hon. pascal f. calogero, brief

7/27/2019 Hon. Pascal F. Calogero, Brief

http://slidepdf.com/reader/full/hon-pascal-f-calogero-brief 1/31

No. 13-30266

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

ALBERT WOODFOX,

Petitioner-Appellee

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY;

JAMES CALDWELL,

Respondents-Appellants ____________________

APPEAL FROM THE U NITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF LOUISIANA, CASE NO. 06-789 ____________________

BRIEF OF AMICUS CURIAE

HON. PASCAL F. CALOGERO, JR.

AND THE PROMISE OF JUSTICE INITIATIVEIN SUPPORT OF AFFIRMANCE

____________________

HON. PASCAL F. CALOGERO, JR.

PASCAL F. CALOGERO, JR ., APLC

1100 POYDRAS STREET, SUITE 1500

NEW ORLEANS, LA 70163TEL (504) 582-2300

FAX (504) 582-2310

THE PROMISE OF JUSTICE INITIATIVE

636 BARONNE STREET

NEW ORLEANS, LA. 70130TEL. (504) 529-5955

FAX (504) 558-0348

Case: 13-30266 Document: 00512291392 Page: 1 Date Filed: 06/28/2013 Case: 13-30266 Document: 00512275943 Page: 1 Date Filed: 06/17/2013 Case: 13-30266 Document: 00512294229 Page: 1 Date Filed: 07/02/2013



ii

CERTIFICATE OF INTERESTED PERSONS

Woodfox v. Cain, No. 13-30266

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of Rule 28.2.1 have an interest in

the outcome of this case. These representations are made in order that the judges of

this Court may evaluate possible disqualification or recusal.

1. Burl Cain, Warden, Louisiana State Penitentiary, Appellant

2. James D. Caldwell, Attorney General, State of Louisiana, Appellant

3. Office of the Attorney General of the State of Louisiana, by James D.

Caldwell, Kurt Wall, and Colin Andrew Clark, Counsel for Appellant

4. McGlinchy Stafford PLLC, by Richard A. Curry and M. Brent Hicks,

Counsel for Appellant

5. Albert Woodfox, Appellee

6. Squire Sanders (US), L.L.P., by George H. Kendall, Counsel for

Appellee

7. Center for Equal Justice, by Nicholas Joseph Trenticosta, Counsel for

Appellee

8. Christopher Albert Aberle, Robert B. McDuff, and Scott P. Fleming,

Counsel for Appellee




iii

9. Hon. Pascal F. Calogero, Jr., Counsel for Amici

10. The Promise of Justice Initiative, by Sarah L. Ottinger, Amici

/s/ Pascal F. Calogero, Jr. ___________________________

Hon. Pascal F. Calogero, Jr.

Counsel of Record for Amici




iv

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ....................................................... ii TABLE OF CONTENTS .......................................................................................... iv TABLE OF AUTHORITIES ..................................................................................... v INTERESTS OF AMICUS CURIAE ........................................................................ 1 INTRODUCTION ..................................................................................................... 1 ARGUMENT ............................................................................................................. 3

I. The Selection of the Grand Jury Foreperson Is a Critical Inflection

Point in a Criminal Prosecution Which Was Highly Susceptible toDiscrimination Under the Former Law. ........................................................ 3

II. Louisiana Has a Dark History of Racial Discrimination in GrandJury Selection Dating Back to Reconstruction and Continuing

Through the 1990s. ....................................................................................... 6 III. Following the 1999 Statutory Amendment that Randomized

Foreperson Appointment, Qualified African Americans Have Ably

Served as Forepersons in a Representative Proportion. .............................. 19 CONCLUSION ........................................................................................................ 22 CERTIFICATE OF COMPLIANCE ....................................................................... 23 CERTIFICATE OF SERVICE ................................................................................ 24




v

TABLE OF AUTHORITIES

CASES

Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966) .................................................13

Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966) ..............................................................13

Campbell v. Louisiana, 523 U.S. 392 (1998) ........................................... 1, 3, 17, 18

Castaneda v. Partida, 430 U.S. 482 (1977) .............................................................16

Davis v. Davis, 361 F.2d 770 (5th Cir. 1966) ..........................................................13

Eubanks v. Louisiana, 356 U.S. 584 (1958) ............................................................11

Goins v. Allgood , 391 F.2d 692 (5th Cir. 1968) ......................................................12

Guice v. Fortenberry, 661 F.2d 496 (5th Cir. 1981) ........................................ 15, 16

Guice v. Fortenberry, 722 F.2d 276 (5th Cir. 1998) ...........................................5, 16

Guillory v. Cain, 303 F.3d 647 (5th Cir. 2002) ...................................................4, 15

Henley v. Bell , 487 F.3d 379 (6th Cir. 2007) ............................................................. 4

Hernandez v. Texas, 347 U.S. 475 (1954) ...............................................................11

Hobby v. United States, 468 U.S. 339 (1984) ..........................................................17

Jackson v. United States, 366 F.2d 34 (5th Cir. 1966) ............................................13

