the
Sentence on the Basis of Inadmissible
Evident €----- nn nn rr rn nnn -

IV. District Court Erred in Refusing an
Evidentiary Hearing on the Issue of
Exclusion of Blacks from the Jury -----------

V. Intentional Racial Discrimination

Against Blacks Convicted of Killing
Whites—---------------------------~-----~-

TABLE OF AUTHORITIES

CASES

Barker v. Wingo, 407 U.S. 514, 522-525

Bell v. Ohio, 438 U.S. 637 (1978)

Cicenia v. Gay, 78 S.Ct. 1297

Coker v. Georgia, 433 U.S. 584 (1978)

Eddings v. Oklahoma, 102 S.Ct. 869 (1982)

Everfield v. United States, 86 S.Ct. 1045 (1966)

Furman v. Georgia, 408 U.S. 238, 240

Germany v. Estelle, 639 F.2d 1301 (5th Cir., 1981)

Gregg v. Georgia, 428 U.S. 153

Ingram v. Wright, 430 U.S. 657

Jurek V. Texas, 428 U.S. 262, 96 S.Ct. 2950 49 L.Ed. 929 (1976)
Lockett v. Ohio, 438 U.S. 586 98 S.Ct. 2954 57 L.Ed.2d 973(1978)
Massachusetts Board of Retirement v. Murgia, 427 U.S. 307

Mater of M.E., 584 P.2d 1340, Cert. Denied 436 U.S. 921,
98 $.Ct. 2271, 56 L.Ed. 763

Prejean v. Louisiana, 449 U.S. 891, 101 S.Ct.253, 66 L.Ed. 2d
119 (1980)

Proffitt v. Florida, 428 U.S. 242

Roberts v. Louisiana, 431 U.S. 633

Rummel v. Estelle 445 U.S. 263 , 63 L.Ed.2d 382, 100 S.Ct.
1133 (1980)

Smith V. Balkcom, 66- F.2d 573 (5th Cir.)

Smith v. Johnson, 458 F.Supp 289, 296 (E.D. La. 1977)

rt i

PAGE

15
Leg Loy 28

18, 19

13
CASES

Spinkellink v.. Wainright, 578 F.2d, 582 (5th Cir. 1978)
State v. Berry, 391 So.2d 406 (1980)

State v. Felde, 422 So.2d, 370 (1982)

State v. Prejean, 379 So.2d 240, Rehearing denied 1/28/80
State Ex Rel Prejean v. Blackburn, 407 So.2d 1189 (La.1981)
State v. Tyler, , 342 So.2d 574

State v. Whatley, 320 So.2d 123 (La. 1975)

State v. Williams, 383 So.2d 369 (1980)

Sumner v. Mata, 449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d,
722 (1981)

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759
U.S. v. McLaurin, 557 F.2d 1064 (Sth Cir. 1977)

Vance -v. Bradley, 440 U.S. 93

Williams v. Illinois, 90 S.Ct. 2018 (1970)

Williams v. Maggio, 679 F.2d 381, 394-5 (5th Cir. 1982)

Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978,
49 L.Ed.2d 944 (1976)

CODES

La. Code of Criminal Procedure Art. 905

La. Code of Criminal Procedure Art. 557

“tii

PAGE

Lay 10

3, 14

11, 18

Sau Sp Se tee he

8
STATUTES AND RULES

La. Rev. Statute 14:30

La. Supreme Court Rule 28

CONSTITUTIONS

Louisiana Constitution Art. V, Sec. 19

iv
CERTIFICATE OF INTERESTED PERSONS

No. 83-4548

The undersigned counsel of record certifies that the following
listed persons have an interest in the outcome of this case. DALTON

PREJEAN, Appellant, and FRANK C. BLACKBURN and the STATE OF LOUISIANA,

Vege df eis

- NATHAN STANSBURY
Attorney of Record for Appellees

Appellees.

STATEMENT REQUESTING ORAL ARGUMENT

Appellees, Frank C. Blackburn and the State of Louisiana respect-
fully request oral argument on this appeal. Counsel understands that

argument on this appeal has been scheduled for the week of December 5,

1983.

STATEMENT OF JURISDICTION

This is an appeal from a denial of a petition for a writ of
habeas corpus, brought pursuant to 28 U.S.C. Sec. 2254. This Court

has jurisdiction over the appeal pursuant to 26 U.S.C. Sec. 129i.
STATEMENT OF THE CASE

At about five o'clock in the morning of July 2, 1977, the defendant,
Dalton Prejean, his brother Joseph, Michael George and Michael Broussard
left Roger's Nite Club in Lafayette Parish, Louisiana. The four had
spend the night drinking in various lounges in the vicinity. They left
Roger's Nite Club in a 1966 Chevrolet automobile driven by the defendant,
with his brother in the front seat and the other two in the back seat.
The automobile's tail lights were not working, and within a few hundred
feet of the lounge, State Trooper Donald Cleveland, who was on his way
to work, driving his police vehicle, signaled the Chevrolet automobile
to stop. The defendant and his brother attempted to switch places in
the front seat because the defendant was driving without a license.

The Officer noticed the switch and ordered the occupants out of the car.
He told Michael George and Michael Broussard to get back in the car, and
began — down'' search of Joseph Prejean. Dalton Prejean, back in

the car, obtained a .38 caliber revolver from under the car seat, got

out of the car and approached the officer with the gun hidden against

his leg. As he reached the back of his vehicle, he fired without warning.
Trooper Cleveland was struck by two bullets and was killed. The defendant
and his companions fled the scene, removed the license plate on the
vehicle. Dalton Prejean changed his clothes and disposed of the gun.

