758 F.2d 226 (8th Cir. 1985), 83-2113, Grigsby v. Mabry

Docket Nº83-2113.
Citation758 F.2d 226
Party NameJames T. GRIGSBY, Appellee, v. James MABRY, Commissioner, Arkansas Department of Correction, Appellant. Ardia V. McCREE, Appellee, v. Vernon HOUSEWRIGHT, Director, Arkansas Department of Correction, Appellant.
Case DateJanuary 30, 1985
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 226

758 F.2d 226 (8th Cir. 1985)

James T. GRIGSBY, Appellee,


James MABRY, Commissioner, Arkansas Department of

Correction, Appellant.

Ardia V. McCREE, Appellee,


Vernon HOUSEWRIGHT, Director, Arkansas Department of

Correction, Appellant.

No. 83-2113.

United States Court of Appeals, Eighth Circuit

January 30, 1985

Submitted March 15, 1984.

As Corrected March 18, 1985.

Page 227

[Copyrighted Material Omitted]

Page 228

Victra L. Fewell, Asst. Atty. Gen., Little Rock, Ark., for appellant.

John Charles Boger, New York City, for appellee.

Before LAY, Chief Judge, and HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG and BOWMAN, Circuit Judges.

LAY, Chief Judge.

The issues on this appeal relate to the question left open in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968): whether the exclusion of jurors who hold absolute scruples against the death penalty creates a "conviction-prone" jury as to the guilt of a defendant in a capital case. 1 On an earlier remand from this court, Grigsby v. Mabry, 637 F.2d 525 (8th Cir.1980), modifying 483 F.Supp. 1372 (E.D.Ark.1980), the district court held a plenary hearing on the issues involved: (1) whether the sixth amendment right to a trial by jury is violated in capital cases by a jury from which the state has systematically excluded at voir dire all persons who hold inflexible scruples against capital punishment and (2) whether exclusion of the Witherspoon excludables (WEs) 2 during the guilt-innocence phase of the trial violates a defendant's fourteenth amendment due process right to a fair and impartial jury. The trial court, the Honorable G. Thomas Eisele, in a learned and exhaustive opinion, found that both the sixth amendment right to have a jury selected from a representative cross section of the community, and the fourteenth amendment due process right to have an impartial jury, were violated. As a result, the trial court ordered that the state of Arkansas, in all capital cases, must hold bifurcated jury trials; first, as to guilt, and second, assuming guilt, as to punishment. Grigsby v. Mabry, 569 F.Supp. 1273, 1321

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-23 (E.D.Ark.1983). Stay granted 583 F.Supp. 629 (E.D.Ark.1983).

Based on the overall exhaustive record, we find substantial evidentiary support for the district court's findings. We find that substantial evidence supports the court's finding that a capital jury, with WEs stricken for cause, is in fact conviction prone and, therefore, does not constitute a cross-sectional representation in a given community. In view of our finding on the sixth amendment violation, it is unnecessary to discuss the issue whether the jury in the petitioners' cases was in fact a biased jury. We affirm, with modification, the judgment of the district court. We vacate that portion of the district court's judgment which requires the state to utilize two separate juries; one to determine guilt-innocence and another for the penalty phase of the trial. We leave the actual procedural remedy to the discretion of the state.

Although this was originally a consolidated proceeding, 3 the district court granted a writ of habeas corpus only to the petitioner Ardia McCree. McCree was convicted of capital murder in Ouachita County, Arkansas in 1978. He is presently serving a life sentence without parole. His conviction was affirmed by the Arkansas Supreme Court. See McCree v. State, 266 Ark. 465, 585 S.W.2d 938 (1979). In McCree's trial, eight prospective jurors were excused for cause on the ground that they could not impose the death penalty. McCree made a timely objection to the exclusion of WEs in the guilt-innocence phase. Moreover, in the present case, the state expressly has waived any claim of exhaustion of remedies or other procedural bar. 4


In Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979), the Supreme 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.

And in an earlier opinion, Taylor v. Louisiana, 419 U.S. 522, 538, 95 S.Ct. 692, 702, 42 L.Ed.2d 690 (1975), the Court stated:

[T]he 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.

A threshold contention of the state here is that the cross-sectional requirement of the sixth amendment is not applicable to a petit jury. In making this argument the state relies on statements taken from Duren that such attack only applies to the panels or venires from which juries are drawn. Duren, 439 U.S. at 363-64, 99 S.Ct. at 668. Similarly, the state cites from Taylor the abstraction that "we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population." Taylor, 419 U.S. at 538, 95 S.Ct.