Labat v. Bennett , 365 F.2d 698 (5th Cir. 1966) .......................................... 13, 14, 15

Michel v. Louisiana, 350 U.S. 91 (1955) .......................................................... 10, 14

Peterson v. Cain, 302 F.3d 508 (5th Cir. 2002)......................................................... 4

Pierre v. Louisiana, 306 U.S. 354 (1939) .................................................................. 9

Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966) .......................................13

Rideau v. Whitley, 237 F.3d 472 (5th Cir. 2000) .....................................................15

Rose v. Mitchell , 443 U.S. 545 (1979) .....................................................................16

Scott v. Walker , 358 F.2d 561 (5th Cir. 1966) .........................................................13

Smith v. Texas, 311 U.S. 128 (1940) ...................................................................2, 12

State ex rel. Williams v. Whitley, 629 So. 2d 343 (La. 1993) ..................................17

State v. Barksdale, 170 So. 2d 374 (La. 1965) ............................................. 5, 11, 12




vi

State v. Campbell , 95-0824 (La. 10/2/95); 661 So. 2d 1321 ...............................3, 17

State v. Cosey, 97-2020 (La. 11/28/00); 779 So. 2d 675 .............................. 3, 20, 21

State v. Divers, 34-748 (La. App. 2 Cir. 06/22/2001); 793 So. 2d 308 ...................19

State v. Eubanks, 94 So. 2d 262 (La. 1957) .............................................................10State v. Green, 60 So. 2d 208 (La. 1952) .............................................................9, 10

State v. Labat , 75 So. 2d 333 (1954)........................................................................14

State v. Langley, 95-1489 (La. 04/03/2002); 813 So. 2d 356 .......................... passim

State v. Morgan, 20 La. Ann 442 (La. 1868) .........................................................7, 8

State v. Palmer , 94 So. 2d 439 (La. 1957) ................................................................. 5

State v. Pierre, 180 So. 630 (La. 1938) .................................................................8, 9

United States v. Louisiana, 225 F. Supp. 353 (E.D. La. 1963) .............................7, 8Vasquez v. Hillery, 474 U.S. 254 (1986) .............................................................4, 22

STATUTES AND OTHER AUTHORITIES

La. C.Cr.P. art. 202 ..................................................................................................14

La. C.Cr.P. art. 413 ......................................................................................... 2, 3, 18

Reconstruction Act of 1867 ....................................................................................... 7

William Shakespeare, MEASURE FOR MEASURE ......................................................13




1

INTERESTS OF AMICUS CURIAE1

Amici Hon. Pascal F. Calogero, Jr. and the Promise of Justice Initiative have

an interest separate from the Appellee in this case. Amici have a particular interest

in addressing race discrimination in the criminal justice system, both by educating

policymakers about the past wrongs and by working toward a more just and

equitable future. With regard to racial discrimination in the selection of grand jury

foreperson, amici seek to aid this Court’s understanding of the deep-seated history

of this practice in Louisiana.

INTRODUCTION

How do we certify that the Louisiana judicial system is fundamentally

fair, where there is compelling evidence of racial and gender

discrimination?

State v. Langley, 95-1489 (La. 04/03/2002); 813 So. 2d 356, 373 (Johnson, J.,concurring).

In the wake of the Supreme Court’s decision in Campbell v. Louisiana, 523

U.S. 392 (1998), the Louisiana legislature took an important step toward

eradicating discrimination in the selection of grand jury forepersons. Eliminating

the trial judge’s discretion to select forepersons, the legislature instead directed the

court to “cause a random selection to be made of one person from the impaneled

1 Pursuant to Fed. R. App. P. 29(c)(5), amici state that no counsel for any party authored this

brief in whole or in part, and no person or entity other than amici made a monetary contribution

to the preparation or submission of the brief.




2

grand jury to serve as foreman of the grand jury.” La. C.Cr.P. art. 413(B) . That

small but important step “addressed the problem” of racial discrimination in the

selection of grand jury forepersons, and harmonized Louisiana’s practice with the

“established tradition in the use of juries as instruments of public justice that the

jury be a body truly representative of the community.” Smith v. Texas, 311 U.S.

128, 130 (1940).

The grand jury that indicted Mr. Woodfox, led by a foreperson selected

through racially discriminatory means, did not comport with this tradition. The

grand jury foreperson was selected under a discriminatory regime that was, in the

words of the Louisiana Supreme Court, “unquestionably su bject to abuse according

to subjective criteria that may include race and gender.” Langley, 813 So. 2d at

371. Mr. Woodfox’s case presents a chilling example of that abuse. This Cou rt is

now presented with an opportunity to remedy one of the few — if not the only —

lingering wrongs arising out of the former foreperson selection scheme, and to

correct the same injustice to Mr. Woodfox that the Louisiana legislature corrected

for every criminal defendant throughout the state fourteen years ago.




3

ARGUMENT

I. The Selection of the Grand Jury Foreperson Is a Critical Inflection

Point in a Criminal Prosecution Which Was Highly Susceptible to

Discrimination Under the Former Law.

