TAYLOR v. LOUISIANA
Legal provision: Right to Trial By Jury
Argument of William Mcm. King
Chief Justice Warren E. Burger: We'll hear arguments next in number 73-5744, Taylor against Louisiana.
Mr. King you may proceed whenever you're ready.
Mr. William Mcm. King: Mr. Chief Justice, may it please the Court.
The Louisiana constitutional provisions and statutory provisions are the same in this case is what is present in the Healy case, but there is this distinction.
The appellant here was charged with a serious criminal offense, a capital offense in the Louisiana, found guilty by a jury, an all male jury, chosen from an all male jury venire.
A motion to quash the jury venire prior to trial was entered and denied.
The motion was based on the ground that his rights to an impartial jury under the guarantees of the Sixth and Fourteen Amendment of the United States Constitution were denied him.
Chief Justice Warren E. Burger: Would your position be the same Mr. King if in fact there had been five women on this jury who had got there by the existing processes?
Mr. William Mcm. King: With the existing constitutional and statutory provisions, the position that we take would still be the same.
Chief Justice Warren E. Burger: Or would you --
Mr. William Mcm. King: On its face we say the constitutional and statutory provisions which not only exempt, but exclude one is unconstitutional.
It provides for jury service only where the woman volunteers and excludes her from the jury unless she does volunteer.
The stipulation of fact between the State and Healy are equally applicable to this case and that it occurred at the same time and during the same period and that stipulation show the complete failure of the volunteer system for women as adopted by the constitution under the states statute.
The distinction in this, in the Healy case as we see it is that Healy have a Sixth Amendment question which arises because of this Court's opinion in Duncan versus Louisiana which opinion was rendered in 1968, this trial took place in 1972.
In Duncan versus Louisiana, the Court will remember the right of a state court defendant in a serious criminal trial to a jury was granted him by application of the Sixth Amendment through the Fourteenth Amendment.
In Williams versus Florida, there was an attempt made to have this Court extend the application of Duncan versus Louisiana to a 12-man jury and the Court denied that extension on the grounds that numbers alone did not constitute the essential attribute of a jury.
That same position was taken I believe by the Court in Apodaca where the number necessary to convict was at issue, but here the quality of the jury is at issue and an essential attribute of the jury trial is at issue for criminal defendants.
Justice Byron R. White: What is that?
Mr. William Mcm. King: Pardon me?
Justice Byron R. White: What is that essential attribute?
Mr. William Mcm. King: In the very case which denied the extension to the 12-man jury, this Court declared what the essential attribute was.
It said that the purpose of a jury was to prevent oppression by government and that the manner in which it is exercised is by the jury being a barrier between the government or the accuser and the accused, and that in order to form an effective barrier, the Court stated that it is composed of representative segments of the community and that in denying that the 12-man jury applied to Louisiana, the Court looked to whether the number on the jury had the effect of denying that representative cross section of the community.
Justice William H. Rehnquist: Well, why would a jury composed of 12 men be expected to hurt your client's chances since your client is a man?
Mr. William Mcm. King: If Your honor is asking me whether I can feel, touch, smell or taste that home or whether there is a home that is tangible in character, I cannot do so.
Justice William H. Rehnquist: Then what authority do you have for saying that in the absence of such and what decision this Court do you rely on?
Mr. William Mcm. King: Well, I rely primarily in the federal context in the federal courts on Thiel -- on the Thiel case.
Justice William H. Rehnquist: But of course that wasn't -- that was a federal court decision reviewing the jury system in federal court, was it?
Mr. William Mcm. King: But the court found there that the exemption by the federal judge of daily wage earners violated the system of jury to such an extent that it would not even look into whether the party -- the appellant in that case was a member of that class.
They -- this Court would not even go behind of that, once it's found that the jury system –-
Justice William H. Rehnquist: But that -- that was a Seventh Amendment case involving a civil jury trial.
