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No. 13-30266 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________ ALBERT WOODFOX, Petitioner-Appellee v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY; JAMES CALDWELL, Respondents-Appellants ____________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA, CASE NO. 06-789 ____________________ BRIEF OF AMICUS CURIAE HON. PASCAL F. CALOGERO, JR. AND THE PROMISE OF JUSTICE INITIATIVE IN SUPPORT OF AFFIRMANCE ____________________ HON. PASCAL F. CALOGERO, JR. PASCAL F. CALOGERO, JR., APLC 1100 POYDRAS STREET, SUITE 1500 NEW ORLEANS, LA 70163 TEL (504) 582-2300 FAX (504) 582-2310 THE PROMISE OF JUSTICE INITIATIVE 636 BARONNE STREET NEW ORLEANS, LA. 70130 TEL. (504) 529-5955 FAX (504) 558-0348

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CERTIFICATE OF INTERESTED PERSONS Woodfox v. Cain, No. 13-30266 The undersigned counsel of record certifies that the following listed persons and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the outcome of this case. These representations are made in order that the judges of this Court may evaluate possible disqualification or recusal. 1. Burl Cain, Warden, Louisiana State Penitentiary, Appellant 2. James D. Caldwell, Attorney General, State of Louisiana, Appellant 3. Office of the Attorney General of the State of Louisiana, by James D. Caldwell, Kurt Wall, and Colin Andrew Clark, Counsel for Appellant 4. McGlinchy Stafford PLLC, by Richard A. Curry and M. Brent Hicks, Counsel for Appellant 5. Albert Woodfox, Appellee 6. Squire Sanders (US), L.L.P., by George H. Kendall, Counsel for Appellee 7. Center for Equal Justice, by Nicholas Joseph Trenticosta, Counsel for Appellee 8. Christopher Albert Aberle, Robert B. McDuff, and Scott P. Fleming, Counsel for Appellee ii

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9. Hon. Pascal F. Calogero, Jr., Counsel for Amici 10.The Promise of Justice Initiative, by Sarah L. Ottinger, Amici

/s/ Pascal F. Calogero, Jr. ___________________________ Hon. Pascal F. Calogero, Jr. Counsel of Record for Amici

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TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS ....................................................... ii TABLE OF CONTENTS ..........................................................................................iv TABLE OF AUTHORITIES ..................................................................................... v INTERESTS OF AMICUS CURIAE ........................................................................ 1 INTRODUCTION ..................................................................................................... 1 ARGUMENT ............................................................................................................. 3 I. The Selection of the Grand Jury Foreperson Is a Critical Inflection Point in a Criminal Prosecution Which Was Highly Susceptible to Discrimination Under the Former Law. ........................................................ 3 Louisiana Has a Dark History of Racial Discrimination in Grand Jury Selection Dating Back to Reconstruction and Continuing Through the 1990s. ....................................................................................... 6

II.

III. Following the 1999 Statutory Amendment that Randomized Foreperson Appointment, Qualified African Americans Have Ably Served as Forepersons in a Representative Proportion. .............................. 19 CONCLUSION ........................................................................................................ 22 CERTIFICATE OF COMPLIANCE ....................................................................... 23 CERTIFICATE OF SERVICE ................................................................................ 24

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TABLE OF AUTHORITIES CASES Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966) .................................................13 Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966) ..............................................................13 Campbell v. Louisiana, 523 U.S. 392 (1998) ........................................... 1, 3, 17, 18 Castaneda v. Partida, 430 U.S. 482 (1977).............................................................16 Davis v. Davis, 361 F.2d 770 (5th Cir. 1966) ..........................................................13 Eubanks v. Louisiana, 356 U.S. 584 (1958) ............................................................11 Goins v. Allgood, 391 F.2d 692 (5th Cir. 1968) ......................................................12 Guice v. Fortenberry, 661 F.2d 496 (5th Cir. 1981) ........................................ 15, 16 Guice v. Fortenberry, 722 F.2d 276 (5th Cir. 1998) ...........................................5, 16 Guillory v. Cain, 303 F.3d 647 (5th Cir. 2002) ...................................................4, 15 Henley v. Bell, 487 F.3d 379 (6th Cir. 2007) .............................................................4 Hernandez v. Texas, 347 U.S. 475 (1954) ...............................................................11 Hobby v. United States, 468 U.S. 339 (1984) ..........................................................17 Jackson v. United States, 366 F.2d 34 (5th Cir. 1966) ............................................13 Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966) .......................................... 13, 14, 15 Michel v. Louisiana, 350 U.S. 91 (1955) .......................................................... 10, 14 Peterson v. Cain, 302 F.3d 508 (5th Cir. 2002).........................................................4 Pierre v. Louisiana, 306 U.S. 354 (1939) ..................................................................9 Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966) .......................................13 Rideau v. Whitley, 237 F.3d 472 (5th Cir. 2000) .....................................................15 Rose v. Mitchell, 443 U.S. 545 (1979) .....................................................................16 Scott v. Walker, 358 F.2d 561 (5th Cir. 1966) .........................................................13 Smith v. Texas, 311 U.S. 128 (1940) ...................................................................2, 12 State ex rel. Williams v. Whitley, 629 So. 2d 343 (La. 1993) ..................................17 State v. Barksdale, 170 So. 2d 374 (La. 1965) ............................................. 5, 11, 12 v

