Hillery v. Pulley

• Decision Date: 31 May 1983
• Docket Number: No. CIV S-78-594 LKK.,CIV S-78-594 LKK.
• Citation: 563 F. Supp. 1228
• Court: U.S. District Court — Eastern District of California
• Parties: Booker T. HILLERY, Petitioner, v. Reginald PULLEY, Warden, Respondent.

563 F. Supp. 1228

Booker T. HILLERY, Petitioner, v. Reginald PULLEY, Warden, Respondent.

No. CIV S-78-594 LKK.

United States District Court, E.D. California.

May 12, 1983.

As Modified May 31, 1983.

COPYRIGHT MATERIAL OMITTED

William George Prahl, Deputy Atty. Gen., Sacramento, Cal., for respondent.

Clifford Tedmon, Sacramento, Cal., for petitioner.

ORDER

KARLTON, Chief Judge.

Petitioner seeks a writ of habeas corpus. He challenges his 1962 Kings County Superior Court conviction for murder on the grounds that he was denied the equal protection of the laws because blacks were systematically excluded from the grand jury that indicted him.

This case has had a lengthy and often tangled history. See Hillery v. Sumner, 496 F.Supp. 632 (E.D.Cal.1980); Hillery v. Pulley, 533 F.Supp. 1189 (E.D.Cal.1982). Since my last Opinion and Order, an evidentiary hearing has been held and closing arguments submitted. Sad to say, the case is no easier now. After careful review and consideration of the facts, applicable legal principles, and the arguments of both parties, this court has concluded that the application for a writ of habeas corpus should be granted.

I FACTS

A. The California Proceeding

In 1962, petitioner, a black man, was indicted by the Grand Jury of Kings County, California. Petitioner moved pretrial to quash the indictment asserting that blacks had been systematically excluded from the Kings County Grand Jury.

At the time of the motion, Kings County had only one superior court judge, the Honorable Meredith Wingrove, who presided at the hearing on the pretrial motion to dismiss. All previous Kings County Superior Court judges had died prior to the hearing. Judge Wingrove had been the sole Kings County Superior Court judge since 1956 and thus, at the time of petitioner's indictment, had selected all the potential jurors for the seven previous grand juries. Reporter's Transcript of Pretrial Hearing 41 (hereinafter R.T.). Petitioner asked Judge Wingrove to testify at the hearing, but the judge thought it improper and was not sworn as a witness.¹ The judge did, however, comment at various stages of the hearing on his selection of potential grand jurors, and ordered that his statements be considered as testimony.²

By law, potential grand jurors were selected by the superior court. The court was required to select twenty-five to thirty potential jurors annually, from which nineteen were randomly drawn to act as the grand jury. Those selected had to be competent to serve as jurors,³ not exempt from serving,⁴ in possession of their natural faculties, not infirm nor decrepit, and of fair character, approved integrity, and sound judgment. Additionally, the court was required to select potential jurors from each judicial district in the county in proportion to each district's population.

According to census figures, blacks constituted 1% or less of the Kings County population from 1900 to 1940. In 1950, census figures reflect that approximately 4% of the County's population was black; in 1960, approximately 5% of the population was black.⁵ These figures are consistent with the evidence before the court that increasing numbers of blacks moved to Kings County in the post-World War II years, apparently as a result of the closure of the war plants in the Bay Area. See Deposition of Bessie Welcher at 9.⁶

Calculations introduced by petitioner, and accepted as valid by this court, indicate that the percentage of blacks among those in Kings County age 21 or over was slightly lower than the percentage of blacks in the total county population.⁷ For example, in 1960 approximately 4.7% of the county population over age 21, and therefore at least old enough for grand jury service, was black. See Petitioner's Exhibit 4. The percentage of blacks among those age 21 and over was also estimated for each year from 1900 through 1962. See Petitioner's Exhibit 6, Table 5.

Judge Wingrove stated at the hearing that he selected thirty (30) grand jurors annually. R.T. 17, 37, 106. He further said that in selecting potential grand jurors, he tried to comply with the statutory duty to choose jurors from each judicial district in rough proportion to each district's population. R.T. 37. The judge observed that he also tried to get a "good cross-section of the people ..." (R.T. 37), "a distribution of racial descents ... both sexes ... occupations, farmer, business men and various other types...." R.T. 38. Judge Wingrove further stated that he "endeavors, and I sic sure it is the policy of the law, to select, if possible, all possible people who are interested in the community, civic minded, the better type of our citizens ...." R.T. 37. The judge described the person who he would feel is qualified for grand jury service as:

Someone who has some substance, some interest in government, some interest in community activities, civil activities, people that take an interest that way. The Court also tries, so far as possible, to find in a Grand Jury sic someone who, in the Court's opinion, is intelligent, and also someone who is qualified. Actually, the Court spent not hours, but days every year trying to boil down a list of getting sic the best type of people possibly to be obtained in this county to sit on the grand jury.

