U.S. ex rel. Barksdale v. Blackburn

• Decision Date: 16 March 1981
• Docket Number: No. 78-2582,78-2582
• Citation: 639 F.2d 1115
• Parties: UNITED STATES of America ex rel. Bruce BARKSDALE, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1115

639 F.2d 1115

UNITED STATES of America ex rel. Bruce BARKSDALE, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary,

Respondent-Appellee.

No. 78-2582.

United States Court of Appeals, Fifth Circuit.

March 16, 1981.

Rehearing Denied April 14, 1981.

John Wilson Reed, New Orleans, La. (Court-appointed), for petitioner-appellant.

Wm. J. Guste, Jr., Atty. Gen., Baton Rouge, La., Harry F. Connick, Dist. Atty., Brian G. Meissner, William F. Wessel, Asst. Dist. Attys., New Orleans, La., John S. Baker, Jr., Baton Rouge, La., for respondent-appellee.

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

Before GODBOLD, Chief Judge, BROWN, COLEMAN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, SAM D. JOHNSON and THOMAS A. CLARK, Circuit Judges. ^*

AINSWORTH, Circuit Judge:

Bruce Barksdale, seeking to set aside his seventeen-year-old conviction for aggravated rape, appeals from the district court denial of his petition for a writ of habeas corpus. As the basis for his petition, Barksdale, who is black, alleges that blacks were systematically excluded from the Orleans Parish grand jury which indicted him and from the petit jury venire which included the jurors who convicted him. ¹ A panel of this court, with one judge dissenting, agreed with Barksdale's contentions and reversed the district court. United States ex rel. Barksdale v. Blackburn, 610 F.2d 253 (5th Cir. 1980). The court then voted to rehear this case en banc, United States ex rel. Barksdale v. Blackburn, 616 F.2d 254 (5th Cir. 1980), thus vacating the panel opinion. See Fifth Circuit Local Rule 17. We find that there was no systematic exclusion of blacks from the juries and jury venires in question, and therefore now affirm the judgment of the district court.

I. The Factual Background ²

The facts of this case seem to have "been lost in the 'nice, sharp quillets of the law.' " ³ On the morning of October 3, 1962, Bruce Barksdale followed a young woman to her apartment building in New Orleans' French Quarter. He knocked on her door and inquired whether a couch in the hallway was for sale. As the woman opened the door to respond, Barksdale slammed against the door, shoved the woman back into her apartment, and threatened her with a raised hammer. The woman tried to run past Barksdale, but he grabbed her before she could reach the stairway and forcibly brought her back into the apartment. Barksdale then robbed his victim, pushed her into the bedroom, and shoved her face down onto the bed. He placed his knee in the middle of her back, and told her, "I'm not going to hurt you if you do as I tell you." Barksdale pulled off the woman's skirt, ordered her to remove her blouse, and tore off her underwear. Then, with the hammer still in his hand, Barksdale raped his victim. He told her, "(y)ou know I am going to have to kill you now." The woman begged hysterically for her life, and Barksdale relented after requiring her to swear to tell no one of the incident. As he left the apartment, Barksdale grabbed his victim by the throat and gave her a final warning: "If you ever tell anybody about this I will kill you. I have before and I will again, and I better not see you on the streets."

A short time later, the victim was found in an extremely agitated and distressed condition by her landlord. She was able to give the police a description of her assailant, from which a composite drawing was made. Two workers at a motel across the street from the victim's apartment also gave the police descriptions of a man with a hammer seen in the vicinity that morning. On the basis of these leads, the police were able to apprehend Barksdale the next morning.

The victim positively identified Barksdale on October 4, the day after the attack, in a lineup at New Orleans police headquarters. The two workmen also identified Barksdale. Clothing seized from Barksdale at the time of his arrest matched the victim's description of her assailant's clothes. A hammer similar to the one described by the victim was also found. Scientific tests of Barksdale's clothing revealed seminal fluid on the genital region of his garments. Furthermore, cat hair removed from Barksdale's clothing matched hair taken from the victim's bed, clothing and pet cat.