Now, the Seventh Amendment has no application to the states --
Mr. William Mcm. King: That's correct Your Honor, but if the -- if that application was made in a civil jury trial much more so shall apply to a criminal jury trial and --
Justice William H. Rehnquist: That's your principal authority then as the Thiel case for saying that your client has standing to raise this issue?
Mr. William Mcm. King: Only by application and by a mode of reasoning.
I believe the Duncan case --
Justice Byron R. White: You rely on Duncan -- you rely on Duncan and it's not a case.
Mr. William Mcm. King: I believe Duncan.
Justice Byron R. White: Let's say that you're going to satisfy the jury requirement of the Sixth and Fourteenth Amendment if the jury should be drawn from a fair process there?
Mr. William Mcm. King: Absolutely, I believer that Duncan case is the principle case.
In Peters versus Kiff which was a standing case between a white who was a complainant of the lack of blacks.
Justice Byron R. White: On a grand --
Mr. William Mcm. King: -- on a grand jury.
I believe it also may have been applicable to that petit jury in that case.
It is not that case that I'm relying upon but the Court stated in that case --
Justice William H. Rehnquist: Was there a Court opinion in that case?
Mr. William Mcm. King: Pardon?
Justice William H. Rehnquist: Was there an opinion for the Court in that case?
Mr. William Mcm. King: There was a -- you know -- divide a Court 3, 3, 3.
Justice William H. Rehnquist: Which opinion are you going to rely on?
Mr. William Mcm. King: [Attempt to Laughter] The language in the -- in Justice Marshall's opinion and the language in Chief Justice Burger's opinion that there’s any of them, express the thought of the Court I believe that if that had been a post Duncan case there would have been little question of the standing to complain.
Justice William H. Rehnquist: I thought the Chief Justice's opinion relied on the notion of prejudice and that there ought to be some showing of prejudice, it was a dissenting opinion?
Mr. William Mcm. King: I believe that in essence is that so but the language in the Court's dissenting opinion stated that we are not here concerned with the essential attributes of trial by a jury, but here you are concerned with the essential attributes of trial by a jury.
If in Duncan versus Louisiana you applied the jury to the states in criminal proceedings, serious criminal proceedings, then to deny the essence of the jury trial is to an effect deny the jury trial, because if you don't have a jury composed in as larger a measure as possible of representative cross segment of -- you have no jury.
Justice Byron R. White: Well, if you would I suppose would say that the rule would only be that the jury panels should -- part of venire it should have could be a representative cross section not the actual jury?
Mr. William Mcm. King: Oh no sir, the jury venire.
The venire who can say whether the selection from the venire will bring about a proportion that is –-
Justice Byron R. White: Let alone peremptory challenges?
Mr. William Mcm. King: Yes sir.
The possibility of bias in situations where state juries do not have to be selected as far as possible from a cross section of the community is so present that without a restriction on the state jury's selective system, it is tantamount to saying that you have no jury at all.
Justice Harry A. Blackmun: Well then you're really saying that we haven't had juries at all for over a century in this case?
Mr. William Mcm. King: When 53% of a community are excluded from the jury, I would say that that's correct Your Honor.
Justice Harry A. Blackmun: Would you join the limbo conviction that had been -- had been for -- in the old system for years and years?
Mr. William Mcm. King: Of course that's a problem.
I really don't feel that I can answer.
I'm arguing a the case for a particular individual who has raised his -- this issue prior to trial.
What maybe the fate of those who have been convicted under this exclusionary device, I really would rather not say.
Justice Harry A. Blackmun: I merely asked that only because you said that this didn't equate with a jury, therefore, we haven’t had the jury system and --
Mr. William Mcm. King: It doesn't equate with what the Court had said was a jury.
Justice Byron R. White: Yes but Duncan -- Duncan was never made mention because Duncan didn't question the reliability of the then cross section jury, if this is quite it emphasize the critical role of the jury?
Mr. William Mcm. King: Well, it does no good Your Honor.