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State v. Campbell, 95-0824 (La. 10/2/95); 661 So. 2d 1321 ...............................3, 17 State v. Cosey, 97-2020 (La. 11/28/00); 779 So. 2d 675 .............................. 3, 20, 21 State v. Divers, 34-748 (La. App. 2 Cir. 06/22/2001); 793 So. 2d 308 ...................19 State v. Eubanks, 94 So. 2d 262 (La. 1957) .............................................................10 State v. Green, 60 So. 2d 208 (La. 1952).............................................................9, 10 State v. Labat, 75 So. 2d 333 (1954)........................................................................14 State v. Langley, 95-1489 (La. 04/03/2002); 813 So. 2d 356 .......................... passim State v. Morgan, 20 La. Ann 442 (La. 1868) .........................................................7, 8 State v. Palmer, 94 So. 2d 439 (La. 1957) .................................................................5 State v. Pierre, 180 So. 630 (La. 1938) .................................................................8, 9 United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963) .............................7, 8 Vasquez v. Hillery, 474 U.S. 254 (1986) .............................................................4, 22 STATUTES AND OTHER AUTHORITIES La. C.Cr.P. art. 202 ..................................................................................................14 La. C.Cr.P. art. 413 ......................................................................................... 2, 3, 18 Reconstruction Act of 1867 .......................................................................................7 William Shakespeare, MEASURE FOR MEASURE ......................................................13

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INTERESTS OF AMICUS CURIAE1 Amici Hon. Pascal F. Calogero, Jr. and the Promise of Justice Initiative have an interest separate from the Appellee in this case. Amici have a particular interest in addressing race discrimination in the criminal justice system, both by educating policymakers about the past wrongs and by working toward a more just and equitable future. With regard to racial discrimination in the selection of grand jury foreperson, amici seek to aid this Courts understanding of the deep -seated history of this practice in Louisiana. INTRODUCTION How do we certify that the Louisiana judicial system is fundamentally fair, where there is compelling evidence of racial and gender discrimination? State v. Langley, 95-1489 (La. 04/03/2002); 813 So. 2d 356, 373 (Johnson, J., concurring). In the wake of the Supreme Courts decision in Campbell v. Louisiana, 523 U.S. 392 (1998), the Louisiana legislature took an important step toward eradicating discrimination in the selection of grand jury forepersons. Eliminating the trial judges discretion to select forepersons, the legislature instead directed the court to cause a random selection to be made of one person from the impaneled
1

Pursuant to Fed. R. App. P. 29(c)(5), amici state that no counsel for any party authored this brief in whole or in part, and no person or entity other than amici made a monetary contribution to the preparation or submission of the brief.

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grand jury to serve as foreman of the grand jury. La. C.Cr.P. art. 413(B). That small but important step addressed the problem of racial discrimination in the selection of grand jury forepersons, and harmonized Louisianas practice with the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. Smith v. Texas, 311 U.S. 128, 130 (1940). The grand jury that indicted Mr. Woodfox, led by a foreperson selected through racially discriminatory means, did not comport with this tradition. The grand jury foreperson was selected under a discriminatory regime that was, in the words of the Louisiana Supreme Court, unquestionably subject to abuse according to subjective criteria that may include race and gender. Langley, 813 So. 2d at 371. Mr. Woodfoxs case presents a chilling example of that abuse. This Cou rt is now presented with an opportunity to remedy one of the fewif not the only lingering wrongs arising out of the former foreperson selection scheme, and to correct the same injustice to Mr. Woodfox that the Louisiana legislature corrected for every criminal defendant throughout the state fourteen years ago.

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ARGUMENT I. The Selection of the Grand Jury Foreperson Is a Critical Inflection Point in a Criminal Prosecution Which Was Highly Susceptible to Discrimination Under the Former Law.