On October 5, Barksdale asked to see the arresting officers in order to make a statement. He subsequently dictated a confession that was typed out verbatim by a police lieutenant. The facts in Barksdale's statement substantially corroborate those related by the rape victim. ⁴

Barksdale was indicted for aggravated rape by an Orleans Parish Grand Jury. Two of the twelve members of that jury were black. Prior to trial, counsel for Barksdale challenged the composition of the general jury venire, the grand jury venire, the petit jury venire and the grand jury itself, alleging systematic exclusion of blacks. The state trial court held a hearing to consider these contentions and developed an extensive record which included the testimony of the Chairman of the Orleans Parish Jury Commission and seven judges of the Orleans Parish Criminal District Court. ⁵ In addition, counsel for Barksdale and the state entered into written stipulations regarding black representation on the venires and the juries for various years. Based on this record, the court denied Barksdale's challenges.

At trial, Barksdale presented no evidence or testimony in his favor and offered no defense. ⁶ Indeed, except for some limited cross-examination of police officers regarding the voluntariness of the confession, counsel for Barksdale did not cross-examine the victim or other witnesses produced by the state. The accused's confession, the scientific tests, eyewitness identifications and other evidence all were admitted without objection. The jury found Barksdale guilty as charged and imposed the death penalty. The sentence was later reduced to life imprisonment.

II. Barksdale's Appeals

Over the past seventeen years, Barksdale has resorted to every available appellate channel, alleging a variety of defects including jury discrimination. The Louisiana Supreme Court heard his first appeal, and, in a lengthy opinion, unanimously found no intentional or systematic exclusion of blacks from the jury system, noting that since Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958), a case which reversed a murder conviction because of grand jury discrimination, "the judges of the parish have adopted a practice of jury selection in keeping with the spirit of the law announced in the Eubanks case." State v. Barksdale, 247 La. 198, 170 So.2d 374, 380 (1964). Barksdale then presented his jury discrimination claims to the United States Supreme Court, which denied certiorari, 382 U.S. 921, 86 S.Ct. 297, 15 L.Ed.2d 236 (1965). Approximately two years later, the Louisiana Supreme Court denied Barksdale's habeas petition. State ex rel. Barksdale v. Dees, 252 La. 434, 211 So.2d 318 (1968). ⁷

In 1971, Barksdale filed a petition for a writ of habeas corpus in federal district court. The petition was originally heard by a federal magistrate, and, based on the magistrate's recommendations, the district court set aside Barksdale's conviction. The state's appeal was dismissed. Barksdale v. Henderson, No. 73-1536, cert. denied, 419 U.S. 880, 95 S.Ct. 145, 42 L.Ed.2d 120 (1974). The state then moved to vacate the district court judgment on the ground that the hearing before the magistrate was an improper delegation of authority under Wingo v. Wedding, 418 U.S. 461, 94 S.Ct. 2842, 41 L.Ed.2d 879 (1974). The motion was granted and affirmed on appeal, Barksdale v. Henderson, 519 F.2d 382 (5th Cir.), cert. denied, 422 U.S. 1045, 95 S.Ct. 2662, 45 L.Ed.2d 697 (1975). The case was remanded for an evidentiary hearing, and, after three such hearings, ⁸ the district court finally denied the petition. It found that at "the time of petitioner's trial the jury commission and the judges were not engaged in invidious racial discrimination and purposeful exclusion of blacks as a class from jury service on the grand and petit juries."

Barksdale appealed the district court ruling, and a panel of this court, with one judge dissenting, reversed, holding that Barksdale presented an unrebutted prima facie case of racial discrimination. The panel compared the black percentage of the general population of Orleans Parish in 1962 and 1963 with the percentage of blacks appearing on the general jury venire for those years and reasoned that the disparities found proved "the existence of both grand and petit jury discrimination" because "both (the) grand and petit juries were selected from the names which appeared on the general venire." 610 F.2d at 266. In addition, the panel noted that the sequence of blacks serving on grand juries from 1954 through 1963 in itself "evidences discrimination through limited inclusion." 610 F.2d at 268. The panel held that the state's justifications for the disparities were either unsupported or illegal. The state's contention that different literacy levels for white and black jurors explained the lower level of black participation was held to be "unsupported by the record." 610 F.2d at 272. The state's contention that the remainder of the disparity was explained "in terms of the arguably benign system of excusing 'hardship' cases" was held to be unacceptable in light of Labat v. Bennett, supra, 365 F.2d 698. Thus, with the state "left without a legitimate non-discriminatory explanation to rebut Barksdale's prima facie case," 610 F.2d at 272, the panel set aside the conviction.

III. Is Guilt Irrelevant? ⁹

On this appeal, Barksdale raises only one issue, alleging that the jury system in Orleans Parish systematically excluded blacks from grand jury and petit jury service. Several analytical steps...