STATE OF LOUISIANA VERSUS WILBERT RIDEAU

05-1470

COURT OF APPEAL OF LOUISIANA, THIRD CIRCUIT

05-1470 (La.App. 3 Cir. 11/02/06); 943 So. 2d 559; 2006 La. App. LEXIS 2368


November 2, 2006, Decided

OPINION


[*560] [Pg 1] COOKS, Judge.

STATEMENT OF THE CASE

On January 15, 2005, Wilbert Rideau was convicted of manslaughter. He waived the delays for sentencing. The trial court sentenced Rideau to serve the maximum term of twenty-one years at hard labor, with credit for time served. 1 Since he had already served forty-four years in Angola, he was released from custody and became a free man. As part of the sentence, the trial court ordered Rideau "to pay all court costs associated with these proceedings." Rideau was not informed of the amount of the [**2] costs at the time of sentencing. Sixty days later, on March 15, 2005, the trial court issued an Order casting Rideau with court costs and indigent defense fees in the amount of $ 127,905.45. Rideau filed a Motion to Vacate the Order compelling him to pay itemized court costs and to reimburse the Indigent Defender's Board (IDB) for all costs associated with his defense, including expert witness fees and expenses. The trial court denied the motion and Rideau filed this appeal. Amicus curiae briefs in support of vacating the Order have been filed in this case, along [*561] with supporting affidavits submitted by public defenders and defense counsel throughout the State. 2 We have pointed out and discussed at length numerous constitutional [Pg 2] issues raised in this unique case to alert the lower courts of the constitutional pitfalls which may arise in enforcing the costs mandate found in La.Code Crim. P. Article 887(A). In this case, we find the trial court lacked legal authority to act for the parish of Calcasieu and lacked standing in its own right to seek recoupment of funds expended from the Criminal Court Fund. The trial court, however, retains authority to enforce [**3] the January 15, 2005 sentence which ordered Rideau to pay costs and to assess reasonable costs upon presentment by the parties who actually "incurred" the Article 887(A) expenses, consistent with this opinion and the Constitutions of Louisiana and the United States. We also vacate that portion of the March 15, 2005 Order directing Rideau to reimburse the IDB for all costs, expert witness fees and expenses associated with his defense. Louisiana Revised Statutes 15:148 does not authorize the trial court to assess these costs against a defendant who was "initially indigent" but who may have the potential in the future to pay such costs.

FOOTNOTES

1 At the time of the commission of the offense the maximum term of imprisonment for a manslaughter conviction was twenty-one years. La.R.S. 14:31 has been amended and now provides a maximum term of imprisonment of forty years.

2 Amicus curiae briefs were filed in support of vacating the Order of March 15, 2005 by defense attorneys Michael Fawer, John Digiulio, Thomas Guilbeau, Phyllis Mann, J. Michael Small, Henry Walker, & Laurie White and by the Louisiana Public Defenders Association & the Louisiana Association of Criminal Defense Lawyers. The record also contains affidavits in support of vacating the Order from the following: David E. Marcantel, Chief Public Defender, 31st Judicial District; M. Craig Colwart, Chief Public Defender, 16th Judicial District; Michael A. Courteau, managing attorney, 4th Judicial District Indigent Defender Board; Richard M. Tompson, Chief Indigent Defender, 24th Judicial District; Alan J. Golden, Chief Counsel, Caddo Parish Public Defender's Office; Richard B. Stricks, public defender, St. John the Baptist Parish; Thomas Lorenzi, criminal defense attorney, 14th JDC; Walter M. Sanchez, criminal defense attorney, 14th JDC; and, Charles C. St. Dizier, criminal defense attorney, 14th JDC, five years with Calcasieu Parish Public Defender's Office.


[**4] LEGAL HISTORY OF THE CASE

In 1961, Wilbert Rideau robbed a bank in Lake Charles, Louisiana kidnaped three bank employees, and murdered one of the tellers, Julia Ferguson. Rideau was black, nineteen years old and indigent. The crime was sensational news in Lake Charles. Passions ran high and televised details of the crime, including an "interview" with Rideau was broadcast throughout the area. Because of the highly charged atmosphere in Lake Charles, the defense moved for a change of venue, which was denied by the trial court. Justice was administered swiftly, although not constitutionally, for Rideau. He was convicted of first degree murder and sentenced to death. The conviction was reversed by the United States Supreme Court. Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963). In a stinging indictment of the criminal justice system in Calcasieu Parish, the Court called the proceedings a [Pg 4] "kangaroo court" and described the events leading up to and during the trial as a "spectacle." Id. at 725-26.

Significantly, the Court noted the handling of Rideau's case was unprecedented in Calcasieu Parish and this Defendant was [**5] being singled out for special treatment by the criminal justice system. Id. at 727. This observation, made by the Court in 1963, holds true even today.

Venue for the second trial was moved to Baton Rouge, Louisiana . Rideau was tried, convicted and sentenced to death. He petitioned for habeas corpus relief in [*562] federal court alleging violations under Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776 (1968). 3 The State conceded that a reversal was required in Rideau's case and his second conviction was vacated.

FOOTNOTES

3 Witherspoon held the death penalty invalid when individuals objecting to the death penalty were excluded from the jury.


Rideau was tried a third time in Baton Rouge. He was convicted again and sentenced to death. In light of the United States Supreme Court decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972), the Louisiana Supreme Court annulled Rideau's death sentence and ordered that he [**6] be sentenced to life imprisonment. State v. Rideau, 278 So. 2d 100 (La. 1973).

Rideau filed a petition for habeas corpus relief in federal court alleging his indictment and conviction were unlawfully obtained because black jurors were systematically excluded from the grand jury in Calcasieu Parish. The United States Fifth Circuit Court of Appeals, Judge Dennis 4 writing, agreed, and reversed Rideau's third conviction. The federal appellate court found Calcasieu Parish officials used race-coded cards to exclude black individuals from the grand jury-a practice, the court noted, that had been prohibited by law "[f]or well over a century." Rideau v. [Pg 5] Whitley, 237 F.3d 472, 484 (5th Cir. 2000), cert. denied, Cain v. Rideau, 533 U.S. 924, 121 S. Ct. 2539, 150 L. Ed. 2d 708 (2001).

FOOTNOTES

4 A former justice of the Louisiana Supreme Court.


While the federal appellate court reversed the conviction it left open the option for the State to retry Rideau "in accordance with [**7] the Constitution, the laws, and this opinion." Id. at 489. In January 2005, Rideau was tried a fourth time and convicted of manslaughter.

Although his convictions were reversed numerous times, Rideau did not escape punishment for the murder of Julia Ferguson, nor should he have. Rideau is sixty-four years old and has spent forty-four years in the Angola State Penitentiary, some of which was served either in isolation or on death row. Each reversal brought a new wave of publicity and has kept the details of the crime and the name attached to it - that of Wilbert Rideau - fresh in the minds of the people of Lake Charles for much of that time.

There is another reason Wilbert Rideau has remained in the news for forty-four years. During his incarceration, Rideau has rehabilitated himself and has become widely known as an award winning journalist and film maker. 5 He has appeared twice as a featured speaker before the American Society of Newspaper Editors in Washington, D.C. For more than twenty [*563] years, with the approval of the Louisiana Department of Corrections, Rideau has traveled the State, with only an unarmed escort, speaking to at-risk teenagers about the dangers of a life of [**8] crime and the [Pg 6] horrors of prison life.

FOOTNOTES

5 These awards include the George Polk Award, the Robert F. Kennedy Journalism Award, the Sidney Hillman Award, and the American Bar Association's Silver Gavel. As editor, Rideau transformed the prison newspaper, The Angolite, into a seven-time finalist for the National Magazine Award. He co-authored and co-edited two books used as texts in college classrooms: The Wall is Strong: Corrections in Louisiana and Life Sentences: Rage and Survival Behind Bars. Rideau co-directed the documentary film, The Farm, which received an Academy Award nomination. He directed and narrated a short documentary film on the effect of an aging inmate population, which film won the CINE Golden Eagle Award. He provided the story and guidance for the documentary film, the Execution of Antonio James, which won the CINE Golden Eagle Award, the Thurgood Marshall Award, and the Louisiana Bar Association's first place Gavel Award for overall excellence in the media. Rideau has been called the most rehabilitated prisoner in America.


[**9] In examining the legal history of this case, two facts emerge: first, the federal decisions reversing Rideau's convictions were not based on novel theories of law, but rather were founded on well-established principles of constitutional due process, which safeguards were not being implemented in the criminal justice system in Louisiana; and, second, for whatever reason, Rideau's case has been handled differently from other criminal cases in the Louisiana justice system. 6 The present appeal illustrates these facts.

FOOTNOTES

6 It has been suggested the publicity surrounding the reversal of each conviction may explain the disparity in the treatment of the Rideau case by the Department of Corrections. The defense points out in brief that, in 1961, in Louisiana, a prisoner fully served a life sentence by serving ten years and six months in prison, and by maintaining good behavior during that time. Hundreds of lifers were released pursuant to this policy after serving ten years and six months, or some minimal additional time. This practice was so firmly entrenched as policy that a life sentence was universally spoken of as a "10/6" sentence. In State v. Shaffer, 260 La. 605, 257 So. 2d 121, 134 (La. 1971), Justice Sanders, dissenting from a majority opinion commuting three death sentences to life imprisonment, observed: "[A] death sentence is converted into one that really means imprisonment for only ten years and six months. No true life sentence exists in Louisiana law." See also State v. Dunn, 408 So. 2d 1319 (La. 1982) and Garrett v. Maggio, 685 F.2d 158 (5th Cir. 1982). In 1984, 1986, 1988, and 1990 Rideau applied to the Board of Pardons for release based on the "10/6" rule. The pardon boards repeatedly recommended his release, but he was denied release each time by the Governor.


[**10] THE PRESENT APPEAL

In 2001, the Calcasieu Parish District Attorney, Rick Bryant, made the decision to retry Rideau in Lake Charles on one count of murder. Rideau offered to plead guilty to manslaughter. The State rejected the plea agreement and proceeded to trial. 7 [Pg 7] Because of pre-trial publicity in the Lake Charles area, the defense moved for a change of venue. In January 2005, an impartial jury panel was selected from Ouachita Parish. The District Attorney made the decision to have the Ouachita Parish jury transported to Lake Charles, [*564] where expenses were incurred for lodging and meals for the duration of the trial. 8 At the time of the fourth trial, Rideau was sixty-three years old, incarcerated, and still indigent.

FOOTNOTES

7 The defense contends newspaper accounts of the Rideau case indicate it was clear to the District Attorney he would have difficulty obtaining a favorable verdict in a forty year old case where the defendant had already served decades in prison. See Eric Cormier and Jeremy Harper, Rideau Backers Elated, Victims Families Saddened by Jury Vote, Lake Charles American Press, January 16, 2005, at A5: "I'm extremely disappointed - and probably not surprised considering that you had 13 witnesses who had died since the last trials and they couldn't contradict a lot of what was being brought out by the defense," Bryant said . . . "The jury knew that the defendant had been in jail for some 43 years, and I think that had an impact," Bryant said. Mike Jones, D.A.: High Court Appeal in Rideau Case Pending, Lake Charles American Press, February 1, 2001, at B6: "Bryant said it would be hard to retry the case since the gun and knife used in the murder are missing and many of the witnesses are dead." Adam Liptak, Freed after 44 Years, A Prison Journalist Looks Back and Ahead, N.Y. Times, Jan. 17, 2005, at A11: It's very difficult to try a case that's 44 years old." [Bryant] said. "We had 13 witnesses who were unavailable, including the two eye witnesses . . ." Manual Roig-Franzia, Prison Journalist Loses New Trial Bid, Times-Picayune, May 6, 1999, at A8: In a report of the evidentiary hearing in the federal habeas proceeding in which Mr. Rideau challenged the lawfulness of the 1970 conviction, the article reports that "Calcasieu Parish District Attorney Rick Bryant argued that he could not mount an effective new trial because most of the key witnesses are dead." [**11]

8 The defense stated in its brief that Rideau waived his right to have the jury sequestered in Ouachita Parish. While the prosecution agreed the jury could not come from Calcasieu Parish, the defense contends, it was the prosecution who opposed a complete change in venue. Instead of trying the case in Ouachita Parish, where a non-sequestered jury could go home each night, the prosecution made the decision to try the case in Lake Charles with a Ouachita Parish jury. While we do not question the control of the District Attorney in the prosecution of a case under La.Code Crim.P. art. 61, the prosecutor's decision necessitated transporting the jury to Lake Charles and, thereby, caused the governing authority to incur expenses to house, feed, and secure them for the duration of the trial, which costs were then assessed to Rideau. See e.g. Best Suites - $ 16,874.33, Calcasieu Parish Sheriff's Office - $ 12,432.77, Mayo Tours - $ 2,116.00.


On January 15, 2005, Rideau was convicted of manslaughter, the same crime he had agreed to plead guilty to earlier. The trial court sentenced [**12] him to serve the maximum term of twenty-one years at hard labor with the Department of Corrections, with credit for time served. Since Rideau had already served forty-four years in prison, he was released from custody. As part of the sentence, the trial court orally ordered Rideau "to pay all court costs associated with these proceedings."

On March 15, 2005, an Order was signed and filed with the Clerk of Court of Calcasieu Parish by Judge David A. Ritchie, the sentencing judge. The Order provided, in relevant part:

IT IS ORDERED that in accordance with La.C.Cr.P. art. 887, the above defendant be cast with all court costs related to his trial which resulted in a conviction of manslaughter on January 15, 2005. A copy of the itemized costs are attached hereto as Exhibit A and are made a part of this order.

IT IS FURTHER ORDERED that the defendant reimburse the [Pg 8] Indigent Defender's Board for all costs associated with his defense, including expert witness fees and expenses.



The costs, itemized by the trial court and attached to the Order, totaled $ 60,905.45, most of which were costs associated with impaneling, housing, feeding, transporting [**13] and providing security for the jury. 9 Indigent Defense costs were estimated to be approximately $ 67,000.00, bringing the total court costs assessed to Rideau to $ 127,905.45. Rideau filed a Motion to Vacate the Order and a hearing was held. The trial court denied the defense motion. Rideau filed this appeal asserting several constitutional violations.