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at 702. The state also argues that this court rejected a sixth amendment attack on a petit jury in United States v. Childress, 715 F.2d 1313 (8th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 744, 79 L.Ed.2d 202 (1984). 5

Childress must be read within its factual context. The significant issue in Childress was whether an alleged systematic exclusion of blacks by the prosecution in exercising its peremptory strikes constituted a sixth amendment violation. Childress, 715 F.2d at 1314-15. We agree the state may exercise peremptory challenges as it deems necessary. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); but see Williams v. Illinois, --- U.S. ----, 104 S.Ct. 2364, 80 L.Ed.2d 836 (1984) (Marshall, J., dissenting); Gilliard v. Mississippi, --- U.S. ----, 104 S.Ct. 40, 78 L.Ed.2d 179 (1983) (Marshall, J., dissenting). No stated reason is necessary in exercising peremptory challenges. To establish a rule that jurors cannot be stricten by peremptory challenges on certain grounds seeks the impossible and limits the right of a party to eliminate jurors who appear to be biased. A correlative to Childress is the concept that no defendant has the right to select biased jurors who he feels might be more sympathetic to his case.

It would, of course, be impossible to obtain a petit jury that reflects all the distinctive groups in a community. 6 In this sense it is easy to conclude that systematic exclusion, as it relates to the necessity of having a cross-sectional jury, is generally not an issue when dealing with the petit jury. Nevertheless, in given factual instances, the sixth amendment requirement of cross-sectional representation has been held applicable to the petit jury. See Adams v. Texas, 448 U.S. 38, 50, 100 S.Ct. 2521, 2529, 65 L.Ed.2d 581 (1980); Ballew v. Georgia, 435 U.S. 223, 236-37, 98 S.Ct. 1029, 1037-38, 55 L.Ed.2d 234 (1978); Witherspoon, 391 U.S. at 518-23, 88 S.Ct. at 1775-78. There is no justifiable reason to conclude that a statute which systematically eliminates distinct groups of citizens from sitting on a petit jury would not violate the sixth amendment requirement of a representative cross-sectional jury. 7 We deal here with a right to eliminate for cause a distinctive group of prospective jurors. If prospective jurors, who would take an oath to decide a case on the basis of the law and facts presented, could be excluded for cause because they were white or black, or, based on questions elicited on voir dire, because they were pro-ERA, pro-life, Republicans or Democrats, such a systematic exclusion from the panel, would encroach upon a party's sixth amendment right to have a cross-sectional jury.

We base our rejection of the state's argument on decisions of the Supreme Court. In Swain the Court noted that systematic exclusion from a petit jury of a distinctive group over a long period of time would be wrong. Swain, 380 U.S. at 223-24, 85 S.Ct. at 837-38. In Ballew v. Georgia, 435 U.S. 223, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978), the Court held that a petit jury of less than six persons would violate a defendant's sixth amendment right to have a cross-sectional representation. Id. at 230, 245, 98 S.Ct. at 1034, 1041. See also Williams

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v. Florida, 399 U.S. 78, 100-01, 90 S.Ct. 1893, 1905-06, 26 L.Ed.2d 446 (1970). And finally, Witherspoon itself is direct authority that a distinctive group, eliminated for cause from the petit jury, violates the sixth amendment principle that requires a cross-sectional jury. As Justice Stewart noted, in response to the argument that no actual prejudice had been shown: "But it is self-evident that, in its role as arbiter of the punishment to be imposed, this jury fell woefully short of that impartiality to which the petitioner was entitled under the Sixth and Fourteenth Amendments." Witherspoon, 391 U.S. at 518, 88 S.Ct. at 1775 (our emphasis). The Court went on to state:

Guided by neither rule nor standard, "free to select or reject as it [sees] fit," a jury that must choose between life imprisonment and capital punishment can do little more--and must do nothing less--than express the conscience of the community on the ultimate question of life or death. Yet, in a nation less than half of whose people believe in the death penalty, a jury composed exclusively of such people cannot speak for the community. Culled of all who harbor doubts about the wisdom of capital punishment--of all who would be reluctant to pronounce the extreme penalty--such a jury can speak only for a distinct and dwindling minority.

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