Grigsby v. Mabry

MEMORANDUM OPINION

Pending before the Court are the habeas corpus petitions of James T. Grigsby, Dewayne Hulsey and Ardia McCree, who have been in the custody of the Arkansas Department of Correction since their convictions for capital murder. Each petitioner contends that his conviction must be set aside due to the exclusion for cause at the guilt determination phase of his trial of certain venirepersons who during voir dire professed adamant scruples against the death penalty. The Court concludes that the process, as used in these cases, of “death qualification” of prospective ■ petit jurors suffers from two serious constitutional defects: first, it denies the accused a trial by a jury representative of a cross-section of the community; and second, it creates juries that are conviction-prone. The death-qualification process as practiced under Arkansas law, being unconstitutional, the writ *1276 must issue, but only in Mr. McCree’s case for the reasons stated below.

I. Background: Prior Proceedings and Facts.

All three petitioners were convicted of capital murder. Mr. Grigsby was so convicted in Franklin County, Arkansas, in September 1976. Mr. Hulsey was convicted in Ouachita County, Arkansas, in November 1975. Mr. McCree was convicted in Ouachita County, Arkansas, in 1978.

After Mr. Grigsby’s conviction, the State waived the death penalty, and he was sentenced to life in prison without parole. After Mr. Hulsey’s conviction, a penalty trial was held in front of the same jury. Mr. Hulsey was sentenced to die. After Mr. McCree’s conviction, he was sentenced to life in prison without parole.

This Court, in an earlier opinion, concluded that one of the prospective jurors in Mr. Hulsey’s case was improperly excluded from the penalty phase of the trial because she did not unequivocally state that she could not impose the death sentence. This Court therefore ordered that the death sentence imposed upon Mr. Hulsey be vacated on the basis of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Mr. Hulsey’s trial, nine jurors were excused for cause because of their opposition to the death penalty. The State used all but four of its peremptory challenges in excluding other jurors. Mr. Hulsey’s trial attorney made no objection to the exclusion for cause of death-scrupled veniremen. This Court therefore concluded, in an earlier opinion, that Mr. Hulsey could not raise the “Grigsby” issue on Federal habeas corpus review because of the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (contemporaneous objection rule bars consideration absent cause and prejudice). See also Engle v. Issac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Hulsey v. Sargent, 550 F.Supp. 179 (E.D.Ark.1981). The remainder of Mr. Hulsey’s claims in support of his habeas corpus petition have been set for hearing commencing on September 30, 1983.

In petitioner McCree’s trial, eight prospective jurors were excused for cause from the guilt-innocence phase because they stated that they could not impose the death penalty. The State used three of its peremptory challenges in excluding other prospective jurors from the panel who had expressed less adamant opposition to the death penalty, i.e., persons who could not be excluded for cause under Witherspoon. Mr. McCree’s trial attorney made a timely objection to the exclusion of death-scrupled veniremen for cause. The remainder of Mr. McCree’s arguments for the issuance of a writ of habeas corpus were considered and rejected by the Honorable Elsijane T. Roy. McCree v. Housewright, No. PB-C-80-429 (E.D.Ark. Jan. 6, 1982). Judge Roy’s decision was affirmed by the Eighth Circuit Court of Appeals. McCree v. Housewright, 689 F.2d 797 (8th Cir.1982), cert. denied sub. nom., McCree v. Lockhart, - U.S. -, 103 S.Ct. 1782, 76 L.Ed.2d 352 (1983).