All four occupants were arrested several hours later. Throughout these

proceedings, Prejean has not contested the commission of the homicide.
Dalton Prejean was charged by grand jury indictment with first

degree murder in violation of the provisions of R.S. 14:30. The trial

was transferred from Lafayette Parish to Quachita Parish because of

pretrial publicity, based on the fact that Donald Cleveland was the first

Louisiana State Police Officer killed in the line of duty, as well as

the fact that Dalton Prejean had been previously adjudicated delinquent

for first degree murder committed during an armed robbery when he was

fourteen years of age. Insomuch as only "conviction" for prior unrelated

murder is admissible as evidence to constitute first degree murder, I

the "adjudication" of murder was not allowed as evidence, and by Change

of Venue was effectively concealed from the trial jury. The prior killing

was likewise not allowed as evidence in the penalty portion of the

bifurcated trial as an aggravating circumstance. *
After a three day bifurcated trial beginning on May 1, 1978, a

jury of ‘twelve persons unanimously found the defendant guilty as charged

and having found unanimously and beyond a reasonable doubt one aggravating

circumstance, that the victim was a peace officer engaged in his lawful

duties, recommended that the death penalty be imposed. In accordance

with that recommendation, the trial judge sentenced the defendant to

death.

he LRS 14:30 (2) When the offender has a specific intent to kill or to
inflict great bodily harm upon a fireman or peace officer engaged
in the performance of his lawful duties.

Ze La. C.C.P. Art. 905.4 (c) - the offender was previously convicted
of an unrelated murder, aggravated rape, or aggravated kidnapping
or has a significant prior history of criminal activity.

As required by Louisiana Code of Criminal Procedure Article 905.9.1

Sec. 3,3 the trial judge completed and filed a Uniform Capital Sentence
Report as well as obtaining a sentence investigation.

The Louisiana Supreme Court reviewed the conviction and sentence
both as a direct appeal and as required by La. C.C.P. Art. 905.9.1 4

to determine if the sentence was excessive. The conviction and sentence
were affirmed on November 29, 1979, STATE V. PREJEAN, 379 So.2d 240,

rehearing denied January 28, 1980.

A Petition for Writ of Certiorari to the United States Supreme
Court was filed June 23, 1980, and denied October 6, 1980. Rehearing
was denied on December 1, 1980. The only issue raised in the Application
for Certiorari to the United States Supreme Court attacked the provisions
of Louisiana Code of Criminal Procedure Article 905.9.1 and Louisiana

Supreme Court Rule 28 which provides for review of sentences on a

district-wide basis to determine excessiveness of sentence. The Writ

was denied without opinion.

3. La. C.C.P. Art. 905.9.1 (3) - (a) Whenever the death penalty is
imposed, the trial judge shall expeditiously complete and file
in the record a Uniform Capital Sentence Report (see Appendix ''B").
The trial court may call upon the District Attorney, defense counsel
and the Department of Probation and Parole of the Department of
Corrections to provide any information needed to complete the report.

(b) The trial judge shall cause a sentence investigation to be
conducted and the report to be attached to the Uniform Capital
Sentence Report. The investigation shall inquire into the defendant's
prior delinquent and criminal activity, family situation and back-
ground, education, economic and employment status, and any other
relevent matters concerning the defendant. This report shall be

sealed, except as provided below.
(c) Defense counsel and the district attorney shall be furnished a
copy of the completed Capital Sentence Report and of the sentence
investigation report, and shall be afforded seven days to file a
written opposition to their factual contents. If the_opposition
shows sufficient grounds, the court shall conduct a contradictory
hearing to resolve any substantial factual issues raised by the
reports. In-all cases, the opposition, if any, shall be attached
to the reports.

(d) The preparation and lodging of the record for appeal shall not
be delayed pending completion of the Uniform Capital Sentence Report.

La. C.C.P. Art. 905.9.1 Sec. 1 - Review Guidelines. Every sentence
of death shall be reviewed by this court to determine if it is
excessive. In determining whether the sentence is excessive the
court shall determine:

(a) Whether the sentence was imposed under the influence of passion,
prejudice or any other arbitrary factors, and

(b) Whether the evidence supports the jury's finding of a statutory
aggravating circumstances, and

(c) Whether the sentence is disproportionate to the penalty imposed
in similar cases, considering both the crime and the defendant.
Previous execution dates have been stayed in order to consider
issues raised by Prejean. Application for Post-Sentence Relief was
filed in State District Court in Quachita Parish, Louisiana, which was
denied, after hearing, on April 9, 1981. The Louisiana Supreme Court
denied an nlicarion for supervisory writs and stay .of execution on
April 11, 1981.

The United States District Court for the Western District of Louisiana
granted a stay of execution, which had been scheduled for April 15, 1981,

to consider petitioner's writ of habeas corpus.

On September 2, 1981, the United States District Court dismissed
petitioner's Application for Writ of Habeas Corpus, without prejudice,
but extended the stay of execution until October 15, 1981 to allow
petitioner to present his unexhausted Eighth Amendment claim (based on
the issue of age of the petitioner at the time of the offense), to the
Louisiana Supreme Court. The Order allowing time to present the un-
exhausted Eighth Amendment claim was extended to November 6, 1981, by
minute entry of the United States District Court.

On November 6, 1981, the Louisiana Supreme Court stayed further
proceedings pending action by that Court on petitioner's Application
for Supervisory Writs. The Application for Supervisory Writs was denied
with the stay order of the Louisiana Supreme Court extended for thirty

days "to permit petitioner to apply to the Federal Court".

ae STATE EX REL PREJEAN V. BLACKBURN, 407 So.2d 1189 (La. 1981)
The United States District Court for the Western District of
Louisiana rendered its opinion on August 5, 1983, dismissing petitioner's
application for habeas corpus relief and setting September 1, 1983, at
10:00 A.M. for dissolution of the stay of execution previously rendered.