Justice Byron R. White: And you did want to make that correction?
Mr. William Mcm. King: It was not made that's right, in Duncan, but it does no good to say that juries are meant to protect people’s liberty and yet deprive the jury of an essential attribute because the same jury that was present in the Thiel case may well have been the same jury to protect the liberty that we speak of.
Chief Justice Warren E. Burger: But that argument would apply equally to a jury from which the five -- the only five women were stricken by peremptory challenges but you have --
Mr. William Mcm. King: But there Your Honor that's a matter of choice, peremptory challenges.
Chief Justice Warren E. Burger: Not the choice necessarily of the defendant?
Mr. William Mcm. King: But were the law, the law excludes, I believe that's another matter.
What happens in practice --
Chief Justice Warren E. Burger: It says to know the law -- the law does exclude them as of now in Louisiana in the sense that you’re talking about?
Mr. William Mcm. King: That's what say as so vicious.
The exclusionary device by law.
Chief Justice Warren E. Burger: Well, but is not the peremptory challenge in operation sometimes a mode of exclusion by operation of law?
Mr. William Mcm. King: Correct Your Honor but that's a right that's granted to all alike, the peremptory challenge.
There is no --
Chief Justice Warren E. Burger: Not necessarily all alike, sometimes one side has given more peremptory challenges than the other?
Mr. William Mcm. King: But only -- but only in a numerical fashion, it's not meant to be a device that can be used to exclude segments from the community.
Chief Justice Warren E. Burger: But are you standing in any degree on the proposition that women as a category might be more compassionate toward a defendant or --
Mr. William Mcm. King: Probably best --
Chief Justice Warren E. Burger: -- have a different attitude toward defendant?
Mr. William Mcm. King: I can't say that, I know there have been studies made of that.
In 1948, I represented a defendant who was accused of murder in New Orleans on which jury served the first woman juror in the history of the state on a capital case and I would say that she was sympathetic by my own personal experience, but that's a matter of conjecture Your Honor and I --
Justice Potter Stewart: That was your personal experience in that case?
Mr. William Mcm. King: Pardon?
Justice Potter Stewart: What do you mean?
What happen in that case?
Mr. William Mcm. King: He was found guilty of the lesser charge of manslaughter and after the case, the jurors were questioned, she happened to be the president of the league of women voters and volunteered for the jury service but I didn't know that at the time, she was the first woman in the state of Louisiana in 1948.
Justice Potter Stewart: In a capital case?
Mr. William Mcm. King: Pardon?
Justice Potter Stewart: In a capital case.
Mr. William Mcm. King: In a capital case and in answer to question after the case, it appeared that she had a greater sense of justice, fair play and compassion than the men sitting on the bench.
Chief Justice Warren E. Burger: I wouldn't be surprised that you should think that one, they reduced from first degree murder to manslaughter.
Mr. William Mcm. King: Oh Your Honor asked and that's the only way I can answer the question is by my own personal experience.
Justice Potter Stewart: Mr. King, your client here was -- Billy Taylor was convicted of what aggravated kidnapping?
Mr. William Mcm. King: Yes.
Justice Potter Stewart: Was the victim a man of woman?
Mr. William Mcm. King: The victim was a woman.
The victim was woman, her daughter and the woman's son, small son.
Justice Potter Stewart: Three victims?
Mr. William Mcm. King: Three victims but within the charge and part of the evidence introduced was that of aggravated rape of the mother at knife point.
Justice Potter Stewart: In the Hoyt case it was the woman's -- Mrs. Hoyt had killed her husband as I remember --
Mr. William Mcm. King: With a baseball bat.
Justice Potter Stewart: Hitting him over the head with a baseball bat and her implicit claim was that women would be more understanding of her actions than men, women jurors, you don't have any such claim here, do you?