The facts concerning the voir dire and challenges in the Grigsby capital murder trial are set forth in the earlier decision of this Court, Grigsby v. Mabry, 483 F.Supp. 1372 (E.D.Ark.1980). Based upon these facts, this Court on May 16, 1979, sent the Grigsby case back to the Franklin County Circuit Court so that Mr. Grigsby would have an opportunity to present evidence in support of his motion that potential jurors opposed to capital punishment not be excluded for cause during the guilt determination phase of his trial. It was further Ordered that the evidentiary hearing commence not later than May 31, 1980. Id. at 1391. Both parties appealed. By a two-to-one decision, the Eighth Circuit Court of Appeals affirmed the trial court’s decision to require an evidentiary hearing, but determined that the federal district court would be the appropriate forum therefor. In that connection Judge Lay stated:

This court has recognized the broad discretion of the district court to “send a case back to the state courts to resolve issues more properly considered by the *1277 judge who experienced the trial first hand.” United States ex rel. McQueen v. Wangelin, 527 F.2d 579, 581 (8th Cir. 1975); see also Hart v. Eyman, 458 F.2d 334, 338-40 (9th Cir.), cert. denied, 407 U.S. 916 [92 S.Ct. 2441, 32 L.Ed.2d 691] (1972). The issues in this case, however, are not of the kind more properly considered by the judge who experienced the trial first hand. Cf. Jackson v. Denno, 378 U.S. 368 [84 S.Ct. 1774, 12 L.Ed.2d 908] (1964); Boles v. Stevenson, 379 U.S. 43 [85 S.Ct. 174, 13 L.Ed.2d 109] (1964); Patterson v. Lockhart, 513 F.2d 579, 581 (8th Cir.1975); United States ex rel. Fisher v. Driber, 546 F.2d 18, 22 (3d Cir.1976). The issues here are (1) whether prospective jurors were disqualified because of their death penalty views, (2) if they were, whether the resulting death-qualified jury was more prone to convict Grigsby or to convict him of a higher degree of murder, and (3) if it was, what legal remedy should be accorded Grigsby. There are no special circumstances or relevant cases which indicate that the trial court is a more appropriate forum than the district court for resolution of these issues.

Grigsby v. Mabry, 637 F.2d 525, 528-29 (8th Cir.1980).

The district court, after the original hearing, had “hesitantly” concluded that petitioner Grigsby would be denied relief based upon his contention that his constitutional right to a jury drawn from a fair, representative cross-section of the community was violated. 1 In a footnote to Judge Lay’s majority opinion, it is stated:

We also vacate the district court’s finding that the defendant was not denied a jury composed of a cross-section of the community. Because the record is to be supplemented by further evidence and in view of the close relationship of petitioner’s claim on the cross-section issue to the guilt-proneness claim, the district court should, upon completion of all the evidence, enter its findings on both claims. In this way there can be a single appeal on both issues regardless of the outcome in the district court on either issue.

Id. at 529 n. 5.

As noted above this decision is made with respect to three different habeas petitions. James Grigsby, Dewayne Hulsey, and Ardia McCree filed separate habeas corpus petitions in which they challenge, among other things, the exclusion for cause by the State from the guilt determination phases of their capital murder trials of those prospective jurors who were adamantly opposed to the death penalty. The petitions were therefore consolidated for the determination of this issue only. An evidentiary hearing was held on July 13-17 and July 29-31, 1981, in this Court. The case was submitted much later after extensive briefing. 2

As a result of the evidence introduced at the hearing scheduled after the remand of the case, and after further research, this Court has reconsidered its decision that petitioners not prevail on their claim that they were unconstitutionally denied a jury composed of a representative cross-section of the community. The Court now concludes, as stated above, that the petitioners must prevail, both on that contention and also upon their claim that juries death-qualified under the Witherspoon standard are more likely to convict than juries from which persons are not excused on the basis of *1278 their adamant feelings for or against the death penalty. An analysis of the substantive issues follows.

II. Denial of a Jury Drawn From a Fair, Representative Cross-Section of the Community

A. The History of This Issue in This Case:

After a long discussion of the development of the principle that there is a constitutional right to a jury drawn from a group which represents a fair cross-section of the community, this Court stated that:

[T]he exclusion on Witherspoon grounds of scrupled jurors from the guilt determination phase of a trial would seem to run afoul of the Sixth Amendment guarantees.