At the time of Mr. Woodfox’s indictment, the grand jury foreperson was

selected by the district judge. See La. C.Cr.P. art. 413 (West 1993). In all parishes

other than Orleans,2 the sheriff randomly drew the names of the grand jurors from

an envelope, while the judge hand-picked the foreperson from the venire as a

whole. Id. This procedure “was subject to abuse because it placed untrammeled

discretion in the trial judge” to select the foreperson. State v. Cosey, 97-2020 (La.

11/28/00); 779 So. 2d 675, 683.

Prior to 1998, the Louisiana Supreme Court had held that the role of the

foreperson was “ministerial,” and as such any discrimination in the selection for

the foreperson had “little, if any, effect on the defendant’s due process right of

fundamental fairness.” State v. Campbell , 95-0824 (La. 10/2/95); 661 So. 2d 1321,

1324. However, the United State Supreme Court rejected this conclusion, finding

that Louisiana’s procedure “implicate[d] the impermissible appointment of a

member of the grand jury.” Campbell v. Louisiana, 523 U.S. 392, 402 (1998).

The foreperson not only performed additional ministerial duties, but also acted as a

2 In Orleans Parish, the judge selected all grand jurors, and then chose a foreperson out of the

empaneled grand jurors. La. C.Cr.P. art. 413(C).




4

voting member of the grand jury, whose votes directly impacted criminal

defendants. See Peterson v. Cain, 302 F.3d 508, 514 (5th Cir. 2002). See also

Henley v. Bell , 487 F.3d 379, 385 (6th Cir. 2007) (noting that, like in Louisiana,

“the foreperson in Tennessee played an unusually important role because he was

selected independently by the judge as a thirteenth member of the grand jury”). As

a member of the grand jury, in the foreperson’s hands “lies the power to charge a

greater offense or a lesser offense; numerous counts or a single count; and perhaps

most significant of all, a capital offense or a noncapital offense — all on the basis of

the same facts.” Vasquez v. Hillery, 474 U.S. 254, 263 (1986). Discrimination in

the selection of grand jury forepersons had the potential to “infect the framing of

the indictment and, consequently, the nature or very existence of the proceedings

to come.” Id.

Indeed, when called to testify about their considerations in selecting

forepersons, Louisiana district judges have frequently cited character traits which

they felt important for a foreperson to have. These traits often include

independence and leadership qualities. For example, a Calcasieu Parish judge, in

Guillory v. Cain, testified that he sought out individuals “who would be fair and

independent” and “not necessarily go along” with the prosecution. 303 F.3d 647,

650-51 (5th Cir. 2002). In Guice v. Fortenberry, a Madison Parish judge indicated




5

that he “relied on his personal knowledge . . . to select the best person as grand jury

foreman, who could stand up to the district attorney and if probable cause was not

shown, to vote in that manner.” 722 F.2d 276, 278-79 (5th Cir. 1998) (internal

quotation omitted) (“Guice II ”). As evident by judges’ testimony over the course

of many cases, Louisiana district judges tended to select individuals with whom

they were personally familiar and were known to possess these qualities. But

unfortunately, white male judges were most often familiar with other white males,

and did not seek out women and African-Americans. See Guice II , 722 F.2d at 281

(quoting a selecting judge’s observation that: “when we have a Black Judge,

they’re gonna know who's the most qualified amongst the Blacks to be a

foreman.”). Worse, some judges testified that they “found Negroes to be less

qualified than others.” State v. Barksdale, 170 So. 2d 374, 385 (La. 1965). The

Louisiana Supreme Court remarked in 1957 that “there is nothing in the record to

show that [the judge] would not have selected all the Negroes on the list had they

possessed superior qualifications or qualifications on a par with those of the other

10 [white male] persons whom he chose.” State v. Palmer , 94 So. 2d 439, 476 (La.

1957). In sum, this important position was filled most often by white males, and

whether or not these white males were qualified for the position, Louisiana grand




6

juries spearheaded in this way failed to be bodies truly representative of their

respective communities.

II. Louisiana Has a Dark History of Racial Discrimination in Grand

Jury Selection Dating Back to Reconstruction and Continuing

Through the 1990s.

Pervasive discrimination in the selection of grand juries and grand jury

forepersons in Louisiana ran largely unchecked by the state courts. While the

grand jury selection provisions in the law have generally been race-neutral, the

“untrammeled discretion” granted the selecting judge has historically been used—

intentionally or not — to the exclusion of African-American citizens. Challengers

have been asserting these violations since Louisiana gained statehood in 1812, but

no legislative solution was enacted until 1999.