FOOTNOTES

9 The vendors listed in the Order are as follows: Office Depot, Ouachita Parish (advance deposit), Piccadilly, Pat's of Henderson, Holiday Inn (Monroe), Ruby Tuesday, Ms. Dee, Pappy's, Sam's, Johnny Carinos, Tony's, Pronia's, Harlequin, Steamboat Bill's, Pam Allee, Judge David Ritchie, Kay Miller, Heath Dorsey, Elizabeth Surles, Patricia Hanks, Chris Hinton, Wayne Day, Seafood Palace, Super Stop # 26, Best Suites, McFillen, Denise Savant, Sir Speedy, Calcasieu Parish Sheriff's Office, Unishippers, Mayo Tours, Witness Fee-Gary Shannon, Witness Fee-Cat Oubre. As appendices to this decision, the trial court's itemized list is reproduced, as Exhibit A, as well as Defendant's submission classifying the expenses according to their purpose, as Exhibit B.


[**14] LAW AND DISCUSSION

Rideau was assessed with the following: (1) court costs; and (2) indigent defense cost. We will discuss each assessment separately.

[*565] COURT COSTS

I.

Constitutional Principles and Louisiana's Scheme for Recoupment of Court Costs from Indigent Defendants

A. Due Process Requirements-notice, opportunity to be heard, and other considerations.

The trial court relied on La.Code Crim.P. art. 887(A) as authority for the recoupment of court costs. This article provides, in relevant part:

A defendant who is convicted of an offense or is the person owing a duty of support in a support proceeding shall be liable for all costs of the prosecution or proceeding, whether or not costs are assessed by the court, and such costs are recoverable by the party or parties who incurred the expense. However, such defendant or person shall not be [Pg 9] liable for costs if acquitted or if the prosecution or proceeding is dismissed. In addition, any judge of a district court, parish court, city court, traffic court, juvenile court, family court, or magistrate of a mayor's court within the state shall be authorized to suspend court costs.

[**15] This provision, together with other articles, establishes Louisiana's statutory scheme for the assessment of courts costs against a convicted defendant. Under La.Code Crim.P. art. 887(A), upon conviction, a defendant, by operation of law, is legally obligated to pay for "all costs of the prosecution" to the "party or parties who incurred the expense." It is within the discretion of the trial court to suspend the imposition of some or all of the costs. The liability for costs is part of the totality of the sentence imposed upon a defendant. The statute seems to suggest that notifying the defendant of the amount owed at the sentencing stage of the proceeding is essential for two reasons. First, La.Code Crim.P. art. 886 gives the defendant only sixty days to pay the amount owed. In the event of nonpayment, the trial court is authorized to sign a judgment for the amount assessed which is filed of record and can be enforced, as any other money judgment, in either the civil or criminal court. Louisiana Code of Criminal Procedure Article 886 provides, in relevant part:

A. In the event of nonpayment [**16] of a fine, nonpayment of restitution to the victim, or nonpayment of a fine and costs, within sixty days after the sentence was imposed, and if no appeal is pending, the court which imposed the sentence may sign a judgment against the defendant in a sum equal to the fine or restitution plus judicial interest to begin sixty days after the sentence was imposed plus all costs of the criminal proceeding and subsequent proceedings necessary to enforce the judgment in either civil or criminal court, or both. Collection of the judgment may be enforced in either criminal or civil court, or both, in the same manner as a money judgment in a civil case.



Louisiana Code of Criminal Procedure Article 886.1 also provides "[i]f a civil judgment is signed in accordance with Article 886, the judgment shall be executory upon rendition by the court provided the defendant was notified at the time of sentencing of the possible rendition of a civil judgment in the event of his failure to [Pg 10] pay the fine and costs. In all other cases, the judgment shall be executory immediately upon service of the notice of judgment upon the defendant in accordance with Code of Civil Procedure Article 1913." [**17] Louisiana Code of Criminal Procedure Article 886 also provides the judgment may [*566] be collected "in the same manner as a money judgment in a civil case."

The second reason for informing the defendant of the costs at sentencing is to allow him time to file a motion to reconsider the sentence within thirty days, to contest the amount of the costs based on excessiveness of sentence or abuse of discretion and to timely preserve the issues for appeal. Louisiana Code of Criminal Procedure Article 881.1 provides, in part:

A.(1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.

. . . .

E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.



In this case, the trial court did not inform Rideau, at sentencing, [**18] of the amount of the court costs he eventually was assessed to pay. Instead, the trial court rendered the order sixty days after sentencing casting Rideau with costs in the amount of $ 127,905.45. Because he was never informed beforehand, Rideau was unable to contest, either at sentencing or at a subsequent reconsideration hearing, the kind or amount of costs imposed, to attack imposition of the total amount as excessive and abusive or to establish that issuance of a judgment and enforcement would pose an undue hardship in the future on him. Moreover, at the present hearing to vacate the order, Rideau complains he was denied a fair opportunity to challenge the [Pg 11] reasonableness of the specific charges assessed against him. 10

FOOTNOTES

10 When Rideau's counsel attempted to attack the charges as excessive and specifically noted some of the expenses were for the court's staff "to go to the best restaurant[s] in town," the judge was not pleased. He voiced his discontent with counsel's attempt to broach the subject by offering Rideau a worse alternative as a remedy and scolded counsel for referencing in brief language from Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886), a United State Supreme Court case :



The Court

"So would you like for me-instead of doing that, would you like for me to amend that order and get a- get a detailed cost of all the D.A.'s expenses and replace all those expenses, which are, you know, which would clearly be prosecutorial costs and substitute that for the security?

Mr. Kendell

Your Honor, we're here about the order that the Court issued on March 15. That's what we're addressing.

The Court:

Well, I guess what I'm saying, I mean, you know, but you're complaining about that when, you know, I-I've-I think I've-I wasn't-as I've already said, you know, this wasn't-this wasn't something that I was trying to, you know, when you used that language in there about this hearkens back to the days when the recently freed slaves were, you know, placed with these large debt burdens, I mean, you know, that's insulting, you know, to suggest that-that that's what I was doing and all this discriminatory stuff in there.

****

Yeah, he had a lot of people willing to help him out for free like y'all-or at least at no cost to him rather. Like you and your law firm, and the NAACP, and many others, and Mr. Murray, of course, of course, and that's great?"




[**19] The trial court also declared that apart from what he deemed appropriate in a particular case, he was not bound by any [*567] constraints in casting Rideau with costs. The trial court stated:

Well, let me say this, Mr. Kendall, First of all, you know, there's no policy or practice that - in other words, there are recommendations. There are things that, I guess, we normally do in certain situations. But to say there's a policy, I don't think that's an appropriate term or practice. Yeah, in certain types of cases. But I have to - I'm not bound by what any other Judge in this judicial district does, number one, or what any other Judge has done in the past. And I have to look at each case individually, okay, to see what's appropriate in that case.



The United States Supreme Court has been reluctant to approve sweeping recoupment statutes in states that do not afford defendants certain constitutional safeguards. Upholding Oregon's recoupment statute in Fuller v. Oregon, 417 U.S. [Pg 12] 40, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974), the Supreme Court specifically noted defendants were afforded an opportunity to contest the imposition of costs prior to assessment and the costs [**20] were specified by the statute. In Fuller, the defendant challenged the constitutionality of Oregon's recoupment statute, which required a convicted defendant to repay to the State the cost of providing him with effective representation of counsel, when he was indigent at the time of the proceeding, but subsequently acquired the means to repay the costs. The Supreme Court found the statute constitutional because it was narrowly drawn to specify which costs could be assessed against a defendant and provided other due process safeguards. The statute mandated that the trial court conduct a hearing to determine the ability of the defendant to pay "'taking into account the financial resources of the defendant and the nature of the burden that payment of costs will impose.'" Id. at 45. The imposition of a judgment could be rendered "only upon those with a foreseeable ability to meet it, and [enforced] . . . only against those who actually become able to meet it without hardship." Id. at 54. Further, the United States Supreme Court in James v. Strange, 407 U.S. 128, 142, 92 S. Ct. 2027, 32 L. Ed. 2d 600 (1972), held "[s]tate recoupment [**21] laws, notwithstanding the state interests they may serve, need not blight in such discriminatory fashion the hopes of indigents for self-sufficiency and self-respect." 11 See also Rinaldi v. Yeager, 384 U.S. 305, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966).

FOOTNOTES

11 In James v. Strange, 407 U.S. 128, 92 S. Ct. 2027, 32 L. Ed. 2d 600 (1972), the Supreme Court found Kansas's recoupment statute violated the equal protection clause. In James, the defendant pled guilty to pocket picking. He received a suspended sentence and three years probation. The judicial administrator requested the defendant reimburse the State $ 500.00 within sixty days or a judgment would be rendered against him. The statute gave the judicial administrator discretion as to whether or not enforcement of the judgment would be sought. The Supreme Court found the Kansas statute unconstitutional because other than the homestead exemption, the statute provided that "(n)one of the exemptions provided for in the code of civil procedure shall apply to any such judgment" levied against the indigent defendant. Id. at 135. The Court stated: "For Kansas to deny protections such as these to the once criminally accused is to risk denying him the means needed to keep himself and his family afloat." Id. at 136.


[**22] The trial judge apparently relied on this court's opinion in State v. Karam, 02-[Pg 13] 0163 (La.App. 3 Cir. 7/31/02), 834 So. 2d 1003, to support his position that Rideau was not entitled to attack the specific charges or to object to the reasonableness of the amounts prior to assessment against him. In Karam, the trial court ordered the convicted defendant to pay court costs [*568] in "the maximum amount allowed by law." The defendant appealed asserting the trial court erred in failing to assess a specific amount. This court held: "With regard to the defendant's contention that costs must be specified, La.Code Crim.P. art. 887 indicates that a defendant convicted of an offense is liable for costs of the prosecution, whether or not the costs are specifically assessed by the court." Id. at 1016.

The Defendant points out in Louisiana, in practice, except in this case, a defendant is notified at sentencing of the amount of the court costs assessed against him. In fact, as in Oregon, the costs are usually specified in statutes, ordinances, or schedules in each judicial district or municipality, are small in amount, and are often known [**23] by the defendant prior to sentencing.

Our supreme court has recognized, especially against indigent defendants, the constitution of this State and the United States, does place limits on the power of courts to assess fines and costs. Additionally, when enforcement of a statute, as written, violates constitutional principles, the courts have consistently declined to read the statute to reach an unconstitutional result. For example, La.Code Crim.P. art. 884 provides "[i]f a sentence imposed includes a fine or costs, the sentence shall provide that in default of payment thereof the defendant shall be imprisoned for a specified period not to exceed one year." Despite the clear mandate of this provision, the courts have consistently held an indigent person may not be incarcerated because he is unable to pay a fine or court costs. Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983); State v. Zabaleta, 96-2449 (La. 3/7/97), 689 So. 2d 1369; State v. Major, [Pg 14] 03-249 (La.App. 3 Cir. 3/2/05), 898 So. 2d 548.

In this case, the amount Rideau has been assessed is extraordinary when compared to the [**24] amounts assessed in prior cases. Although he was granted fifteen days to "object" to the order fixing the amount, the trial judge appeared to give little consideration to his plea that the total amount was unprecedented, excessive, and too burdensome under the circumstances. Rideau argues that due process required the trial judge to do more than to compile the amount of court costs and to issue an order to enforce payment. 12 The trial judge decided to maintain the order directing Rideau to pay $ 127, 905.45 as court costs despite his recognition that Rideau is indigent and does not currently have the ability to pay it. 13 If allowed to [*569] stand the order is enforceable immediately against any assets acquired or income earned by Rideau, as any other civil judgment, and without a subsequent hearing to determine whether enforcement would work an undue hardship upon him. Further, La.R.S. 20:1(C)(8) provides Louisiana's homestead exemption shall not apply to "any obligation arising from the conviction of a felony or misdemeanor which has the possibility of imprisonment of at least six months."

FOOTNOTES

12 Justice Douglas, concurring in the majority opinion, specifically noted in Fuller that in Oregon "[t]he costs which can be assessed are limited by statute to those 'specially incurred' by the State in prosecuting a defendant. Ore. Rev. Stat. § 161.665(2). The Oregon Court of Appeals found that most costs on the prosecution side of the case could not be charged to a defendant, including police investigations, district attorneys' salaries, and sheriffs' salaries. 12 Or. App. 152, 157, 504 P.2d 1393, 1396. Also, jury fees and the costs of summoning jurors, cannot be charged to the defendant. Ibid: see Ore. Rev. Stat § 161.665(2). The costs which can be charged appear limited to those incurred for a defendant's benefit, such as defense counsel, defense investigators, and so on, which would be borne by a nonindigent defendant in a criminal trial. In addition, the Oregon statutory scheme places limits on the fees which an appointed counsel can receive, except in 'extraordinary circumstances,' thus limiting the eventual responsibility of a defendant under the recoupment statute. § 135.055." Fuller, 417 U.S. 40, 55, fn.2, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (Douglas, J., concurring.) [**25]

13 The trial judge stated:

I guess, the inference to what you just said was that maybe Mr. Rideau's not going to get very much from his book or get any kind of movie rights or anything like that, or money from that. And if that's the case then, you know what, I don't-I don't see that there's, you know, they'll never be able to go collect it from him ?.So, if he ends up not having the ability to pay this then-then I don't think it's really going to be an issue.




[Pg 15] B. First Amendment Requirements-freedom of speech and recoupment statutes

The only activity identified by the trial court which made Rideau an ideal candidate-in fact the only candidate-for imposition of these extraordinary costs is that he may potentially receive royalties from a "book or movie deal."

Whether a state's recoupment statute may target income derived from the exercise of a defendant's free speech was addressed by the United States Supreme Court in Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105, 112 S. Ct. 501, 116 L. Ed. 2d 476(1991). [**26] At issue was the constitutionality of New York's "Son of Sam" law which required publishers, contracting with defendants "accused or convicted" of crimes, to pay any royalties derived from any books published describing the crime or crimes committed by the defendants to the New York State Crime Victims Board. The money would be deposited in an escrow account, managed by the Board and made available to the victims of the crime and the criminal's other creditors. The reasons articulated by New York for enacting the law was to compensate crime victims and to prevent criminals from profiting from crimes. Initially, the Court reiterated a long-standing principle of constitutional law that statutes aimed at "content-based" speech violates the First Amendment by effectively driving certain ideas from the marketplace. However, the State argued it had a compelling interest in compensating victims and the statute was not aimed solely at speech describing the crime, as it "applie[d] to works on any subject, provided that they express the author's thoughts or recollections about his crime, however tangentially or incidentally." Id. at 121. In finding New York's law invalid, [**27] though it expressed compelling interests, the Supreme Court found "the State has little if any interest in limiting such compensation to the proceeds of the wrongdoer's speech about the crime." Id. at 120-21. Further, there was no explanation why "the [Pg 16] State should have any greater interest in compensating victims from the proceeds of such 'storytelling' than from any of the criminal's other assets[,]" and the State did not "offer any justification for a distinction between this expressive activity and any other activity in connection with its interest in transferring the fruits of crime from criminals to their victims." Id. at 120-21. Ultimately, the Court found the State could not establish it's compelling interest in compensating victims was furthered by placing a "financial burden" only on "speech-derived" income as opposed to other types of income. Id. at 105.