This Honorable Court stayed the execution date ordered in the
State District Court for October 7, 1983, and has scheduled a hearing

for the week of December 5, 1983.
pe a eat en a es A tna ae

STANDARDS OF REVIEW

The United States Supreme Court, in the response to ever increasing
habeas petitions, has set down the reviewing posture of Federal Courts
under 28 USC Sec. 2254. In SUMNER V. MATA, 449 U.S. 539 101 S.Ct. 764,

66 L.Ed.2d, 722 (1981), the Court stated:

". . . the findings made by the state court system’ shall

be presumed to be correct’ unless one of seven conditions
specifically set forth in Sec. 2254(d) (is) found to exist
by the federal habeas court. If none of those seven condi-
tions (are) found to exist, or unless the habeas court
concludes that the relevant state determination is not
"fairly supported by the record', 'the burden shall rest
upon the applicant to establish by convincing evidence

that the factual determination by the state court (is)

erroneous’ (emphasis supplied)."" (Footnote omitted).

The SUMNER court made it clear that a '‘hearing' on a state prisoner's
habeas petition by a state trial or appellate court requires an adver-
sarial airing of the issues but no set procedures. SUMNER V. MATA,

—a at 730-731; SEE GERMANY V. ESTELLE, 639 F.2d 1301 (5th Cir.,
1981). The State court's factual determinations are sufficient if
evidenced by ". . . a written finding, written opinion or other reliable

and adequate written indicia’. SUMNER V. MATA, supra, at 730-731;

28 U.S.C. Sec. 2254(d).
ARGUMENT

I. THE SENTENCE VIOLATES THE
EIGHT AND FOURTEENTH AMENDMENT
TO THE UNITED STATES CONSTITUTION
This claim is based primarily on petitioner's age at the time of
the crime. Although the United States Supreme Court had the opportunity

to shed light on this issue in EDDINGS V. OKLAHOMA, 102 S.Ct. 869 (1982),

the Court chose to base its opinion on other grounds. Nevertheless,

EDDINGS would not have resolved the issue of Prejean because of the

differences between the two cases.

Monty Lee Eddings was 16 years of age and a juvenile under Oklahoma
law, Dalton Prejean was 1/7 years of age and an adult under Louisiana
law. Eddings had been certified for trial as an adult under 10 Oklahoma
Statutes Supp. 1978 Sec. 1112. Dalton Prejean had previously been treated .
as a juvendie for a previous killing, however, when he killed Trooper
Donald Cleveland, he had reached the statutory age providing for adult
status. LOUISIANA CONSTITUTION, 1974 Article V, Sec. 19. Dalton Prejean
contested his guilt while Monty Lee Eddings entered a plea of Nolo
Contendere after his certification as an adult was affirmed by the
Oklahoma Court of Appeals and Certiorari was denied by the United
States Supreme Court. MATER OF M.E., 584 P.2d 1340, Cert. Denied 436
U.S. 921, 98 §.Ce. 2271, 56 L.Ed. 763. Under Louisiana law, Prejean

could not enter such a ple: in a capital case. LOUISIANA CODE OF

CRIMINAL PROCEDURE, ART. 55/7.
Fa ee cay an TEs pee a Meter eee Lee

In EDDINGS, the trial court found three aggravating circumstances:
(1) that the murder was "especially heinous, atrocious, or cruel;
(2) that the murder was "committed for the purpose of avoiding or pre-
venting lawful arrest or prosecution"; (3) that petitioner would
"constitute a continuing threat to society". The trial judge found only
one mitigating circumstance, that of the youth of the offender.
Apparently, the Louisiana penalty trial for capital cases differs
greatly from that of Oklahoma in that the jury in Louisiana must find
the aggravating circumstance and specifically lists age of the offender,

as well as "any other relevant mitigating circumstance" which shall

be considered. LOUISIANA CODE OF CRIMINAL PROCEDURE, at 905.5 (f) and (h).
It is clear that the decision of the United States Supreme Court
in EDDINGS would have been conclusive in Prejean only if the Court
affirmed the sentence of death for Eddings.
Eddings does contain language which Prejean, as well as the State
of Louisiana offer in support of its position. As often occurs in
death cases before the United States Supreme Court, there is no clear
axtoriéy from which to glean a "rule of law".
Assuming that the LOCKETT 6 issue was not present in EDDINGS

(as is the case in Prejean), the Court would have affirmed the judgment.

6 LOCKETT V. OHIO, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978)

Given the difference in age, the circumstances surrounding the offenses,

the mode of trial, and the consideration of all mitigating circumstances
presented, the United States Supreme Court would affirm Prejean on the
age issue. |

As stated by Chief Justice Berger,

" (But) the Constitution does not Authorize us to

determine whether sentences imposed by State Courts

are sentences we consider ‘appropriate’; our only

authority, is to decide whether they are constitutional

under the Eighth Amendment." EDDINGS at page 883;

If any guidance can be found in EDDINGS, it is that even a sixteen
year old may be subject to the extreme penalty of death so long as
it is imposed by a Constitutional format. Louisiana's procedure is
such a format.

In the State of Louisiana, a person under the age of seventeen
is treated as a juvenile and is not subject to criminal trial or
criminal punishment. In certain serious offenses, a person under the
age of seventeen may be tried as an adult and receive adult punishment.
(Appendix ). Dalton Prejean himself was the beneficiary of the
evolving societal concerns for offenses of children. At age fourteen
he was treated as a "juvenile" and not subject to adult punishment
for a homicide committed during an armed robbery. It was this same
special concern for juvenile offenders that prohibited the trial
jury from knowing of the prior homicide during the sentencing trial.