Mr. William Mcm. King: No sir, I couldn't honestly and intellectually I couldn't make that statement, but I believe in the Hoyt case it was based an equal protection --
Justice Potter Stewart: Here, the defendant Billy Taylor was a man and the two others three victims were women really, is that correct?
Mr. William Mcm. King: Correct.
Justice Potter Stewart: Now and you're not -- you're not making the claim explicitly or implicitly that women would be more sympathetic to the defendant intrinsically than men in this case?
Mr. William Mcm. King: You know honestly I couldn't say that, I couldn't say it.
Justice Potter Stewart: Unlike Hoyt, I just want to be sure?
Mr. William Mcm. King: No sir, I'm not saying that.
I know there have been studies made that have reached that conclusion by certain educators.
Justice Potter Stewart: What conclusion?
Mr. William Mcm. King: That women are more sympathetic to than man.
Justice Potter Stewart: In rape cases and kidnapping cases?
Mr. William Mcm. King: In kidnapping types of case.
There have been studies by scholars to that effect but I have to say its conjecture and I really don't have any tangible evidence of that, there is that the school of thought.
Justice Potter Stewart: Well then you are making the claim, are you?
Mr. William Mcm. King: Only insofar as the Court can recognize it, I can't give any more to it.
Justice Potter Stewart: In Hoyt, it was a very -- it was a very colorful claim one could say but are you making any such similar claim in this case on the circumstances of this case?
Mr. William Mcm. King: If your Court asks -- if the Court ask me that.
Justice Potter Stewart: [Inaudible] the argument that was made in Hoyt?
Mr. William Mcm. King: I can only make the argument without proof.
Justice Potter Stewart: Well, are you making it, aren't you, that's all I'm asking?
Mr. William Mcm. King: I would like to be able to make that argument.
Justice Potter Stewart: Well then --
Mr. William Mcm. King: But I have no proof to --
Justice Potter Stewart: You would like to be able to make your last final argument?
Mr. William Mcm. King: I have no tangible evidence of that.
Justice William H. Rehnquist: Mr. King, when we use to try jury cases where I practiced, we use to follow a maxim which was perhaps an old wise tale that woman is man's best friend but her own worst enemy and the idea was if you had a male client you wanted a bunch of woman on the jury and if you had a woman client you wanted a bunch of men on the jury.
I take it in your area they don't follow any such handy maxims?
Mr. William Mcm. King: If it is --
Justice William H. Rehnquist: If you can't -- you can't in Louisiana, can you?
Mr. William Mcm. King: I'd have to say again, I have no proof of that Your Honor.
Justice Potter Stewart: You don't have a chance -- you don't have the chance, do you?
Justice William H. Rehnquist: You have -- if you have 5% women jurors, you at least have some access to it?
Mr. William Mcm. King: On the jury venire -- on the jury venire.
Chief Justice Warren E. Burger: Does the record show how many are actively used?
What's the ratio?
Mr. William Mcm. King: The record show that in 170 -- 13 women were included in the total of 1815 names drawn for the petit jury system, term.
Now, in Washington parish which is a parish above Saint Harmony and part of the same judicial district, only one woman has ever been known to volunteer for jury service and there have never been anyone appear on the petit jury.
Chief Justice Warren E. Burger: You just want the chance to keep them or strike them as the particular case fits your needs?
Mr. William Mcm. King: They should be available for jury service without the volunteer system and that's a failure.
The volunteer system is a complete failure.
It cannot no more work for the women than it would for the men and I don't believe the Court would approve a volunteer system with jury service, blanket wall, a blanket bar than wouldn't work, it have no juries whatsoever.
Chief Justice Warren E. Burger: Do you think its a necessary corollary that the Court would have to approve under Hoyt voluntary system for men only?
Mr. William Mcm. King: I believe that would be the same in order to acknowledge that that's a proper system for women, the Court would have to acknowledge that that would also be a proper system for men and it doesn't work.
I've never ever seen a man volunteer for jury service who would enjoyed an exemption under our law.
