Brown v. Brough

• Decision Date: 15 December 1965
• Docket Number: Civ. No. 14372.
• Citation: 248 F. Supp. 342
• Parties: Johnnie BROWN v. Franklin K. BROUGH, Warden, Maryland Penitentiary.
• Court: U.S. District Court — District of Maryland

248 F. Supp. 342

Johnnie BROWN v. Franklin K. BROUGH, Warden, Maryland Penitentiary.

Civ. No. 14372.

United States District Court D. Maryland.

December 15, 1965.

H. Russell Smouse (court-appointed), Baltimore, Md., for petitioner.

Thomas B. Finan, Atty. Gen., of Maryland, Robert F. Sweeney, Asst. Atty. Gen., Chief, Crim.Div., and Morton A. Sacks, Asst. Atty. Gen., Baltimore, Md., for respondent.

THOMSEN, Chief Judge.

In this, his third petition for a writ of habeas corpus filed in this Court, petitioner, a State prisoner under sentence of death, contends that his constitutional rights have been violated and that his detention at the present time is illegal on the stated grounds:

"That the Grand Jury for Wicomico County, Maryland, which indicted the Petitioner on September 9, 1958 and the Petit Jury for Talbot County, Maryland, which, on September 30, 1960, convicted the Petitioner of murder in the first degree were organized pursuant to the requirements of Article 36 of the Maryland Declaration of Rights and were therefore illegally and unconstitutionally constituted in that said juries were selected in violation of the First and Fourteenth Amendments of the Constitution of the United States. That the indictment which was returned by the Grand Jury for Wicomico County was, accordingly, invalid as was the verdict returned by the Petit Jury for Talbot County, Maryland in that the said indictment and verdict were returned by juries organized in contravention of the Constitution of the United States."¹

Petitioner's present contention is based upon Schowgurow v. State, 240 Md. 121, 213 A.2d 475, decided October 11, 1965, in which the Court of Appeals of Maryland held that the provisions of Article 36 of the Maryland Declaration of Rights, requiring demonstration of belief in God as a qualification for service as a grand or petit juror, violated the Fourteenth Amendment and required a reversal of the conviction in that case.² Schowgurow was a Buddhist, who did not believe in God, but in State v. Madison, Md., 213 A.2d 880, the Court of Appeals applied the same rule to believers.

In both Schowgurow and Madison, however, the Court of Appeals ruled that the legal principle enunciated therein would not apply retroactively except for convictions that had not become final before the rendition of the opinion in Schowgurow.

In the instant case respondent attempted to prove as a fact that non-believers had not been excluded from the grand jury which indicted petitioner, but admits that he failed to prove that fact in this case. Respondent therefore abandoned his proffer to show that nonbelievers had not been excluded from the petit jury which found petitioner guilty. Respondent also attempted to show that petitioner himself believed in God at the time of his trial, in order to take him out of the class covered by the principle announced in Schowgurow, although he would, of course, still have been within the principle announced in Madison. Respondent again failed to prove the fact, and the evidence indicates the practical difficulties which would often be encountered if the application of the principle announced in Schowgurow were made to rest on the issue of a defendant's belief at the time of his indictment and trial.

In Smith v. Brough, Warden, D.Md., 248 F.Supp. 435, decided yesterday, this Court held that the ruling of the Court of Appeals of Maryland that the principles enunciated in Schowgurow and Madison should not be applied retroactively except for convictions which had not become final before the rendition of the Schowgurow opinion did not violate any provision of the Fourteenth Amendment or any other provision of the Federal Constitution; that the ruling was correct, and that its application in that case to deny relief to petitioner therein did not deprive him of due process of law or the equal protection of the laws or any other right under the United States Constitution.

The instant case differs from the Smith case in that the petitioner herein is under sentence of death.

At the end of its discussion of retroactivity in Schowgurow, the Maryland Court stated: "In the many difficult questions of constitutional law arising from criminal trials, the protection of the rights of the individual is weighed against the protection of society. Both are basic to ordered liberty. On the matter of retroactivity here involved, the dip of the scales is obvious." 240 Md. at 123, 213 A.2d at 484.

In Williams v. State of Georgia, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161 (1955), Mr. Justice Frankfurter said:

"* * * That life is at stake is of course another important factor in creating the extraordinary situation. The difference between capital and non-capital offenses is the basis of differentiation in law in diverse ways in which the distinction becomes relevant. We think

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