The Supreme Court also held in Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 107 S. Ct. 1722, 95 L. Ed. 2d 209, (1987) even regulations aimed at proper [*570] governmental concerns can restrict unduly the exercise of rights protected by the First Amendment. [**28] To justify differential treatment in the exercise of this right, "the State must show that its regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end." Id. at 231.

In deciding to order the payment of costs in this case, the trial judge specifically focused on Rideau's unique ability and potential to earn royalties from future publications or a movie deal. The trial court stated: "And so I assess-I assess costs which, you know as well as I do-if he never gets the money then there's not an issue there . . . . Probably, you know, this is another unique case? He's about to probably-I read a little article in the paper that he's expected to get a, I guess, a half million dollars. Whether that actually comes to fruition or not, you know, for a book deal, I don't know." The book deal evidence the trial court alluded to was gleaned from an article in the New York Post written by Keith J. Kelly entitled Murder He Wrote, which the trial court apparently read or heard about prior to the hearing. In the article, the author reports the "buzz" about Rideau possibly acquiring a book deal [Pg 17] for $ 500,000. 14

FOOTNOTES

14 Rideau counsel further explained:

This is not like a uni-bomber or Eric Rudolph, or one of these criminals that wants to use his crime as a means to make money to sell a book. And if that were to happen, I could well understand why the system would want him to pay back something. To the extent that anybody is interested in what he has to say, be it in a book or a movie or anything else where he can earn money is because of the fact, it's the redemptive factor, not the crime. Nobody's interested in the crimes he committed. They're interested in the what he's done since the crime. The rehabilitation that we say we want people to do.

Pay back to society, redeem yourself, all of that is what he has done. That's what the story's about. And I just don't believe that the people of the State of Louisiana really want him to pay back for that. The one thing that this state has led the nation in is prison newspaper. Probably led the world in the prison newspaper that Wilbert Rideau put out, the documentaries, the books that he has written on prison reform. All of that was done to make up for what he-the crime that he had committed. And I just don't believe the people of the State of Louisiana want him to have to take, from whatever means he can get at 63 years of age, to try and save up his retirement. I don't believe the people of the state want him to pay back that money.

I think they want that to be an example of what people can do if they want to try to redeem themselves. And I would hope that the Court simply would not make him pay that type of money. Thank you.




[**29] It is true, the Louisiana statute at issue on its face does not target free speech activities as the only source for recouping costs from defendants. It is also true that Louisiana has a legitimate interest in assuring the availability of funds for the defense of indigents and maintaining the judicial system. But, enforcement of a state's recoupment statutes in a discriminatory manner that affects speech and singles out certain defendants nonetheless may threaten the First Amendment's right to free speech and the Fourteenth Amendment right to equal protection of the law. The United States Supreme Court has long held that the federal guarantee of due process and equal protection "extends to state action through its judicial as well as through its legislative, executive, or administrative branch of government." Shelley v. Kraemer, 334 U.S. 1, 15, 68 S. Ct. 836, 843, 92 L. Ed. 1161 (1948).

C. Sixth Amendment Right to Jury Trial

Defendant further argues if the words "costs of prosecution" appearing in [Pg 18] La.Code Crim.P. art. 887(A), which are [*571] automatically levied against a criminal defendant are broadly interpreted to include the kind and [**30] amount of costs assessed in this case, defendants constitutional right to a jury trial is seriously jeopardized. The United States and Louisiana Supreme Courts have declared that this right is fundamental and guaranteed by the Sixth Amendment to the United States Constitution and Article I, § 19 of the Louisiana Constitution. See Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); State v. Muller, 351 So. 2d 143 (La. 1977). Some courts have held the imposition of costs for the jury and trial security "can be a substantial deterrent to an exercise of the right to a jury trial" and "amounts to coercion and infringes a constitutional safeguard." State v. Hanson, 92 Idaho 665, 448 P.2d 758, 761 (Id. 1986); Arnold v. State, 76 Wyo. 445, 306 P.2d 368, 376 (Wyo. 1957).

II.

INTERPRETATION

"Costs of the Prosecution or Proceeding"

We find persuasive the defense argument that the phrase "costs of prosecution or proceeding" as it appears in La.Code Crim.P. art. 887(A) does not express [**31] an intent by the legislature to authorize the recoupment of "every" costs incurred by the State in maintaining the judicial system. The Louisiana Supreme Court has said: "[I]f a statutory provision is susceptible of both a constitutional and an unconstitutional interpretation, it must be interpreted so that its constitutionality will be sustained. The legislature is presumed not to intend to enact an unconstitutional statute." State v. LeCompte, 406 So. 2d 1300, 1307 (La. 1981); State v. Newton, 328 So. 2d 110 (La. 1976)(on rehearing). The courts of this state also have affirmed that words and phrases are to be assigned their "well known and commonly understood meaning." State v. Richard, 245 La. 465, 158 So. 2d 828, 831 (La. 1963). The legislature has in [Pg 19] other sections of La.Code Crim.P. art. 887 specifically provided for dollar amounts in particular cases to be taxed against criminal defendants as costs. See La.Code Crim.P. art 887 (B),(E),(H). None of the authorized costs, however, relate to those associated with impaneling, feeding, housing, and providing for the security and [**32] travel expenses of juries.

Despite Article 887(A)'s sweeping language, there are no reported cases, except one, in Louisiana where a criminal defendant has ever been taxed with "jury costs." 15 In State v. Parker, 436 So. 2d 495 (La. 1983), the lone case on the subject, the [*572] Louisiana Supreme Court upheld a trial court's sentence condemning defendant to pay "all costs of this prosecution, including but not limited to clerk of court fee, jury costs, record preparation costs, and any other costs attributable to this prosecution." Id. at 499 (emphasis added). The kinds and amounts of costs, however, were not fixed. The sole issue before the court focused on the propriety of the district court's assessment of all costs against the defendant for the first trial, which ended in a mistrial, and the second trial, which resulted in his conviction. While holding "it would be unfair to assess the defendant with the costs of the first trial," the court did not believe he should be totally exempt from costs associated with the second trial. Id. at 500. The court remanded the case for a redetermination of costs. Our research indicates no [**33] further disposition was entered in the matter following remand.

FOOTNOTES

15 We note, however, following Rideau's appeal, the trial court in State v. Fussell, 06-324 (La. App. 3 Cir. 9/27/06), 941 So. 2d 109, 2006 La. App. LEXIS 2179, ordered defendant "to pay all costs of this suit." He further stated "I'm directing the District Attorney to secure from the Clerk of Court, the Clerk's costs, to secure from the Sheriff the Sheriff's costs and to secure all other statutory fees and costs and to prepare a written judgment which will be filed into the mortgage records of LaSalle Parish. I'm also gonna order you to pay all restitution involved with respect to-if there is any-I order you to pay for any and all medical counseling and health expenses incurred by the victim or her family, as a consequence of your conviction for these offenses. That's also gonna be-it's an undetermined amount, it's just gonna be generally made in the judgment. I don't know what it's gonna be. I don't even know if the State's gonna make an application for that." Neither the amount of courts costs or restitution for medical and health costs to the victim or her family were specified at sentencing. We remanded the case for the fixing of an amount of restitution after finding the absence of this figure made the sentence indeterminate and thus illegal. Defendant did not appeal that portion of the court's order directing him to pay all costs.


[**34] [Pg 20] Not only has Rideau been assessed with costs associated with the jury trial and other costs, the total amount of costs he has been ordered to pay is grossly disproportionate to any court costs ever imposed on any criminal defendant in this State, indigent or non-indigent, who has served the maximum term of imprisonment. In fact, in the 14th JDC, Calcasieu Parish, Louisiana, no court costs have ever been assessed against a defendant ordered to serve a maximum sentence. See State v. Reeves, docket no. 01-CR-020179; State v. Langley, docket no. 02-CR-010258; State v. Hamilton, docket no. 97-CR-015408. Like Rideau, both Reeves and Langley proceeded to trial as indigents and were represented by court appointed counsel. Hamilton was not indigent and was represented by retained counsel. Court costs were not assessed against Hamilton, Reeves, or Langley, but were assessed against Rideau.

Moreover, the defense contends, which has not been refuted by the State, that the 14th JDC customarily suspends court costs in serious non-capital felony cases as well. See State v. Bonton, docket no. 98-CR-010979 (manslaughter conviction); State v. Porter, docket no. 98-CR-010978 [**35] (second degree murder conviction); State v. Jackson, docket no. 01-CR-20083 (aggravated rape conviction); State v. Fontenot, docket no. 03-CR-022163 (second degree murder conviction); State v. Withers, docket no. 99-CR-005736 (second degree murder conviction); State v. Schultz, docket no. 97-CR-006435 (manslaughter conviction); State v. West, docket no. 99-CR-005725 (manslaughter and forcible rape convictions); State v. East, 96-CR-013588 (manslaughter conviction).

In assessing court costs in misdemeanor and lesser felony cases, the 14th JDC customarily follows a graduated fee schedule which is based on the type of charge and the cumulative number of charges. These fees are not arbitrary or subject to the discretion of the trial court, but rather are set in advance. For example, according to [Pg 21] the current schedule in Calcasieu Parish for a first DWI conviction, a defendant is required to pay as costs of court $ 196.00, while a fourth charge carries an assessment of $ 463.50. Costs for convictions of drug offenses carry assessments that range from $ 271.00 to $ 313.50. All other felonies, except drug offenses, are charged $ 173.50.

When court costs are imposed [**36] in felony convictions cases, these costs rarely exceed $ 1,500.00 and are for the payment of witness fees. See State v. Henry, docket no. 03-CR-020961 (possession of cocaine conviction, where the penalty imposed was a suspended three year sentence with three years of supervised probation, the court assessed costs of $ 813.50); State v. Hesse, docket no. 02-CR-019573 (unauthorized [*573] entry of an inhabited dwelling, the penalty imposed was a two year probated sentence with costs of $ 1,133.50); State v. Mouton, docket no. 03-CR-022183 (distribution of controlled narcotics convictions, penalty imposed was seven years with four years suspended, supervised probation and costs of $ 1163.50).

The record contains affidavits from public defenders and criminal defense attorneys practicing in judicial districts throughout the State. These attorneys attest to two facts: (1) the expenses associated with housing, feeding, transporting and providing trial security for a jury have never been assessed as costs to a criminal defendant; and, (2) when court costs are assessed against a criminal defendant, the costs rarely exceed $ 2,000.00. 16

FOOTNOTES

16 The record contains affidavits from the following: David E. Marcantel, Chief Public Defender, 31st Judicial District; M. Craig Colwart, Chief Public Defender, 16th Judicial District; Michael A. Courteau, managing attorney, 4th Judicial District Indigent Defender Board; Richard M. Tompson, Chief Indigent Defender, 24th Judicial District; Alan J. Golden, Chief Counsel, Caddo Parish Public Defender's Office; Richard B. Stricks, public defender, St. John the Baptist Parish; Thomas Lorenzi, criminal defense attorney, 14th Judicial District; Walter M. Sanchez, criminal defense attorney,14th JDC; and, Charles C. St. Dizier, criminal defense attorney, 14th Judicial District, served five years with Calcasieu Parish Public Defender's Office.


[**37] Moreover, other federal and state courts have held expenses associated with juries are costs inherent in the judicial process and are not ordinarily taxed as costs [Pg 22] against defendants, indigent or non-indigent. In Gleckman v. United States, 80 F.2d 394 (8th Cir. 1935), cert. denied, 297 U.S. 709, 56 S. Ct. 501, 80 L. Ed. 996 (1936), the defendant was convicted of income tax evasion and ordered to pay the costs of the prosecution in accordance with a federal statute authorizing the assessment of costs. The trial court taxed as costs jury fees, jury mileage, bailiffs' fees, jury meals and lodging, jury professional services, marshal's fees, and traveling and maintenance expenses incurred by the judge. These costs the court described as "expens[es] incurred by the government in providing a tribunal, that is, a judge and jury for the trial of the case." Id. at 403. The federal appellate court reversed the taxation of these items, stating:

We do not find any authority for holding that such governmental expense can be taxed against one convicted of a criminal offense as "costs of the prosecution" in the absence of statute or established [**38] local practice. The expression "costs of prosecution" means such items of costs as are taxable by statute or by established practice or rule of court based on statute, and in the federal courts, where no federal statute is found to be directly applicable, recourse may sometimes be had to the statutes and practice of the state. It does not include the general expenses of maintaining the system of courts and the administration of justice, all of which is an ordinary burden of government. That the enumerated items could not be taxed as costs was expressly held in United States v. Murphy (D.C.) 59 F.(2d) 734, and we are satisfied with the conclusions concerning taxation of costs there indicted.

Id. at 403. (citations omitted). See also Walden v. State, 371 S.E.2d 852, 258 Ga. 503 (1988); State v. Hanson, 92 Idaho 665, 448 P.2d 758, (1986); State v. Ayala, 95 N.M. 464, 623 P.2d 584 (N.M. Ct.App. 1981); Arnold v. State, 306 P.2d 368, 76 Wyo. 445 (1957); United States v. Murphy, 59 F.2d 734 (S.D. Al. 1932); Gantt v. State, 109 Md.App. 590, 675 A.2d 581 (Md. 1996). [**39] In United States v. Ross, 535 F.2d 346 (6th Cir. 1976), the appellate court vacated the trial court's [*574] order against a defense attorney for the costs incurred in assembling forty-two prospective jurors on the day the lawyer negligently failed to appear in court. Citing Gleckman, the court held there was no precedent for "taxing as costs the expenses of calling a jury in federal court." Id. at 350.

[Pg 23] Other courts have found "the broad statutory authority to assess the 'costs of prosecution' against a convicted defendant [generally does not] include the authority to tax a defendant with jury expenses, on the theory that these are not costs of prosecution, but rather represent expenditures which must be made in order to maintain and operate the judicial system irrespective of specific violations of the law." Gooch v. State, 685 N.E.2d 152, 155 (Ind. Ct. App. 1997), citing Mickler v. State, 682 So. 2d 607 (Fla. Dist. Ct. App. 1996).