As with many other efforts to eliminate racial discrimination in Louisiana,

the battle to cure the problem in the discriminatory selection of grand jury

forepersons began in 1868, a year that marked an important turning point for the

State. Following three bloody years after the close of the Civil War,

Reconstruction took hold in 1868, formally signaled by the adoption of the

Louisiana Constitution of 1868. At the time one of the most progressive state

constitutions, the Constitution of 1868 “desegregated the schools, adopted the bill

of rights, rejected a literacy test, and prohibited discrimination in public




7

conveyances and places of public accommodation.” United States v. Louisiana,

225 F. Supp. 353, 366 (E.D. La. 1963). However, the new constitution only

incited racial animosity among former Confederate whites, and “ instead of closing

the breach between whites and blacks, served only to widen it.” Id. (quoting

ALDEN L. POWELL, HISTORY OF LOUISIANA CONSTITUTIONS, Vol. 1, Part. 1,

Louisiana Law Institute, Project of a Constitution for the State of Louisiana 370

(1954)).

That widening was evident in one of the earliest challenges to the grand jury

selection procedures based on race discrimination, State v. Morgan, 20 La. Ann

442 (La. 1868). During the Civil War, African-American voters had been removed

from the rolls in Orleans Parish. The Reconstruction Congress, however, had

passed an act mandating that in former Confederate states, “all persons shall be

entitled to vote.”3 The voter rolls drawn in 1867 consequently contained a more

representative pool of citizens than the rolls drawn in 1865. In 1867, the Orleans

Parish judge had ordered a new list of jurors to be prepared, but the sheriff drew

the list from the 1865 voter registry instead of the 1867 registry, and Charles

Morgan was indicted for murder by a grand jury drawn from this list. The

Louisiana Supreme Court ultimately reversed his conviction due to the improper

3 First Reconstruction Act of 1867, 14 Stat. 428-430, § 6.




8

selection of the grand jury. Id. In later years, however, the Louisiana Supreme

Court increasingly turned a blind eye to grand jury discrimination, requiring

federal intervention.

One theme that has remained consistent throughout the decades is the State’s

efforts to justify the exclusion or underrepresentation of African Americans the use

of literacy statistics. The mechanism of literacy tests or interpretation requirements

was used most notably to disenfranchise African Americans from the voter rolls —

in West Feliciana Parish, for example, not a single African American was

registered to vote as late as 1960. See Louisiana, 225 F. Supp. at 380 & n. 81. To

defend the exclusion of African Americans from grand juries, the State has often

attempted to undermine generally recognized racial statistics, such as the United

States Census, through the testimony of witnesses estimating extraordinary black

illiteracy rates. In State v. Pierre, the Louisiana Supreme Court conceded that no

blacks had served on St. John Parish grand juries since at least 1896, but asserted

that four blacks were included on the 300-man venire from which the defendant’s

grand jury had been chosen. 180 So. 630, 632 (La. 1938). In a parish which

contained approximately four thousand black citizens, the court relied upon

testimony from a local school superintendent that there were “possibly 25 or 50”

literate black men qualified to be grand jurors, “but his estimate was purely a




9

guess.” Id. at 633. Moreover, the court found that it was reasonable for grand jury

commissioners to select members of their own race —“[i]t is not their duty to

search the parish for members of the colored race who possess the proper

qualifications merely in order that there be the names of such persons on the roll.”

Id. On certiorari, the United States Supreme Court looked to the 1930 Census,

rather than the estimations of the superintendent, and found that 70% of the black

population of the parish was literate. Pierre v. Louisiana, 306 U.S. 354, 360

(1939). The Court also found that the “four” African Americans which the

Louisiana Supreme Court had found on the venire were, in actuality, one. There

were three blacks on the 1936 venire: one was dead, one was listed under the

wrong name, and one was “the only negro who had ever been called for jury

service” in that parish. Id. at 359. Finding an obvious prima facie case, the Court

reversed and remanded. Id. at 361.

The United States Supreme Court’s reversal in Pierre apparently had no real

effect on the Louisiana Supreme Court’s analysis of claims of grand jury

discrimination. The State continued to claim that the illiteracy of black citizens

justified their exclusion from the jury pools. In State v. Green, 60 So. 2d 208, 211-

12 (La. 1952), the court examined a situation where the 300-person grand jury

venire included only “10 or 12 Negroes. This list was composed of persons with




10

whom the jury commissioners (or one or more of them) were personally

acquainted.” In a footnote, the court noted that the Concordia Parish population

“consisted of 5871 white persons, [and] 8515 Negroes,” but held that the

underrepresentation was insufficient to rise to an equal protection violation in light

of the estimated illiteracy of black citizens, “which was not uncommon in the

parishes of the Mississippi Delta.” Id. at 212 & n. 1, n. 3.

In State v. Eubanks, where a venire of 750 people in Orleans Parish

somehow only included six black individuals, none of whom were chosen to serve,

the Louisiana Supreme Court remarked that “[t]he only reason Negroes were not

selected to serve was that the Judge selecting the Grand Jury thought that the white

persons selected were better qualified.” 94 So. 2d 262, 265 (La. 1957). Again, the

United States Supreme Court was compelled to step in. The Court found that

“[a]lthough Negroes comprise about one-third of the population of the parish, the

uncontradicted testimony of various witnesses established that only one Negro had

been picked for grand jury duty within memory. And this lone exception

apparently resulted from the mistaken impression that the juror was white.”4

4 Justice Black had foreshadowed his opinion of the unconstitutionality of Orleans Parish grand jury selection procedures three years earlier, in his dissent in Michel v. Louisiana, 350 U.S. 91,

102 (1955) (Black, J., dissenting) (“Only once within the memory of people living in the parish

had a colored person been selected as a grand juror. That juror, who happened to look like a

white man, was selected under the mistaken idea that he was one.”).




