Scott v. Walker

• Decision Date: 31 March 1966
• Docket Number: No. 20814.,20814.
• Citation: 358 F.2d 561
• Parties: Andrew J. SCOTT, Appellant, v. Victor G. WALKER, Warden of the Louisiana State Penitentiary, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

358 F.2d 561 (1966)

Andrew J. SCOTT, Appellant, v. Victor G. WALKER, Warden of the Louisiana State Penitentiary, et al., Appellees.

No. 20814.

United States Court of Appeals Fifth Circuit.

March 31, 1966.

Harris M. English, Baton Rouge, La., for appellant.

Thomas McFerrin, Asst. Atty. Gen., Teddy W. Airhart, Jr., Asst. Atty. Gen., Baton Rouge, La., Jack P. F. Gremillion, Atty. Gen., State of Louisiana, for appellees.

John Doar, Asst. Atty. Gen., David L. Norman, Albert S. Pergam, Attorneys, Department of Justice, Washington, D. C., amicus curiae, for the United States.

Before TUTTLE, Chief Judge, and BROWN, WISDOM, GEWIN, BELL, THORNBERRY, and COLEMAN, Circuit Judges.

TUTTLE, Chief Judge:

This is an appeal from the denial by the United States District Court for the Eastern District of Louisiana of appellant's petition for a writ of habeas corpus, seeking to vacate the judgment and sentence under which he is now in custody awaiting the execution of the sentence of death by electrocution, following a verdict of guilt of aggravated rape by a jury of Livingston Parish, Louisiana. It is one of several cases heard by this Court en banc, because of the identity of the legal principles involved and because of the desirability of achieving uniformity in the handling of the substantial number of cases arising in this Circuit dealing with the same question of law. The appellant is a Negro man and the victim of the offense is a white woman.

At the time of his trial, the appellant filed a motion to quash the indictment and to quash the venire and, in addition, he filed a motion for change of venue on the ground of alleged local prejudice. The State trial court overruled the motions to quash the grand and petit juries upon a showing that one member of the Negro race was on the grand jury which indicted appellant and that another member of the Negro race was on the general venire list of 300 names from which was drawn the trial jury in Scott's case. However, the court permitted counsel for appellant to make some showing of the small number of Negro names on the general venire list in support of his motion for change of venue.¹ The trial court overruled all preliminary motions, and, following his trial and conviction, appellant appealed to the state Supreme Court, which affirmed the conviction, State v. Scott, 237 La. 71, 110 So.2d 530 cert. denied 361 U.S. 834, 80 S.Ct. 85, 4 L.Ed.2d 75.

An application was then made to the United States District Court for writ of habeas corpus. A hearing was had, directed solely to the question of systematic exclusion of Negroes from the petit jury. The findings and conclusions of the trial court are reported. United States, ex rel. Scott v. Walker, Warden, D.C., 218 F. Supp. 866. This order of the District Court is before us for review on appeal.

Louisiana law prescribes the qualifications for jurors.² Appellant does not contend that the statute does not in all respects, prescribe proper standards. However, he particularly calls attention to the need for carefully scrutinizing the results of a jury system which permits selections of prospective veniremen by such completely subjective standards as "persons of well known good character and standing in the community."

Under the Louisiana statutes, a jury commission of five electors appointed by the District judge, together with the Clerk of the District Court, are required to "select from the persons qualified to serve as jurors" for the parish, 300 persons of whom a list shall be made and this list shall be the general venire list. This is done every six months. From this general venire list, the Commission is to select the names of 20 citizens from different portions of the parish for grand jury service. One of these is selected by the judge to be foreman of the grand jury; the remaining 19 are placed in an envelope marked "grand jury list;" 11 names are then taken by lot from the envelope and these, with the foreman, constitute the grand jury of the parish.³ The remaining 280 names, together with the eight names from the grand jurors list, not selected to serve on the grand jury, are then put in the "General Venire Box." It is from this box that one of the Commissioners thereafter draws the names of the several 30-member jury panels that are used for the criminal and civil trials for the term of court. The law also authorizes the drawing of additional jurors whenever the judge may so order for the trial of criminal cases. These, known as tales jurors, are selected in the same manner. Upon the trial of appellant, the names of 50 tales jurors were drawn in addition to the original list of 30.