Other Constitutional Pitfalls

Were we to interpret La.Code Crim.P. art. 887(A) as "all inclusive" of all prosecution costs of "whatever kind," as seemingly [**40] argued here, the potential for varied judicial interpretations of what costs fall within its perimeter is evident. It matters not that the statute on its face treats all defendants the same by automatically casting them with "costs of the prosecution or proceeding" upon conviction. A court could find that the costs of prosecution includes not only those associated with juries, but a laundry list of other costs from the date of arrest or citation to sentencing-i.e., security costs for judges, salaries of the sheriff, municipal police, or marshals and their deputies, transportation and incarceration costs, salaries of the clerk of court and his employees, in addition to record keeping and duplication costs, salaries of the judges, their law clerks, secretaries, and other court employees, including court reporters salaries and fees, salaries of the district attorney and his staff, and all their daily expenses while working on the "prosecution of the case" including the meals they consumed, the cost of traveling to and from their place of employment, all investigation expenses, forensic testing, all lay and expert witness costs and fees, in whatever amounts claimed, or any other costs [**41] the district attorney or other officials claim are related to the prosecution. Also, Article 887(A) does not expressly limit its [Pg 24] reach to include only felony cases. Defendants convicted of committing misdemeanors, for disobeying traffic signals, for example, are not immune from the assessment of the "costs of prosecution or proceeding," in addition to those fines and costs specifically regulated by statutes. In fact, the district attorney in brief points out Article 887(A) "applies regardless of the nature of the offense committed-any conviction invokes its operation." He argues a "notice requirement is conspicuously absent from the statute" and "there are no enumerated factors which a trial court must consider before assessing a defendant with costs." 17 He insists Article 887(A) "neither mentions or mandates trial court consideration of other cases and defendants, or court 'policy and practice' before a defendant is assessed costs."

FOOTNOTES

17 If the prosecutor's position is sound, the wife and children of a convicted felon could find themselves homeless from the sale of or burdened by a mortgage on the family's home or seizure of other assets without defendant receiving prior notice or opportunity to contest the specific amounts assessed or to claim "undue hardship" on himself or his family.


[**42] When a statute is susceptible of being applied one way to one person, and a different way to another, the United States Supreme Court has held it is constitutionally vague. 18 Due process commands the [*575] even-handed treatment in the application and enforcement of laws. Further, the United States Supreme has held "'the touchstone of due process is protection of the individual against arbitrary action of government.'" Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 665, 88 L. Ed. 2d 662 (1986) citing Dent v. West Virginia, 129 U.S. 114, 123, 9 S. Ct. 231, 233, 32 L. Ed. 623 (1889). The Court also has affirmed that a statute which leaves sole discretion to the judge or jury whether to suspend its enforcement or not does not assure the exercise of "discretion in the legal sense of that term, but is granted to their mere will. It is purely arbitrary, and acknowledges neither guidance nor restraint." Yick Wo. v. Hopkins, 118 U.S. 356, 366-67, 6 S. Ct. 1064, 1069, 30 L. Ed. 220 (1886). The holding in Giaccio v. Pennsylvania, 382 [Pg 25] U.S. 399, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966), provides a telling example of the United [**43] States Supreme Court's unequivocal stand in striking down such statutes on vagueness grounds. In Giacco, a Pennsylvania statute left to the discretion of the jury whether or not to assess costs against an acquitted criminal defendant. The statute did not provide any standards to guide the jury's determination. In finding the statute subjected criminal defendants to "arbitrary and discriminatory imposition of costs," the Court held:



The Act, without imposing a single condition, limitation or contingency on a jury which has acquitted a defendant simply says the jurors 'shall determine, by their verdict, whether?the defendant, shall pay the costs'?Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce. This state Act as written does not even begin to meet this constitutional requirement.

Id. at 403, 86 S. Ct. at 521.

FOOTNOTES

18 Such a statute also may violate equal protection guarantees. Niemotko v. Maryland, 340 U.S. 268, 71 S. Ct. 325, 95 L. Ed. 267 (1951); Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886).


[**44] Due process also requires that the State implement procedures to make meaningful the available mechanism for judicial review. The exercise of discretion without any statutory standards, policy, custom, or prior jurisprudential guidance leaves an appellate court with little to review. In this case, for example, we have nothing in the record which might aid us in determining whether the costs, as itemized, accurately reflects the charges that were actually incurred in the prosecution of Rideau and whether those costs are reasonable. Therefore, any attempt by us to review the March l5, 2005 order for excessiveness is meaningless. Neither are we permitted, according to the prosecutor, to look at any other factors in determining whether the trial court abused its discretion by not suspending costs because none are provided in the statute.

[Pg 26] Further, in protecting procedural due process, "[o]ur system of law has always endeavored to prevent even the probability of unfairness." In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942 (1955). While the United States Supreme Court has not been willing to declare "every judgment rendered by an official who had [**45] a financial stake in the outcome of a case is ipso facto the product of bias," 19 it [*576] has held due process is violated by any "procedure which would offer a possible temptation to the average man . . . not to hold the balance nice, clear, and true between the State and the accused." Tumey v. Ohio, 273 U.S. 510, 532, 47 S. Ct. 437, 444, 71 L. Ed. 749, 5 Ohio Law Abs. 159, 5 Ohio Law Abs. 185, 25 Ohio L. Rep. 236 (1927). We are particularly troubled in this case because of the unique position the trial court has been placed by the funding scheme adopted by the Parish of Calcasieu. The establishment of a Criminal Court Fund is authorized by La.R.S. 15:571.11(A)(1)(a) which provides in relevant part:

All fines and forfeitures. . . shall be paid into the treasury of the parish in which the court is situated and deposited in a special 'Criminal Court Fund' account, which, on motion by the district attorney and approval order of the district judge, may be used or paid out in defraying the expenses of the criminal courts of the parish as provided in Ch.C. Articles 419 and 421 and R.S. 16:6, in defraying the expenses of those courts in recording and [**46] transcribing of testimony, statements, charges and other proceedings in the trial of indigent persons charged with the commission of felonies, in defraying their expenses in the preparation of records in appeals in such cases, for all expenses and fees of the petit jury and grand jury, for witness fees, for attendance fees of the sheriff and clerk of court, for costs and expenses of a parish law library, and for other expenses related to the judges of the criminal courts and the office of the district attorney. 20



FOOTNOTES

19 McGautha v. California, 402 U.S. 183, 266, 91 S. Ct. 1454, 1497, 28 L. Ed. 2d 711 (1971).

20 This statute provides: "[O]n motion by the district attorney and approval order of the district judge, [the Criminal Court Fund] may be used or paid out in defraying the expenses of the criminal courts of the parish . . . in defraying the expenses of those courts in recording and transcribing of testimony, statements, charges, and other proceedings in the trial of indigent persons charged with the commission of felonies, in defraying their expenses in the preparation of records in appeals in such cases, for all expenses and fees of the petit jury and grand jury, for witness fees, for attendance fees of the sheriff and clerk of court, for costs and expenses of a parish law library, and for other expenses related to the judges of the criminal courts and the office of the district attorney." Louisiana also provides a fund for the payment of counsel who represent indigent defendants. Louisiana Revised Statutes 15:146(a) provides, in relevant part: "There is hereby created within each judicial district an indigent defender fund which shall be administered by the district board and composed of funds provided for by this Section and such funds as may be appropriated or otherwise made available to it." The Judicial Expense Fund for the 14th JDC is authorized by La.R.S. 13:996.9. This statute provides upon conviction, a defendant shall be taxed a sum not to exceed $ 5.00 which will be deposited in the Judicial Expense Fund.


[Pg 27] [**47] The Calcasieu Parish method of funding the criminal justice system is unique among the parishes in the State. In addition to the statutory fines and forfeitures mentioned in La.R.S. 15:571.11, Calcasieu Parish voters approved a tax which generates substantial income for the Criminal Court Fund in that parish. The method was detailed by the Louisiana Supreme Court in State v. Citizen, 04-1841, p.3 (La. 4/1/05), 898 So. 2d 325, 328 as follows:



[I]n 1985. . . [the] voters in the parish approved an ad valorem tax specifically dedicated to maintaining the Criminal Court Fund, established pursuant to La.R.S. 15:571.11(A). Voters renewed the tax in 1995 and will consider it again in 2005. As explained by the parish attorney, this system has clearly been an overwhelming success. Using the figures from the last fiscal year, the attorney explained that in 2000, the tax, as supplemented by fines and forfeitures, put into the Criminal Court Fund $ 3,500,000, by far the largest portion of [*577] the total amount of $ 5,300,000, which also included funds from other sources such as grant programs. By agreement, 20% of the Fund portion generated [**48] by the ad valorem tax and fines and forfeitures goes into the witness and juror fee account, 60% to the D.A.'s office, and 40% to the district courts. Any surplus remaining in the witness and jury fee account at the end of the year does not revert to the general parish fund, but is split on a 50/50 basis between the courts and the D.A.'s office. In 2000, that surplus amounted to some $ 440,000.00, an average figure over a seven year period. Counsel for the CPPJ [Calcasieu Parish Police Jury] further explained that his client would not mind allocating a portion of these funds for capital defense, but could not do so without the agreement of both the 14th J.D.C. and the Calcasieu Parish District Attorney.



What is apparent from reading Citizen, as well as the transcript of the motion hearing in this case, is the trial court, along with the district attorney, manage and control the Criminal Court Fund to a great extent in Calcasieu Parish. In this case, the trial court paid the expenses related to the jury from the funds it jointly controlled with the District Attorney, and it agreed to loan the Indigent Defender Board funds [Pg 28] to provide for Rideau's defense, although the [**49] judge disputes that he and his colleague judges agreed to advance a certain amount without prior approval. The court stated:

THE COURT: And let me say this too, the - what I have -what I ordered to be assessed as court costs was significantly less than what this trial actually cost also. I - in other words, I didn't include all the - I have no idea how much the D.A.'s Office spent, but I'm sure that it was probably more than what I assessed just from the actual Court's expenses. And what I assessed is what the Court itself actually had to spend in the prosecution of this case.

I didn't - I didn't even go, I mean, in other words, I wasn't trying to rack up a huge bill for Mr. Rideau. But, you know, the Court's budget isn't flushed with a lot of money. As a matter of fact, we've been in the red in our court budget the last couple of years for various reasons, because of trials like this, because of trials like Jason Reeves and Ricky Langley. And these cases cost a lot of money. And -

MR. KENDALL: Well, Your Honor, we realize that, and that's one of the reasons why we wanted to settle this case. And it - that did not - that's not our fault that we had to have [**50] a trial in this case. We were willing to sit down, and if there's any way to settle this case, let's settle this case. It just didn't happen.

THE COURT: I don't determine the amount generally speaking. The Sheriff keeps up with all those figures. The reason that I issued the specific order in this case because the Sheriff didn't write all the checks for the expenses that occurred; the Court did. So I had that list compiled just so that we could make sure we had an accurate listing of what the Court had incurred as costs in this case.



The judge explained the costs he assessed Rideau were those "the Court itself actually had to spend in the prosecution of this case." The inherent danger in allowing courts or judicial officers to have a stake in the costs collected from defendants was recognized long ago by the framers of this State's 1898 Constitution. In State ex rel. Babin v. Foster, 109 La. 587, 590-91, [*578] 33 So. 611, 613 (La. 1903), the Louisiana Supreme Court noted:

Prior to the adoption of the Constitution of 1898 the law was that parties placed under peace bonds should, in addition to giving the bond, pay the costs of the proceedings taken [**51] to compel the giving of the bond. Rev. St. § 1046; Act No. 121 of 1855.

[Pg 29] And a party required to give a peace bond could lawfully be committed to prison in default of giving the bond and paying the costs.

To put an end to abuses originating in this law, viz:--its too frequent application under the stimulus of the costs to accrue therefrom--the constitutional convention adopted article 128.

Under its terms, in lieu of the old system of costs exacted of those put under peace bonds, the police juries of the parishes are to compensate justices of the peace and the constables of their courts directly out of the parochial treasury for services in such cases.

It is the duty of the police juries to make provision[s] for this. But whether they do or not, the constitutional inhibition applies;--justices of the peace and constables are to receive no fees (i.e.--costs) in criminal matters and peace bond cases. (emphasis added.)



III.

STANDING

We find in this case neither the Louisiana legislature nor the State constitution grants the trial judge legal standing to seek the costs, on behalf of the Court, which he ordered Rideau to pay in the March l5, 2005 [**52] Order. Louisiana Code of Criminal Procedure Article 887(A) clearly provides "such costs are recoverable by the party or parties who incurred the expense." Louisiana Revised Statutes 15:304 provides:

All expenses incurred in the different parishes of the state or in the city of New Orleans by the arrest, confinement, and prosecution of persons accused or convicted of crimes, their removal to prison, the pay of witnesses specifically provide for by law, jurors and all prosecutorial expenses whatever attending criminal proceedings shall be paid by the respective parishes which the offense charged may have been committed or by the city of New Orleans, as the case may be. The expenses shall be paid by the parish treasurer or by the city of New Orleans after an account of the expenses shall be duly certified to be correct by the presiding judge and the clerk of court. The fees, salaries, and expenses to be paid shall be fixed and regulated by the parish or city authority unless otherwise provided by law. . . . Nothing in this Section shall be construed to make the parishes or the city of New Orleans responsible for the expenses associated with the [**53] costs, expert fees, or attorney fees of a defendant in a criminal proceeding. (emphasis added.)



It is true the court may have a beneficiary interest in the Criminal Court Fund established by "some local agreement or custom in Calcasieu Parish," but this does not change the fact that all "prosecutorial expense whatever attending criminal [Pg 30] proceedings shall be paid by the respective parish," as provided in La.R.S. 15:304, from a special Criminal Court Fund, derived from fines and forfeitures, "paid into the treasury of the parish." And the "fees, salaries, and expenses to be paid shall be fixed and regulated by the parish or city authority unless otherwise provided by law." La. R.S. 15:304 (emphasis added). Thus, the real party in interest, with standing to collect and with statutory authority to pay the expenses for the prosecution [*579] in this case, was Calcasieu Parish. Yet, the Parish, through its legally designated representative, made no appearance in this proceeding, filed no claim for payment with the court, and presented no documents showing the fixed "fees and expenses" it authorized and did, in fact, incur in this case. We note, as well, the Sheriffs of Calcasieu and Ouachita [**54] Parishes made no appearances in this matter and there are no documents in the record to establish that the sums listed as "advance costs" were in fact paid to them and expended by them for services or expenses. The Clerk of Court also made no appearance and filed no claim. The prosecutor was present, but it was clear, he was not the party seeking reimbursement. He stated:

First of all, I don't consider this part of this being as opposed to everything else that's preceded this necessarily an adversarial proceeding. This is an order that the Court has imposed. We have responded in writing and I'll stand by our response. And I'm simply here at this point to refute anything that I deem as a misstatement.

