Smith v. Brough, Civ. No. 16435.

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtGeorge L. Russell, Jr., Baltimore, Md., amicus curiæ
Citation248 F. Supp. 435
PartiesJames Francis SMITH v. Franklin K. BROUGH, Warden, Maryland Penitentiary.
Docket NumberCiv. No. 16435.
Decision Date14 December 1965

248 F. Supp. 435

James Francis SMITH
v.
Franklin K. BROUGH, Warden, Maryland Penitentiary.

Civ. No. 16435.

United States District Court D. Maryland.

December 14, 1965.


Morris L. Kaplan, Baltimore, Md., for petitioner.

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

George L. Russell, Jr., Baltimore, Md., amicus curiæ.

THOMSEN, Chief Judge.

The petitioner in this habeas corpus proceeding, a Maryland State prisoner, contends that he has been deprived of his rights under the Fourteenth Amendment to the Constitution of the United States because, pursuant to Article 36 of the Declaration of Rights in the Constitution of Maryland,1 persons who did

248 F. Supp. 436
not believe in the existence of God were excluded from the grand jury which indicted him and from the petit jury which found him guilty. His contention is based upon Schowgurow v. State, 240 Md. 121, 213 A.2d 475, decided October 11, 1965, and State v. Madison, Md., 213 A.2d 880, decided shortly thereafter, 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 convictions in those cases. However, the Court of Appeals further held that the legal principle enunciated therein should not apply retroactively, except for convictions which had not become final before the rendition of the opinion in Schowgurow

Petitioner herein was indicted by the Grand Jury of Baltimore City on June 18, 1963, for obtaining money by false pretenses, was tried in the Criminal Court of Baltimore before Judge Harris and a jury, was found guilty, filed a motion for a new trial, which was denied by the Supreme Bench of Baltimore City, was sentenced on May 5, 1964, to a term of ten years, and appealed to the Court of Appeals of Maryland, which, on March 3, 1965, affirmed his conviction. James Francis Smith v. State, 237 Md. 573, 207 A.2d 493. No petition for a writ of certiorari was filed with the Supreme Court. The conviction therefore became final some months before October 11, 1965, the date of the decision in Schowgurow.

Petitioner's principal contention is that the exclusion of non-believers from the grand jury and the petit jury rendered the indictment a nullity and all subsequent proceedings in the case illegal and unconstitutional. He argues that the ruling of the Court of Appeals in Schowgurow and Madison with respect to retroactivity was wrong, that he is being illegally held, and that this Court should order his release.

Respondent, represented by the Attorney General of the State, does not challenge in this case the decision of the Court of Appeals in Schowgurow, but does challenge so much of the decision in Madison as extends the benefit of the Schowgurow ruling to one who believes in God. Petitioner testified at the hearing on his present petition that he believes in God now and that he believed in God at the time of his trial. Respondent admits that in 1963 and 1964 nonbelievers were excluded from the grand and petit juries in Baltimore City pursuant to Article 36, but contends:

(a) that the benefit of the Schowgurow rule should be limited to the class excluded by Article 36, i. e., non-believers, unless a particular defendant can show prejudice or a likelihood of prejudice in his case;

(b) that petitioner waived any objection he might have to the composition of the grand jury by not making a timely objection, as required by Maryland Rule 725 b;

(c) that the Maryland Court did not deprive petitioner of any constitutional right when it held that the legal principles enunciated in Schowgurow and Madison should not apply retroactively, except for convictions which had not become final before the rendition of the Schowgurow opinion.

248 F. Supp. 437

Sometime between April and October 1965, petitioner filed a proceeding under the Maryland Post Conviction Procedure Act (P.C.P.A.),2 raising other points.3 He was permitted by a State Court to dismiss that petition without prejudice, so that he might file the petition now under consideration in this Court. Respondent does not contend in this case that petitioner should be required to exhaust his State remedies by presenting to the State Courts in a PCPA proceeding the points raised in this petition. In view of the decisions in Husk v. Warden, Md., 214 A.2d 139, and Hamm v. Warden, Md., 214 A.2d 141, and because of the importance of having the questions presented by this petition promptly decided, this Court will not require petitioner to exhaust his State remedies.

I

In Torcaso v. Watkins, 223 Md. 49, 162 A.2d 438 (1960), the Court of Appeals of Maryland held that a person appointed by the Governor to be a notary public, who declined to take an oath of office because it required a declaration that he believed in the existence of God, and whose commission was withheld for that reason, was not deprived of any of his rights under the Federal Constitution. The Supreme Court of the United States reversed that decision, Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed. 2d 982 (1961), and held that the Maryland constitutional requirement, set out in Article 37 of the Declaration of Rights4, invaded the appointee's freedom of belief and religion and could not be enforced against him.

In Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (filed October 11, 1965), the Court of Appeals of Maryland held that, because of the decision of the Supreme Court in Torcaso, the provision of Article 36 of the Maryland Declaration of Rights (see note 1, above) requiring demonstration of belief in God as a qualification for service as a grand or petit juror violates the Fourteenth Amendment. By timely motions Schowgurow had challenged the compositions of the grand jury which indicted him and of the petit jury which tried him. The Court found that every member of those juries had been required, as part of his oath or affirmation, to declare a belief in God.

