Bailey v. Henslee

• Citation: 287 F.2d 936
• Decision Date: 04 May 1961
• Docket Number: No. 16547.,16547.
• Parties: Luther BAILEY, Appellant, v. Lee HENSLEE, Superintendent of the Arkansas State Penitentiary, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

287 F.2d 936 (1961)

Luther BAILEY, Appellant, v. Lee HENSLEE, Superintendent of the Arkansas State Penitentiary, Appellee.

No. 16547.

United States Court of Appeals Eighth Circuit.

March 17, 1961.

Rehearing Denied May 4, 1961.

Thad D. Williams, Little Rock, Ark., for appellant.

Thorp Thomas, Asst. Atty. Gen. of Arkansas, Bruce Bennett, Atty. Gen. of Arkansas, on the brief, for appellee.

Before VOGEL and BLACKMUN, Circuit Judges, and DAVIES, District Judge.

BLACKMUN, Circuit Judge.

On January 18, 1960, the Supreme Court of the United States, in Bailey v. Henslee, 361 U.S. 945, 80 S.Ct. 408, 4 L. Ed.2d 364, entered the following order:

"Petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit denied without prejudice to a further application for writ of habeas corpus in the appropriate United States District Court, on the question whether members of petitioner\'s race were deliberately and intentionally limited and excluded in the selection of petit jury panels, in violation of the Federal Constitution."

Pursuant to this suggestion Luther Bailey, who is the defendant-prisoner concerned and who is now confined in the Arkansas State Penitentiary, petitioned the United States District Court for the Eastern District of Arkansas for a writ of habeas corpus. He based his case on the issue specified by the Supreme Court. After a hearing and the introduction of evidence his petition was denied. Bailey v. Henslee, D.C.E.D.Ark., 184 F.Supp. 298. Judges of this court granted the certificate of probable cause required by 28 U.S.C.A. § 2253 and the appeal is now before us.

Bailey, an adult Negro, was charged by information and convicted by an all-white petit jury in September 1956 (the March 1956 term) in the Circuit Court, First Division, Pulaski County, Arkansas, of the crime of rape (as defined in §§ 41-3401 and 41-3402 of Arkansas Statutes, 1947) committed in Little Rock on June 14, 1956. The jury did not render a verdict of life imprisonment in the state penitentiary at hard labor, as it had the right to do under §§ 41-3403 and 43-2153, and therefore, in line with the interpretation consistently given § 43-2153 by the Supreme Court of Arkansas,¹ Bailey was sentenced to death.² Since his conviction and sentence, his case has found its way several times into the appellate courts. We set forth in the margin, for background, its step-by-step progress.³

We emphasize, initially, that the question of Bailey's guilt is not now before us.⁴ This is a situation where, as the United States Supreme Court once described the posture of another Arkansas case, "* * * what we have to deal with is not the petitioners' innocence or guilt but solely the question whether their constitutional rights have been preserved." Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543.

While the three of us who have heard the present appeal would naturally be hesitant and disinclined to differ with conclusions reached by the panel (on which one of us sat) of this court which heard the first federal appeal in the case, Bailey v. Henslee, 8 Cir., 264 F.2d 744, and while we agree that the posture of that appeal and the record then before the court clearly called for the affirmance of the District Court's denial of the second petition for a writ of habeas corpus, and for the reasons set forth in that opinion, we are now confronted with the Supreme Court's order of January 18, 1960. We regard that order as a directive authorizing not only a new petition by this defendant but, as well, his making of a new record on the single issue now presented. The record has been made at the hearing and upon the evidence presented to Judge Young on the third and present application for the writ. We must base the conclusion we are now to reach on this new record unencumbered by limitations and shortcomings, if any, which may have characterized the prior record in this long continued litigation. We also regard the Supreme Court's order as a directive requiring us to proceed to the merits of the issue apart from any procedural considerations, such as exhaustion of state remedies, or other concern for orderly administration of criminal justice which thus far seem to have defeated this particular defendant.