The prosecutor acknowledges in brief that "the costs order . . . seeks to reimburse the parish for costs expended in this proceeding." 21 It is the Parish then that must seek [Pg 31] to recover the "prosecution costs" it was statutorily obligated to pay and incurred in Rideau's case.

FOOTNOTES

21 In some instances, the district attorney represents the parish. However, the district attorney did not express that his appearance in this case was on behalf of the parish. Even if he had done so, Justice Calogero has made clear that he cannot do so in this case. In State v. Touchet, 93-2839 (La. 9/6/94), 642 So. 2d 1213, Justice Calogero stated that "[i]n those parishes where the District Attorney is also the parish attorney, the prosecution must not be permitted to represent the entity objecting to the defendant's request. . . . The constitutional guarantees to which an individual defendant is entitled, compel a finding that in parishes where the District Attorney is also the parish attorney, or otherwise represents the parish's governing authority, that governing authority cannot be represented by the District Attorney or his or her assistants who also engage in the private practice of law. Thus, only attorneys having no connection [with] the Office of District Attorney should represent a governing body and/or agency in challenging need or costs." Id. at 1227, (Calogero, C.J., concurring). Because of the funding scheme unique in Calcasieu Parish, in this case, the trial court's decision to withhold funds previously committed to the IDB for Rideau's defense may result in a financial surplus in the witness and jury fee expense account. This surplus, by prior agreement, would then be divided between the district attorney and the district court. The evil in Touchet which threatened a defendant's right to a fair trial, that Justice Calogero indicated must be avoided, was that the district attorney may acquire an unfair evidentiary advantage. Here the district attorney may acquire an unfair financial advantage to the detriment of a defendant's right to adequate counsel and a defense counsel's right for reimbursement of reasonable expenses.


[**55] INDIGENT DEFENSE COSTS

In addition to court costs, the trial court ordered Rideau to "reimburse the Indigent Defender's Board for all costs associated with his defense, including witness fees and expenses." We surmise from the hearing, the Indigent Defender's Board (IDB) has not advanced any funds for Rideau's defense. Private counsel provided funds for the investigation and defense of Rideau which, according to the record, far exceeded the $ 67,000.00 they are seeking to recoup from the IDB. 22 The [*580] record reflects, the trial court, prior to trial, expressed intent to advance funds to the IDB for Rideau's defense. The following exchange occurred between the trial court and defense counsel at the hearing:

MR. KENDALL: Your Honor, as the Court knows, the Indigent Defender Board has not paid out any money in this case. Mr. Rideau's counsel had to fund this case. It's funded it from its duration since [Pg 32] they've been back here. We received assurances that there was - there were funds in this - in the budget to pay for two capital cases that were going to be tried last year, the Reeves case and the Rideau case. And here we are now seven months after trial and --

THE [**56] COURT: Well, let me say this. You know, as far as that goes, we didn't tell you there was just money sitting there that didn't have any place to be spent that - that was just waiting to be, you know, that we just had this extra money sitting somewhere. I told you that we had - we would make that a priority. We would make sure that there were funds available to make sure this case got tried. And, you know, and - and also on that note, I mean, y'all - we had an -well, I've told y'all, and we had an understanding, because I said that - we had an understanding, because I said that - we discussed it on more than one occasion that you needed to provide - I told you that after meeting with the other judges, the way we were handling these matters, the way Judge Canaday was handling the Reeves case, and in order to keep the costs under control, that we needed to approve the costs before they were incurred. And you told me that you thought it was going to cost about 35 to 40 thousand dollars in expert witness fees or whatever you needed to have the - to provide a defense for Mr. Rideau. And I told you, and I presented that figure to the - to the other judges and I was - but I told you that I [**57] still needed to know what those costs were going to be and approve those costs. The only thing that was ever provided to me in advance before I got that huge bill after the trial was over was the - the investigative stuff that y'all had to do in response to the first trial date that was fixed fairly quickly. Y'all hired some firm to go out and y'all spent about $ 20,000.00, as I recall, on a firm to come down and do some research and try to prepare for a change of venue hearing. And that was done - and that was provided to me after the [*581] fact. And I told you that I wanted a more detailed statement which -which it took some time to get. And anyway, but that's the only thing that I received and approved of. . . .

THE COURT: And frankly, the part that I ordered the reimbursement for the Public Defender's Office and the Indigent Defender Board, if they haven't paid anything, then obviously, there's no reimbursement owed there. But I know - I do know that there was an issue the Court has not yet - because the Court had agreed to advance that money, the Court was going to advance it to the Indigent Defender board and who, in turn, was going to reimburse the Court for that.

That was [**58] the - that was the agreement. That hasn't been done yet. And because of that agreement that's why I order that the - that Mr. Rideau reimburse the Indigent Defender Board for the experts.



FOOTNOTES

22 Rideau's counsel points out "[t]he defense team did not seek reimbursement for at least $ 100,000 in counsel fees, and another $ 100,000 in litigation costs, and sought reimbursement for only those services that were tied directly to the presentation of its trial defense." As he explained at the hearing, "And, [Mr. Murray] had every right to submit a request for roughly $ 100,000.00 in fees. He chose not to. I can tell you that my law firm has spent more than $ 100,000.00 in expenses and costs which we've not sought any reimbursement on whatsoever. And then that does not count; that was out-of-pocket expenses. That does not count my time for the last five years now and the time of the several other lawyers who had to come in the case to aid us so that we could handle this case properly. So there was a huge contribution made by the private bar in this case to see that this case was done appropriately, which Calcasieu Parish, the 14th JDC is not going to ever have to be-have to pay for." In State v. Wigley, 624 So. 2d 425 (La. 1993), the supreme court held "To require that attorneys represent indigents with no recompense while bearing the expenses of the representation, when the attorneys must maintain their own practices and continue to meet their other professional and financial obligations in today's changed legal marketplace, 'is so onerous that it constitutes an abusive extension of their professional obligations'" Id. at. 428-29. In this case, although there was a prior agreement with the trial court to advance money to the IDB for Rideau's defense, this was never done. Now the court is requiring Rideau's defense counsel to bear their own out-of-pocket expenses until such time as Rideau "writes a book or gets a movie deal."


[Pg 33] [**59] We are convinced the legislature did not grant the trial judge legal authority to issue a judgment ordering Rideau, who is still indigent, to reimburse the IDB for the costs of his defense and expenses.

Louisiana Revised Statutes 15:148, 23 deals specifically with reimbursement by indigents of defense and other costs. This statute provides, in relevant part:

A. To the extent that a person is financially able to provide for an attorney, other necessary services and facilities of representation and court costs, the court shall order him to pay for these items. The court may order payment in installments, or in any manner which it believes reasonable and compatible with the defendant's financial ability.

B.(1) Payments so made shall be transmitted to and become a part of the indigent defender fund of the district in which the person is prosecuted.

C. (1) When an accused is initially determined to be indigent and appointed counsel but subsequently hires private counsel, the court shall conduct a contradictory hearing to determine the expenses of representing the accused incurred by the indigent defender board. Upon determining the expenses incurred, [**60] the accused shall, within the discretion of the court, be liable to reimburse the board those expenses, upon a determination that the accused was in [*582] fact not initially indigent . . . . (emphasis added.)



FOOTNOTES

23 This provision is contained in the section entitled "Right to Counsel." Our legislature clearly recognized the potential burden on a defendant's right to counsel, if an indigent was automatically assessed with defense fees, regardless of his indigent status or hardship. Although the trial court agreed to loan the IDB funds to pay for Rideau's defense expenses, it has not done so. The IDB has not been able to reimburse Rideau's counsel for expenses which the trial judge acknowledged at the hearing were reasonable, though he argued the court had not approved "some of the expenses" before they were incurred. When defense counsel, in closing, again reminded the trial judge that the amount assessed Rideau was extraordinary, the judge stated:

[I]t's not going to take all of this money. And frankly, the part that I ordered the reimbursement for the Public Defender's Office and the Indigent Defender Board, if they haven't paid anything, then obviously, there's no reimbursement owed there. But I know-I do know that there was an issue the Court has not yet-because the Court had agreed to advance that money, the Court was going to advance it to the Indigent Defender Board and who, in turn, was going to reimburse the Court for that.

That was the-that was the agreement. That hasn't been done yet. And because of that agreement that's why I ordered that the-that Mr. Rideau reimburse the Indigent Defender Board for the experts.




[**61] The provision obviously envisions that a determination of indigent status and ability of a defendant to contribute to the cost of his defense, including "court costs," will occur at the time appointment of counsel is requested. To the extent a defendant [Pg 34] is judged financially able to pay a portion of the defense expenses and court costs, the court is directed to issue an order requiring him to pay in installments or any other manner compatible with the defendant's financial ability to pay. The only other instance mentioned in the statute where a trial court is authorized, within its discretion after a contradictory hearing, to issue a judgment ordering a defendant to pay defense and court costs occurs when he hires private counsel after the appointment of indigent counsel and the court "determines that the accused was in fact not initially indigent."

Accordingly, we find the trial court was not authorized to issue a judgment directing Rideau to reimburse the IDB for the costs associated with his defense, including expert witness fees and expenses. Rideau, at all relevant times, even up to the date of his sentence, was indigent-a fact which is undisputed in the record. Louisiana Revised Statutes 15:148 [**62] does not provide for an assessment of defense costs and other expenses against a defendant who was initially indigent but may rid himself of that status following release from prison. 24

FOOTNOTES

24 We note, as well, the Indigent Defender's Board, the real party in interest, has not sought to recoup any costs of defense or other fees from Rideau.


DECREE

Accordingly, we hereby grant Rideau's motion and vacate the Order of March 15, 2005 compelling him to pay all court costs related to the trial as itemized in Exhibit A and to reimburse the Indigent Defender Board all costs associated with his defense, including expert witness fees and expenses. The trial court retains authority to enforce Rideau's January 15, 2005 sentence requiring that he pay "all court costs associated with these proceedings," consistent with this court's opinion and the Constitutions of Louisiana and the United States.

ORDER VACATED.

WILBERT RIDEAU, Petitioner-Appellant, v. JOHN P. WHITLEY, Respondent-Appellee.

No. 99-30849

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

237 F.3d 472


December 22, 2000, Decided

OPINION


[*475] DENNIS, Circuit Judge:

In this federal habeas corpus case, the petitioner claims that he was the victim of racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment, in the selection of the Louisiana grand jury that indicted him for murder.

I.

The petitioner, Wilbert Rideau, was indicted on March 1, 1961, for the capital murder of Julia Ferguson, a bank employee, on February 16, 1961, in Calcasieu Parish, Louisiana. After his armed robbery of a bank in the city of Lake Charles, Rideau forced the victim and two other bank employees to accompany him in the victim's car to an uninhabited area outside the city. There he shot the three bank employees and stabbed the victim to death. The other two bank employees survived. State v. Rideau, 242 La. 431, 137 So. 2d 283, 286 (1962) [**2] (Rideau I).

Rideau was arrested on the evening of February 16, 1961, and confined in the Calcasieu Parish jail in Lake Charles. On the night of his arrest he made detailed oral and written confessions to the crimes. The next morning a sound film was made of Rideau, in the custody of state police officers, personally confessing to the crime in answer to leading questions by the Sheriff of Calcasieu Parish. The film was broadcast on the Lake Charles television station KPLC-TV on February 17, 18, and 19, 1961. Rideau v. Louisiana, 373 U.S. 723, 724-25, 10 L. Ed. 2d 663, 83 S. Ct. 1417 (1963); see also id. at 728 (Clark, J., dissenting).

After his motion for a change of venue was denied, Rideau was convicted of capital murder, La. R.S. § 14:30, by a jury and sentenced to death in the Fourteenth Judicial District Court, Parish of Calcasieu. On direct appeal to the Louisiana Supreme Court, the conviction and sentence were affirmed. Rideau I.

The United States Supreme Court granted certiorari and reversed Rideau's conviction and sentence. Rideau v. Louisiana, 373 U.S. 723, 10 L. Ed. 2d 663, 83 S. Ct. 1417 (1963). The court held [**3] "that it was a denial of due process of law to refuse the request for a change of venue, after the people of Calcasieu Parish had been exposed repeatedly and in depth to the spectacle of Rideau personally confessing in detail to the crimes with which he was later to be charged." Id. at 726.

Upon remand of the case to the state Fourteenth Judicial District Court in Calcasieu Parish, the district attorney moved the trial court to order Rideau to show cause why a change of venue should not be made to a Parish outside the range of [*476] KPLC-TV in Lake Charles. Rideau joined in the motion. The state district court denied the motion, but the Louisiana Supreme Court reversed, granted the motion, and ordered the trial judge to grant a change of venue. State v. Rideau, 246 La. 451, 165 So. 2d 282 (La. 1964).

Venue was changed to the Nineteenth Judicial District Court for the Parish of East Baton Rouge. Prior to trial Rideau, who is an African-American, moved to quash his 1961 indictment by the Calcasieu Parish grand jury on the ground that there had been a systematic exclusion, through a token inclusion, of black jurors from the grand jury. After an evidentiary [**4] hearing, his motion was denied. Rideau was convicted by a jury of capital murder in East Baton Rouge Parish, La. R.S. § 14:30, and sentenced to death. The Louisiana Supreme Court affirmed the conviction and sentence. State v. Rideau, 249 La. 1111, 193 So. 2d 264 (La. 1967) (Rideau II). The court held that Rideau had failed to establish discrimination or any impropriety in the formation of the jury bodies. The United States Supreme Court denied certiorari. Rideau v. Louisiana, 389 U.S. 861, 19 L. Ed. 2d 128, 88 S. Ct. 113 (1967). Racially discriminatory grand jury selection was one of the many errors unsuccessfully urged in Rideau's petition for certiorari.

In 1967, Rideau petitioned the United States District Court for the Eastern District of Louisiana for a writ of habeas corpus. Among numerous grounds, Rideau urged the issue of racial discrimination in the formation of the grand jury. However, all those issues were pretermitted when the State conceded that reversal of Rideau's conviction and sentence was required by the recent decision of Witherspoon v. Illinois, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770 (1968) (holding [**5] a death sentence invalid when jurors were excluded for cause because of general objections to death penalty). Accordingly, the federal district court, on May 12, 1969, vacated Rideau's conviction and death sentence, reserving the State's right to re-try petitioner within a reasonable time in accordance with law. S.J.T. III, at 16-17. 1

FOOTNOTES

1 To distinguish between the records in the trials and proceedings involved in this appeal, we cite the records in the state jury trials and the federal habeas proceedings as follows: first, second, and third state jury trial records as "S.J.T. I, II, and III"; the federal district court's habeas proceeding record on the instant petition as "F.H.P." A copy of the federal district court's grant of habeas relief in 1969 is filed in S.J.T. III, at 16-17.


