Mitchell v. Rose, 77-1272
| Decision Date | 09 January 1978 |
| Docket Number | No. 77-1272,77-1272 |
| Citation | 570 F.2d 129 |
| Parties | James E. MITCHELL and James Nichols, Jr., Petitioners-Appellants, v. Jim ROSE, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Walter C. Kurtz, Legal Services of Nashville (Court appointed), James E. Mitchell, James Nichols, Jr., Nashville, Tenn., for petitioners-appellants.
Brooks McLemore, Jr., Atty. Gen. of Tenn., Michael E. Terry, Asst. Atty. Gen., Nashville, Tenn., for respondent-appellee.
Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and GRAY, Senior District Judge. *
On November 6, 1972, Petitioners James Mitchell and James Nichols, Jr., were indicted for two counts of first degree murder by the Tipton County, Tennessee grand jury. On March 22, 1973, they were found guilty after a jury trial.
Prior to the trial, petitioners filed a pro se motion, asking the trial court to dismiss the indictment because the grand jury and the foreman of the grand jury which indicted them had been selected in a racially discriminatory manner. A pretrial hearing was held and the trial judge, making no written or oral findings of fact or rulings of law, entered an order which stated in full: "Plea in abatement is overruled."
The ruling was upheld in the Tennessee Court of Criminal Appeals on the grounds that racial discrimination had not been proved, and certiorari to the Tennessee Supreme Court was denied. Petitioners then turned to the federal courts for relief, filing pro se petitions for writs of habeas corpus in the United States District Court for the Western District of Tennessee.
The district judge denied an evidentiary hearing, and ruled that
the question of racial discrimination in the selection of the grand jury was adequately investigated and that the state trial judge, in ruling that no discrimination had been shown in the selection of the grand jury made the correct decision on the record before him.
The district judge went on to hold, however, that a prima facie case had been made with respect to the foreman issue, and ordered the state to make further response.
The state submitted two affidavits. The foreman of the grand jury which indicted the petitioners stated that he had not voted on the indictments, and that petitioners were indicted after the grand jury had heard only one witness. The judge who had appointed the foreman also submitted an affidavit, stating, "We called Mr. Smith (the foreman) because he has been willing to act in the past and has experience and does a good job as such foreman." The trial judge's affidavit continued:
In my five counties, I do not have a black grand jury foreman, although I have a black member of my Jury Commission in one county. Most all of my Grand Juries and Petit Juries have sizeable numbers of blacks on them, both men and women. I don't appoint Grand Jury Foremen very often because when their two year term expires, I usually reappoint them, thus they serve a long time and the problem doesn't come up very often. I don't think that I have really given any thought to appointing a black foreman but I have no feeling against doing so.
On the basis of these affidavits, the district court ordered the dismissal of the petitions for habeas corpus relief, stating:
(N)o racial discrimination in the composition of the grand jury has been shown. On the contrary, it appears that one black person actually served on the grand jury that indicted these petitioners, that the foreman was selected for other than racial reasons, and that the foreman did not vote at the time the indictment was rendered.
The petitioners have appealed that order, contending that they have made out a prima facie case of discrimination in the selection both of the grand jury and of the foreman, which the State of Tennessee has not adequately rebutted. In the alternative, they argue that they have a right to an evidentiary hearing in the district court to further develop the facts.
Tennessee uses the "key man" system of jury selection, relying on three jury commissioners appointed by the trial judge to select a pool of prospective grand jurors from the general population. Tenn. Code Ann. § 22-223. Every two years, the commissioners meet to select names "from the tax records and permanent registration records of the county, or other available and reliable sources," § 22-228. The number of names are determined by the judge. The names are recorded officially in a jury list book, § 22-228(a), then written on cards sealed in a box, and drawn at random as needed for jury service. The same list serves as jury pool for both grand and petit juries.
The commissioners have a duty to propose a "list of names of upright and intelligent persons known for their integrity, fair character and sound judgment." § 22-228. The basic statutory qualifications for jury service are that a juror must be at least eighteen years old, a United States citizen and a resident of the county in which he or she serves as juror. § 22-201. In addition, persons convicted of "infamous offenses," of unsound mind, with deficient sight or hearing, or habitually drunk are disqualified. Persons in certain exempt occupations or who would suffer hardship if they served are excused.
The foreman or forewoman of the grand jury is selected in an entirely different manner. In essence, they are hand-picked by the trial judge from the eligible population for a two-year appointment. § 40-1506. They are subject to the same statutory qualifications as jurors except that they must be at least twenty-five years old.
The facts elicited at the pretrial hearing were meager, especially as to hard figures or even substantiated estimates of the racial makeup of Tipton County grand juries. For instance, there is no indication in the record of the total number of persons in the jury pool, nor is there any indication of the racial makeup of the pool. However, some relevant information may be gleaned from the record.
In 1972, the jury commissioners in Tipton County were three men, all white. The November, 1972 grand jury was selected from the jury pool chosen two years earlier. Names were selected from the local telephone directory, 1 and all three commissioners testified that they selected names only of persons they knew, either personally or by reputation, and that they were aware of their duty to select, without prejudice, black members of the community.
Very few statistics were mentioned at the hearing, although one commissioner testified that he thought the county was about 30% Black. (The 1970 Census shows that Tipton County was 32.4% Black.) 2 Neither the total number of names in the jury pool, nor the number of blacks was established, though it is significant that the state could easily have done so. This would prove beyond a doubt that there was no discrimination, if such were true, since a jury list book is a statutory requirement, and since the commissioners are acquainted with everyone on the list. However, three prior foremen did testify in vague terms about the representation of blacks on the juries themselves.
The three of them had served off and on as grand jury foremen since the early 1950's. None of them could recall a black foreman or forewoman. However, each testified that blacks had served on their grand juries, remembering "several," "some," "probably three or four," "usually two or three," and one black woman on the November, 1972 grand jury that indicted the petitioners. 3
The fundamental rules to be applied in cases charging grand jury discrimination are well established. For almost a century it has been settled law that if a state chooses to use grand juries to return indictments, the jurors must be selected without discrimination because of race or color. In 1879, in its landmark trilogy of cases establishing the right of blacks to serve on juries and grand juries, and the right of every accused citizen to an indictment by a grand jury selected without discrimination, the Supreme Court pointed out:
It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury . . . selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?
Strauder v. West Virginia, 100 U.S. 303, 309, 25 L.Ed. 664 (1879). Substantial underrepresentation, as a result of purposeful discrimination, is as much a constitutional violation as total exclusion. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970).
There seems to be a common misconception, exemplified by the trial judge's comments at the evidentiary hearing, the district court's opinion dismissing the petition, and respondent's brief, that constitutional requirements are met if there are simply "some" blacks on grand juries. This is probably due to frequent judicial statements that there is no requirement for any particular jury panel to contain blacks, and that the venire need not contain the names of blacks in the same proportion as they are to be found in the general population. Both these statements are quite true; however, they are true because both may occur without discrimination against blacks. However large a percentage of the jury pool is black, any single jury, randomly drawn, may be all white (or, for that matter, all black). Also, neutral legitimate requirements imposed by the state on its jurors may weigh...
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