At the time of Mr. Woodfoxs indictment, the grand jury foreperson was selected by the district judge. See La. C.Cr.P. art. 413 (West 1993). In all parishes other than Orleans,2 the sheriff randomly drew the names of the grand jurors from an envelope, while the judge hand-picked the foreperson from the venire as a whole. Id. This procedure was subject to abuse because it placed untrammeled discretion in the trial judge to select the foreperson. State v. Cosey, 97-2020 (La. 11/28/00); 779 So. 2d 675, 683. Prior to 1998, the Louisiana Supreme Court had held that the role of the foreperson was ministerial, and as such any discrimination in the selection for the foreperson had little, if any, effect on the defendants due process right of fundamental fairness. State v. Campbell, 95-0824 (La. 10/2/95); 661 So. 2d 1321, 1324. However, the United State Supreme Court rejected this conclusion, finding that Louisianas procedure implicate[d] the impermissible appointment of a member of the grand jury. Campbell v. Louisiana, 523 U.S. 392, 402 (1998). The foreperson not only performed additional ministerial duties, but also acted as a
2

In Orleans Parish, the judge selected all grand jurors, and then chose a foreperson out of the empaneled grand jurors. La. C.Cr.P. art. 413(C).

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voting member of the grand jury, whose votes directly impacted criminal defendants. See Peterson v. Cain, 302 F.3d 508, 514 (5th Cir. 2002). See also Henley v. Bell, 487 F.3d 379, 385 (6th Cir. 2007) (noting that, like in Louisiana, the foreperson in Tennessee played an unusually important role because he was selected independently by the judge as a thirteenth member of the grand jury). As a member of the grand jury, in the forepersons hands lies the power to charge a greater offense or a lesser offense; numerous counts or a single count; and perhaps most significant of all, a capital offense or a noncapital offenseall on the basis of the same facts. Vasquez v. Hillery, 474 U.S. 254, 263 (1986). Discrimination in the selection of grand jury forepersons had the potential to infect the framing of the indictment and, consequently, the nature or very existence of the proceedings to come. Id. Indeed, when called to testify about their considerations in selecting forepersons, Louisiana district judges have frequently cited character traits which they felt important for a foreperson to have. These traits often include

independence and leadership qualities. For example, a Calcasieu Parish judge, in Guillory v. Cain, testified that he sought out individuals who would be fair and independent and not necessarily go along with the prosecution. 303 F.3d 647, 650-51 (5th Cir. 2002). In Guice v. Fortenberry, a Madison Parish judge indicated 4

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that he relied on his personal knowledge . . . to select the best person as grand jury foreman, who could stand up to the district attorney and if probable cause was not shown, to vote in that manner. 722 F.2d 276, 278-79 (5th Cir. 1998) (internal quotation omitted) (Guice II). As evident by judges testimony over the course of many cases, Louisiana district judges tended to select individuals with whom they were personally familiar and were known to possess these qualities. But unfortunately, white male judges were most often familiar with other white males, and did not seek out women and African-Americans. See Guice II, 722 F.2d at 281 (quoting a selecting judges observation that: when we have a Black Judge, theyre gonna know who's the most qualified amongst the Blacks to be a foreman.). Worse, some judges testified that they found Negroes to be less qualified than others. State v. Barksdale, 170 So. 2d 374, 385 (La. 1965). The Louisiana Supreme Court remarked in 1957 that there is nothing in the record to show that [the judge] would not have selected all the Negroes on the list had they possessed superior qualifications or qualifications on a par with those of the other 10 [white male] persons whom he chose. State v. Palmer, 94 So. 2d 439, 476 (La. 1957). In sum, this important position was filled most often by white males, and whether or not these white males were qualified for the position, Louisiana grand

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juries spearheaded in this way failed to be bodies truly representative of their respective communities. II. Louisiana Has a Dark History of Racial Discrimination in Grand Jury Selection Dating Back to Reconstruction and Continuing Through the 1990s.

Pervasive discrimination in the selection of grand juries and grand jury forepersons in Louisiana ran largely unchecked by the state courts. While the grand jury selection provisions in the law have generally been race-neutral, the untrammeled discretion granted the selecting judge has historically been used intentionally or notto the exclusion of African-American citizens. Challengers have been asserting these violations since Louisiana gained statehood in 1812, but no legislative solution was enacted until 1999. As with many other efforts to eliminate racial discrimination in Louisiana, the battle to cure the problem in the discriminatory selection of grand jury forepersons began in 1868, a year that marked an important turning point for the State. Following three bloody years after the close of the Civil War, Reconstruction took hold in 1868, formally signaled by the adoption of the Louisiana Constitution of 1868. At the time one of the most progressive state constitutions, the Constitution of 1868 desegregated the schools, adopted the bill of rights, rejected a literacy test, and prohibited discrimination in public 6

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conveyances and places of public accommodation. United States v. Louisiana, 225 F. Supp. 353, 366 (E.D. La. 1963). However, the new constitution only incited racial animosity among former Confederate whites, and instead of closing the breach between whites and blacks, served only to widen it. Id. (quoting ALDEN L. POWELL, HISTORY
OF

