Labat v. Bennett

Citation365 F.2d 698
Decision Date30 September 1966
Docket NumberNo. 22218.,22218.
PartiesEdgar LABAT and Clifton Alton Poret, Appellants, v. Robert B. BENNETT, Acting Warden, Louisiana State Penitentiary, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

365 F.2d 698 (1966)

Edgar LABAT and Clifton Alton Poret, Appellants,
Robert B. BENNETT, Acting Warden, Louisiana State Penitentiary, Appellee.

No. 22218.

United States Court of Appeals Fifth Circuit.

August 15, 1966.

Rehearing Denied September 30, 1966.

365 F.2d 699
365 F.2d 700
Benjamin E. Smith, Gerald H. Schreiber, G. Wray Gill, New Orleans, La., Edward Bennett Williams, Washington, D. C., for appellants

John E. Jackson, Jr., Asst. Atty. Gen., New Orleans, La., Jack P. F. Gremillion, Atty. Gen. State of Louisiana, Baton Rouge, La., M. E. Culligan, Asst. Atty. Gen. State of Louisiana, New Orleans, La., for appellee.

Before TUTTLE, Chief Judge, and BROWN, WISDOM, GEWIN, BELL,

365 F.2d 701
THORNBERRY, and COLEMAN, Circuit Judges

WISDOM, Circuit Judge:

"The law hath not been dead, though it hath slept."1

"Death" for thirteen years has kept close tab on Edgar Labat and Clifton Poret. March 23, 1953, an all-white jury in the Criminal District Court for the Parish of Orleans, Louisiana, found Labat and Poret, the two Negro petitioners in this habeas corpus proceeding, guilty of the aggravated rape of a white woman. The jury brought in no recommendation of mercy; the defendants were sentenced to death by electrocution. Since then they have been in solitary confinement on Death Row in the Louisiana State Penitentiary. Nine times courts stayed their execution; once, less than three hours before they were to be strapped in the electric chair.

About four o'clock Sunday morning, November 12, 1950, a white woman and her escort were walking along Thalia Street in New Orleans.2 As they approached Tonti Street, two Negroes attacked them from behind. One, a tall Negro, allegedly Labat, seized the escort by the neck and demanded money. The escort testified at the trial that "he did not see a weapon * * * but the Negro had his hand in his pocket as if to make one assume that he had a weapon". The escort handed over Ten Dollars and was released. He ran for help. Meanwhile, the other Negro, allegedly Poret, dragged the woman halfway down the street and into a dark alley between Thalia and Calliope Streets. In a few minutes the tall Negro joined him. One Negro raped the woman while the other held her. Afterwards, they took her out of the alley and headed in the direction of an empty lot. A police car appeared; the attackers fled.

At 11 o'clock Sunday morning, on information furnished by one Earl Howard, who had been talking with two other Negroes just before the assault, police arrested Labat in his home. He has been continuously in custody since that time. Poret, whom the charging witness identified from a photograph in police files, could not be found. Some time afterwards New Orleans police located him in Tennessee serving a sentence for theft. Late in 1952 he was brought back to Louisiana to stand trial with Labat.

By appeal through the Louisiana courts to the United States Supreme Court and in habeas corpus proceedings in state and federal courts, the petitioners have consistently and unsuccessfully contended that they were denied a fair trial because of the systematic exclusion of Negroes from the jury system in Orleans Parish. Finally, the United States Supreme Court, reversing the Fifth Circuit, remanded this habeas proceeding to the district court for that court to decide whether Negroes were "limited and excluded in the selection of petit jury panels" in Orleans Parish. United States ex rel. Poret and Labat v. Sigler, 1960, 361 U.S. 375, 80 S.Ct. 404, 4 L.Ed.2d 380. After an evidentiary hearing, the district court found: since the petitioners had failed to make timely objections to the grand jury and the petit jury, "they are now deemed to have waived these objections"; "that disproportions which exist between the races on the jury panels in Orleans Parish have resulted * * * from a scrupulous adherence to the laws of Louisiana * * * which laws * * * are reasonable

365 F.2d 702
and constitutional"; there was "no proof presented here of systematic exclusion of Negroes from the jury panels in New Orleans". 234 F.Supp. 171, 179. Accordingly, the district court once again denied the petitioners' application for the issuance of a writ of habeas corpus. The petitioners appeal from that judgment. We reverse


The district court's partial reliance on the ubiquitous fiction of waiver compels this Court to trace the petitioners' contentions through most of the twists and turns of their convoluted legal proceedings.

