DeToro v. Warden, Maryland Penitentiary, Civ. No. 16804
| Court | United States District Courts. 4th Circuit. United States District Court (Maryland) |
| Writing for the Court | PER CURIAM |
| Citation | 264 F. Supp. 528 |
| Parties | Percy DeTORO v. WARDEN, MARYLAND PENITENTIARY. William RALPH v. WARDEN, MARYLAND PENITENTIARY. Johnnie BROWN v. WARDEN, MARYLAND PENITENTIARY. |
| Docket Number | 14372.,13693,Civ. No. 16804 |
| Decision Date | 20 February 1967 |
264 F. Supp. 528
Percy DeTORO
v.
WARDEN, MARYLAND PENITENTIARY. William RALPH
v.
WARDEN, MARYLAND PENITENTIARY.
Johnnie BROWN
v.
WARDEN, MARYLAND PENITENTIARY.
Civ. Nos. 16804, 13693, 14372.
United States District Court D. Maryland.
February 20, 1967.
William J. McCarthy, Baltimore, Md., for DeToro, petitioner.
Edward L. Genn, Silver Spring, Md., for Ralph, petitioner.
H. Russell Smouse, Baltimore, Md., for Brown, petitioner.
Francis B. Burch, Atty. Gen. of Maryland, and Franklin Goldstein, Asst. Atty. Gen., Baltimore, Md., for Warden, respondent.
Marshall A. Levin and Elsbeth Levy Bothe, Baltimore, Md., amici curiæ.
Before THOMSEN, Chief Judge, and NORTHROP, District Judge.
PER CURIAM.
Petitioners in these three cases, State prisoners under sentence of death, have filed habeas corpus petitions based upon the decision of the Court of Appeals of Maryland in Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965), in which the Court 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. Schowgurow was a Buddhist, who did not believe in God, but in State v. Madison, 240 Md. 265, 213 A.2d 880 (1965), 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 would not apply retroactively except for convictions that had not become final before the rendition of the opinion in Schowgurow. In each of the cases now under consideration,
In Smith v. Brough, Warden, D.Md., 248 F.Supp. 435 (1965), 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 provisions of the Federal Constitution; that said ruling was correct; and that its application in Smith to deny relief to the 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. That decision was affirmed on appeal, Smith v. State of Maryland, 4 Cir., 362 F.2d 763 (1966).
Nevertheless, in the case of one of the petitioners herein, Brown v. Brough, Warden, D.Md., 248 F.Supp. 342 (1965), this Court noted that in Schowgurow, the Maryland Court had 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. On the basis of that statement, and of the language of the Supreme Court in Williams v. State of Georgia, 349 U.S. 375, 390-391, 75 S.Ct. 814, 99 L.Ed. 1161,2 this Court felt that when a death sentence is placed in the balance, the Court of Appeals of Maryland should be given the opportunity to decide whether the dip of the scales is the same as in the case of a man who is serving a term of imprisonment. Accordingly, this Court reserved ruling on Brown's petition so that he might file a new petition under the PCPA and the Maryland Court might consider the question. A similar ruling was made in Ralph's case, Ralph v. Brough, Warden, D.Md., 248 F.Supp. 334 (1965).
The Maryland Court has now decided the question. In Young v. Warden, Md., 224 A.2d 842 (1966), the Court, speaking through Chief Judge Hammond, said:
"The application of the Schowgurow doctrine to cases in the post conviction stage has already specifically been rejected in a number of instances. (citations omitted). While none of these cases involved a petitioner sentenced to death, we see no basis for establishing a special category of exceptions to the Schowgurow non-finality rule...
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