Prior to his retrial, Rideau again moved the Nineteenth Judicial District Court in East Baton Rouge Parish to quash his 1961 indictment by the Calcasieu Parish grand jury because of racial discrimination in selection of jury venires [**6] and their failure to represent a cross-section of the community. After an evidentiary hearing, Rideau's motions were denied. Rideau was convicted by an East Baton Rouge Parish jury of capital murder and sentenced to death.

On appeal to the Louisiana Supreme Court, Rideau argued numerous bills of exception, including an objection to the district court's denial of his motion to quash his indictment. The court rejected all of Rideau's bills as being without merit and affirmed his conviction. State v. Rideau, 278 So. 2d 100, 103-06 (La. 1973) (Rideau III). But the court concluded that, in light of the United States Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972), Rideau's death sentence could not be affirmed. Therefore, the Louisiana Supreme Court annulled Rideau's death sentence and ordered the trial court to sentence him to life imprisonment. Rideau III, 278 So. 2d at 106. Rideau's counsel advised him that nothing further could be done for him in the courts and, therefore, did not petition the United States Supreme Court for certiorari.

Rideau filed this petition for federal [**7] habeas corpus on July 27, 1994, 2 alleging that [*477] his indictment and conviction were unlawfully obtained by an unconstitutionally impaneled grand jury. The State moved for dismissal of Rideau's petition as untimely under Rule 9(a) of the rules governing habeas corpus procedure. A federal magistrate judge recommended that the federal district court deny the State's dismissal motion and grant Rideau's petition for a writ of habeas corpus. After an evidentiary hearing, however, the federal district court denied Rideau's petition and granted the State's Rule 9(a) motion. The court concluded that Rideau had not proved that his "totally unreasonable" delay had not prejudiced the State's interests. Alternatively, the court denied Rideau's petition on its merits for failure to rebut with clear and convincing evidence the presumption that the state court's decisions were correct. Rideau appealed.

FOOTNOTES

2 Because Rideau's petition was filed before the April 26, 1996, effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA), its provisions amending the habeas corpus statute do not apply here. Lindh v. Murphy, 521 U.S. 320, 326-27, 138 L. Ed. 2d 481, 117 S. Ct. 2059 (1997).


[**8] II.

First, we must decide whether the district court correctly dismissed Rideau's petition for a writ of habeas corpus as untimely under Rule 9(a) of the Rules Governing Section 2254 Cases ("Section 2254 Rules"). Rules Governing Section 2254 Cases in the United States District Courts, R. 9(a), 28 U.S.C. foll. § 2254. 3

FOOTNOTES

3 We review the grant of a Rule 9(a) dismissal under the same standard of review we employ for the grant of summary judgment. McDonnell v. Estelle, 666 F.2d 246, 250 (5th Cir. 1982). Therefore, we employ a de novo review, judging the propriety of the Rule 9(a) dismissal under the same standard a district court should use: "all reasonable doubts must be resolved in favor of [Rideau]. If there are unresolved factual issues, the motion must be denied. If there are no factual issues to be resolved, the court must decide whether [the State] is entitled to judgment as a matter of law." Id.; see also 17A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 4268.2 at 504-05 (2d ed. 1988).


[**9] A.

Rule 9(a) of the Section 2254 Rules allows for the dismissal of habeas petitions that are filed in a delayed manner under limited circumstances:

A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

28 U.S.C. foll. § 2254 (2000). 4

FOOTNOTES

4 In its original form as proposed by the Supreme Court, the rule would have included a provision creating a presumption that the State was prejudiced by delays of more than five years. However, the House Judiciary Committee struck that provision from the rule passed by Congress, stating that "it is unsound policy to require the defendant to overcome a presumption of prejudice." H.R. Rep. No. 1471, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S.C.C.A.N. 2478, 2481; see also Wise v. Armontrout, 952 F.2d 221, 223 & n.5 (8th Cir. 1991) (collecting cases from the 5th, 10th, and 11th circuits rejecting the notion that the original formulation of the proposed rule created a presumption that extraordinarily long delays created prejudice as a matter of law); Strahan v. Blackburn, 750 F.2d 438, 441 (5th Cir. 1985) (observing that the effect of such a provision-in creating a statute of limitations for habeas petitions-is arguably prohibited by the Constitution's mandate against suspension of the habeas writ (citing U.S. CONST. art. I, § 9, cl. 2)); Marks v. Estelle, 691 F.2d 730, 732 n.3 (5th Cir. 1982); McDonnell, 666 F.2d at 251.


[**10]

The State bears a heavy burden under Rule 9(a) to "(1) make a particularized showing of prejudice, (2) show that the prejudice was caused by the petitioner having filed a late petition, and (3) show that the petitioner has not acted with reasonable diligence as a matter of law." Walters v. Scott, 21 F.3d 683, 686-87 (5th Cir. 1994); see also Strahan, 750 F.2d at 441 [*478] (5th Cir. 1985). The State must make a particularized showing of prejudice to its ability to respond to the habeas petition. Walters, 21 F.3d at 687; see also Strahan, 750 F.2d at 441. Mere passage of time alone is never sufficient to constitute prejudice. Walters, 21 F.3d at 687; see also Strahan, 750 F.2d at 441; McDonnell, 666 F.2d at 251; see, e.g., Bedford v. Attorney General of Alabama, 934 F.2d 295, 299-300 (11th Cir. 1991) (refusing to grant Rule 9(a) dismissal where The State did not show particularized prejudice from 19-year delay between finality of conviction and commencement of any post-conviction relief efforts); Campas v. Zimmerman, 876 F.2d 318, 324 (3d Cir. 1989) [**11] (same, regarding a 17-year delay between conviction and filing for federal habeas relief); Hannon v. Maschner, 845 F.2d 1553, 1557 (10th Cir. 1988) (same, regarding a 25-year delay between finality of conviction and filing for federal habeas relief); Buchanon v. Mintzes, 734 F.2d 274, 281-82 (6th Cir. 1984) (same, regarding a 23-year delay between conviction and filing for federal habeas relief); Sutton v. Lash, 576 F.2d 738, 744 (7th Cir. 1978) (same, regarding 21-year delay between finality of conviction and filing for federal habeas relief); Hairston v. Cox, 459 F.2d 1382, 1386 (4th Cir. 1972) (refusing to grant dismissal on theory of laches, which Rule 9(a) subsequently codified, regarding 26-year delay between finality of conviction and filing for federal habeas relief); Hamilton v. Watkins, 436 F.2d 1323, 1326 (5th Cir. 1970) (same, regarding a 38-year delay between conviction and filing for federal habeas relief); Hawkins v. Bennett, 423 F.2d 948, 951 (8th Cir. 1970) (same, regarding 42-year delay between finality of conviction and filing for federal habeas relief). Prejudice [**12] to the State's ability to retry or reconvict the petitioner is irrelevant. Walters, 21 F.3d at 687 (citing Vasquez v. Hillery, 474 U.S. 254, 264-65, 88 L. Ed. 2d 598, 106 S. Ct. 617 (1986); 17A WRIGHT, MILLER & COOPER, FEDERAL PRACTICE AND PROCEDURE § 4268.2 (2d ed. 1988) (first edition to same effect quoted with approval in Strahan, 750 F.2d at 441)).

"Lapses of time that affect the state's ability, but that do not make it 'virtually impossible' for the state to respond, [do not] require dismissal." 2 JAMES S. LIEBMAN & RANDY HERTZ, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 24.3 at 928-29 (3d ed. 1998) (citing, inter alia, Baxter v. Estelle, 614 F.2d 1030, 1035 (5th Cir. 1980); Strahan, 750 F.2d at 443-44; Galtieri v. Wainwright, 582 F.2d 348, 357 n.20, 358 (5th Cir. 1978) (en banc) (dicta)). "Accordingly, as to claims based on in-court proceedings or ones that otherwise were recorded, the state generally must show both that the transcript is unavailable and that participants in the proceeding-the presiding judge, court reporter, prosecutor, petitioner's trial attorney, [**13] law enforcement officials, and the like--are unavailable or unable to remember the critical events." Id. at 929 (emphasis in original) (comparing Walters, 21 F.3d at 687-89, Bedford, 934 F.2d at 299-300, and Smith v. Duckworth, 910 F.2d 1492, 1495 (7th Cir. 1990), with Walton v. Attorney General, 986 F.2d 472, 476 (11th Cir. 1993); and citing generally Harris v. Pulley, 885 F.2d 1354, 1365-67 (9th Cir. 1989), and Strahan, 750 F.2d at 441 n.4). "To determine whether this burden is met, the court generally must conduct a hearing on the question and make specific findings as to prejudice." Id. at 929-30 (citing Walters, 21 F.3d at 687 (finding State's claim of witness's memory loss insufficient to prove prejudice without a hearing to determine the precise extent of witness's recollection); Hannon, 845 F.2d at 1556 n.6; Lawrence v. Jones, 837 F.2d 1572, 1574-75 (11th Cir. 1988) (finding that, because the State was required to show "that the prejudice would not have resulted had the writ been filed at an earlier time, the district [**14] court needs to determine when the prejudicial deaths occurred and any other circumstances that would show that Alabama would have been in a position to [*479] show the facts surrounding [the petitioner's] conviction had he only brought his claim earlier" (citation omitted); McDonnell, 666 F.2d at 254-55).

If the State makes its prima facie showing of prejudice, then the burden shifts to the petitioner, who must show either (1) that the State's showing of prejudice is false, or (2) that the delay resulted from grounds that the petitioner could not have known of through reasonable diligence prior to the occurrence of the prejudicial circumstances. Walters, 21 F.3d at 687; see also Strahan, 750 F.2d at 441.

Rule 9(a) codifies the application of the equitable doctrine of laches to habeas corpus petitions. Walters, 21 F.3d at 686 (citing Strahan, 750 F.2d at 440). "The application of Rule 9(a) must be carefully limited to avoid abrogating the purpose of the writ of habeas corpus." Id. (citing McDonnell, 666 F.2d at 251; Hannon, 845 F.2d at 1557).

B.

Rideau's habeas claim, [**15] asserting that the Calcasieu Parish grand jury that indicted him was unconstitutionally formed through racially discriminatory selection procedures, is based primarily on the transcripts of the two pretrial evidentiary hearings held in the East Baton Parish state court on his motions to quash the Calcasieu Parish grand jury indictment and grand jury bodies. The transcript of the first hearing on November 5, 1964, was introduced as evidence in the second hearing on December 15, 1969. Both have been made part of the record of this appeal.

Acton Hillebrandt was elected Clerk of Court of Calcasieu Parish in 1948 and, as such, served as an ex-officio member of its jury commission. As he was still in office during both evidentiary hearings, he was called at each proceeding to testify as to the jury commission's procedures used to select the Calcasieu jury bodies. At the first evidentiary hearing, Mr. Hillebrandt testified that he had attended every meeting of the jury commission except possibly one since 1948. He testified that the commission obtained the names, race, and other data regarding prospective jurors from the parish registrar of voters and other sources. The commission prepared [**16] an identification card for each potential venire person showing his or her race and other information. During his testimony, Mr. Hillebrandt examined one of the identification cards and affirmed that it indicated the race of the venire member. The commission, consisting of Mr. Hillebrandt and five other commissioners appointed by the court, all of whom were white men, met together and selected the names from the cards to make up a general venire list of 300 people. The commission selected twenty people from the general venire to form the grand jury venire. They "picked any name that they thought would be a good grand juror . . . levelheaded." They did not select the jurors by lot or randomly. Mr. Hillebrandt testified that, as a rule, he selected people based on their occupations or his personal knowledge of them. He stated that he made it a point to put a "member of the colored race" on every grand jury that he drew. He testified that, because a conviction had been reversed "many years before" Rideau's grand jury was selected, the commissioners "all knew that they might as well be sure there was some Negroes in the panel[.]" On the other hand, Mr. Hillebrandt testified that a person's [**17] race would not qualify or disqualify him from serving on either the grand or general jury venire. In response to a question by the State's attorney, Mr. Hillebrandt agreed that the practice and procedure that the commission followed in connection with the grand jury venire in Rideau's case was "one of long standing and of long vintage." He added that, when the grand jury venire was selected, "we had no idea what would come before it, Rideau or who." Mr. Hillebrandt also testified that grand jury foremen were selected from the grand jury [*480] venire by the presiding judge, and that to his knowledge no member of the "colored race" had ever served as foreman. He stated that, from the names of the venire members on the grand jury venire list, he could tell that at least one of the twenty venire persons in Rideau's case was black and that sixteen were white. Rideau's attorney subsequently introduced the jury commission's identification cards for the three remaining grand jury venire members, indicating that those three venire members were white, along with an affidavit by Mr. Hillebrandt verifying the authenticity of the cards and explaining the racial coding contained on them.

In addition, [**18] Rideau introduced as evidence two of the identification cards used by the commission in drawing general and grand jury venires, showing how the cards indicated each potential venire member's race with either a "W" or an "N"; the 1960 U.S. Census results for Calcasieu Parish indicating that 18.5% of the Parish's male population over the age of 21 was African-American; and an affidavit by the Calcasieu Parish Registrar of Voters providing a breakdown of registered voters by race, showing that approximately 16% of the registered voters were African-Americans.

At the second evidentiary hearing, Mr. Hillebrandt gave a similar description of the jury commission's procedures. He admitted that neither he nor any other commissioner, to his knowledge, had ever made a conscious effort to discover or solicit potential jurors from the black community. Mr. Hillebrandt testified that, after the 300 general venire members were selected, their identification cards were placed in a metal container, and names were drawn therefrom to select the twenty-person grand jury venire. Mr. Hillebrandt testified that "usually you couldn't help but be" conscious of the race of the individuals in selecting the [**19] grand jury venire because the cards bore either a "W" or an "N" to denote race. Rideau also introduced as evidence four of the original twenty race-coded cards from which the jury venire was selected, the 1960 Census information, the voter registrar's affidavit, and the transcript of the 1964 evidentiary hearing.