Except for this special tr ‘atment of juvenile offenders in Louisiana

that evidence would have been admissible as proof of another aggravating

Ais Louisiana Constitution Article V Sec. 19.

in
.
;
.

Circumstance under Louisiana Code of Criminal Procedure Article
905.4 (c). ®

In interpreting the Constitutional division between the State and
Federal Government, the Courts have agreed that the States have wide
latitude in administering their own systems of criminal justice and in
fixing punishment for state crimes. CICENIA V. GAY, 78 S.Ct. 1297;
WILLIAMS V. ILLINOIS, 90 S.Ct. 2018 (1970). See also EVERFIELD V.
UNITED STATES, 86 S.Ct. 1045 (1966) in which the Court approved a broad

. juvenile transfer procedure existing in the District of Columbia.

The Court has ruled that capital punishment is inappropriate for
the crime of rape. COKER V. GEORGIA, 433 U.S. 584 (1978) and struck
down procedures which limited the mitigating circumstances considered
by the jury in finding the death penalty in a particular case. LOCKETT
V. OHIO, 438 U.S. 586, 98 S.Ct. 2954; BELL V. OHIO, 438 U.S. 586, 98

S.Ct. 2977; ROBERTS V. LOUISIANA, 431 U.S. 633; WOODSON V. N. CAROLINA,

428 U.S. 280.

Age itself is not regarded as a "suspect class" under the United
States Constitution. MASSACHUSETTS BOARD OF RETIREMENT V. MURGIA, 427
U.S. 307; VANCE V. BRADLEY, 440 U.S. 93. Furthermore, the Supreme Court
has been reluctant to impose inflexible rules upon a state's criminal

justice system. BARKER V. WINGO, 407 U.S. 514, 522-525.

8 Louisiana Code of Criminal Procedure Art. 905.4 (c) " the offender
was previously convicted of an unrelated murder . ‘a

11.
In INGRAM V. WRIGHT, 430 U.S. 657, the Court stated that the Cruel
and Unusual Punishment Clause limits the punishment which can be
inflicted by the state in three (3) ways:

"First, it limits the punishment that can be imposed

on those convicted of crimes .. . second, it proscribes

punishment grossly disproportionate to the severity of

the crime .. . and third, it imposes substantive limits

on what can be made criminal and punished as such."

430 U.S. at 667. .
Nowhere in those standards is there a prohibition against punishment
of non-suspect classes of persons. Cf. FURMAN V. GEORGIA, 408 U.S. 238,
240 (J. Douglas concurring). See also SPINKELLINK V. WAINRIGHT, 578
F.2d, 582 (5th Cir. 1978). Nor can the petitioner claim that the
imposition of the death sentence in the present case is grossly dis-
proprotionate to the severity of the crime, particularly comparing the
facts in the present case to those in PROFFITT V. FLORIDA, 428 U.S. 242
and GREGG V. GEORGIA, 428 U.S. 153; RUMMEL V. ESTELLE, 445 U.8.

263 , 63 L.Ed.2d 382, 100 S.Ct. 1133(1980); Cf. COKER V. GEORGIA,

supra. Furthermore, as Justice Stewart stated in GREGG:

".o. . we are concerned here only with the imposition

of capital punishment for the crime of murder, and

when a life has been taken deliberately by the offender,

we cannot say that the punishment is ivariably dispro-

portionate to the crime." 428 U.S. at 187.

The State contends that the better approach is to allow a defendant,

as the State allowed petitioner to do in the present case, to present

his or her age as a mitigating circumstance.

12.

The State submits, therefore, that the imposition of the death

penalty in the present case is in accord with statutory procedures
approved in PROFFITT V. FLORIDA, supra and GREGG V. GEORGIA, supra.

The United States District Court properly determined this issue to

be without merit when it said:

"Louisiana Revised Statute 14:30 constitutes a
legislative classification that the crime of murder,
in certain instances, is a capital offense. STATE V.
WHATLEY, 320 So.2d 123 (La. 1975), rehearing denied,
1975. This classification, along with the policy of
adult treatment of juveniles over a certain age
convicted of that crime, indicates a legislative
intent to punish persons such as petitioner, to the
full extent permitted by the Constitution. SMITH V.
JOHNSON, 458 F.Supp. 289, 296 (E.D.La. 1977).
"Therefore in assessing a punishment selected by a
democratically elected legislature against the
Constitutional measure, we presume its validity."
GREG V. GEORGIA, supra. at 174, 96 S.Ct. 49 L.Ed.

2d at 876. See also COKER V. GEORGIA, 433 U.S. 584,
97 S.Ct. 2861, 53 L.Ed. 2d 982 (1977)."

13,
II. THE LOUISISNA SUPREME COURT'S REVIEW OF
DEATH SENTENCES IS UNCONSTITUTIONALLY INADEQUATE

Petitioner contends that the Louisiana Supreme Court review of
death penalty cases is constitutionally inadequate. It is Prejean's
contention that a review of similar cases would show his sentence
excessive. At the time of the review (November 29, 1979 STATE V.
PREJEAN, supra), there were no other first degree murder cases based
on Section (2) of Louisiana Revised Statute 14:30. The only other
cases in which the killing of a peace officer engaged in his lawful
duties, which convictions occurred subsequent to Prejean were STATE V.

FELDE, 422 So.2d, 370 (1982) and STATE V. BERRY, 391 So.2d 406

(1980). ; In BERRY, the victim of the homicide was a deputy sheriff,

in uniform, acting as a bank security guard. In FELDE, the victim

was a city policeman transporting Felde as a prisoner. Although
both cases were reviewed subsequent to Prejean, they both resulted
in the jury verdict of death.