11

Eubanks v. Louisiana, 356 U.S. 584, 586 (1958). Justice Black’s opinion in

Eubanks strikes a tone of frustration, emphasizing that if the “mere general

assertions” of good faith by officials were adequate to justify complete exclusion

of blacks from jury service, the Equal Protection Clause “would be but a vain and

illusory requirement.” Id. at 587. “[L]ocal tradition” and “general thinking of the

community,” he wr ote, “cannot justify failure to comply with the constitutional

mandate requiring equal protection of the laws.” Id. at 588.

In the 1960s, headed by John Minor Wisdom, this Court became

instrumental in enforcing equal protection guarantees in the selection of grand

juries. In 1964, the Louisiana Supreme Court denied an equal protection challenge

based upon the segregation of the entire courthouse and jail, that no blacks served

in any capacity in the criminal courthouse, and that “no Negro has ever served as

Jury Commissioner or as Foreman of the Grand Jury in Orleans Parish .”

Barksdale, 170 So. 2d at 380. As to the segregation claims, citing to Hernandez v.

Texas, 347 U.S. 475 (1954), the court held that “[t]he fact that a particular group is

sometimes treated as a separate class within a community is not proof of

discrimination in the selection of juries.” Barksdale, 170 So. 2d at 216. The court

acknowledged the discrepancy between a parish which was one third black

drawing only a ten percent black jury venire, but found that the




12

underrepresentation stemmed from the “fact” that “lack of education among the

Negroes inevitably compels them to accept less gainful employment, often such as

to create an undue hardship if they are compelled to accept jury service, which is

without pay.” Id. at 382. Then, of the few black citizens who made it onto the jury

wheel, the court found that “a much larger number of Negroes than white men

object to capital punishment on the voir dire, and so disqualify themselves for that

reason.” Id. at 381-82.

This Court excoriated the Louisiana Supreme Court’s Barksdale opinion

four years later in Goins v. Allgood , 391 F.2d 692, 696-97 (5th Cir. 1968). As to

the Louisiana Supreme Court’s holding that the educational and economic

conditions of black citizens justified the small number on grand juries, this Court

stated that “[t]hat rationale ignores the constitutional imperative that the grand jury

must be a ‘body truly representative of the community.’” Id. at 698-99 (quoting

Smith, 311 U.S. at 130). As this Court noted, “[t]he impression was general in the

South . . . that constitutional requirement was met if Negroes were simply

represented on the grand jury.” Goins, 391 F.2d at 696-97.

In 1966, this Court granted hearing en banc to hear seven grand jury

discrimination cases, among them three arising out of Louisiana parishes —

Orleans, Livingston, and Acadia. See Scott v. Walker , 358 F.2d 561 (5th Cir.




13

1966); Billingsley v. Clayton, 359 F.2d 13 (5th Cir. 1966); Davis v. Davis, 361

F.2d 770 (5th Cir. 1966); Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966);

Jackson v. United States, 366 F.2d 34 (5th Cir. 1966); Brooks v. Beto, 366 F.2d 1

(5th Cir. 1966); Labat v. Bennett , 365 F.2d 698 (5th Cir. 1966). In each case, this

Court found that racial discrimination had been established, and overturned each

conviction.

Judge Wisdom’s opinion in Labat particularly bears mention due to its wide-

reaching and instructive legal analysis. Quoting Shakespeare, he begins the

opinion:

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

“Death” for thirteen years has kept close tab on Edgar Labat andClifton Poret.

Labat , 365 F.2d at 701 (quoting William Shakespeare, MEASURE FOR MEASURE,

act 2, sc. 2.). Labat and Poret had been convicted of the rape and robbery of a

white woman by an all-white Orleans Parish jury and sentenced to electrocution.

The police had been unable to apprehend Poret after the offense and only located

him after it was discovered that that he was serving time for theft in a Tennessee

jail. Poret remained in custody there and did not return to Louisiana until October

of 1952. During this period Poret had no attorney. Upon being appointed counsel,

he filed a motion to quash due to racial discrimination in grand jury selection




14

selection on November 7, 1952. However, former Article 202 of the Code of

Criminal Procedure required all motions to quash due to irregularities in the grand

jury procedures (including race discrimination) to be filed within three days of the

expiration of that grand jury’s term. Consequently, Article 202 “was meaningless

as to Poret.” Labat , 365 F.2d at 704; see La. C.Cr.P. art. 202 (1928). The Louisiana

Supreme Court found the issue to have been waived, and in a 6-3 opinion, the

United States Supreme Court agreed. State v. Labat , 75 So. 2d 333 (1954), aff'd

sub nom. Michel v. Louisiana, 350 U.S. 91 (1955). On habeas review, this Court

found that due to the impossibility of Poret raising the issue while unrepresented

and incarcerated out of state, the filing of the motion to quash within a reasonable

time after counsel was appointed, and the vagueness of the procedural rule itself,

the petitioners were at long last entitled to a decision on the merits. Labat , 365

F.2d at 710.