LOUISIANA CONSTITUTIONS, Vol. 1, Part. 1,

Louisiana Law Institute, Project of a Constitution for the State of Louisiana 370 (1954)). That widening was evident in one of the earliest challenges to the grand jury selection procedures based on race discrimination, State v. Morgan, 20 La. Ann 442 (La. 1868). During the Civil War, African-American voters had been removed from the rolls in Orleans Parish. The Reconstruction Congress, however, had passed an act mandating that in former Confederate states, all persons shall be entitled to vote.3 The voter rolls drawn in 1867 consequently contained a more representative pool of citizens than the rolls drawn in 1865. In 1867, the Orleans Parish judge had ordered a new list of jurors to be prepared, but the sheriff drew the list from the 1865 voter registry instead of the 1867 registry, and Charles Morgan was indicted for murder by a grand jury drawn from this list. The Louisiana Supreme Court ultimately reversed his conviction due to the improper
3

First Reconstruction Act of 1867, 14 Stat. 428-430, 6.

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selection of the grand jury. Id. In later years, however, the Louisiana Supreme Court increasingly turned a blind eye to grand jury discrimination, requiring federal intervention. One theme that has remained consistent throughout the decades is the States efforts to justify the exclusion or underrepresentation of African Americans the use of literacy statistics. The mechanism of literacy tests or interpretation requirements was used most notably to disenfranchise African Americans from the voter rolls in West Feliciana Parish, for example, not a single African American was registered to vote as late as 1960. See Louisiana, 225 F. Supp. at 380 & n. 81. To defend the exclusion of African Americans from grand juries, the State has often attempted to undermine generally recognized racial statistics, such as the United States Census, through the testimony of witnesses estimating extraordinary black illiteracy rates. In State v. Pierre, the Louisiana Supreme Court conceded that no blacks had served on St. John Parish grand juries since at least 1896, but asserted that four blacks were included on the 300-man venire from which the defendants grand jury had been chosen. 180 So. 630, 632 (La. 1938). In a parish which contained approximately four thousand black citizens, the court relied upon testimony from a local school superintendent that there were possibly 25 or 50 literate black men qualified to be grand jurors, but his estimate was purely a 8

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guess. Id. at 633. Moreover, the court found that it was reasonable for grand jury commissioners to select members of their own race [i]t is not their duty to search the parish for members of the colored race who possess the proper qualifications merely in order that there be the names of such persons on the roll. Id. On certiorari, the United States Supreme Court looked to the 1930 Census, rather than the estimations of the superintendent, and found that 70% of the black population of the parish was literate. Pierre v. Louisiana, 306 U.S. 354, 360 (1939). The Court also found that the four African Americans which the Louisiana Supreme Court had found on the venire were, in actuality, one. There were three blacks on the 1936 venire: one was dead, one was listed under the wrong name, and one was the only negro who had ever been called for jury service in that parish. Id. at 359. Finding an obvious prima facie case, the Court reversed and remanded. Id. at 361. The United States Supreme Courts reversal in Pierre apparently had no real effect on the Louisiana Supreme Courts analysis of claims of grand jury discrimination. The State continued to claim that the illiteracy of black citizens justified their exclusion from the jury pools. In State v. Green, 60 So. 2d 208, 21112 (La. 1952), the court examined a situation where the 300-person grand jury venire included only 10 or 12 Negroes. This list was composed of persons with 9

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whom the jury commissioners (or one or more of them) were personally acquainted. In a footnote, the court noted that the Concordia Parish population consisted of 5871 white persons, [and] 8515 Negroes, but held that the underrepresentation was insufficient to rise to an equal protection violation in light of the estimated illiteracy of black citizens, which was not uncommon in the parishes of the Mississippi Delta. Id. at 212 & n. 1, n. 3. In State v. Eubanks, where a venire of 750 people in Orleans Parish somehow only included six black individuals, none of whom were chosen to serve, the Louisiana Supreme Court remarked that [t]he only reason Negroes were not selected to serve was that the Judge selecting the Grand Jury thought that the white persons selected were better qualified. 94 So. 2d 262, 265 (La. 1957). Again, the United States Supreme Court was compelled to step in. The Court found that [a]lthough Negroes comprise about one-third of the population of the parish, the uncontradicted testimony of various witnesses established that only one Negro had been picked for grand jury duty within memory. And this lone exception apparently resulted from the mistaken impression that the juror was white. 4

Justice Black had foreshadowed his opinion of the unconstitutionality of Orleans Parish grand jury selection procedures three years earlier, in his dissent in Michel v. Louisiana, 350 U.S. 91, 102 (1955) (Black, J., dissenting) (Only once within the memory of people living in the parish had a colored person been selected as a grand juror. That juror, who happened to look like a white man, was selected under the mistaken idea that he was one.).