The exemptions in Louisiana, the particular exemptions in Louisiana are personal, but I've never seen one man volunteer, so it is not really a mock against women that only 10% have volunteered, that's incredible really under the circumstances because I've never seen a man volunteer who enjoyed an exemption.
Justice Potter Stewart: Exemption is waivable?
Mr. William Mcm. King: The exemptions given to man are waivable, yes.
Justice Potter Stewart: A man could volunteer?
Mr. William Mcm. King: Yes Your Honor they are.
Now, in Hoyt I believe that was an equal protection case but I believe the contention made in that case was specifically that there weren't women on the particular jury that they tried to --
Justice Potter Stewart: Well, I think it was -- wasn't it a due process case?
Mr. William Mcm. King: It was an equal – excuse me I understand correctly I just felt in my memory had -- but in that case the contention was made that that woman was entitled to women on the jury.
Justice Potter Stewart: Well, she was entitled -- her claim was to a system that would treat woman the same way as man in so far as jury service?
Mr. William Mcm. King: I recall language of that stated the core of the case, I maybe mistaken.
The core of the Hoyt case was that the demand that there'd be woman on the jury that that type of crime demanded the compassion of women on the jury.
Justice Potter Stewart: Well, in any event, your claim is that you're entitled to a -- you and all criminal defendants in Louisiana are entitled to a system that calls women and men equally to jury duty?
Mr. William Mcm. King: Gives a fair possibility.
Justice Potter Stewart: Right.
Mr. William Mcm. King: Yes sir.
Now, the arguments made about Mrs. Ginsburg relating to the women are the discernable group are equally applicable here and I won't burden the Court the time it takes to repeat even though I couldn't repeat them -- that argument in a sounded fashion than Mrs. Ginsburg, I will adopt those arguments.
Chief Justice Warren E. Burger: If the state would be free I take it to set its own age limits for men and women as long as they treated them in the same way, would they not?
Suppose when it's something --
Mr. William Mcm. King: From the standpoint of equal protection that's probably correct.
Chief Justice Warren E. Burger: Let me suggest a hypothetical?
Suppose they said people over 30 and over and 70 and under were both men and women, would that give you any problems?
Mr. William Mcm. King: Yes sir.
I believe that it would because what reason would there be for the people 30 to 20 not being able to serve on jury.
What possible rationality would there be behind that.
As a matter of fact, the defendant and within the 20 and 30 age group could well complain of that I would think.
Chief Justice Warren E. Burger: We resume after lunch.
You are saving the balance of your time for rebuttal I take it.
Mr. William Mcm. King: If there are no further questions?
Chief Justice Warren E. Burger: Yes.
Argument of Kendall L. Vick
Mr. Kendall L. Vick: Mr. Chief Justice and may it please the Court?
In June of this year, this Court speaking through Mr. Justice Rehnquist in Michigan versus Tucker said the law does not require that a defendant receive a perfect trial, only a fair one.
It has been said at least three times this morning and undoubtedly hundreds of times in this chamber, is it fair?
I would also beg the Court to ask in this case, was it unfair, was Taylor's trial unfair and if so, how?
Counsel for the appellant Taylor has not given the Court any help in answering this question except that the absence of women in this case is a per se grounds for reversal.
A case involving aggravated kidnap, aggravated rape and arm robbery of a woman in the presence of her daughter and small child.
As Mr. Justice Harlan said in Hoyt that it is really within the realm of conjecture whether one gets a jury to his liking or not depending of course on the venire and I can see that the percentage of women is very small, but counsel for the appellant in his brief and in oral argument a side step at every foot of the way the guidance of Hoyt.
We have followed Hoyt, we have done what we thought was proper in following the guidelines set down in Hoyt.
The only case that gives us any problem whatsoever in the cases cited by appellant is Kiff, but I would like to just quickly skip over the ones he has cited.
Alexander race, except for Ballard federal question women on jury no doubt about it, but not applicable to the states.