Arkansas Statutes, 1947, as amended, provide the method of choosing jury commissioners and jurors.⁵ This statutory procedure, of course, is followed in Pulaski County. The Circuit Court has a term in that county each September and March. § 22-310. As a matter of local practice, the Court there operates in three divisions. The First Division is concerned exclusively with criminal cases. The Second and Third Divisions are concerned with civil cases. Each division has its own jury commissioners and the juries selected by each set of commissioners operate only in the particular division. One exception to this division practice took place during the March 1956 term (the one at which the defendant was convicted) when 17 jurors were transferred from the Third Division to the First Division in connection with the trial of Emmett Earl Leggett;⁶ afterward they were returned to the Third Division and were not used again in the First Division. This transfer had nothing to do with Bailey's case. Between 1939 and 1956 any juror who was selected for service in either the Second or the Third Division was legally qualified to serve in the First Division.

Most of the pertinent facts having to do with Negro representation on the Pulaski County panels are set forth in the opinion below at 184 F.Supp. 298, as well as in this court's first opinion in 264 F.2d 744, and these facts need not be reviewed in detail here. We mention only that there has been Negro representation, at least since 1952, on the regular panels of the First Division; that there has been no (or, at the most, one) instance of Negro representation on the alternate panels; that there is no positive evidence of any Negro representation on the special panels; that since 1939 no Negro has served on any panel in the Second and Third Divisions; and that there has been, to an extent at least, some designation of race in the jury records. Bailey's Exhibit 1, to which reference is made in Judge Young's Table at page 301 of 184 F.Supp., also covers the 4 years from September 1956 through March 1960 and would show race representation for the court terms held during that period. Specifically, that exhibit (which the parties stipulated sets forth facts to which the present Deputy Clerk would have testified if called) shows the presence of from one to three Negroes on the regular panel in each of these later terms, the identity of all Negroes who have served since 1952, and the absence of any Negro's name among the alternates.⁷

So much for the facts. In turning to the legal aspects of the case, we feel that a preliminary review of established principles is in order:

The right of a defendant in a criminal prosecution to a trial "by impartial jury" is guaranteed by Article 2, Section 10, of the Constitution of the State of Arkansas.⁸ When a right to a jury trial exists,⁹ then, as was emphasized many years ago by the United States Supreme Court, a jury's proper composition is fundamental:

"(T)he constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds." Strauder v. West Virginia, 1879, 100 U.S. 303, 308, 25 L.Ed. 664.

Strauder and a long line of succeeding Supreme Court cases hold that discrimination on the basis of race or ancestry in the selection of persons for service on grand or petit jury panels is violative of the equal protection clause of the Fourteenth Amendment.¹⁰ A federal statute supplements this rule. 18 U.S.C.A. § 243. This does not mean, however, that a jury must have proportional representation of races in order to assure the equal protection of the laws. State of Virginia v. Rives, 100 U.S. 313, 322-323, 25 L.Ed. 667; Akins v. State of Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 89 L.Ed. 1692. Proportional racial limitation as such is forbidden. Cassell v. State of Texas, 339 U.S. 282, 286-287, 70 S.Ct. 629, 94 L.Ed. 839. A defendant has no right even to have his race represented on his jury.¹¹

"What an accused is entitled to demand, under the Constitution of the United States, is that, in organizing the grand jury as well as in the empaneling of the petit jury, there shall be no exclusion of his race, and no discrimination against them, because of their race or color". Martin v. State of Texas, 200 U.S. 316, 321, 26 S.Ct. 338, 339, 50 L.Ed. 497.

Furthermore, inequality or disproportion in the number finally selected does not in itself show discrimination. Akins v. State of Texas, supra, at page 403 of 325 U.S., at page 1279 of 65 S.Ct.

Discrimination in a jury's selection must of course be proved; it is not to be presumed. Tarrance v. State of Florida, 188 U.S. 519, 520, 23 S.Ct. 402, 47 L.Ed. 572. The burden of establishing the discrimination is upon the defendant. Akins v. State of Texas, supra, at page 400 of 325 U.S., at page 1277 of 65 S.Ct. He may, however, establish a prima facie case of discrimination of this kind and, if he does, the burden then passes to the state to refute the discrimination. Evidence that Negroes have never served on a jury in the county or parish has been held to make a prima facie case.¹² Such a case is established where race differentiating tickets are used to identify jurors and no Negro is selected in a panel of 60. Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244. The presence on the panel of a few Negroes who would probably be disqualified does not constitute sufficient rebuttal of the prima...