In overruling Rideau's motion to quash after each hearing, the state trial court assigned differing reasons. After the first hearing, the court concluded that the commissioners properly took into account the race of potential venire persons to determine whether they were of good character and standing; that the commission's access to this information was not improper because there was no showing of purposeful exclusion or inclusion on the basis of race; and that the commissioners had no duty to go out and investigate 300 people. After the second hearing the court overruled the motion to quash because "the authority to that by which I am bound, whether I agree or disagree, is the Banks case wherein the Supreme Court had before it these same principles." 5

FOOTNOTES

5 We have been unable to find the "Banks case," upon which the state trial court relied without citation. It is possible that the court was referring to the similarly named relevant case of Eubanks v. Louisiana, 356 U.S. 584, 2 L. Ed. 2d 991, 78 S. Ct. 970 (1958). If so, the court misread Eubanks, which 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 excluded because of their race[,]" and concluded "that the uniform and long-continued exclusion of Negroes from grand juries shown by this record cannot be attributed to chance, to accident, or to the fact that no sufficiently qualified Negroes have ever been included in the lists submitted to the various local judges." Id. at 585, 587.


[**20] In appealing his third conviction to the Louisiana Supreme Court, Rideau again argued, among numerous other issues, that the trial court committed reversible error in denying his motion to quash the Calcasieu Parish grand jury bodies and indictment because of racial discrimination in the bodies' composition. In rejecting this argument, the Louisiana Supreme Court stated:

[*481]

The majority of the contentions raised by defense counsel in this bill of exceptions were presented on appeal and considered by us in [Rideau II]. In deciding adversely to defendant, we stated:

Fairness in the formation of the jury bodies is a fundamental requirement, long recognized by this Court. . . . Both the state and federal constitutions require that jury bodies be selected without discrimination because of race. A planned limitation of the number of negroes selected to serve on the grand jury imposed on the basis of race is prohibited. . . .

The question of whether racial or other discrimination has been practiced in the formation of the jury bodies is one of fact. . . . The burden of establishing such discrimination rests upon the defendant. . . .

The Jury Commission of Calcasieu Parish selected [**21] the list of Grand Jurors on January 5, 1961, before the commission of the crime charged. Clearly, therefore, no action of the jury officials could have been designed to prejudice the defendant.



Out of an abundance of caution, we have studied this bill and find that defendant has not shown that he suffered any prejudice from the venire selection in Calcasieu Parish. . . .Purposeful discrimination may not be assumed or merely asserted, it must be proved. A defendant who claims discrimination has the burden of establishing that such was the fact. The mere establishment of disparity between the number of Negroes on a venire list and the number of whites does not make a prima facie case of discrimination which must stand where not rebutted by the State.

State v. Rideau, 278 So. 2d 100, 103-04 (La. 1973) (Rideau III) (citations omitted). 6

FOOTNOTES

6 But see id. at 107-08 (Barham, J. dissenting) ("It cannot be seriously contended that this defendant failed to make out a prima facie case of purposeful racial discrimination in the selection of the grand jury venire. He has established that only 5 per cent of the grand jury venire was black, while the population of Calcasieu Parish 21 years or older was 25 per cent black. That grand jury venire was selected, not at random, but with the commissioners' full knowledge of the race of each person selected. But here, as in Alexander, it is not necessary that we 'rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral.'" (citing Alexander v. Louisiana, 405 U.S. 625, 31 L. Ed. 2d 536, 92 S. Ct. 1221 (1972); Whitus v. Georgia, 385 U.S. 545, 17 L. Ed. 2d 599, 87 S. Ct. 643 (1967)).


[**22] The federal habeas district court, in granting the Rule 9(a) dismissal, held that the State had made a "particularized" showing of prejudice by alleging that the venire identification card exhibits were missing and that Mr. Hillebrandt, the other jury commissioners, and the presiding judges were unavailable as witnesses. After citing these factors, the court stated:

The big issue is whether or not the court believes that the defendants, the state of Louisiana, has made a particularized showing of prejudice. And I think they have. I think to have someone wait as long as Mr. Rideau has waited, and we are now approaching the year 2000, and this crime occurred in 1961, with the final judgment in this case being in 1973, the court finds that this is a totally unreasonable time as a matter of law for the defendant to wait to raise this issue[.]

Hence, the federal district court did not make specific findings as to the particular ways in which the State had been prejudiced in its ability to respond to the petition by the unavailability of the witnesses or the venire identification card exhibits.

C.

It is apparent that the State failed to meet its heavy burden of (1) making [**23] a particularized showing that it has been prejudiced in its ability to respond to the petition; or, (2) assuming arguendo that prejudice exists, showing that that prejudice [*482] was caused by Rideau's having filed a delayed petition. Therefore, we need not reach (3) the issue of whether the petitioner has not acted with reasonable diligence as a matter of law.

(1)

The State claims that it has been prejudiced in its ability to respond to the petition because Acton Hillebrandt, the other members of the jury commission, and the two state trial judges are either too elderly to recall specific details, deceased, or are at unknown locations. To meet its burden of making a particularized showing of prejudice, however, the State may not merely allege prejudicial facts, but must offer concrete proof of the allegations. Wise, 952 F.2d at 223; accord Marks, 691 F.2d at 732, 734; Paprskar v. Estelle, 612 F.2d 1003, 1008 (5th Cir. 1980); see also Jackson v. Estelle, 570 F.2d 546, 547 (5th Cir. 1978) ("Problems of proof attendant to claims regarding events which occurred over 30 years ago . . . 'alone [are] no bar to federal habeas [**24] relief'" (quoting Hamilton v. Watkins, 436 F.2d 1323, 1326 (5th Cir. 1970))); Hudson v. Alabama, 493 F.2d 171, 173 (5th Cir. 1974) (holding that there is no prejudice if crucial facts are not in doubt); see generally, LIEBMAN & HERTZ, supra, § 24.3 at 927 n.3 (citing and quoting foregoing authorities).

The State alleged but did not present concrete proof that Mr. Hillebrandt was physically or mentally unable to testify regarding the Calcasieu Parish grand jury selection procedures. Further, the State has not alleged the factual substance of such testimony by Mr. Hillebrandt or even alleged that it would differ from the transcripts of his testimony at the two state court evidentiary hearings. See Walters, 21 F.3d at 688 (noting that, "if the state wishes to establish prejudice from the death of the court reporter and the unavailability of the court reporter's records, it must also establish that the substance of those records is unavailable from other sources. This the state has not done."); McDonnell, 666 F.2d at 253 ("Prejudice resulting from the judge's death occurs only if there are no other sources from [**25] which the state can obtain the requisite information to counter the petitioner's claim.").

At the evidentiary hearing in the federal district court in the present case, the parties stipulated that four of the jury commissioners and one of the state court judges were deceased as of January 1999. However, the State has not alleged or proved with concrete evidence the date upon which each of the witnesses died or became unavailable, the date upon which Rideau's delay became unreasonable, or the substance of each witness's testimony that has been lost during the specific period of Rideau's allegedly unreasonable delay. See, e.g., McDonnell, 666 F.2d at 253-54 (finding that prejudice had not been established because the State had not shown when records were destroyed during the course of delay and whether an earlier filing would have made a fuller response possible); see also Lonchar v. Thomas, 517 U.S. 314, 327, 134 L. Ed. 2d 440, 116 S. Ct. 1293 (1996) ("History of the Rule [9(a)] makes plain that the prejudice requirement represents a critical element in the balancing of interests undertaken by Congress and the framers of the Rule which courts [**26] may not undermine through the exercise of background equitable powers."); Prejean v. Smith, 889 F.2d 1391, 1405 (5th Cir. 1989) ("This circuit has held that no matter how long the delay may be, a particularized showing of prejudice is required.").

The State also argues that it has been prejudiced by the disappearance from the state trial records of the race-coded identification cards and other documentary exhibits. However, the State does not make any particularized showing of prejudice from this disappearance. Furthermore, Mr. Hillebrandt described the identification cards fully in his testimony at the two state evidentiary hearings, and the transcripts of that testimony have been fully [*483] preserved, making the availability of the cards themselves unnecessary in these proceedings. See Walters, 21 F.3d at 688; McDonnell, 666 F.2d at 253.

(2)

Assuming arguendo that the death, disability, or unavailability of each witness is construed as prejudicial to the State, the State bears the further burden of proving that Rideau's delay in filing his habeas petition caused all sources of the evidence each could have provided to be lost. At a [**27] minimum, this requires the State to establish that if Rideau had filed his habeas petition at a specific earlier time, the evidence the State claims to have lost would have been available and material. The witnesses may have died or become unavailable before or shortly after Rideau's conviction and sentence became final in the Louisiana Supreme Court. In that case, the loss of the witnesses' testimony certainly would not be attributable to Rideau's delay in bringing his habeas petition. Moreover, the State apparently failed to take advantage of opportunities during the two state evidentiary hearings to present the testimony of the jury commissioners it now claims are deceased or unavailable. The State has not alleged or proved any facts to show that the loss of those witnesses is not attributable to its own lack of diligence. We simply do not have the necessary facts before us. The State has the burden to prove those facts; the absence of their proof compels the conclusion that the necessary foundation for a Rule 9(a) dismissal has not been laid. See Walters, 21 F.3d at 688-89 (citing and quoting Lawrence, 837 F.2d at 1575 (11th Cir. 1988) ("The district [**28] court needs to determine when the prejudicial deaths occurred and any other circumstances that would show that [the State] would have been in a position to show the facts surrounding [petitioner's] conviction had he only brought his claim earlier." (footnote omitted)); McDonnell, 666 F.2d at 249 (noting as dispositive the State's failure to show when the records were destroyed and, consequently, that petitioner's delay caused prejudice); Marks, 691 F.2d at 733 ("The state's Rule 9(a) motion is meritorious only if it suffered some prejudice after the lapse of a reasonable amount of time for Marks to learn of [the Argersinger] decision and act.").

(3)

Because we hold that the State has failed to make a sufficient showing of prejudice in its ability to respond to the petition that was caused by the petitioner's delay, it is unnecessary for us to determine whether Rideau's delay in filing his petition was unreasonable. Walters, 21 F.3d at 686-87; see also Strahan, 750 F.2d at 441, 443; McDonnell, 666 F.2d at 251; Bouchillon v. Estelle, 628 F.2d 926, 929 (5th Cir. 1980); Smith, 910 F.2d at 1492; [**29] see generally LIEBMAN & HERTZ § 24.3, at 926 n.1 (citing and quoting from foregoing cases). 7

FOOTNOTES

7 Although we do not decide the issue of the reasonableness of Rideau's delay, the author of this opinion certifies that his careful examination of the record reveals no evidence that supports the State's assertion of purposeful delay for tactical advantage by the petitioner.


III.

Because the State failed to carry its burden under Rule 9(a), we turn to a review of the decisions of the state courts and the federal district court on the merits of Rideau's petition for habeas corpus. In a federal habeas corpus proceeding, we review the district court's legal determinations de novo. Johnson v. Puckett, 929 F.2d 1067, 1070 (5th Cir. 1991). We review state court rulings of law or mixed rulings of law and fact de novo in habeas proceedings. Id. at 1072 (citing Sumner v. Mata, 455 U.S. 591, 597, 71 L. Ed. 2d 480, 102 S. Ct. 1303 (1982)). In habeas proceedings under the [**30] pre-AEDPA 28 U.S.C. § 2254, we accord a rebuttable presumption of correctness to written state court findings of fact. 28 U.S.C. § 2254(d) [*484] (1994); Sumner, 455 U.S. at 592.

In the present case, the State did not introduce any evidence in either the federal or the state courts to rebut the evidence taken in the state trial court hearings on Rideau's motions to quash the Calcasieu Parish grand jury indictment. As a consequence, the federal district court and the state courts were not required to make any purely factual determinations that we are called upon to review. Rather, we review their decisions only for error in rulings of law or mixed rulings of fact and law.

A.

For well over a century, the Supreme Court has held that a criminal conviction of an African-American cannot stand under the Equal Protection Clause of the Fourteenth Amendment if it is based on an indictment of a grand jury from which African-Americans were excluded on the basis of race. See Rose v. Mitchell, 443 U.S. 545, 556, 61 L. Ed. 2d 739, 99 S. Ct. 2993 (1979); Alexander v. Louisiana, 405 U.S. 625, 628, 31 L. Ed. 2d 536, 92 S. Ct. 1221 (1972); [**31] Bush v. Kentucky, 107 U.S. 110, 119, 27 L. Ed. 354, 1 S. Ct. 625 (1883); Neal v. Delaware, 103 U.S. 370, 394, 26 L. Ed. 567 (1881); see also Castaneda v. Partida, 430 U.S. 482, 492-95 & n.12, 51 L. Ed. 2d 498, 97 S. Ct. 1272 (1977). Recently the Supreme Court reaffirmed this principle in holding that a white criminal defendant has the requisite standing to raise equal protection and due process objections to discrimination against black persons in the selection of grand juries. Campbell v. Louisiana, 523 U.S. 392, 397-401, 140 L. Ed. 2d 551, 118 S. Ct. 1419 (1998). "Regardless of his or her skin color, the accused suffers a significant injury in fact when the composition of the grand jury is tainted by racial discrimination. 'Discrimination on the basis of race in the selection of members of a grand jury . . . strikes at the fundamental values of our judicial system' because the grand jury is a central component of the criminal justice process." Campbell, 523 U.S. at 398 (1998) (quoting Rose, 443 U.S. at 556).

A criminal defendant "is entitled to require that the State not deliberately [**32] and systematically deny to members of his race the right to participate as jurors in the administration of justice." Alexander, 405 U.S. at 628-29. Accordingly, where sufficient proof of discrimination in violation of the Fourteenth Amendment has been made out and not rebutted, the Supreme Court uniformly has required that the conviction be set aside and the indictment returned by the unconstitutionally constituted grand jury be quashed. See, e.g., Hill v. Texas, 316 U.S. 400, 406, 86 L. Ed. 1559, 62 S. Ct. 1159 (1942). In Castaneda, the Court noted that among the cases in which the Court had applied this principle in circumstances involving grand jury discrimination were Alexander, supra; Arnold v. North Carolina, 376 U.S. 773, 12 L. Ed. 2d 77, 84 S. Ct. 1032 (1964); Eubanks, supra; Reece v. Georgia, 350 U.S. 85, 100 L. Ed. 77, 76 S. Ct. 167 (1955); Cassell v. Texas, 339 U.S. 282, 94 L. Ed. 839, 70 S. Ct. 629 (1950); Hill, supra; Smith v. Texas, 311 U.S. 128, 85 L. Ed. 84, 61 S. Ct. 164 (1940); Pierre v. Louisiana, 306 U.S. 354, 83 L. Ed. 757, 59 S. Ct. 536 (1939); [**33] Rogers v. Alabama, 192 U.S. 226, 48 L. Ed. 417, 24 S. Ct. 257 (1904); Carter v. Texas, 177 U.S. 442, 44 L. Ed. 839, 20 S. Ct. 687 (1900); and Bush v. Kentucky, supra. 430 U.S. at 492 n.12.