A. Labat and Poret filed their motions to quash the indictments November 7, 1952. Although this was three and a half months before their trial, the petitioners have never had their day in court: never had their day to prove that they were denied a fair trial by a jury of their peers; never, that is, until the district court held its hearing March 31, 1964, in obedience to the Supreme Court's mandate.

Each motion to quash read as follows:

"That considering the Negro population of the Parish of Orleans, and the number of Negroes qualified for jury service, there had been systematic, unlawful and unconstitutional exclusion of Negroes from the General Venire and Grand Jury panel and Grand Jury involved in the returning of the indictment herein; that said systematic, unlawful and unconstitutional exclusion of Negroes from said units has existed continuously prior hereto for a number of years in the Parish of Orleans; that in those instances where Negroes have been included in the General Venire and Grand Jury panels referred hereto in, Negroes have been discriminated against by an arbitrary and inapportionate sic limiting of their number by State Officials who have not sufficiently acquainted themselves with the qualifications of all potential jurors." (Emphasis added.)

The motion is clear enough to a Louisiana lawyer. Petit jury panels, the final venires, are derived from the proposed venire which is drawn at random from the jury wheel (the general venire). The motion, therefore, attacks the composition of petit juries and their venires as well as that of grand juries and their venires. The vice permeates the entire jury system; the motion attacks the system. It appears to this Court, however, on reading the old briefs and records that until the habeas action was filed in 1957, although petitioners' counsel did not abandon their attack on the general venire, they concentrated their attack on the grand jury.3 There were several reasons for this venial sin. First, the grand jury is selected by the judge from its venire rather than drawn at random. Second, in October 1952 Judge William J. O'Hara of the Criminal District Court for the Parish of Orleans, making local history, quashed an indictment on the ground that Negroes had always been excluded from grand juries in Orleans Parish. State of Louisiana v. Dowels, Nos. 139, 324, Criminal District Court for the Parish of Orleans. (The case is unreported. Justice Black quotes from the opinion at length in his dissent in Eubanks v. State of Louisiana, 1958, 356 U.S. 584, 588-589, 78 S.Ct. 970, 2 L.Ed. 2d 991, fn 4).

A review of the petitioners' tortuous ascents and descents through the courts shows that until the Supreme Court rendered its latest order in this case, 361 U.S. 375, 80 S.Ct. 404, all of the courts dealing with the jury issue treated the motions narrowly as a challenge to the grand jury. As such the challenge was vulnerable procedurally: Louisiana law required that objections to a grand jury

365 F.2d 703
be raised before the expiration of the third judicial day following the end of the grand jury's term or before trial whichever is earlier

Judge Fred Oser, Section "C" of the Criminal District Court for the Parish of Orleans, dismissed the motions to quash, relying on Article 202 of the 1928 Louisiana Code of Criminal Procedure (LSA-R.S. 15:202). This article provides that:

"All objections to the manner of selecting or drawing any juror or jury or to any defect or irregularity that can be pleaded against any array or venire must be filed, pleaded, heard or urged before the expiration of the third judicial day of the term for which said jury shall have been drawn, or before entering upon the trial of the case if it be begun sooner; otherwise, all such objections shall be considered as waived and shall not afterwards be urged or heard."

Article 202 has always been conspicuous for its ambiguity.4 To resolve one

365 F.2d 704
problem, the Louisiana Supreme Court, as the Court itself said, "strained" the phrase "expiration of the third judicial day of the term" to mean the third judicial day after the expiration of the term. State v. Wilson, 1943, 204 La. 24, 14 So.2d 873.5 "Even the Wilson construction of the former Article 202 would be of scant help to a defendant who did not procure counsel until after the three-day deadline had passed."6 That is Poret's case.

In the state courts this case turned on critical dates. The grand jury that indicted the petitioners was empanelled September 5, 1950. It returned the indictment against Labat and Poret December 11, 1950. The grand jury term expired March 5, 1951. Labat was arraigned January 3, 1951; Poret was arraigned October 27, 1952. The motions to quash were filed November 7, 1952. The trial began February 24, 1953.

It was impossible for Poret to comply with Article 202. He was in a Tennessee penitentiary and did not return to New Orleans until October 3, 1952, long after the expiration of the term of the grand jury that had indicted him. During this period Poret had no attorney. Article 202 therefore was meaningless as to Poret. The Louisiana Supreme Court held, however, that an accused "cannot by any acts of his own extend the time provided for the filing of the motion."7 Relying on State v. Wilson, the Court held that the untimely filing of the motions to quash must be treated as a waiver of objections to the grand jury.

Labat had no counsel at arraignment,...

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