763 F.2d 1265 (11th Cir. 1985), 84-8191, Jordan v. Lippman

Docket Nº:84-8191.
Citation:763 F.2d 1265
Party Name:Forrest Andrew JORDAN, Petitioner-Appellant, v. Ray LIPPMAN, Warden, and Michael J. Bowers, Attorney General for the State of Georgia, Respondents-Appellees.
Case Date:June 21, 1985
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1265

763 F.2d 1265 (11th Cir. 1985)

Forrest Andrew JORDAN, Petitioner-Appellant,

v.

Ray LIPPMAN, Warden, and Michael J. Bowers, Attorney General

for the State of Georgia, Respondents-Appellees.

No. 84-8191.

United States Court of Appeals, Eleventh Circuit

June 21, 1985

James K. Jenkins, Savannah, Ga., John Oliver Ellis, Jr., Atlanta, Ga., for petitioner-appellant.

Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, Ga., Kenneth C. Etheridge, Asst. U.S. Atty., Savannah, Ga., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before VANCE and ANDERSON, Circuit Judges, and PITTMAN [*], District Judge.

R. LANIER ANDERSON, III, Circuit Judge:

On July 23, 1978, there was a riot at the Georgia State Prison in Reidsville ("GSP-Reidsville"). The riot left two inmates and

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one prison guard dead and another guard seriously wounded. Appellant Forrest Andrew Jordan was charged with mutiny in a penal institution, aggravated assault against the wounded guard, and the murder of the other guard. A Tattnall County, Georgia, jury convicted Jordan of mutiny and murder, sentencing him to five years on the mutiny charge and to life on the murder charge. 1 The sentences were to run consecutively to each other and to any other sentences then being served by Jordan. The jury acquitted Jordan on the aggravated assault charge. The Georgia Supreme Court affirmed Jordan's convictions and sentences. Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981).

Jordan then petitioned the United States District Court for the Southern District of Georgia for a writ of habeas corpus under 28 U.S.C.A. Sec. 2254, alleging that his trial suffered from numerous constitutional infirmities. 2 In February 1984, the district court denied relief on all grounds and dismissed the petition. Because we find that the voir dire of prospective jurors at Jordan's trial was constitutionally inadequate in light of events which occurred on the weekend prior to Jordan's trial, we reverse the judgment of the district court and grant the writ conditioned on the state's right to retry Jordan within a reasonable time.

I. THE JURY ISSUES

Jordan raises several issues with regard to the impartiality of the jury and jury panel at his trial. First, he alleges that extensive negative and racially-oriented pre-trial publicity coupled with inherent community prejudice based upon the socioeconomic dependence of Tattnall County on GSP-Reidsville and racism in the community constitutionally required a change of venue. His motion for change of venue should have been granted, Jordan argues, without the necessity for any inquiry into particular juror prejudice because the inflamed situation in the community met the "presumed prejudice" standard as set out by the United States Supreme Court. See, e.g., Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963). 3

Second, Jordan argues that the trial court improperly failed to grant seventeen of his challenges for "cause" against jurors on the jury panel. As a result, one such juror was seated on the panel which convicted Jordan. These alleged errors also required the defense to use peremptory challenges which could have been used to strike other unwanted, but not legally objectionable, jurors.

Third, Jordan claims that his right to an impartial jury was potentially denied because the voir dire permitted by the trial court was inadequate to unearth possible juror prejudice. Under precedent binding in this circuit, 4 Jordan claims, he is entitled to relief if outside influences indicate a "significant possibility of prejudice" in the

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face of a voir dire procedure which was inadequate to permit discovery of juror bias. See United States v. Davis, 583 F.2d 190, 196-98 (5th Cir.1978). Jordan presses this last claim with respect to the entire voir dire process undertaken to identify which members of the venire should be struck for "cause," and also particularly with respect to the allegedly prejudicial events which occurred on the weekend prior to the trial, after the initial for "cause" strikes had been effected, but before peremptory strikes had been exercised by either party and prior to sequestration of the jury during the trial.

We conclude that Jordan is entitled to relief on this latter claim. An accused's constitutional rights to an impartial jury and due process under the Sixth and Fourteenth Amendments are violated unless an impartial jury can be impaneled. See generally Irvin v. Dowd, 366 U.S. 717, 720-22, 81 S.Ct. 1639, 1641-42, 6 L.Ed.2d 751 (1961). The trial court's failure to conduct a voir dire (or to allow defense counsel to make relevant inquiries to the panel members) after the events of the preceding weekend violated Jordan's constitutional rights, when viewed in the context of the prior publicity, the publicity concerning the weekend events, and the subject matter and all the circumstances of the case, all of which raised a significant possibility of juror prejudice. Thus, we do not reach the other jury issues raised by Jordan.

