Brown v. Louisiana

LOCATION: United States District Court for the Northern District of Illinois, Eastern Division

DOCKET NO.: 79-5364
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Louisiana Supreme Court

CITATION: 447 US 323 (1980)
ARGUED: Mar 25, 1980
DECIDED: Jun 16, 1980

John M. Lawrence - on behalf of the Petitioner
Thomas Chester - pro hac vice

Facts of the case


Media for Brown v. Louisiana

Audio Transcription for Oral Argument - March 25, 1980 in Brown v. Louisiana

Warren E. Burger:

We will hear argument next in 79-5364, Brown v. Louisiana.

Mr. Lawrence, I think you may proceed whenever you are ready.

John M. Lawrence:

Mr. Chief Justice, and may it please the Court.

The issue in this case is whether to apply the Court's ruling in Burch v. Louisiana that a verdict of five out of six on a bobtail jury should be applied retroactively to this case, and if so if any other cases are involved, whether there should be full retroactivity or limited retroactivity to cases pending but not yet filed at the time that Burch was decided.

Darnell Brown was convicted in Orleans Parish of simple burglary by five-to-one vote.

He was then multiple-billed and sentenced to serve 22 years.

We are relying on the rule in Hankerson v. North Carolina as the rule to apply in this case.

Similarly, we are relying on the rule in Witherspoon and Ballew v. Georgia, as well as Burch v. Louisiana.

Warren E. Burger:

In which case did we define or at least tried to give some guidance on retroactivity?

John M. Lawrence:

In Stovall v. Denno the guidelines came out, the criterion to apply.

In Ballew v. Georgia, the statistics came out, and in Burch the five-out-of-six decision was made.

But in Stovall and later with Linkletter, the Court drew on three factors the purpose to be served by the new rule, the reliance on good faith by the state authorities on the old rule, and the effect on the administration of criminal justice by implementing the new rule.

In Hankerson, the Court looked to the purpose of the new rule and that if that purpose was to enhance the truth of the fact-finding matter, then you need not look to reliance and effect, and that if the purpose was only to incidentally enhance the truth finding function or if it was small, then you would consider the other factors.

We submit here that we are in a better position than the litigant in Hankerson because we are not concerned with just an incidental enhancement of the truth finding function.

If you will recall in Ballew when the statistics were mentioned, they talk about prevention of type one error which is that an innocent man should not be wrongfully convicted being weighed ten times more heavily than the prevention of the type two error that a guilty person should go free.

William H. Rehnquist:

Was that this Court's --

John M. Lawrence:

That was in Ballew.

That came out of Ballew from the statistics that the Court considered in making its decision.

William H. Rehnquist:

But was it this Court's statement that it should be a ten-to-one ratio?

John M. Lawrence:

No, it is not this Court's statement.

That is the statistics.

The fact remains that the enhancement here is not incidental or small, that the unanimity requirement, where do you draw the line, the unanimity requirement in a bobtail jury is where you draw the line, whether it is six of six or five out of six, as in the case of Brown.

Now, when you look at the reliance by state authorities, after Ballew and Williams v. Florida, they were put on notice that unanimity was being favored and not five out of six any more.

That is the reason that the motion to quash the five-out-of-six panel requirement was filed.

The purpose also in Burch was to assure accuracy in jury verdicts, to overcome an aspect of the criminal trial that substantially impaired the truth finding function, and raised serious doubts about prior trials, where five out of six would convict someone.

That is the reason for Ballew and Burch.

So here we are on similar ground with Hankerson, that the purpose of Burch is to enhance the fact-finding process, but if the Court would look at the other factors, such as the reliance and the effect on the administration of justice, you should consider this, that we are talking about really two states here, Louisiana and Oklahoma, who have the five out of six requirements.

Most of the people who were convicted five of six have already served their sentences and are out of prison.

Some people who have been multiple-billed are not, but most of the people who were convicted are already out.

We are talking about a period of time between 1974 and 1978 and we are not talking about people charged with relative felonies who pled guilty or who were convicted six to nothing.