The only other youthful offender sentenced to death (not however
for killing a police officer) in Louisiana in recent years was Gary
Tyler, who was sixteen at the time of the murder. Tyler's death
sentence was vacated after ROBERTS V. LOUISIANA, 428 U.S. 325, 96
S.Ct. 3001, 49 L.Ed.2d 974 (1976). ROBERTS was decided after Tyler's

conviction. STATE V. TYLER, 342 So.2d 574.

9 STATE V. WILLIAMS, 383 So.2d 369 (1980) was a security guard,
however, this was not found to be an aggravating circumstance.

14.
Prejean himself seeks to set his case apart from all others with

his age argument, yet complains of lack of comparison with "similar"
cases. There have been no "similar" cases to Prejean with which to
compare. This issue was squarely placed before the United States

Supreme Court, which rejected the Writ Application. PREJEAN V. LOUISIANA,

449 U.S. 891 , 66 L.Ed.2d 119, rehearing denied
U8. 66 L.Ed.2d 489.

Louisiana Code of Criminal Procedure Article 905.9.1 requires the
Louisiana Supreme Court to review all first degree murder cases within
the same district being reviewed. The Louisiana Supreme Court considered
the relevant first degree murder convictions in the district where the
offense occurred, and where the trial was held. The United States
District Court concluded:

"We cannot conclude that this review violated any

Constitutional Prohibition. WILLIAMS V. MAGGIO,
679 F.2d 381, 394-95 (5th Cir. 1982) (en banc)."

III. THE LOUISIANA SUPREME COURT AFFIRMED THE SENTENCE
ON THE BASIS OF INADMISSIBLE EVIDENCE

Because the Louisiana Supreme Court, in a very thorough review
of the sentence imposed on Prejean, reviewed many matters that were
not part of the evidence presented to the jury, Prejean complains.
Most of this information came from mandatory sentence investigation

10 all of which is designed to

reports and sentence review memoranda
provide a thorough capital sentence review. On one hand Prejean objects

to a portion of the Louisiana Supreme Court's thorough tracing of the

10 Code of Criminal Procedure Article 905.9.1 (3)(4).

15.
life of Dalton Prejean in its proportionality review and on the other

hand counsel for Prejean quotes from Dr. Dowling's statement at page 22
of Petitioner's brief which was likewise not presented to the jury.
Dr. Dowling did not testify. |

A reading of the Louisiana Supreme Court opinion clearly shows a
thorough, honest,fair and Constitutional review of Dalton Prejean's

case.

IV. DISTRICT COURT ERRED IN REFUSING AN EVIDENTIARY
HEARING ON THE ISSUE OF EXCLUSION OF BLACKS FROM THE JURY

This issue was first raised at trial on May 1, 1978. At the time
counsel for Prejean had no evidence to offer to support his claim.
The issue was argued again the next day and again counsel for Prejean
had no evidence. In his per curiam the trial judge noted that the
attorney for Prejean who was active in criminal practice would have
"knowledge of any racial discrimination by the district attorney". It
The trial judge further noted that to his knowledge "there was no
systematic exclusion of blacks in the Fifteenth Judicial District, by -
any means". 11 if nothing else, counsel for Prejean could have testified
to systematic exclusion of blacks. He did not because as the trial court

noted, it does not exist.

Again at the motion for new trial hearing, no evidence was offered

to support petitioner's claim although any records or, other evidence

would then have been avail :ble.

11 STATE V. PREJEAN, 379 So.2d 240 at page 243

16.

Again on April 9, 1981, three years after the trial, Prejean
had the opportunity to produce evidence to support this claim. The
Federal record contains the transcript of the Post Conviction Relief
hearing held on that date.12 at page 122 of that transcript counsel
for Prejean offers his evidence - the claim that one of the two pros-
pective jurors challenged by the —_ in the aborted attempt to select
a jury in Lafayette Parish, where the offense occurred, was of the black
race. No evidence of the race of either jurors excused by the State
was offered. The challenges occurred in the same case which is the
subject of this Writ. At that time, if not before, Prejean had the
opportunity to present evidence to support his conclusory allegations.
At the hearing on Post Sentence Relief, the trial judge asked "anything
else on this matter?" 13 Silence followed.

In order to claim an unconstitutional jury by exclusion of blacks

by the prosecutor, the claimant must show a system and must do so with

evidence, not conclusion. SWAIN V. ALABAMA, 380 U.S. 202, 85 S.Ct. 824,

13 L.Ed.2d 759; U.S. V. MCLAURIN, 557 F.2d 1064 (5th Cir. 1977). The
trial Court, Louisiana Supreme Court and the United States District

Court properly concluded that this claim is without merit.

12 Federal Record at page 105-152

13 Federal Record at page 127

i7.
V. INTENTIONAL RACIAL DISCRIMINATION
AGAINST BLACKS CONVICTED OF KILLING WHITES

Prejean claims intentional racial discrimination in the imposition
of the death sentence. This claim, not previously made, is disposed
of by SPINKELLINK V. WAINRIGHT, 578 F.2d 582 (5th Cir.) and SMITH V.
BALKOM, 660 F.2d 573 (5th Cir.), both of which required proof of
"some specific act or acts evidencing intentional or purposeful .
discrimination against the petitioner"14 on the basis of race, sex or
wealth.

The statistics offered to show discriminatory application of the
death penalty would purport to demonstrate that defendants who murdered
whites have received the death penalty when other defendants who have
murdered blacks have received a life sentence. This Court has made it
clear that we not venture on a case by case comparison to ascertain the
truth or falsity of petitioner's claim. ''We need not repeat the myriad
of difficult problems, legal or otherwise, generated by such federal
court intrusion into the substantive decision making of the sentencing
process which is reserved to the... state courts ... "SPINLELLINK
V. WAINWRIGHT, supra. Consequently, "if a state follows a properly
drawn statute in imposing the death penalty, then the arbitrariness and

capriciousness - and therefore the racial discrimination condemned in

iw
FURMAN have been conclusively removed. Id. at 613-14.