Citing to the Magna Carta, Judge Wisdom found that racial discrimination in

jury selection was repugnant to the foundational principles of our society. Id . at

711-12. In Orleans Parish at the time, only one black juror had ever been selected

to serve on a grand jury — because he had been mistaken for a white man — and no

black juror had ever been selected to serve on a petit jury. Id . at 716. This Court

found “unacceptable” the State’s claim that the absence of blacks from juries




15

resulted “not from racial discrimination but primarily from the benign practice of

excusing from jury service ‘outside’ workers, manual laborers, and earners paid

daily wages, most of whom [we]re Negroes.” Id. at 719. Without wage earners,

this Court reasoned, a jury “simply is not representative of the community.” Id. at

721. But more fundamentally, this “theoretically neutral principle loses its aura of

sanctity when it fails to function neutrally.” Id. at 724. “The system was neutral,

principled, and foolproof: No Negro ever sat on a grand jury or a trial jury in

Orleans Parish.” Id. at 725. As a result, this Court issued a writ of habeas corpus,

and Poret and Labat were released after sixteen years on death row.

This Court’s work was not over. Beginning with the Madison Parish case of

Guice v. Fortenberry in 1981, Louisiana grand jury foreperson discrimination

cases began to trickle into the federal courts. See 661 F.2d 496 (5th Cir. 1981) (en

banc) (“Guice I ”). See also, e.g., Guillory, 303 F.3d 647; Rideau v. Whitley, 237

F.3d 472 (5th Cir. 2000). Particularly in small, racially-stratified areas,

discrimination in the selection of the grand jury forepersons was rampant and

recurring. It resulted from the absence of standards and trial bench efforts to survey

the panel and identify good foreperson candidates of all races. This Cour t’s en

banc decision in Guice I was the first time a court would make the pronouncement

that the foreperson selection procedure in Louisiana was “susceptible to abuse”




16

under Castaneda v. Partida, 430 U.S. 482, 494 (1977) and Rose v. Mitchell , 443

U.S. 545, 553 (1979). Further, this Court reversed the district court’s denial of

habeas corpus and remanded for an evidentiary hearing, noting that “in a parish

where the population is approximately 60% black, [that] there would be no racial

discrimination in the selection of a white foreman thirty-one successive times is so

unlikely as to demand at least exploration.” Guice I , 661 F.2d at 508. After an

evidentiary hearing, the district court found that the petitioner had made out a

prima facie case but that the State had successfully rebutted it with testimony from

the selecting judges that they generally relied upon personal knowledge of the

potential foreman. Guice II , 722 F.2d at 278. This Court reversed. The testimony

that the selecting judges always chose individuals, always white, who were known

to them, was insufficient to rebut the petitioner’s showing of a “ long history of the

complete and absolute exclusion of blacks from a position for which approximately

forty-five percent of the available candidates were black .” Id. at 282.

In Guice II , this Court noted that “ because the foreman was selected from

the venire rather than from the grand jury itself, any discrimination in the selection

of a foreman necessarily tainted the composition of the grand jury as well: only

eleven of its twelve members were picked at random.” Id. at 282 n. 6. Shortly

after this Cour t’s decision in Guice II , the United States Supreme Court issued its




17

opinion in Hobby v. United States, 468 U.S. 339 (1984), holding that the

ministerial function of the grand jury foreperson in the federal system precluded a

claim of grand jury foreperson discrimination. Consequently, in disregard to this

Court’s guidance in Guice II , and the widespread discrimination occurring across

the state, the Louisiana Supreme Court held that Hobby applied to foreclose any

grand jury foreperson discrimination claims in Louisiana. Campbell , 661 So. 2d at

1324 (per curiam) (Calogero, C.J., not on panel) (“The role of the grand jury

foreman in Louisiana appears to be similarly ministerial.”); see also State ex rel.

Williams v. Whitley, 629 So. 2d 343 (La. 1993) (Marcus, J., dissenting from the

grant of a stay of execution) (“The role of the foreman of the grand jury in

Louisiana also appears to be ministerial in nature.”). The court also found that

Campbell, as a white man, had no standing to challenge racial discrimination in the

selection of grand jury forepersons.

The United States Supreme Court found that “[t]he Louisiana Supreme

Court was wrong on both counts.” Campbell , 523 U.S. at 402. Validating this

Court’s conclusion in Guice that discrimination in the selection of Louisiana grand

jury forepersons violates the due process and equal protection, the Court found that

Campbell had standing to challenge the foreperson discrimination in Evangeline

Parish. Id. at 399. The Court found that the integrity of decisions made by a grand




18

jury “depends on the integrity of the process used to select the grand jurors. If that

process is infected with racial discrimination, doubt is cast over the fairness of all

subsequent decisions.” Id. And, unlike in the federal system, the Louisiana

selection procedure required the judge to select a voting member of the grand jury;

accordingly, in Louisiana, discriminatory selection of the foreperson “will distort

the overall composition of the array or otherwise taint the operation of the judicial

process.” Id. at 403.