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Eubanks v. Louisiana, 356 U.S. 584, 586 (1958). Justice Blacks opinion in Eubanks strikes a tone of frustration, emphasizing that if the mere general assertions of good faith by officials were adequate to justify complete exclusion of blacks from jury service, the Equal Protection Clause would be but a vain and illusory requirement. Id. at 587. [L]ocal tradition and general thinking of the community, he wrote, cannot justify failure to comply with the constitutional mandate requiring equal protection of the laws. Id. at 588. In the 1960s, headed by John Minor Wisdom, this Court became instrumental in enforcing equal protection guarantees in the selection of grand juries. In 1964, the Louisiana Supreme Court denied an equal protection challenge based upon the segregation of the entire courthouse and jail, that no blacks served in any capacity in the criminal courthouse, and that no Negro has ever served as Jury Commissioner or as Foreman of the Grand Jury in Orleans Parish . Barksdale, 170 So. 2d at 380. As to the segregation claims, citing to Hernandez v. Texas, 347 U.S. 475 (1954), the court held that [t]he fact that a particular group is sometimes treated as a separate class within a community is not proof of discrimination in the selection of juries. Barksdale, 170 So. 2d at 216. The court acknowledged the discrepancy between a parish which was one third black drawing only a ten percent black jury venire, but found that the 11

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underrepresentation stemmed from the fact that lack of education among the Negroes inevitably compels them to accept less gainful employment, often such as to create an undue hardship if they are compelled to accept jury service, which is without pay. Id. at 382. Then, of the few black citizens who made it onto the jury wheel, the court found that a much larger number of Negroes than white men object to capital punishment on the voir dire, and so disqualify themselves for that reason. Id. at 381-82. This Court excoriated the Louisiana Supreme Courts Barksdale opinion four years later in Goins v. Allgood, 391 F.2d 692, 696-97 (5th Cir. 1968). As to the Louisiana Supreme Courts holding that the educational and economic conditions of black citizens justified the small number on grand juries, this Court stated that [t]hat rationale ignores the constitutional imperative that the grand jury must be a body truly representative of the community. Id. at 698-99 (quoting Smith, 311 U.S. at 130). As this Court noted, [t]he impression was general in the South . . . that constitutional requirement was met if Negroes were simply represented on the grand jury. Goins, 391 F.2d at 696-97. In 1966, this Court granted hearing en banc to hear seven grand jury discrimination cases, among them three arising out of Louisiana parishes Orleans, Livingston, and Acadia. See Scott v. Walker, 358 F.2d 561 (5th Cir. 12

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1966); Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966); Davis v. Davis, 361 F.2d 770 (5th Cir. 1966); Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966); Jackson v. United States, 366 F.2d 34 (5th Cir. 1966); Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966); Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966). In each case, this Court found that racial discrimination had been established, and overturned each conviction. Judge Wisdoms opinion in Labat particularly bears mention due to its widereaching and instructive legal analysis. Quoting Shakespeare, he begins the opinion: The law hath not been dead, though it hath slept. Death for thirteen years has kept close tab on Edgar Labat and Clifton Poret. Labat, 365 F.2d at 701 (quoting William Shakespeare, MEASURE
FOR

MEASURE,

act 2, sc. 2.). Labat and Poret had been convicted of the rape and robbery of a white woman by an all-white Orleans Parish jury and sentenced to electrocution. The police had been unable to apprehend Poret after the offense and only located him after it was discovered that that he was serving time for theft in a Tennessee jail. Poret remained in custody there and did not return to Louisiana until October of 1952. During this period Poret had no attorney. Upon being appointed counsel, he filed a motion to quash due to racial discrimination in grand jury selection 13

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selection on November 7, 1952. However, former Article 202 of the Code of Criminal Procedure required all motions to quash due to irregularities in the grand jury procedures (including race discrimination) to be filed within three days of the expiration of that grand jurys term. Consequently, Article 202 was meaningless as to Poret. Labat, 365 F.2d at 704; see La. C.Cr.P. art. 202 (1928). The Louisiana Supreme Court found the issue to have been waived, and in a 6-3 opinion, the United States Supreme Court agreed. State v. Labat, 75 So. 2d 333 (1954), aff'd sub nom. Michel v. Louisiana, 350 U.S. 91 (1955). On habeas review, this Court found that due to the impossibility of Poret raising the issue while unrepresented and incarcerated out of state, the filing of the motion to quash within a reasonable time after counsel was appointed, and the vagueness of the procedural rule itself, the petitioners were at long last entitled to a decision on the merits. Labat, 365 F.2d at 710. Citing to the Magna Carta, Judge Wisdom found that racial discrimination in jury selection was repugnant to the foundational principles of our society. Id. at 711-12. In Orleans Parish at the time, only one black juror had ever been selected to serve on a grand jurybecause he had been mistaken for a white manand no black juror had ever been selected to serve on a petit jury. Id. at 716. This Court found unacceptable the States claim that the absence of blacks from juries 14