14 SMITH, supra, at page 585

15 See FURMAN V. GEORGIA, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed. 346 (1972).
See also JUREK V. TEXAS, 428 U.S. 262, 96 S.Ct.2950 49 L.Ed. 929 (1976);
WOODSON V. NORTH CAROLINA, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976);
PROFFITT V. FLORIDA, 428 U.S. 242, 96 S.Ct. 2690, 49 L.Ed. 2d 913 (1976);
ROBERTS V. LOUISIANA, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

18.
The statistical data that petitioner intends to rely on, to show
discriminatory intent, are similar to those proffered in SMITH V. BALCOM,
supra. Nothing in petitioner's brief suggests that the evidence he would
introduce would be more probative than that in SMITH. The SMITH court's
conclusion that Smith did not consider "countless racially neutral variables"
which led to its finding of unsupported assumptions, applies equally to the
case at bar. The mere conclusory allegations in petitioner's brief is

not the type of evidence of racially disproportional impact which

would compel us to infer racially discriminatory intent.
CONCLUSION

For the foregoing reasons, petitioner's application for habeas

corpus relief, pursuant to 28 USC 2254, should be denied.

| Respectfully submitted,
Dated: Lafayette, La.

October 24, 1983

¥J NATHAN STANSBURY
ASTRICT ATTORNEY

19.
Apendix "A"

ACTS OF 1950

153 —_ Act 8&2

Except as otherwise provided herein, the court Shall origina) jurisdic.
have exclusive origina] jurisdiction in proceedings: one

1. Concerning any child whose domicile is within paABY child within

the parish or who is found within the parish:

(2) Whose parent or other person legally respon- ‘Neglected.

sible for the care and Support of such child neglects
or refuses, when able to do 80, to provide proper or
necessary support, education as required by law, or
medical, surgical or other care necessary for his wel]-
being; or who is abandoned by his parent or other
custodian; or who is otherwise without proper care,
custody, or support.

(b) Whose occupation, behavior, environment OF Welfare injured
associations are injurious to his welfare. ) |

(c) Who absents himself from home or usual Divebedient: —4
place of abode without the consent of his parent or *t2* "" ee
other custodian or who is habitually disobedient or |
beyond the contro) of his parent or other custodian.

(d) Who, being required by law to attend school, wilfully refuses to

willfully violates rules thereof or absents himself ****?¢ *¢beol.

therefrom.

(e) Who violates any Jaw or ordinance, except en.
a child charged with having committed a eupital dase
crime or a crime defined by any law defining at —_—-

_ tempted aggravated rape after having become fifteen

years of age. However, the Court shal] have exclusive
origina] jurisdiction concerning any child who vio-
lates any law or ordinance except a child fifteen
years of age or older charged with a capital crime
or assault with intent to commit aggravated rape.

3. To award the custody of a child domiciled within

the parish or who is actually in the parish to an ,,Avarding custody
agency, institution or individual when the parent or

other person having custody or care of the child wishes
* As it appears in the enrolled bill.
Act 82

Adoption.

- Commitment of
mentally defective or
disordered child.

Notice of proceed-
ings.

Adults violating
laws for protection of
children.

Desertion: non-

support.

Case to be heard in
court of offenders’
domicile.

154

to relinquish custody or care for the purpose of en-
i the child to receive adequate care and protec-
on. -

4. For the aduption of a child under seventeen years
of age, by observing the procedure prescribed by exist-

_ ing laws.

5. For the commitment of a mentally defective or
mentally disordered child in accordance with the pro-,
visions of Jaw for commitment of such persons. If it
shal] appear that any child concerning who a petition
has been filed is mentally defective or mentally dis-
ordered, the Court, before committing him to an in-
stitution, may cause such child to be examined by a
qualified psychiatrist, physician, or psychologist. On
the written statement of such psychiatrist or physician
that such child is mentally disordered, or on the writ-
ten statement of such psychologist that such child is

mentally defective, or at the discretion of the Court,

the Court may, by observing the procedure prescribed
by existing laws commit such child to an appropriate
institution authorized by law to receive and care for
such children. The parent, tutor or ae having the
care of such child shall be given due notice of any
proceedings hereunder.

6. Concerning any adult whose domicile is within
the parish or who is found within the parish who is
charged with the violation of any law now in existence

- or hereafter enacted for the protection of the physical,

moral or mental well-being of children under seven-
teen years of age, not punishable by death or hard
labor. Said Court shall also have jurisdiction of all
cases of desertion or nonsupport of children by either
parent, or nonsupport of a wife by her husband.

It is hereby declared to be the policy of this State
that a child who commits any act, or such conditions
otherwise exist to bring him within the provisions
hereof, should be presented to, and his case heard in,
the court of his domicile regardless of the parish in
which such act is committed or such other conditions
exist. Provided, however, that this shall not be con-
strued as to deprive the court of any parish of juris-
diction in any of the cases mentioned in this section,
if the-child, or his parent or custodian, is at the time
such act is committed or other conditions exist, present
within the parish, should the judge of said court in his
discretion see fit to exercise such jurisdiction.
Act 82

Adoption.

- Commitment of
mentally defective or
disordered child.

Notice of proceed-
ings.

Adults violating
laws for protection of
children.

Desertion; none

support.

Case to be heard in
eourt of offenders’
domicile.

154

to relinquish custody or care for the purpose of en-

i the child to receive adequate care and protec-
on.

4. For the aduption of a child under seventeen years
of age, by observing the procedure prescribed by exist-

_ Ing laws.