The Court’s decision in Campbell sounded a clarion call for reform in the

selection of grand jury forepersons — and in Orleans, in the selection of the entire

grand jury. Recognizing the heightened potential for discrimination inherent in

such a discretionary regime, all three branches of Louisiana’s government moved

quickly to remedy the past wrongs. The Louisiana Legislature responded to

Campbell with an amendment to La. C.Cr.P. art. 413(B). The new legislation

stripped the trial court of its authority to select a grand jury foreperson, and instead

directed the court to “cause a random selection to be made of one person from the

impaneled grand jury to serve as foreman of the grand jury.” The proposed

legislation passed both houses of the state legislature unanimously.5 The Governor

5 Although the Louisiana Legislature preserved the exception for Orleans Parish, it repealed that

provision of La. C.Cr.P. art. 413 in 2001, making the process for selecting grand jurors and their

forepersons uniform throughout the state.




19

signed the bill into law shortly thereafter. Just one year after the Supreme Court’s

decision in Campbell , the discretionary system had been replaced. With the

bleeding stopped, Louisiana courts began healing the wounds.

III. Following the 1999 Statutory Amendment that Randomized

Foreperson Appointment, Qualified African Americans Have Ably

Served as Forepersons in a Representative Proportion.

After the legislative and executive branches took action, the state judiciary

began correcting wrongs of the past. In State v. Divers, the Second Circuit Court of

Appeal affirmed the trial court’s decision to sustain Divers’ motion to quash the

indictment due to discrimination in the selection of grand jury forepersons. See 34-

748 (La. App. 2 Cir. 06/22/2001); 793 So. 2d 308. Discussing the pre-1999 codal

provision, the court noted, “The defect was not in the individual judges, but in the

system set up by the pre-1999 version of La. C.Cr.P. art. 413(B) that allowed

untrammeled discretion in the trial judge in selecting the foreperson.” Id. at 318.

The court further observed that, particularly in light of the legislative amendments

to La. C.Cr.P. art. 413(B), the state of Louisiana “has come a long way from the

days when the public official selecting a grand jury venire would proudly testify

that he would never select an African-American for a grand jury venire.

Unfortunately, the selection process for the grand jury venire and foreperson ha[d]

not significantly changed from those days.” Id. at 315 (internal citation omitted).




20

The Second Circuit’s decision followed on the heels of the Louisiana

Supreme Court’s opinion in State v. Cosey, 97-2020 (La. 11/28/2000); 779 So. 2d

675. In its first opinion discussing the effect of the 1999 legislative amendments,

the Supreme Court sharply criticized the discretionary regime of the past,

explaining that there was “no question that at the time of trial in the present case

Louisiana’s procedure for selecting grand jury forepersons was subject to abuse

according to subjective criteria which may include race and sex.” Id. at 682. That

court noted, however, that the 1999 legislative amendments “addressed this

problem” by “provid[ing] for random selection of the grand jury forepersons from

the names drawn indiscriminately and by lot from the grand jury panel.” Id.6

The Louisiana Supreme Court revisited the issue two years later, in Langley,

813 So. 2d 356. After the court remanded for a hearing in light of Campbell , the

district court sustained Langley’s motion to quash the indictment. As the Louisiana

Supreme Court explained:

In its lengthy reasons, the district court acknowledged Louisiana’s

“unique” method for selecting a grand jury foreperson, as it operated

prior to its amendment in 1999. The district court, citing the UnitedStates Supreme Court’s reasoning in Campbell v. Louisiana, noted

that Louisiana’s now-repealed selection system implicated not only

the appointment of the foreperson but, more intrinsically, the shaping

6 The court ultimately rejected Cosey’s claim of foreperson discrimination because he “did not

present any direct evidence that there was underrepresentation stemming from intentional

discrimination.” Cosey, 779 So. 2d at 683.




21

of the composition of the panel itself and the possibility that there

might be discrimination in doing so. The district court, again citingCampbell v. Louisiana, further noted that, by picking a member of the

panel, not at random, “the judge has actually interjected racial

discrimination into the process.”

Langley, 813 So. 2d at 363. The court affirmed the trial court’s ruling, again

emphasizing the likelihood that, “at the time the defendant was indicted,

Louisiana’s procedure for selecting grand jury forepersons was unquestionably

subject to abuse according to subjective criteria that may include race and gender.”

Id. at 371 (citing Cosey, 779 So. 2d at 682-83).

Since its opinion in Langley, the Louisiana Supreme Court has faced a

decreasing number of grand jury foreperson discrimination claims — doubtless

because the pool of defendants who stand to prevail on their account is vanishingly

small. Indeed, counsel is unaware of any Louisiana defendant other than Albert

Woodfox who has earned relief on such a claim since Langley was decided.