We think it would be helpful, before discussing the facts in this case, to consider the significance in this area of constitutional law of the most recent case decided by the Supreme Court, Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. While the Swain case dealt primarily with an attack based upon the fact that no Negro had ever served on a criminal jury in Talledega County, Alabama, allegedly because of the fact that the State prosecuting officers used the preemptory challenge system to eliminate all Negroes, the case also considered the appellant's contention that the disproportion between the percentage of Negroes on the regular trial venires and the percentage of the Negroes resident and otherwise qualified in the county was sufficiently great to warrant the court's deciding, as a matter of law, that the state was pursuing a system of systematic exclusion. In view of the fact that this is the precise attack that is made here, it becomes necessary for us to consider the facts in the Swain case, since the Supreme Court rejected the contention made by the appellant there.

In the Swain case it appears that while Negro males over 21 constituted 26% of all males in the county in the age group, only ten to fifteen percent of the grand and petit jury panels drawn from the jury box since 1953 have been Negroes. In one case the percentage of Negroes on the panel was as high as 23%. During the same period of time Negroes served on 80% of the grand juries selected, the number ranging from 1 to 3. There were 4 or 5 Negroes on the grand jury panel of about 33 in the Swain case, and 2 of these served on the grand jury which indicted Swain. There had been an average of 6 to 7 Negroes on petit jury venires (apparently of 30 in number), but no Negro had actually served on the petit juries since about 1950. In the Swain case itself, there were 8 Negroes on the petit jury venire (presumably a venire of 50, since it was a capital case), but none actually served, 2 being exempt and 6 being struck by the prosecutor in the process of selecting the jury. Other significant facts in the Swain case are that the jury commissioners, with the clerk's assistance, selected the names of persons who in their judgment were qualified. The sources were city directories, registration lists, club and church lists, conversations with other persons in the community, both white and Negro, and personal and business acquaintances. The commissioners sought qualified names through local merchants and citizens, both Negro and white. On this state of facts the Court held, "We do not think that the burden of proof was carried by petitioner in this case." Three Justices dissented, and would have reversed the conviction based on this state of facts.

The Supreme Court, in the Swain case, did not establish new underlying principles or in any way reverse or overrule earlier decisions of the Court. In fact, the Court quoted the following language from Carter v. State of Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839:

"Whenever by any action of a state, whether through its legislature, through its courts, or through its executive or administrative officers, all persons of the African race are excluded, solely because of their race or color, from serving as grand jurors in the criminal prosecution of a person of the African race, the equal protection of the laws is denied * * *."

The Court also quoted from Smith v. State of Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 85 L.Ed. 84:

"For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violated our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government."

The sentence immediately preceding this last quotation from Smith v. State of Texas, while not quoted in the majority opinion is, we think, still a part of the jurisprudence in this difficult area:

"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 view of the fact that the above language was quoted by the Supreme Court in a petit jury case rather than a grand jury case, and since, also, it was quoted in a case which did not involve total exclusion but involved the question of systematic limitation or systematic token inclusion by race, we think there can be no doubt but that the principles announced are those which must be applied by us in this case.

It should be made clear exactly what the record before us discloses, without dispute, and as to which the trial court made no contrary finding of fact. We start with the fact that no Negro has served on a criminal petit jury in Livingston Parish. The second fact is that there was no Negro on the venire of 30, and there was no Negro on the tales list of 50 additional names used for the trial. Next is the fact, as found by the trial court, that the testimony of the court clerk, who was the ex officio member of the jury commission, showed "that his examination of the 300 names contained on the general venire showed, as far as he could determine from his own personal knowledge, the name of only one Negro."

The next was the testimony of Judge Fannie Burch, one of two district...