5. For the commitment of a mentally defective or
mentally disordered child in accordance with the pro-
visions of law for commitment of such persons. If it
shal] appear that any child concerning who a petition
has been filed is mentally defective or mentally dis-
ordered, the Court, before committing him to an in-
stitution, may cause such child to be examined by a
qualified psychiatrist, physician, or psychologist. On
the written statement of such psychiatrist or physician

that such child is mentally disordered, or on the writ-

ten statement of such psychologist that such child is

.mentally defective, or at the discretion of the Court,

the Court may, by observing the procedure prescribed
by existing laws commit such child to an appropriate
institution authorized by law to receive and care for
such children. The parent, tutor or person having the
care of such child shall be given due notice of any
proceedings hereunder.

6. Concerning any adult whose domicile is within
the parish or who is found within the parish who is
charged with the violation of any law now in existence
or hereafter enacted for the protection of the physical,
moral or mental well-being of children under seven-
teen years of age, not punishable by death or hard
labor. Said Court shall also have jurisdiction of all
cases of desertion or nonsupport of children by either
parent, or nonsupport of a wife by her husband.

It is hereby declared to be the policy of this State
that a child who commits any act, or such conditions
otherwise exist to bring him within the provisions
hereof, should be presented to, and his case heard in,
the court of his domicile regardless of the parish in
which such act is committed or such other conditions
exist. Provided, however, that this shall not be con-
strued as to deprive the court of any parish of juris-
diction in any of the cases mentioned in this section,
if the-child, or his parent or custodian, is at the time
such act is committed or other conditions exist, present
Within the parish, should the judge of said court in his
discretion see fit to exercise such jurisdiction.

a ee tt
Appendix "A"

ACTS OF 1974

Act 568

resentatives Charbonnet, Sour,
Rice, Landry, Bagert, Stephen-
son and Guidry.

AN ACT

To amend Title 13 of the Louisiana Revised Statutes of 1950 to add

thereto four new sections, to be designated as Sections 1571.1
through 1571.4 thereof, to provide for the transfer of delin-
quency cases from juvenile court to district court; to require a
hearing prior thereto; to establish the conditions for such trans-
fer; to provide for attorney representation and other constitu-
tional guarantees at such hearing; to terminate the jurisdiction
of the juvenile court upon such transfer, and otherwise to
_ provide with respect thereto. ee.

Be it enacted by the Legislature of Louisiana:

Section 1. Sections 1571.1 through 1571.4 of Title 13 of the
— Revised Statutes of 1950 are hereby enacted to read as
ollows: _ , e', 28

§1571.1. Transfer from juvenile court

A. Effective January 1, 1975, after a petition has been filed
alleging delinquency based on conduct which is designated a crime
or public offense by the statutes of the United States, of this state, -
or by ordinance of local political subdivisions exercising general
governmental functions, the court, before hearing the petition on its
merits, may transfer the alleged offender for prosecution to the
appropriate court exercising criminal jurisdiction if the district
attorney, the alleged offender, or the court on its own motion, files a
transfer petition and the following conditions are met:

(1) The child has attained the age of fifteen years or more at the

time of the alleged conduct;

(2) A hearing on whether thé transfer should be made is keld in
conformity with R.S. 13:1571.2; |

(3) Notice in writing of the time, place and purpose of the hearmg
is given to the child and his parents, tutor, or other custodian at
least ten days before the hearing, and « “9*

(4) The court finds that there are reasonable grounds to believe
that the child is not amenable to treatment or rehabilitation through

’ facilities available to the juvenile court.

(5) The child has previously been adjudicated a delinquent by the

commission of any of the following offenses: second degree murder,
manslaughter, negligent homicide, simple rape, armed robbery,

aggravated battery, aggravated burglary, aggravated arson an
aggravated kidnapping. :

B. The transfer terminates the jurisdiction of the juvenile court

13138
Act 568

over the child with respect to the delinquent acts alleged in the
petition. :

C. No child, either before or after attaining the age of seventeen
shall be prosecuted in criminal court for an offense which was
allegedly committed by the child who had not then attained the age

of seventeen unless the case has been transferred to criminal court
as provided herein, or except as otherwise provided by law.

-§1571.2. Conduct of transfer hearing

A. Hearings held pursuant hereto shall be conducted by the court
without a jury, in an informal but orderly manner, and separate
— —_ proceedings now included in R.S. 13:1563 or R.S.
13:1570. He

B. The district attorney's office shall, at the request of the court,
present the evidence in support of the proposed transfer.

C. If requested by the child, his parents or his attorney, or if
ordered by the court on its own motion, the proceedings shall be
recorded by stenographic notes, electronic, mechanical, or other
appropriate means. When a transfer is ordered, neither the record
of the hearing or the reasons for the transfer shall be admissible in
evidence in any subsequent criminal proceedings; provided, how-
ever, that the said records may be used for the-purpose of
impeachment of a witness.

D. The general public shall be excluded from such hearings. Only
the child, his counsel, witnesses in support of the transfer and in
opposition to it, the child’s parents, tutor, or other custodian, the
personnel of the court, and any other persons as the court finds have
a legitimate or proper interest in the proceedings or in the work of
the court may be admitted by the court. The court may exclude the
child or any other person from the hearing if such person’s conduct
is disruptive of orderly proceedings and the court’s admonition to
conduct himself properly is not heeded promptly.

§1571.3. Right to counsel

A child shall be represented by an attorney at the transfer
hearing. A child unable to afford counsel is one who is unable, or

whose parents or tutor is unable, to provide for the payment of legal
icc The court shall appoint counsel] to represent a child unable

to afford counsel at such transfer proceeding.