These holdings make clear that claims of discrimination in the selection of members of the grand jury are cognizable on federal habeas corpus, and will support issuance of a writ setting aside a state conviction and ordering the indictment quashed. Rose, 443 U.S. at 564-65. Nevertheless, to be entitled to habeas relief a claimant is required to prove discrimination under the standards [*485] set out in the Supreme Court's cases. Id. That is, "in order to show that an equal protection violation has occurred in the context of grand jury selection, the defendant must show that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs." Castaneda, 430 U.S. at 494. Specifically, Rideau was required to prove his prima facie case with regard to selection of the grand jury as follows:

The first step is to establish that the group is [**34] one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. This method of proof, sometimes called the "rule of exclusion," has been held to be available as a method of proving discrimination in jury selection against a delineated class. Finally, . . . a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing. Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case.

Id. at 494-95 (citations and footnote omitted).

The petitioner may also prove a prima facie case without showing a statistical disparity "over a significant period of time"; he may satisfy his prima facie burden by showing a disparity in the particular grand jury body that indicted him, coupled with [**35] proof either that (1) the selection process was itself not racially neutral and presented an opportunity for discrimination, or that (2) the jury commissioners had made no attempt to acquaint themselves with eligible members of the African-American community. Id. at 493-94 (quoting Washington v. Davis, 426 U.S. 229, 241, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976) ("A prima facie case of discriminatory purpose may be proved as well by the absence of Negroes on a particular jury combined with the failure of the jury commissioners to be informed of eligible Negro jurors in a community . . . or with racially non-neutral selection procedures.")); cf. Batson v. Kentucky, 476 U.S. 79, 94-95, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986) (regarding the selection of petit jury venires, holding that, "since the ultimate issue is whether the State has discriminated in selecting the defendant's venire, however, the defendant may establish a prima facie case in other ways than by evidence of long-continued unexplained absence of members of his race from many panels. In cases involving the venire, this Court has found a prima facie case on proof that members [**36] of the defendant's race were substantially underrepresented on the venire from which his jury was drawn, and that the venire was selected under a practice providing the opportunity for discrimination. This combination of factors raises the necessary inference of purposeful discrimination because the Court has declined to attribute to chance the absence of black citizens on a particular jury array where the selection mechanism is subject to abuse." (internal quotations and citations omitted)).

Because racial discrimination in the grand jury selection process "strikes at the fundamental values of our judicial system and our society as a whole," it is well-established that a criminal defendant has suffered an equal protection violation when he is indicted by a grand jury that is the product of such a discriminatory process. Rose, 443 U.S. at 556 (citing Neal, 103 U.S. at 394; Reece, 350 U.S. at 87). "Since the beginning," the United States Supreme Court has "reversed the conviction and ordered the indictment quashed in such cases without inquiry into whether the defendant was [*486] prejudiced in fact by the discrimination at the grand jury [**37] stage." Id. 443 U.S. at 556-57 (citing Neal, 103 U.S. at 394; Bush, 107 U.S. at 119; Virginia v. Rives, 100 U.S. 313, 322, 25 L. Ed. 667 (1880)).

No state is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the defendant innocent or guilty. It is the state's function, not ours, to assess the evidence against a defendant. But it is our duty as well as the state's to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand, because the Constitution prohibits the procedure by which it was obtained. Equal protection of the laws is something more than an abstract right. It is a command which the state must respect, the benefits of which every person [**38] may demand. Not the least merit of our constitutional system is that its safeguards extend to all-the least deserving as well as the most virtuous.

Hill, 316 U.S. at 406 (citations omitted).

B.

The ultimate question in the present case, whether the grand jury was selected in a systematically unrepresentative or racially discriminatory manner, has long been recognized to be a question of law or a mixed question of fact and law. See, e.g., Rose, 443 U.S. at 561-62; Whitus, 385 U.S. at 550; Hill , 316 U.S. at 406; Cassell, 339 U.S. at 291-92 (Frankfurter, J., concurring). 8

FOOTNOTES

8 Cf. Johnson, 929 F.2d at 1072 (finding question of whether discriminatory selection of grand jury foremen had occurred over a significant period of time to be mixed question of fact and law implicating no deference to state court's conclusion); see also Brantley v. McKaskle, 722 F.2d 187, 189 (5th Cir. 1984) ("If, however, the challenge goes to the inferences drawn from the facts, the reviewing court need not accept the [state court's] conclusion and may independently examine and weigh the facts."); see generally 1 LIEBMAN & HERTZ § 20.3d at 767-94 and n.56.


[**39] Rideau, as an African-American, is a member of a distinct, cognizable class that has been singled out for discrimination. Rose, 443 U.S. at 555-56. Rideau has also made a showing that the grand jury venire in his case was disparate in its representation of African-Americans in comparison to the proportion of African-Americans in the community. The 1960 Census figures for Calcasieu Parish indicate that 18.5% of the parish's male population over the age of 21 was African-American. F.H.P., at 167-69. An affidavit by the Calcasieu Parish registrar of voters shows that 16-2/3% of the registered voters in Calcasieu Parish was African-American. S.J.T. III. Nevertheless, only one member, or 5%, of the twenty-person grand jury venire was African-American, a mathematical disparity similar to those that the Supreme Court has found to establish a presumption of discrimination. See Castaneda, 430 U.S. at 495-96 (finding a presumption of discrimination where 79.1% of county's population was Mexican-American but only 39% of people summoned to grand jury service were Mexican-American) (citing Whitus, 385 U.S. at 550 (27.1%-to-9.1% disparity); Sims v. Georgia, 389 U.S. 404, 19 L. Ed. 2d 634, 88 S. Ct. 523 (1967) [**40] (24.4%-to-4.7% disparity); Jones v. Georgia, 389 U.S. 24, 19 L. Ed. 2d 25, 88 S. Ct. 4 (1967) (19.7%-to-5% disparity)). This 18.5%-to-5% disparity between the distinct group's presence in the community population and its representation [*487] on the grand jury venire in Rideau's case might, standing alone, support a presumption of discrimination. We need not decide that, however. The Supreme Court has stressed that it

has never announced mathematical standards for the demonstration of "systematic exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral.

Alexander, 405 U.S. at 630. Here, as well, additional factors supplement the statistical disparity. For example, Mr. Hillebrandt testified that neither he nor any of the other commissioners, to [**41] his knowledge, had made any attempt to identify and call upon eligible African-Americans for potential selection as general or grand jury venire persons. Washington, 426 U.S. at 241 (holding that a presumption of prejudice is shown when the disparity on a particular grand jury venire panel is "combined with the failure of the jury commissioners to be informed of eligible" African-Americans in the community); Smith v. Texas, 311 U.S. 128, 132, 85 L. Ed. 84, 61 S. Ct. 164 (1940) ("Where jury commissioners limit those from whom grand juries are selected to their own personal acquaintance, discrimination can arise from commissioners who knew no negroes as well as from commissioners who know but eliminate them."); Scott v. Walker, 358 F.2d 561, 573-74 (5th Cir. 1966) (en banc) ("It is plain from the record here that the commissioners put on the list only those personally known to them. They made no especial effort to ascertain whether there were qualified Negroes in the parish for jury service. In failing to do so they violated the rule announced by the Supreme Court . . . in Cassell v. State of Texas, where it was said, 'When the commissioners [**42] were appointed as judicial administrative officials, it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color. They did not do so here, and the result has been racial discrimination.'" (quoting 339 U.S. at 289)).

Also, it is evident that the degree of underrepresentation of African-Americans on the general and grand jury venires had prevailed over a significant period of time. According to Mr. Hillebrandt, who had attended virtually all of the meetings of the jury commission since his election in 1948, the commission's venire selection practices and procedures were of long standing and long vintage in Calcasieu Parish. Many years before 1961, Mr. Hillebrandt testified, after a jury conviction had been reversed, he began the practice of making sure that there was at least one "colored person" on each grand jury venire. 9 This practice, however, he clearly indicated, was merely a token inclusion of African-Americans and was by no means intended to rectify their underrepresentation.

FOOTNOTES

9 As the Magistrate Judge's report in these proceedings observes, "It is difficult, if not impossible, to interpret this statement, when read in context with the other facts, as anything other than an admission that jury commissioners were trying to get away with putting as few blacks on grand juries as they thought they could."


[**43] Rideau introducted additional census and venire composition evidence in the proceedings before the Magistrate Judge that fully corroborates the Calcasieu Parish jury commission's long-lived pattern of discrimination against African-Americans in the selection of general and grand jury venires. As the Magistrate Judge's report correctly found:

The statistical evidence of under-representation is overwhelming and unrebutted. According to the 1960 U.S. Census, Calcasieu Parish had 7,237 [*488] black men over the age of 21, and 31,729 white men in the same category. Thus, about 18.5 percent of the parish's population was black and eligible for grand jury service in 1960 and 1961. According to the 1950 U.S. Census, Calcasieu Parish had 26,172 men over the age of 21. Of that number, 5,626 were black-about 21.5 percent of the eligible population.

According to undisputed evidence of the 12 grand juries that were selected between October 3, 1954 and January 16, 1961, no grand jury had more than one black member (out of 12 on each panel). Of 144 grand jurors that were selected during this period, only six were black-about four percent.

F.H.P., at 190-91 (footnote omitted). Consequently, [**44] under either standard, disproportionate underrepresentation over a significant period of time, or disproportionate underrepresentation of African-Americans in Rideau's own grand jury venire coupled with a racially non-neutral selection process and the failure of the jury commissioners to acquaint themselves with a representative number of African-Americans eligible for jury service, we conclude that Rideau proved a prima facie case of unconstitutional grand jury venire selection and composition.

A telling sign that the prevalent statistical underrepresentation of minorities on the grand jury venires resulted from racial discrimination was the commission's venire selection procedure, which was "susceptible of abuse or [was] not racially neutral." Castaneda, 430 U.S. at 494. According to Mr. Hillebrandt's testimony, as supported by the general venire identification cards introduced at the two state evidentiary hearings, and not disputed here, each potential grand jury venire member's identification information was entered onto a card that also indicated the race of each person. S.J.T. III, at 128. In cases in which the jury commissioners have had access to the racial [**45] identity of potential grand jurors while engaged in the selection process, the Supreme Court has repeatedly found that the procedure constituted a system impermissibly susceptible to abuse and racial discrimination. Castaneda, 430 U.S. at 495 (finding that the non-random selection of names of grand jurors was susceptible to abuse because Mexican-Americans were easily identifiable by their Spanish surnames); Alexander, 405 U.S. at 630 ("We do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves are not racially neutral.

The racial designation on both the questionnaire and the information card provided a clear and easy opportunity for racial discrimination."); Whitus, 385 U.S. at 548-49 (finding a selection system was susceptible to abuse where potential grand jurors were selected from segregated tax digest lists, which also coded African-Americans with a "(c)" behind each name); cf. Avery v. Georgia, 345 U.S. 559, 562, 97 L. Ed. 1244, 73 S. Ct. 891 (1953) (finding that the practice [**46] of placing potential petit jurors' identification on yellow cards if they were African-American and on white cards if they were white "obviously . . . makes it easier for those to discriminate who are of a mind to discriminate." (quoted approvingly in Alexander, 405 U.S. at 631)).

That Mr. Hillebrandt testified that he did not intentionally seek to discriminate against prospective grand jurors by using cards bearing racial identifications, and that he did not know whether the other jury commissioners did so, does not dissipate a prima facie case established under the Court's decisions. Norris v. Alabama, 294 U.S. 587, 598, 79 L. Ed. 1074, 55 S. Ct. 579 (1935) ("If, in the presence of such testimony as defendant adduced, the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for the complete exclusion of negroes from jury service, the [*489] [Equal Protection Clause] would be but a vain and illusory requirement."); see also Alexander, 405 U.S. at 630 (finding the racial identification in the selection process impermissible "although there is no evidence that the commissioners [**47] consciously selected by race"); Whitus, 385 U.S. at 551 ("While the commissioners testified that no one was included or rejected on the jury list because of race or color this has been held insufficient to overcome prima facie evidence."); Eubanks, 356 U.S. at 587 (quoting above passage from Norris); Reece, 350 U.S. at 88 ("Mere assertions of public officials that there has not been discrimination will not suffice."). The Supreme Court has spoken to this point in words that are equally applicable to the present case:

As in Whitus v. Georgia, supra, the clerk of court, who was also a member of the jury commission, testified that no consideration was given to race during the selection procedure. The Court has squarely held, however, that affirmations of good faith in making individual selections are insufficient to dispel a prima facie case of systematic exclusion. . . .The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner.

Alexander, 405 U.S. at 632 (internal quotations and citations omitted).

Consequently, [**48] we conclude that Rideau established a prima facie case of racial discrimination in the process used to select the grand jury that indicted him. The State produced no evidence to rebut any portion of Rideau's prima facie case in either the two state evidentiary hearings or the federal district court proceedings. The only evidence the State can point to is Mr. Hillebrandt's testimony that neither he nor any other commissioner to his knowledge used the race-coded identification cards to intentionally exclude African-Americans from grand jury venires. As we have noted, however, such disclaimers are insufficient to rebut a prima facie showing of discrimination. The State must "show[] that permissible racially neutral selection criteria and procedures have produced the monochromatic result," and it has made no strides in making such a showing, either here or in the state courts. Alexander, 405 U.S. at 632.

Accordingly, Rideau's conviction must be reversed and his unconstitutionally obtained indictment quashed. Vasquez, 474 U.S. at 264 ("The overriding imperative to eliminate this systematic flaw in the charging process, as well as the difficulty of assessing [**49] its effect on any given defendant, requires our continued adherence to a rule of mandatory reversal.").

Intentional discrimination in the selection of grand jurors is a grave constitutional trespass, possible only under color of state authority, and wholly within the power of the State to prevent. Thus, the remedy we have embraced for over a century-the only effective remedy for this violation-is not disproportionate to the evil that it seeks to deter. If grand jury discrimination becomes a thing of the past, no conviction will ever again be lost on account of it.

Id. at 262. However, as the Supreme Court noted in Hill, "A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for [the State] may indict him and try him again by the procedure which conforms to the constitutional requirements." 316 U.S. at 406. Consequently, the State of Louisiana is free to seek another indictment and retrial of Rideau in accordance with the Constitution, the laws, and this opinion.

For the foregoing reasons, we REVERSE and REMAND to the district court with instructions to issue the writ of habeas corpus unless, [**50] within a reasonable time to be designated by the district court, [*490] the State should again indict and try Rideau.