Grigsby 483 F.Supp. at 1384. However, the Court concluded that there were two “roadblocks” to this conclusion:

(1) Witherspoon itself, and (2) the argument that the two scrupled Witherspoon groups (that is, those adamantly opposed to the death penalty and those mildly opposed to the death penalty) are not “distinctive” one from the other and that, therefore, if you exclude only one of such groups, the presence of the other group on the jury panel will still ensure that the jury is “representative.” Cf. [United States v.] Olson, [473 F.2d 686 (8th Cir. 1973)], supra.

$$$$$$

This Court is, of course, aware that the group barred in Witherspoon was larger than the group barred in this case. However, in view of cases decided subsequent to Witherspoon by the Supreme Court, it is not at all clear that the question concerning representation in the guilt determination phase of the trial would be answered the same way it appears to have been answered by the Witherspoon decision. See supra, p. 1380. But Wither-spoon has not been specifically overruled, and this Court, hesitantly, concludes that it must follow that precedent. This conclusion is reinforced by the Court’s belief that the Eighth Circuit and the Supreme Court might uphold Witherspoon, as here applied, even after, and in the face of Taylor [v. Louisiana, 419 U.S.?522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975)], on the theory that no “distinctive” group has been excluded and that the State’s interest in having one jury determine guilt and sentence would justify the removal of those adamantly opposed to capital punishment by for-cause challenges.

Grigsby at 1384-85. The Eighth Circuit case of United States v. Olson, 473 F.2d 686 (8th Cir.1973), set forth the rationale of the principal “roadblock.” In that case it was alleged that an identifiable community group, to wit, persons aged 18 to 20, were excluded, and that the effect of this was to deny the petitioner there his Sixth Amendment right to a representative jury. Judge Matthes stated:

Accordingly, the dispositive question is whether persons aged eighteen to twenty compose an “identifiable group” which cannot be systematically excluded from jury service without rendering juries non-representative of community attitudes. But appellant has “failed to show that the attitudes of this group [18-20] are inadequately represented by those several years older than they, that is, that eighteen to twenty-one year olds are a distinct, cognizable group.” United States v. Deardorff, 343 F.Supp. 1033, 1043 (S.D. N.Y.1971). “The difference in viewpoint between ages [eighteen to twenty and twenty-one to twenty-five, for example] . .. would not seem to us of any great significance .... King v. United States, 346 F.2d 123, 124 (1st Cir.1965). Accordingly, we hold that persons aged eighteen to twenty are not an identifiable group the exclusion of which renders a jury list nonrepresentative of the community and violative of the Fifth and Sixth Amendments.

Olson, 473 F.2d at 688 (emphasis added). It appears from the opinion that there was no evidence or empirical data from which the Court could determine whether the “decisional outlook” of persons between ages 18 *1279 to 20 differed from that of the 21 to 25 age group in any significant manner. The Court stated that it regarded it “as highly speculative whether the decisional outlook of such excluded persons would be different from that of persons a mere few years older.” Id. (quoting King v. United States, 346 F.2d 123, 124 (1st Cir.1965)). So in the Olson case the Eighth Circuit was confronted with a record from which it could not determine if the 18 to 20 year old group was a “distinctive, identifiable group.”

This Court questions whether, as a general rule, a group, to qualify as a substantial, distinctive and identifiable class, must necessarily hold a “distinctive attitude” unrepresented by others on the jury. The theory of the representation cases is generally to the contrary. One has only to consider that contention in connection with the exclusion of women or blacks. The vice lies not in the assumption of the truth of the proposition that blacks or women hold distinct attitudes unrepresented by white males— although they might 3 — but in the removal of any significant qualified group from the panel without some good cause. And, conceptually, no showing is required to establish that the removal of such a large “distinctive” group would result in a jury more guilt-prone or more likely to convict because we are dealing here with what, under the Sixth Amendment, is properly considered a “jury” — not the same question as what, under the Sixth Amendment, is an “impartial jury.” However, when a particular group is defined by its distinctive attitudes, as here, it is obviously necessary for the proponent to establish the existence of a group whose “decisional outlook” is different from that of non-excluded people. By the same token it is open to the opponent to attempt to show the contrary. Whether Olson might be wrong on the above analysis is beside the point. Here we must deal with “distinctive attitudes” and “decisional outlook” because such criteria are needed to define the group at issue.