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resulted not from racial discrimination but primarily from the benign practice of excusing from jury service outside workers, manual laborers, and earners paid daily wages, most of whom [we]re Negroes. Id. at 719. Without wage earners, this Court reasoned, a jury simply is not representative of the community. Id. at 721. But more fundamentally, this theoretically neutral principle loses its aura of sanctity when it fails to function neutrally. Id. at 724. The system was neutral, principled, and foolproof: No Negro ever sat on a grand jury or a trial jury in Orleans Parish. Id. at 725. As a result, this Court issued a writ of habeas corpus, and Poret and Labat were released after sixteen years on death row. This Courts work was not over. Beginning with the Madison Parish case of Guice v. Fortenberry in 1981, Louisiana grand jury foreperson discrimination cases began to trickle into the federal courts. See 661 F.2d 496 (5th Cir. 1981) (en banc) (Guice I). See also, e.g., Guillory, 303 F.3d 647; Rideau v. Whitley, 237 F.3d 472 (5th Cir. 2000). Particularly in small, racially-stratified areas, discrimination in the selection of the grand jury forepersons was rampant and recurring. It resulted from the absence of standards and trial bench efforts to survey the panel and identify good foreperson candidates of all races. This Courts en banc decision in Guice I was the first time a court would make the pronouncement that the foreperson selection procedure in Louisiana was susceptible to abuse 15

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under Castaneda v. Partida, 430 U.S. 482, 494 (1977) and Rose v. Mitchell, 443 U.S. 545, 553 (1979). Further, this Court reversed the district courts denial of habeas corpus and remanded for an evidentiary hearing, noting that in a parish where the population is approximately 60% black, [that] there would be no racial discrimination in the selection of a white foreman thirty-one successive times is so unlikely as to demand at least exploration. Guice I, 661 F.2d at 508. After an evidentiary hearing, the district court found that the petitioner had made out a prima facie case but that the State had successfully rebutted it with testimony from the selecting judges that they generally relied upon personal knowledge of the potential foreman. Guice II, 722 F.2d at 278. This Court reversed. The testimony that the selecting judges always chose individuals, always white, who were known to them, was insufficient to rebut the petitioners showing of a long history of the complete and absolute exclusion of blacks from a position for which approximately forty-five percent of the available candidates were black. Id. at 282. In Guice II, this Court noted that because the foreman was selected from the venire rather than from the grand jury itself, any discrimination in the selection of a foreman necessarily tainted the composition of the grand jury as well: only eleven of its twelve members were picked at random. Id. at 282 n. 6. Shortly after this Courts decision in Guice II, the United States Supreme Court issued its 16

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opinion in Hobby v. United States, 468 U.S. 339 (1984), holding that the ministerial function of the grand jury foreperson in the federal system precluded a claim of grand jury foreperson discrimination. Consequently, in disregard to this Courts guidance in Guice II, and the widespread discrimination occurring across the state, the Louisiana Supreme Court held that Hobby applied to foreclose any grand jury foreperson discrimination claims in Louisiana. Campbell, 661 So. 2d at 1324 (per curiam) (Calogero, C.J., not on panel) (The role of the grand jury foreman in Louisiana appears to be similarly ministerial.); see also State ex rel. Williams v. Whitley, 629 So. 2d 343 (La. 1993) (Marcus, J., dissenting from the grant of a stay of execution) (The role of the foreman of the grand jury in Louisiana also appears to be ministerial in nature.). The court also found that Campbell, as a white man, had no standing to challenge racial discrimination in the selection of grand jury forepersons. The United States Supreme Court found that [t]he Louisiana Supreme Court was wrong on both counts. Campbell, 523 U.S. at 402. Validating this Courts conclusion in Guice that discrimination in the selection of Louisiana grand jury forepersons violates the due process and equal protection, the Court found that Campbell had standing to challenge the foreperson discrimination in Evangeline Parish. Id. at 399. The Court found that the integrity of decisions made by a grand 17