§1571.4. Confrontation of witnesses, cross examination, priv-
ileges and immunities, appeals : -

A. Only such evidence may be introduced at a transfer hearing
which pertains to the transfer criteria stated in R.S. 13:1571.1 and
to determine whether probable cause exists that the child commit-
ted the acts alleged in the original petition. A child is entitled to
introduce evidence in his own behalf and to cross examine witnes-

1314

_ as follows:

Act 569

ses. A child who is the subject of a transfer hearing shall not be
required to be a witness against himself or to otherwise give
evidence against himself. |

B. The decision of the juvenile court to transfer or not to transfer
the case to the court exercising criminal jurisdiction is only an
interlocutory judgment which either the child or the state, or both,

have the right to have reviewed summarily by the Louisiana
Supreme Court, and such review shall be by preference. |

Section 2. If any provision or item of this Act or the application
thereof is held invalid, such invalidity shall not affect other provi-
sions, items or applications of the Act which can be given effect
without the invalid provisions, items or applications, and to this end
the provisions of this Act are hereby declared severable. |

Section 3. All laws or parts of laws in conflict herewith are hereby
repealed. ’— . ,
Approved by the Governor: July 12, 1974. —

A true copy:

- BOT No. 569

Senate Bill No. 192. By: Messrs. Fontenot and Hardy and
Representative J. Guidry. |

AN ACT

To amend and reenact Subsection B of Section 1212 of Title 41 of the
Louisiana Revised Statutes of 1950 and to amend Section 1212 of
said title by adding thereto a new subsection to be designated as _
Subsection C thereof, relative to the lease of sixteenth section
lands, to authorize the schoo! boards in St. Martin and Vermilion
parishes to lease such lands on a share basis for agricultural

- purposes without advertising and receiving bids as required for
other leases. | ;

Notice of intention to apply for the passage of this Act has been
ublished and evidence of such publication exhibited to the
egislature, both as provided by Section 6 of Article IV of the

Louisiana Constitution. )
Be it enacted by the Legislature of Louisiana:

Section 1. Subsection B of Section 1212 of Title 41 of the Louisiana
Revised Statutes of 1950 is hereby amended and reenacted to read

$1212. Lands which may be leased; purposes; lease of sixteenth
section lands for agricultural purposes -

1315
Appendix "A"

ACTS OF 1978

ACT No. 460
Senate Bill No. 114. By: Mr. Kiefer.

AN ACT

To amend and reenact Section 1571.1 of Title 18 of the Louisiana
Revised Statutes of 1950, relative to the transfer of certain
juveniles for prosecution from juvenile court to the appropriate
court exercising adult criminal jurisdiction; to authorize said
transfer of certain juveniles from juvenile to adult criminal
jurisdiction on proper motion by the district attorney, the alleged
offender, or the court, if the alleged offender has attained the age
of fifteen years or more at the time of the alleged conduct and
probable cause exists that the alleged offender committed certain
enumerated serious offenses; and otherwise to provide with
respect thereto.

Be it enacted by the Legislature of Louisiana:

Section 1. Section 1571.1 of Title 13 of the Louisiana Revised
Statutes of 1950 is hereby amended and reenacted to read as follows:

§1571.1 Transfer from juvenile court

1136

A. Effective January 1, 1979, after a petition has been filed ©
alleging delinquency based ¢ n conduct which is designated a crime or
public offense by the statutes of the United States, of this State, orby

(1) The child has attained the age of fifteen years or more at the
time of the alleged conduct:

(2) A hearing on whether the transfer should be made is held in
conformity with R.S. 13:1571.2, through R.S. 13:1571.4:

aggravated rape, armed robbery, aggravated burglary, or
aggravated kidnapping.

Section 2. If any provision or item of this Act or the application
thereof is held invalid, such invalidity shall not affect other
Provisions, items, or applications of this Act which can be given effect
without the invalid provisions, items, or applications, and to this end
the provisions of this Act are hereby declared severable.
Appendix ''B"

§ 30. First degree murder
‘ First degree murder is the killing of a human being:

(1) When the offender has specific intent to kill or to inflict
great bodily harm and is engaged in the perpetration or attempted
perpetration of aggravated kidnapping, aggravated escape, aggravat-
ed arson, aggravated rape, aggravated burglary, armed robbery, or
simple robbery; — | | |

_ (2) When the offender has a specific intent to kill or to inflict
great bodily harm upon a fireman or peace officer engaged in the
performance of his lawful duties; 8g

(3) When the offender has a specific intent to kill or to inflict
great bodily harm upon more than one person; or

(4). When the offender has specific intent to kill or inflict great
bodily harm and has offered, has been offered, has given, or has re-
ceived anything of value for the killing.

For.the purposes of Paragraph (2) herein, the term peace offi-
cer is defined to include any constable, marshal, deputy marshal,
sheriff, deputy sheriff, local.or state policeman, game warden, federal
law enforcement officer, jail or prison guard, parole officer, proba-
tion officer, judge, attorney general, assistant attorney general, attor-
ney general’s investigator, district attorney, assistant district attor-
ney, or district attorney’s investigator. |

Whoever commits the crime of first degree murder shall be pun-
ished by death or life imprisonment at hard labor without benefit of

parole, probation, or suspension of sentence in accordance with the
recommendation of the jury.

Amended by Acts 1973, No. 109, § 1; Acts 1975, No. 327, § 1; Acts 1976,
No. 657, § 1; Acts 1979, No. 74, § 1, eff. June 29, 1979.

Source: Acts 1942, No. 43, §1, Art 30.
CERTIFICATE OF SERVICE

The undersigned certifies that on October 24, 1983, he caused

. a copy of this brief of Appellees, together with all appendices to be

mailed to the Law Firm of Debevoise & Plimpton, 875 Third Avenue,

Upton Jat

J} NATHAN STANSBURY

New York, New York 10022.

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