Newman v. Henderson

• Decision Date: 27 September 1976
• Docket Number: No. 73-3393,73-3393
• Citation: 539 F.2d 502
• Parties: John NEWMAN, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 502

539 F.2d 502

John NEWMAN, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Louisiana State Penitentiary,

Respondent-Appellant.

No. 73-3393.

United States Court of Appeals, Fifth Circuit.

Sept. 27, 1976.

Shirley G. Wimberly, Asst. Dist. Atty., Louise Korns, Barbara Rutledge, New Orleans, La., for respondent-appellant.

John W. Reed, New Orleans, La. (Court-appointed), for petitioner-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before DYER and MORGAN, Circuit Judges, and KRAFT ^*, District Judge.

DYER, Circuit Judge:

In 1964, Newman was convicted of aggravated rape in the Criminal District Court in the Parish of Orleans, Louisiana. He did not appeal. He unsuccessfully applied for a writ of habeas corpus in Louisiana courts, charging racial discrimination in the selection of the grand jury which had indicted him. His petition was rejected on the ground that the grand jury system prevailing at the time of his indictment had not been discriminatory. His application to the Supreme Court of Louisiana was denied. Newman then sought federal habeas relief. The district court granted Newman's petition, concluding that the state had failed to rebut the prisoner's prima facie showing of grand jury discrimination. We vacated the district court's grant of habeas relief, Newman v. Henderson, 5 Cir. 1974, 496 F.2d 896, and directed that the petition be dismissed because of the district court's failure to consider the waiver-by-failure-to-object principle of Davis v. United States, 1973, 411 U.S. 233, 93 S.Ct. 1577, 36 L.Ed.2d 216. The United States Supreme Court granted certiorari, vacated the judgment and remanded the cause to this Court for further consideration in light of Lefkowitz v. Newsome, 1976, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196, and Francis v. Henderson, 1976, 425 U.S. ----, 96 S.Ct. 1708, 48 L.Ed.2d 149. We proceed to do so.

The application of Newman was considered on the merits in the state courts. Because "the state courts entertained the federal claims on the merits, a federal habeas court must also determine the merits of the applicant's claim." Lefkowitz v. Newsome, 1975, 420 U.S. 283, 292, 95 S.Ct. 886, 891, 43 L.Ed.2d 196 n. 9; Francis v. Henderson, 1976, 425 U.S. ----, at ----, 96 S.Ct. 1708 at 1711, 48 L.Ed.2d 149 n. 5. Therefore, it is now clear that the waiver principle of Davis does not stand as a bar to a federal determination of the merits of Newman's constitutional claim.

On the merits, the state does not attack the findings of the district court that there was a systematic exclusion of qualified citizens from the grand jury that indicted Newman. It simply argues that under the provisions of 28 U.S.C.A. § 2254(d) the district court should not have held an evidentiary hearing on Newman's challenge to grand jury selection methods, but was barred by decisions of the Louisiana Supreme Court in cases brought by other parties during the same period in which it was held that the system of grand jury selection for the Orleans Parish grand jury was not discriminatory. ¹ The state, in essence, argues that the district court was bound to resolve Newman's challenge by the findings of fact in the prior cases. The flaw in Louisiana's argument is that Newman was not a party to the other state cases. Therefore, § 2254(d)'s provision is inapposite.

The Orleans Parish Jury Commission followed a systematic policy of exclusion of wage earners, a practice already condemned by this Court in Labat v. Bennett, 5 Cir. 1966, 365 F.2d 698. Furthermore, in January of 1962 (the year of Newman's state indictment) blacks comprised 31.9% of the male population between the ages of 21 and 64 with at least five years of education, but only 13% of persons called for jury duty in that month were black.

It has long been the rule in this Circuit and elsewhere that a prima facie case of discrimination is established by showing a disparity between the percentage which the racial group constitutes of the persons from whom a jury list is drawn, and the percentage which that racial group constitutes of the jury list which is thereafter compiled. Once a prima facie case has been established, the burden shifts to the state to offer a satisfactory explanation why the disparity exists. Partida v. Castaneda, 5 Cir. 1975, 524 F.2d 481, cert. granted 1976, --- U.S. ----, 96 S.Ct. 2645, 49 L.Ed.2d 385 (1976); Muniz v. Beto, 5 Cir. 1970, 434 F.2d 697. In our view, this approach remains sound, and is not affected by the recent decision of the Supreme Court in Washington v. Davis, 1976, --- U.S. ----, 96 S.Ct. 2040, 48 L.Ed.2d 597.

In Washington, applicants for positions on the Washington, D. C. police force claimed that a written examination used to screen applicants was discriminatory, and thus invalid under the Fifth Amendment. The district court found that the number of black police officers was not proportionate to the population mix of the city, that a higher percentage of blacks failed the test than whites, and that the test had not been validated to establish its reliability. The Supreme Court rejected the view of the Court of Appeals for the District of Columbia that these facts, without proof of discriminatory intent, were sufficient to establish a constitutional violation. Rather, the Supreme Court held that proof of discriminatory purpose, as well as proof of discriminatory impact, was necessary to establish such a violation.

However, the Supreme Court recognized that discrimination in the grand jury context might require a different rule:

It is also not infrequently true that the discriminatory impact in the jury cases for example, the total or seriously disproportionate exclusion of Negroes from jury venires may for all practical purposes demonstrate...