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jury depends on the integrity of the process used to select the grand jurors. If that process is infected with racial discrimination, doubt is cast over the fairness of all subsequent decisions. Id. And, unlike in the federal system, the Louisiana selection procedure required the judge to select a voting member of the grand jury; accordingly, in Louisiana, discriminatory selection of the foreperson will distort the overall composition of the array or otherwise taint the operation of the judicial process. Id. at 403. The Courts decision in Campbell sounded a clarion call for reform in the selection of grand jury forepersonsand in Orleans, in the selection of the entire grand jury. Recognizing the heightened potential for discrimination inherent in such a discretionary regime, all three branches of Louisianas government moved quickly to remedy the past wrongs. The Louisiana Legislature responded to Campbell with an amendment to La. C.Cr.P. art. 413(B). The new legislation stripped the trial court of its authority to select a grand jury foreperson, and instead directed the court to cause a random selection to be made of one person from the impaneled grand jury to serve as foreman of the grand jury. The proposed legislation passed both houses of the state legislature unanimously.5 The Governor
5

Although the Louisiana Legislature preserved the exception for Orleans Parish, it repealed that provision of La. C.Cr.P. art. 413 in 2001, making the process for selecting grand jurors and their forepersons uniform throughout the state.

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signed the bill into law shortly thereafter. Just one year after the Supreme Courts decision in Campbell, the discretionary system had been replaced. With the bleeding stopped, Louisiana courts began healing the wounds. III. Following the 1999 Statutory Amendment that Randomized Foreperson Appointment, Qualified African Americans Have Ably Served as Forepersons in a Representative Proportion.

After the legislative and executive branches took action, the state judiciary began correcting wrongs of the past. In State v. Divers, the Second Circuit Court of Appeal affirmed the trial courts decision to sustain Divers motion to quash the indictment due to discrimination in the selection of grand jury forepersons. See 34748 (La. App. 2 Cir. 06/22/2001); 793 So. 2d 308. Discussing the pre-1999 codal provision, the court noted, The defect was not in t he individual judges, but in the system set up by the pre-1999 version of La. C.Cr.P. art. 413(B) that allowed untrammeled discretion in the trial judge in selecting the foreperson. Id. at 318. The court further observed that, particularly in light of the legislative amendments to La. C.Cr.P. art. 413(B), the state of Louisiana has come a long way from the days when the public official selecting a grand jury venire would proudly testify that he would never select an African-American for a grand jury venire. Unfortunately, the selection process for the grand jury venire and foreperson ha[d] not significantly changed from those days. Id. at 315 (internal citation omitted). 19

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The Second Circuits decision followed on the heels of the Louisiana Supreme Courts opinion in State v. Cosey, 97-2020 (La. 11/28/2000); 779 So. 2d 675. In its first opinion discussing the effect of the 1999 legislative amendments, the Supreme Court sharply criticized the discretionary regime of the past, explaining that there was no question that at the time of trial in the present case Louisianas procedure for selecting grand jury forepersons was subject to abuse according to subjective criteria which may include race and sex. Id. at 682. That court noted, however, that the 1999 legislative amendments addressed this problem by provid[ing] for random selection of the grand jury forepersons from the names drawn indiscriminately and by lot from the grand jury panel. Id.6 The Louisiana Supreme Court revisited the issue two years later, in Langley, 813 So. 2d 356. After the court remanded for a hearing in light of Campbell, the district court sustained Langleys motion to quash the indictment. As the Louisiana Supreme Court explained: In its lengthy reasons, the district court acknowledged Louisianas unique method for selecting a grand jury foreperson, as it operated prior to its amendment in 1999. The district court, citing the United States Supreme Courts reasoning in Campbell v. Louisiana, noted that Louisianas now-repealed selection system implicated not only the appointment of the foreperson but, more intrinsically, the shaping
6

The court ultimately rejected Coseys claim of foreperson discrimination because he did not present any direct evidence that there was underrepresentation stemming from intentional discrimination. Cosey, 779 So. 2d at 683.

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of the composition of the panel itself and the possibility that there might be discrimination in doing so. The district court, again citing Campbell v. Louisiana, further noted that, by picking a member of the panel, not at random, the judge has actually interjected racial discrimination into the process. Langley, 813 So. 2d at 363. The court affirmed the trial courts ruling, again emphasizing the likelihood that, at the time the defendant was indicted, Louisianas procedure for selecting grand jury forepersons was unquestionab ly subject to abuse according to subjective criteria that may include race and gender. Id. at 371 (citing Cosey, 779 So. 2d at 682-83). Since its opinion in Langley, the Louisiana Supreme Court has faced a decreasing number of grand jury foreperson discrimination claims doubtless because the pool of defendants who stand to prevail on their account is vanishingly small. Indeed, counsel is unaware of any Louisiana defendant other than Albert Woodfox who has earned relief on such a claim since Langley was decided. Justice Johnson concurred with the majority in Langley, authoring a separate opinion that strikes at the heart of the issue now before this Court: This court is faced with the moral and legal implications of 49 years of discrimination in the selection of grand jury forepersons in Calcasieu Parish. How do we certify that the Louisiana judicial system is fundamentally fair, where there is compelling evidence of racial and gender discrimination? Langley, 813 So. 2d at 373 21