A. Background

For purposes of this appeal, we need not detail the July 23, 1978 prison riot nor the facts of the particular incidents presented at Jordan's trial. 5 It is important to an understanding of Jordan's jury claims, however, to consider in some detail the situation at the prison prior to the riot, the general tenor and outcome of the riot, and the community response thereafter.

GSP-Reidsville has a long history of racial turbulence which we need only capsulize here. In April 1974, the United States District Court for the Southern District of Georgia ordered the desegregation of the living and dining facilities at the prison. Guthrie v. Caldwell, Civ. No. 3068, slip op. at 1 (S.D.Ga. Apr. 10, 1974). In the months preceding the riot, incidents of racial violence were frequent. During a fourteen-hour period on March 15-16, 1978, "[r]acially oriented fighting took place in four living areas on the East side of the institution." The fight resulted in injuries to fourteen white inmates and five black inmates and the death of one black inmate. The Georgia Bureau of Investigation conducted an inquiry, but it resulted in no indictments. Respondent's Exhibit No. 3, vol. 2 (First Report of the Special Monitor on the Defendants' State of Compliance in Guthrie v. Evans, at 150). On May 11, 1978, one white inmate attacked two black inmates "inflicting superficial razor blade wounds." Internal disciplinary action was taken against the white inmate. Id. On June 24, 1978, a "[r]acially oriented fight took place in [the] gymnasium resulting in injuries to nine white inmates." No one was ever charged in this incident. Id. Finally, on July 1, 1978, "[a] group of white inmates attacked a group of black inmates while eating breakfast. This resulted in injuries to three black inmates and two white inmates and the death of one black inmate." The incident was investigated by the Georgia Bureau of Investigation, but no indictments were issued. Id.

On July 3, 1978, the federal court ordered the living quarters at GSP-Reidsville segregated by race. Respondent's Exhibit No. 2, vol. 5 at 892. At the time of the riot, GSP-Reidsville consisted of three dormitory buildings, buildings "A," "B," and "C." Each building had four dormitories of approximately 60 inmates each. Id. at 899. Dormitories A-2, A-3, A-4, B-1, B-2 and B-4 were all black, while dormitories A-1 and B-3 were all white. Id. at 901. Building "C" was not involved in the riot at all. On July 23, 1978, the day of the riot, the

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prison remained racially segregated. Id. at 892.

While it is not necessary to detail the evidence presented at trial concerning the riot, it is important to note that the evidence took on, at least inferentially, a racial character. The riot was alleged to have begun in B-1, a black dorm, when Officer Preston Foskey, a white guard, was assaulted by an inmate. Foskey could not identify the inmate at trial, id. at 912-13, but the inmate was identified by some witnesses as Jordan. Id. at 921, 940, 980. Thereafter, Foskey was hit, stabbed, and knocked to the floor by a group of black inmates. Id. at 914, 915. In addition, Officer Dan Harrison, another white guard, was stabbed repeatedly by a group of inmates. Id. at 981. Two witnesses testified that Jordan participated in the attack on Harrison. Id. at 981, 1022. Foskey survived the attack; Harrison did not. Finally, the evidence indicates that in the aftermath of the riot two white inmates were found stabbed to death. Id. at 904; Respondent's Exhibit No. 2, vol. 6 at 1119-20.

Six inmates, all black, were indicted for alleged crimes arising out of the riot. The pre-trial press coverage of the incident was extensive. In support of Jordan's motion for a change of venue, defense counsel attempted to explain the amount and character of the pre-trial publicity. In considering the change of venue motion, the trial court admitted in evidence 50 articles concerning prison matters from the local weekly newspaper, the Tattnall Journal, running from February 2, 1978, through January 18, 1979 (just prior to the hearing on the change of venue motion). See Respondent's Exhibit No. 6, vol. 3 at 507 (transcript of change of venue hearing). Many of the newspaper articles concerning the riot itself stressed that the perpetrators of the crimes against the prison officials were black. Respondent's Exhibit No. 6, vol. 5 at 749 (Defendant's Exhibit No. 28). Lawrence Noble, Jr., an expert on pre-trial publicity, testified on behalf of Jordan and the other co-indictees at the change of venue hearing of February 13-16, 1979. After explaining his analysis of the print media coverage of the prison riot and the subsequent...

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