Gibson v. Zant

• Decision Date: 31 May 1983
• Docket Number: No. 82-8651.,82-8651.
• Citation: 705 F.2d 1543
• Parties: Samuel GIBSON, III, Plaintiff-Appellee, v. Walter D. ZANT, Superintendent, Georgia Diagnostic & Classification Center, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

705 F.2d 1543

Samuel GIBSON, III, Plaintiff-Appellee, v. Walter D. ZANT, Superintendent, Georgia Diagnostic & Classification Center, Defendant-Appellant.

No. 82-8651.

United States Court of Appeals, Eleventh Circuit.

May 31, 1983.

Virginia H. Jeffries, Staff Asst. Atty. Gen., Atlanta, Ga., for defendant-appellant.

Joseph M. Nursey, Atlanta, Ga., for plaintiff-appellee.

Before JOHNSON and ANDERSON, Circuit Judges, and COLEMAN^*, Senior Circuit Judge.

JOHNSON, Circuit Judge:

Respondent Walter D. Zant, Warden, Georgia Diagnostic & Classification Center, appeals the district court's grant of the writ of habeas corpus to petitioner Samuel Gibson, III. 547 F.Supp. 1270 (M.D.Ga.1982). Because the district court correctly concluded that petitioner's grand and trial juries were drawn from a venire which unconstitutionally excluded women and blacks, we affirm.

Gibson, a black male, challenged the composition of the grand and petit jury lists at a pretrial hearing held on May 1, 1975. When Gibson's pretrial challenge to the jury composition was rejected by the state trial court, he moved for an immediate appeal to save the public expense of proceeding to trial. The court denied the motion. Gibson, who had confessed to the crimes for which he was indicted, was tried and convicted on May 13-14, 1975, of raping and murdering a young woman in Jones County, Georgia.¹ The conviction was affirmed on direct appeal by the Supreme Court of Georgia, although the sentence of death for rape was vacated and remanded for the imposition of a prison sentence. Gibson v. State, 236 Ga. 874, 226 S.E.2d 63, cert. denied, 429 U.S. 986, 97 S.Ct. 507, 50 L.Ed.2d 598 (1976). Gibson's petition for a writ of habeas corpus was denied by the Superior Court of Butts County, Georgia. The Supreme Court of Georgia affirmed the denial of the writ. Gibson v. Ricketts, 244 Ga. 482, 260 S.E.2d 877 (1979), cert. denied, 445 U.S. 920, 100 S.Ct. 1285, 63 L.Ed.2d 606 (1980). Having exhausted his state remedies, Gibson filed a petition for habeas relief in federal district court. In an opinion which not only thoroughly discussed the facts of this case but also detailed the history of Supreme Court decisions relating to jury composition challenges, with particular emphasis on those involving Georgia, the district court granted the writ on September 24, 1982.

At the pretrial hearing on the jury composition issue, both parties stipulated to figures showing the breakdown by race, sex, and age of the grand and petit jury lists that were compiled in August 1974 and the 1970 census figures² for Jones County, Georgia. These figures indicate disparities³ of -37.92% and -31.62% between the percentage of women in Jones County and the percentage of women on the lists for the grand and petit juries, respectively. The disparity between the number of blacks in the population and on the grand and petit jury lists is -20.89% and -20.39%, respectively. When the parties originally stipulated to these figures, their agreement included an allowance for error of ± 5%. However, the district court requested both parties to supplement the record in order to ascertain the composition of the venires without provision for any error. After an examination of the jury lists by the District Attorney of the Jones County Superior court, the respondent advised the district court that there was no ascertainable error in the figures originally presented at the pretrial hearing. The district court therefore found that the figures contained in footnote three, supra, were an accurate summary of the 1975 Jones County grand and petit jury lists. 547 F.Supp. at 1274. In addition to stipulating to the composition of the 1975 jury lists, the parties also stipulated that there was at least as much discrepancy in the proportion of women and blacks on the lists for the previous ten years.