Before dealing with the specific “cross-section, representative” jury issue presented in this case, it will be useful to review the history of the development of that concept.

B. The Pre-Duncan Development of the Cross-Section Principle:

The right to a fair cross-sectional, representative, jury has been based upon the due process and equal protection clauses of the Fourteenth Amendnient and also upon the Sixth Amendment. The Sixth Amendment did not become applicable to state criminal prosecutions until Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Therefore, prior to 1968, the focus was upon the due process and equal protection clauses of the Fourteenth Amendment. The earliest cases dealt with the exclusion of blacks from jury service. In Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), a West Virginia statute which permitted only white males above the age of 21 to serve as jurors was challenged by a black defendant. The Supreme Court ruled that under the Fourteenth Amendment, “. .. the Statute ... amounts to a denial of the equal protection of the laws to a colored man .... ” Id. at 310. Although the main thrust of the Strauder opinion is to vindicate the purpose of the Fourteenth Amendment to assure to blacks the enjoyment of all the civil rights that are enjoyed by white persons, the language of the opinion contained implications that went beyond that narrow thrust. The Court indicated that the exclusion of an entire class of people would violate the equal protection clause even if those excluded were white men or “naturalized Celtic Irishmen.” Id. at 308. The Court said:

The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds.... ”

*1280 Id. In Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), the Supreme Court in a unanimous decision extended this doctrine to strike down the systematic exclusion of Mexican-Americans from jury service.

As indicated above, prior to Duncan, the Supreme Court had no occasion to consider the importance of the Sixth Amendment in connection with state criminal trials since the jury trial requirement of the Sixth Amendment was deemed inapplicable to the state courts. 4

The idea that juries should be reflective of our democratic form of government was advanced in the cases of Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946), and Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946). In Thiel the Court invalidated a jury selection system under which daily wage earners were systematically excluded from the venire. The Court said, “American tradition of trial by jury ... contemplates an impartial jury drawn from a cross-section of the community.” 328 U.S. at 220, 66 S.Ct. at 985. In Ballard, the Court reversed a conviction and dismissed an indictment because women had been systematically excluded from jury service. In Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940), the Court stated, “it is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community ... . ” In Pierre v. Louisiana, 306 U.S. 354, 358, 59 S.Ct. 536, 538, 83 L.Ed. 757 (1959), the Court said, “[TJrial by jury cease(s) to harmonize with our traditional concepts of justice at the very moment particular groups, classes or races — otherwise qualified to serve as jurors in a community — are excluded as such from jury service.”

It must be remembered that, although the Witherspoon case was decided by the Supreme Court two weeks after its decision in the Duncan case, the Witherspoon trial had occurred years earlier. Indeed, the Witherspoon majority opinion does not mention Duncan and does not rest upon Sixth Amendment grounds. In Wither-spoon the Court held that the exclusion of death-scrupled persons to an extent unnecessary to obtain jurors who could obey their oath to decide impartially the issues submitted to them violated a capital defendant’s right to due process in the determination of penalty. The Court stated, “The State of Illinois has stacked the deck against the petitioner. To execute this death sentence would deprive him of his life without due process of law.” 391 U.S. at 523, 88 S.Ct. at 1778.

Although Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), was decided after Duncan, the trial in Peters had occurred prior to Duncan. Therefore, the Peters decision was based upon the due process requirements of the Fourteenth Amendment. In Peters, Justice Marshall, in a plurality opinion, held that the systematic exclusion of blacks constituted a denial of the due process rights of any defendant, black or white:

When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable ....

It is in the nature of the practices here challenged that proof of actual harm, or lack of harm, is virtually impossible to adduce. * * * In light of the great potential for harm latent in the unconstitutional jury-selection system, and the strong interest of the criminal defendant in avoiding that harm, any doubt should be resolved in favor of giving the opportunity for challenging the jury to too *1281 many defendants, rather than giving it to too few.

Peters v. Kiff, 407 U.S. at 503-04, 92 S.Ct. at 2168-69 (footnote omitted).