Carter race, Duncan race, Fontanero administrative convenience, no race but sex, Hoyt, Kiff, I will get to in a moment, Reed administrative convenience and sex.
San Antonio Independence School District race, Smith versus Texas race, Thiel as we discussed this morning no applicability here and Williams, race.
Justice Potter Stewart: Now, which one no applicability here?
Mr. Kendall L. Vick: Thiel versus Southern Pacific.
Justice Potter Stewart: How was that about?
Mr. Kendall L. Vick: That was the daily wage earners being excluded from --
Justice Potter Stewart: Oh yes, yes, yup.
Mr. Kendall L. Vick: Now, I have searched Peters versus Kiff, I have not found one mention of Hoyt.
Justice Marshall alludes to only Ballard in footnote 12.
He could have bruised Hoyt perhaps, he could have given some indication in the states that he was unhappy with Hoyt, perhaps we could have had some other admonition but nothing, silence in footnote 12, only reference is to Ballard.
Now, the problem with this case as the State of Louisiana sees it is that there was no lawless law enforcement here.
There is no Mapp question here, no Miranda question here as the Wallace Tucker versus Michigan or the applicability of Miranda.
There was no lawless law enforcement for which law enforcement should be penalized.
The state of Louisiana went by the rules set down in Hoyt.
Now, if the Court in its wisdom remands this case I just wonder if it against in the realm of conjecture but I wonder if there are women on the jury, if in a case involving women in a -- the victim of a heinous crime whether the other side of the coin might not come into play, that that's prejudice that there are women on the jury and more than one, five or six of them and that's a hanging jury so I don't know how the state of the Louisiana can win in this sort of -- in this sort of context.
Justice Byron R. White: Are there any cases in this Court with respect to federal juries that hold that part of the concept of the Sixth Amendment jury is a fair cross section?
Mr. Kendall L. Vick: The case is cited in both briefs.
Justice Byron R. White: Do they actually hold that?
Do they hold that that to have or to satisfy the Sixth Amendment right to a jury trial you must have a fair cross section of the community?
Mr. Kendall L. Vick: Well, I would think that Ballard held that.
However, if the Court please, I'd have to retract that.
Ballard I think was exercising supervision, this Court exercising supervision over the --
Justice Byron R. White: Well, we're talking about Sixth Amendment?
Mr. Kendall L. Vick: Not that I know of.
Justice Byron R. White: Talking about Sixth Amendment.
Mr. Kendall L. Vick: Not that I know of but it's alluded too because of the applicability of the Sixth Amendment through the Fourteen Amendment.
Justice Byron R. White: Duncan -- in Duncan that the issue, that wasn't the particular the issue but Duncan said that federal jury wasn't a fair cross section type of jury?
Mr. Kendall L. Vick: Was not.
Justice Byron R. White: And that -- but do you know of any other cases that --
Mr. Kendall L. Vick: Not directly on point.
Justice Byron R. White: The tip given sometime ago with respect to grand?
Mr. Kendall L. Vick: Yes it does give me some trouble especially the --
Justice Byron R. White: The plurality of Mr. Justice Marshall?
Mr. Kendall L. Vick: Yes.
Chief Justice Warren E. Burger: Is there any allegation anywhere in this case that the jury commissioners or other state officials systematically sought to discourage or exclude the presence of women on juries anyway?
Mr. Kendall L. Vick: None Mr. Chief Justice and as a matter of fact I think that the counsel for the opponents conceded that.
The only issue here is women being systematically excluded as it were from this jury.
That concludes to my remarks Mr. Chief Justice and may it please the Court.
Chief Justice Warren E. Burger: Very well, thank you Mr. Vick.
Mr. King, do you have anything further?
Rebuttal of William Mcm. King
Mr. William Mcm. King: Just briefly Your Honor.
Hoyt was a pre Duncan case and this is the case I believe Your Honor which asks the question whether the application of the Sixth Amendment to the due process cause require that juries be chosen from a representative cross section of the community.