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(Johnson, J., concurring). As she further noted, [d]iscrimination in the selection of grand jurors is a grave constitutional trespass and it undermines the structural integrity of the criminal tribunal itself. Id. at 375 (quoting Vasquez, 474 U.S. at 262, 263-64). It has been fourteen years since the Louisiana legislature addressed the problem now before this Court. Although this state has come a long way in eradicating racial discrimination throughout the grand jury foreperson selection process, we must not turn our back on those whose convictions were tainted by the old system. CONCLUSION Wherefore, for the foregoing reasons, undersigned counsel respectfully urge this Court to affirm the district courts decision granting relief to Mr. Woodfox. Respectfully submitted,

/s/ Pascal F. Calogero, Jr. _____________________________ HON. PASCAL F. CALOGERO, JR. PASCAL F. CALOGERO, JR., APLC 1100 POYDRAS STREET, SUITE 1500 NEW ORLEANS, LA. 70163 TEL. (504) 582-2300 FAX (504) 582-2310

THE PROMISE OF JUSTICE INITIATIVE 636 BARONNE STREET NEW ORLEANS, LA. 70130 TEL. (504) 529-5955 FAX (504) 558-0348

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 5,123 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

/s/ Pascal F. Calogero, Jr. ___________________________ HON. PASCAL F. CALOGERO, JR. PASCAL F. CALOGERO, JR., APLC 1100 POYDRAS STREET, SUITE 1500 NEW ORLEANS, LA. 70163 TEL. (504) 582-230 FAX (504) 582-2310 THE PROMISE OF JUSTICE INITIATIVE 636 BARONNE STREET NEW ORLEANS, LA. 70130 TEL. (504) 529-5955 FAX (504) 558-0348

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CERTIFICATE OF SERVICE Undersigned counsel hereby certifies that a copy of the above and foregoing was initially filed electronically with the Clerk of Court using CM/ECF on the 17th day of June, 2013 and re-filed with the Clerk of Court using CM/ECF on the 28th day of June, 2013. Notice of this filing as generated by the electronic filing system constitutes service of the filed document on counsel for the Petitioner and Respondents. In addition, notice of this filing was provided by U.S. Mail to: Mr. Dan Edward West McGlinchey Stafford, P.L.L.C. 301 Main Street 1 American Place Baton Rouge, LA 70825-0000 Ms. Carine M. Williams Squire Sanders (US), L.L.P. 30 Rockefeller Plaza New York, NY 10112-0000 Ms. Michelle M. West Stanley, Reuter, Ross, Thornton & Alford, L.L.C. 909 Poydras Street LL&E Tower New Orleans, LA 70112

/s/ Pascal F. Calogero, Jr. _____________________________ HON. PASCAL F. CALOGERO, JR. PASCAL F. CALOGERO, JR., APLC 1100 POYDRAS STREET, SUITE 1500 NEW ORLEANS, LA. 70163 TEL. (504) 582-2300 FAX (504) 582-2310

THE PROMISE OF JUSTICE INITIATIVE 636 BARONNE STREET NEW ORLEANS, LA. 70130 TEL. (504) 529-5955 FAX (504) 558-0348

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United States Court of Appeals FIFTH CIRCUIT


OFFICE OF THE CLERK LYLE W. CAYCE CLERK TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

July 02, 2013

Mr. Pascal F. Calogero Jr. 1100 Poydras Street Energy Centre Suite 1500 New Orleans, LA 70163-0000 No. 13-30266, Albert Woodfox v. Charles C. Foti, Jr., et al USDC No. 3:06-CV-789

The following pertains to your brief filed on Jjuly 2, 2013. You must now submit the seven paper copies of your brief required by 5TH CIR. R. 31.1 within 5 days of the date of this notice pursuant to 5th Cir. ECF Filing Standard E.1. In addition, you must electronically file a "Form for Appearance of Counsel" within 14 days, see FED. R. APP. P. 12(b) and 5TH CIR. R. 12 & 46.3 in order to make you brief sufficient. This form is available from the Fifth Circuit web site, www.ca5.uscourts.gov. If you fail to electronically file the form, the brief will be stricken and returned unfiled. Pro se parties do not need to file an appearance form. Sincerely, LYLE W. CAYCE, Clerk

By:_________________________ Misty L. Lisotta, Deputy Clerk 504-310-7716 cc: Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Mr. Ms. Christopher Albert Aberle James David "Buddy" Caldwell Colin Andrew Clark Richard A. Curry Michael Brent Hicks George H. Kendall Shivaprasad Nagaraj Nicholas Joseph Trenticosta Kurt Lawrence Wall Carine M. Williams