Justice Johnson concurred with the majority in Langley, authoring a separate

opinion that strikes at the heart of the issue now before this Court: “This court is

faced with the moral and legal implications of 49 years of discrimination in the

selection of grand jury forepersons in Calcasieu Parish. How do we certify that the

Louisiana judicial system is fundamentally fair, where there is compelling

evidence of racial and gender discrimination?” Langley, 813 So. 2d at 373




22

(Johnson, J., concurring). As she further noted, “[d]iscrimination in the selection of

grand jurors is a ‘grave constitutional trespass’ and it ‘undermines the structural

integrity of the criminal tribunal itself.’” Id. at 375 (quoting Vasquez , 474 U.S. at

262, 263-64). It has been fourteen years since the Louisiana legislature “addressed

the problem” now before this Court. Although this state has come a long way in

eradicating racial discrimination throughout the grand jury foreperson selection

process, we must not turn our back on those whose convictions were tainted by the

old system.

CONCLUSION

Wherefore, for the foregoing reasons, undersigned counsel respectfully urge

this Court to affirm the district court’s decision granting relief to Mr. Woodfox.

Respectfully submitted,

/s/ Pascal F. Calogero, Jr.

_____________________________HON. PASCAL F. CALOGERO, JR.

PASCAL F. CALOGERO, JR ., APLC1100 POYDRAS STREET, SUITE 1500


FAX (504) 582-2310


636 BARONNE STREET NEW ORLEANS, LA. 70130

TEL. (504) 529-5955FAX (504) 558-0348




23

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 5,123 words, excluding the parts of the brief

exempted by Fed. R. App. P. 32(a)(7)(B)(iii).


___________________________HON. PASCAL F. CALOGERO, JR.

PASCAL F. CALOGERO, JR ., APLC1100 POYDRAS STREET, SUITE 1500

NEW ORLEANS, LA. 70163

TEL. (504) 582-230FAX (504) 582-2310

THE PROMISE OF JUSTICE INITIATIVE636 BARONNE STREET


FAX (504) 558-0348




24

CERTIFICATE OF SERVICE

Undersigned counsel hereby certifies that a copy of the above and foregoing

was initially filed electronically with the Clerk of Court using CM/ECF on the 17th

day of June, 2013 and re-filed with the Clerk of Court using CM/ECF on the 28th

day of June, 2013. Notice of this filing as generated by the electronic filing system

constitutes service of the filed document on counsel for the Petitioner and

Respondents. In addition, notice of this filing was provided by U.S. Mail to:

Mr. Dan Edward WestMcGlinchey Stafford, P.L.L.C.

301 Main Street1 American Place

Baton Rouge, LA 70825-0000

Ms. Michelle M. WestStanley, Reuter, Ross, Thornton & Alford, L.L.C.

909 Poydras StreetLL&E Tower

New Orleans, LA 70112

Ms. Carine M. Williams

Squire Sanders (US), L.L.P.30 Rockefeller Plaza

New York, NY 10112-0000


_____________________________HON. PASCAL F. CALOGERO, JR.

PASCAL F. CALOGERO, JR ., APLC

1100 POYDRAS STREET, SUITE 1500 NEW ORLEANS, LA. 70163TEL. (504) 582-2300

FAX (504) 582-2310


636 BARONNE STREET

NEW ORLEANS, LA. 70130TEL. (504) 529-5955FAX (504) 558-0348




United States Court of AppealsFIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE W. CAYCECLERK

TEL. 504-310-7700600 S. MAESTRI PLACE

NEW ORLEANS, LA 70130

July 02, 2013

Mr. Pascal F. Calogero Jr.1100 Poydras StreetEnergy CentreSuite 1500New Orleans, LA 70163-0000

No. 13-30266, Albert Woodfox v. Charles C. Foti, Jr., et al USDC No. 3:06-CV-789

The following pertains to your brief filed on Jjuly 2, 2013.

You must now submit the seven paper copies of your brief requiredby 5 CIR. R. 31.1 within 5 days of the date of this noticeTH

pursuant to 5th Cir. ECF Filing Standard E.1.

In addition, you must electronically file a "Form for Appearanceof Counsel" within 14 days, see FED. R. APP. P. 12(b) and 5 CIR.TH

R. 12 & 46.3 in order to make you brief sufficient. This form isavailable from the Fifth Circuit web site, www.ca5.uscourts.gov.If you fail to electronically file the form, the brief will bestricken and returned unfiled. Pro se parties do not need to

file an appearance form.

Sincerely,

LYLE W. CAYCE, Clerk

By:_________________________ Misty L. Lisotta, Deputy Clerk 504-310-7716

cc: Mr. Christopher Albert AberleMr. James David "Buddy" CaldwellMr. Colin Andrew ClarkMr. Richard A. CurryMr. Michael Brent HicksMr. George H. KendallMr. Shivaprasad NagarajMr. Nicholas Joseph TrenticostaMr. Kurt Lawrence WallMs. Carine M. Williams

Case: 13-30266 Document: 00512294243 Page: 1 Date Filed: 07/02/2013

hon. pascal f. calogero, brief

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