Finally, when the Supreme Court in Duncan first extended the protection of the Sixth Amendment to defendants in state criminal cases it reasoned:

A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government .... Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge .... The deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement qualifies for protection under the Due Process Clause of the Fourteenth Amendment, and must therefore be respected by the States.

391 U.S. 145, 155-56, 88 S.Ct. 1444, 1450-51, 20 L.Ed.2d 491 (1968).

C. Post-Duncan Development:

After Duncan, the Supreme Court had several occasions to deal directly with the Sixth Amendment requirements. It concluded that a “representative jury” was necessary, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), and that a criminal trial jury should consist “of a group of laymen representative of a cross-section of the community.” Finally, in Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), representativeness became the central consideration:

We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation ....

Id. at 530, 95 S.Ct. at 697. On that predicate it declared that the exclusion of women was unconstitutional, stating:

.. . jury wheels, pools of names, panels or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.

Id. at 538, 95 S.Ct. at 701.

D. Analysis:

Courts have generally refused to deal with the question of representativeness or “fair cross-section” in the abstract. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Supreme Court placed the burden upon the party challenging the jury selection process to disprove its representativeness; that is, to show that the jury panel fails in some significant way to reflect the community. And it must show that this result occurred because the group was systematically excluded by the selection procedure under attack. The court stated:

In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

439 U.S. at 364, 99 S.Ct. at 668.

What is a “distinctive” group that may not systematically be excluded? First, it must be noted that if the exclusion of just any group were fatal, no practical jury system could survive. As a practical matter, one must first inquire whether the characteristic that defines the group is of any consequence to the proper functioning of the jury. For instance, some juries have been selected from lists composed of persons whose last names began with certain letters of the alphabet. Or a jury might be drawn from persons whose birthdays fall in odd or even months. Clearly, such systems would have the effect of excluding large numbers of people, but would those excluded be considered a “distinctive group” and would their exclusion be of any real consequence in terms of jury function?

*1282 It should be noted from these examples that the identifying criteria used automatically prevents the group excluded from having any “distinctive” characteristics different from the group remaining. In fact, it is assumed in these cases that the method of exclusion is randomly based and, therefore, that both the group excluded and the group remaining would continue to be “representative cross-sections of the community.” Put another way, the method used prevents the removal of any “identifiably distinctive” group. In this connection it should be emphasized that such methods do not, directly or indirectly, have the effect of diminishing the representation on the panel of any “distinctive” group such as blacks or females. This is important here because, as will be noted below, the removal of “ Witherspoon excludables” does have the indirect effect of lessening the representation of certain groups such as the poor, women, blacks, and certain ethnic and religious groups. See Grigsby, 483 F.Supp. at 1384.

Once a cognizable, distinctive group has been identified, the party making the challenge must show that this group is somehow systematically excluded. This exclusion need not be purposeful. It can result from either de jure exclusion by statute (e.g., Strauder), de facto exclusion by local practice (e.g., Thiel), or disproportionate exclusion resulting from the availability of exemptions (e.g., Duren). Here, the exclusion results from the voir dire process permitted. This particular process of exclusion has not been involved in prior cases. This is understandable when one realizes that death qualification is the only procedure in our criminal justice system which has the effect of systematically excluding an entire group of fair and impartial jurors because of a particular attitude that they possess upon a matter that is irrelevant to their service as jurors in the trial of the issue of the guilt or innocence of the accused.

Once the challenging party establishes a prima facie case under Duren, the state must justify the procedure used. As stated in Duren the state must show that “a significant state interest ... [is] manifestly and primarily advanced by those aspects of the jury-selection process ... that result in the disproportionate exclusion of a distinctive group.” 439 U.S. at 367-68, 99 S.Ct. at 670-71. And, as previously pointed out, once a violation of the fair cross-section requirement has been established, prejudice to the defendant is presumed. See Peters v. Kiff, 407 U.S. at 503-05, 92 S.Ct. at 2168-70.

So this discussion brings us back to where we left off in this Court’s first opinion in Grigsby. Do the “ Witherspoo