Gibson alleged that the grand and petit jury lists were unconstitutionally composed because both women and blacks were underrepresented. The importance of having a jury represent all portions of the community has often been expounded on in judicial decisions. The Supreme Court described the subtle but significant impact of discriminatory jury composition:

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.... The exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.

Peters v. Kiff, 407 U.S. 493, 503, 92 S.Ct. 2163, 2168, 33 L.Ed.2d 83 (1972). The importance of non-discriminatory jury composition is magnified in capital cases, where juries are required to consider "as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978) (emphasis in original).

Discriminatory selection of grand and petit juries in state courts may be challenged under the equal protection clause of the Fourteenth Amendment, Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972), while the right to have a jury venire represent a fair cross-section of the community is also protected by the Sixth Amendment's guarantee of trial by an impartial jury. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). The prima facie tests for an equal protection claim and a fair-cross-section claim are almost identical.⁴ In Castaneda v. Partida, 430 U.S. 482, 494, 97 S.Ct. 1272, 1280, 51 L.Ed.2d 498 (1977), the Supreme Court summarized the requirements for proving an equal protection violation:

The first step is to establish that the group is one that is a recognizable, distinct class,.... Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time.... Finally, ... a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.

In Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979), the elements of a prima facie violation of the fair-cross-section requirement were set out:

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.

The first part of the prima facie test under Castaneda or Duren is clearly satisfied in this case because both black persons, Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879), and women, Taylor v. Louisiana, supra, constitute recognizable, distinct classes.

Although the Supreme Court has been careful not to delineate precise mathematical standards for proving systematic exclusion, Alexander v. Louisiana, supra, 405 U.S. at 630, 92 S.Ct. at 1225, Supreme Court, Fifth Circuit,⁵ and Eleventh Circuit precedent furnish guidance in judging whether the disparities here are significant enough to establish an equal protection or fair-cross-section claim. It is evident that the disparities present here, ranging from 20% to 38%, are well within the range of disparities found significant in other cases.⁶ E.g., Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 532 (1970) (23% disparity); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954) (14%); Machetti v. Linahan, 679 F.2d 236 (1982), cert. denied, ___ U.S. ___, 103 S.Ct. 763, 74 L.Ed.2d 978 (1983) (36% and 42%); Porter v. Freeman, 577 F.2d 329 (5th Cir.1978) (20.4%). In addition, the stipulation that the disparities in the 1975 lists were at least as great as those for the previous ten years buttresses the conclusion that the disparity is not due to chance or inadvertence but results from discrimination.

The third part of the prima facie test is also met here because petitioner demonstrated that the selection procedures used by the jury commissioners of Jones County were "not racially or sexually neutral" and were "susceptible of abuse." Castaneda v. Partida, supra, 430 U.S. at 494, 97 S.Ct. at 1280. Georgia law, § 59-106,⁷ in effect when the 1975 Jones County jury lists were compiled, sets out the procedure to be followed by jury commissioners in composing a jury list:

At least biennially, or, if the senior judge of the superior court shall direct, at least annually, the board of jury commissioners shall compile and maintain and revise a jury list of intelligent and upright citizens of the county to serve as jurors. In composing such list the commissioners shall select a fairly representative cross-section of the intelligent and upright citizens of the county from the official registered voters' list of the county as most recently revised by the county board of registrars or other county election officials. If at any time it appears to the jury commissioners that the jury list, so composed, is not a fairly representative cross-section of the intelligent and upright citizens of the county, they shall supplement such list by going out into the county and personally acquainting themselves with other citizens of the county, including intelligent and upright citizens of any significantly identifiable group in the county which may not be fairly represented thereon.

After selecting the citizens to serve as jurors, the jury commissioners shall select from the jury list a sufficient number of the most experienced, intelligent and upright citizens, not exceeding

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