Schowgurow is a Buddhist, whose religion does not teach belief in the existence of God. The Court of Appeals noted that the Supreme Court has consistently held that a criminal defendant is denied the equal protection of the laws guaranteed by the Fourteenth Amendment if he is indicted by a grand jury or tried by a petit jury from which members of his race have been systematically excluded because of their race;5 and that the Texas Court of Criminal Appeals has applied the same principle to the exclusion of Roman Catholics. Juarez v. State, 102 Tex.Cr.R. 297, 277 S.W. 1091 (1925). The Maryland Court stated that it could see no difference, under the Federal Constitution, in the position of a defendant who is a member of a class excluded from the jury for lack of belief in God

248 F. Supp. 438
from that of a defendant tried by a jury from which members of his race have been excluded because of their race.6

In answer to an argument by the State that Schowgurow had shown no prejudice and therefore, as to him, no denial of a constitutional right, the Court said: "When the system of jury selection on its face shows discrimination and exclusion, an actual showing of discrimination on the basis of comparative numbers of the excluded and non-excluded classes on the jury lists is unnecessary; it is the danger of abuse resulting from the method of selection which renders it unconstitutional."7 The Court concluded: "For the reasons given, the challenges of the appellant to the composition of the grand jury which indicted him and the petit jury which tried him should have been upheld, and the motions to dismiss the indictment and to dismiss the petit jury panel should have been granted."

The Court held, however, "that the legal principle enunciated in this case shall not apply retroactively, except for convictions which have not become final before rendition of this opinion." The Court stated at length the reasons for that ruling; they will be discussed in Section V of this opinion.

A few days later, in a case involving a member of the Apostolic faith, who believed in the existence of a Supreme Being, the Court affirmed an order of the Criminal Court of Baltimore dismissing an indictment over the objection of the State that the defendant was not entitled to question the validity of the indictment because he was not a member of the class unconstitutionally excluded from the grand jury which indicted him. The Court of Appeals supplemented its per curiam order with an opinion, State v. Madison, Md., 213 A.2d 880 (filed November 5, 1965). In that opinion, after reciting the decision in Schowgurow and discussing various cases which will be considered in Section II, below, the Court said: "* * * once it is established that the method of the grand jury's selection is unconstitutional, any accused indicted by such a jury has the right to have the indictment dismissed. He has this right, not because of any individual prejudice to him but because, under the basic law of our land, all persons accused of crime have the right to be tried in accordance with the requirements of our legal system."8 The Court

248 F. Supp. 439
reiterated the conclusion in Schowgurow that its ruling was not to apply retroactively, except for convictions which had not become final before the rendition of the opinion in Schowgurow

In Husk v. Warden, Md., 214 A.2d 139, filed November 15, 1965, the Court denied an application for leave to appeal from an order denying relief under the Maryland Post Conviction Procedure Act9 to a petitioner whose conviction had become final two years before the decision in Schowgurow. The Court made a similar ruling in Hamm v. Warden, Md., 214 A.2d 141, filed November 16, 1965. In each of those cases the Court stated that relief was...

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14 practice notes
  • Baker v. State, No. 109
    • United States
    • Court of Appeals of Maryland
    • October 17, 2003
    ...v. State, 240 Md. 121, 213 A.2d 475 (1965), and State v. Madison, 240 Md. 265, 213 A.2d 880 (1965). Following Smith v. Brough, 248 F.Supp. 435 (D.Md. 1965), the court held that refusal to apply Schowgurow and Madison "retroactively, except for convictions which had not become final before t......
  • Henderson v. Warden, Maryland Penitentiary, Civ. No. 16338.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • December 29, 1965
    ...23, 83 S.Ct. 1623, 10 L.Ed. 2d 726 (1963). 2 See also discussion in Section V of the opinion of this Court in Smith v. Brough, Warden, 248 F.Supp. 435. --------...
  • Schiller v. Lefkowitz, No. 129
    • United States
    • Court of Appeals of Maryland
    • May 11, 1966
    ...a crime.' Note, 60 Harv.L.Rev. 437, 446. 6 See, however, Chief Judge Thomsen's discussion of this question in Smith v. Brough, D.C., 248 F.Supp. 435, 441-442 (D.Md....
  • DeToro v. Warden, Maryland Penitentiary, Civ. No. 16804
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • February 20, 1967
    ...upon the petitioner became final before October 11, 1965, the date of the decision in Schowgurow.1 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 n......
  • Request a trial to view additional results
14 cases
  • Baker v. State, No. 109
    • United States
    • Court of Appeals of Maryland
    • October 17, 2003
    ...v. State, 240 Md. 121, 213 A.2d 475 (1965), and State v. Madison, 240 Md. 265, 213 A.2d 880 (1965). Following Smith v. Brough, 248 F.Supp. 435 (D.Md. 1965), the court held that refusal to apply Schowgurow and Madison "retroactively, except for convictions which had not become final before t......
  • Henderson v. Warden, Maryland Penitentiary, Civ. No. 16338.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • December 29, 1965
    ...23, 83 S.Ct. 1623, 10 L.Ed. 2d 726 (1963). 2 See also discussion in Section V of the opinion of this Court in Smith v. Brough, Warden, 248 F.Supp. 435. --------...
  • Schiller v. Lefkowitz, No. 129
    • United States
    • Court of Appeals of Maryland
    • May 11, 1966
    ...a crime.' Note, 60 Harv.L.Rev. 437, 446. 6 See, however, Chief Judge Thomsen's discussion of this question in Smith v. Brough, D.C., 248 F.Supp. 435, 441-442 (D.Md....
  • DeToro v. Warden, Maryland Penitentiary, Civ. No. 16804
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • February 20, 1967
    ...upon the petitioner became final before October 11, 1965, the date of the decision in Schowgurow.1 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 n......
  • Request a trial to view additional results

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