Justice Byron R. White: In Duncan, the issue there was whether -- what was the issue of the Duncan?
Mr. William Mcm. King: The issue was whether a jury trial should be provided and is required of a right in state criminal cases.
Justice Byron R. White: Well, but there wasn't a square issue there is that there is one, what kind of the jury does it have to be?
Mr. William Mcm. King: No sir, this is the case.
Justice Byron R. White: So that whatever Duncan may have said that they may not have been part of the whole?
Mr. William Mcm. King: It might not have been, this is --
Justice Byron R. White: Is there a case -- is there a case which does have that holding?
Mr. William Mcm. King: No sir, that why I think this is the case which squarely presents the issue to the Court.
Chief Justice Warren E. Burger: It is now of course at federal policy, is it not, to undertake to see that every jury represents a cross section?
Mr. William Mcm. King: Correct.
Justice Byron R. White: The statute?
Mr. William Mcm. King: Statutory for federal courts and the Court has held in due process cases, not held but there has been much language in the due process cases which would have require a representative cross section in the jury even without the application of the Sixth Amendment.
Chief Justice Warren E. Burger: Yes [Inaudible] the heart of your cases that the Hoyt case is wrong and it should be overruled, it was wrongly decided, is that it?
Mr. William Mcm. King: It's part of it, yes.
Chief Justice Warren E. Burger: What else?
Mr. William Mcm. King: The second phase of it is that the jury even though the complaining parties such as Thiel is not a member of the excluded class that he as a right to have that vindicated that there is no representative cross section of the community from which the jury can be --
Chief Justice Warren E. Burger: That's just another way for saying that every person independent of sex or race has a constitutional right to what you call a cross section jury?
Mr. William Mcm. King: As far as possible without any arbitrary exclusion particularly of such a large class and that in volunteer.
Chief Justice Warren E. Burger: When you put it in that way, arbitrary exclusion, you must of necessity carry the burden or you must of necessity be saying that to allow a women a preferential exemption is an arbitrary exclusion?
Mr. William Mcm. King: Yes and we feel though that the burden --
Chief Justice Warren E. Burger: Would you care to enlarge on that a little bit?
Mr. William Mcm. King: Your Honor mentioned the burden.
We feel that in view of the fact that the appellant in this case has the constitutional right to an impartial jury under the Sixth Amendment or application through the Fourteen Amendment.
The burden of showing that there was a compelling state interest for that exclusion falls not on us but on the state because Taylor has been deprived in our opinion of a fundamental constitutional right.
Justice William J. Brennan: Mr. King, can you prevail unless we overrule Hoyt?
Mr. William Mcm. King: I believe it be difficult to reach a decision without, I mean favorable to Theil without overruling that thought of Hoyt which sustained the constitutionality of the exclusion statute and the constitutional provisions of the state of the Louisiana, to that extent, yes.
Justice Byron R. White: Well, the point on it -- if this point raised only a due process issue or only an equal protection issue, that isn't an issue you're raising?M
Mr. William Mcm. King: No sir, I was --
Justice Byron R. White: You're raising a --
Mr. William Mcm. King: The Sixth Amendment due process.
Justice Byron R. White: The Sixth and Fourteen Amendment --
Mr. William Mcm. King: Correct.
Justice Byron R. White: -- issue?
Mr. William Mcm. King: Correct but Hoyt causes interwoven, I mean what they said in Hoyt --
Justice Byron R. White: And you're not even raising a bias or an unfair due process issue?
Mr. William Mcm. King: No, this is a jury, was purely and simply the quality of the jury.
Justice Byron R. White: Either one of those issue was not in or if your issue was not in Hoyt, maybe Hoyt stands on its own two feet but because Hoyt was pre Duncan?
Mr. William Mcm. King: It could be.
Chief Justice Warren E. Burger: Thank you Mr. King, thank you Mr. Vick.
The case is submitted.