R.T. 104. In short, Judge Wingrove asserted that he tried to select "a real representative group of people, of the better type." R.T. 38.

One fact clearly emerged at the hearing, a fact confirmed at the evidentiary hearing held by this court, namely, no black person had served on the Kings County Grand Jury since Kings County was organized in 1893.⁸ Judge Wingrove acknowledged several times during the course of the hearing that since becoming the Superior Court judge in 1956 he had not selected a black for the grand jury panels. R.T. 38, 64, 103. He explained he had "never had a colored person on the panel, not through lack of desire, but purely through lack of ability to find one that the Court feels would make a proper Grand Juror." R.T. 38. The judge denied that discrimination was the reason. He said, "there certainly never has been, as far as the present Court is concerned ... any systematic exclusion of anybody from the Grand Jury because of any racial descent ...," R.T. 39, and that "as far as the present Court is concerned ... there has never been any feeling of discrimination of any kind ... against anyone ...." R.T. 60; see also R.T. 40-41, 105. The judge also expressed, more than once, his anger at the claim of systematic exclusion. He stated, for example, "the court resents any accusations of discrimination shown by this Court ...," R.T. 65, and that "the Court very stoutly denies and refutes and feels somewhat incensed with the implication that there has been any discrimination ...." R.T. 64; see also R.T. 36 and 39.

Judge Wingrove asserted during the course of the hearing that in early 1962 he had asked Hugh Goodwin, petitioner's trial counsel, if he knew any colored people in Kings County that would make good grand jurors. R.T. 38. Judge Wingrove claimed that Goodwin mentioned a name or two, R.T. 103, and that he then "checked the names through the Clerk's office trying to find out someone who was qualified and was not on the trial jury panel and so forth, and might be available, might have the time to devote to the matter. Frankly, the Court was unable to find anyone." R.T. 38. The judge specifically remembered inquiring about a black man named Lloyd Welcher. R.T. 103. He said that he considered Welcher competent to serve but determined that Welcher was regularly employed and therefore did not submit his name, because "you can't expect to put somebody on the Grand Jury who is going to have to interfere with his employment too much." R.T. 103.

Judge Wingrove also observed that "ordinarily the main ?€” the only function of the Grand Jury in this county over the past few years ... is to observe and has been to check on county government, county offices, and the matter of criminal indictments, has been very, very minor indeed." R.T. 107; see also R.T. 56. The Kings County Grand Jury had returned only two indictments, including petitioner's, in the seven years Judge Wingrove had been on the bench. R.T. 56-57. The judge also noted that blacks had served on Kings County trial juries. R.T. 39.

The County Clerk also testified at the pretrial hearing. The substance of that official's testimony was that it was the Clerk's duty to check the list of potential grand jurors selected by the judge against the voter registration affidavits in order to determine, inter alia, whether any were statutorily exempt from service. The Clerk said the registration affidavits contained no indication of a person's racial status and that no one had ever asked her to determine the race of a prospective grand juror. R.T. 90-92.

At the conclusion of the pretrial hearing, Judge Wingrove denied petitioner's motion to quash the indictment, stating, "the evidence wholly fails to sustain the contention that there was a systematic exclusion of colored people from the Grand Jury in Kings County ...." The plaintiff was convicted in the subsequent trial. That conviction was affirmed as was the denial of the motion to quash. See People v. Hillery, 62 Cal.2d 692, 708-10, 44 Cal.Rptr. 30, 401 P.2d 382 (1965).

B. The Federal Proceedings

As noted above, after several false starts, this court ordered an evidentiary hearing. At the evidentiary hearing ordered by this court, additional evidence was received. Hugh Goodwin, petitioner's attorney during the California proceedings, testified. Goodwin, a black man, has resided in the Central Valley since 1905 and has practiced law there since 1949. He handled a number of cases in Kings County and is familiar with the area and its history. From Goodwin's testimony, this court finds: (1) there were in Kings County in the 1950's blacks eligible for grand jury service, even given the limited literacy and...