Bass v. State of Mississippi

• Citation: 381 F.2d 692
• Decision Date: 31 July 1967
• Docket Number: No. 24029.,24029.
• Parties: Richard BASS, Appellant, v. STATE OF MISSISSIPPI, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

381 F.2d 692 (1967)

Richard BASS, Appellant, v. STATE OF MISSISSIPPI, Appellee.

No. 24029.

United States Court of Appeals Fifth Circuit.

July 31, 1967.

Alvin J. Bronstein, Jackson, Miss., Melvin L. Wulf, New York City, for appellant.

Will S. Wells, Asst. Atty. Gen., Jackson, Miss., for appellee.

Before BROWN, Chief Judge, BELL, Circuit Judge, and BREWSTER, District Judge.

JOHN R. BROWN, Chief Judge.

Nominally what is involved here is whether the trial of a Mississippi rape case should be removed to the Federal District Court under 28 U.S.C.A. § 1443 (1).¹ But underlying this is the serious question of whether the Constitution condemns the Mississippi statutory exclusion of women as a class from service as jurors.

Bass, a Negro, was indicted, tried and convicted in Warren County, Mississippi, for rape and sentenced to death. On February 7, 1966, however, the Supreme Court of Mississippi reversed his conviction on the ground, among others, that Warren County systematically excluded Negroes from juries, Grand and Petit. Bass v. State, 1966, 254 Miss. 723, 182 So.2d 591, 183 So.2d 483. On March 14, 1966, he was reindicted by the Grand Jury. By motion and amended motion, Bass moved to quash the new indictment on the ground that Negroes had been systematically excluded from this Grand Jury and the further one that the Mississippi statute specifically excludes women as a class from jury service. These motions were presented on March 17, 1966, and after hearing thereon were denied. Trial, first fixed for March 28, 1966, was continued until the July 1966 term of the Circuit Court. Prior to its resetting Bass filed the instant petition for removal on June 15, 1966, which was dismissed without an evidential hearing July 8, 1966, by the Federal District Court on the ground that the verified petition stated "no fact or circumstance to vest this Court with Jurisdiction"² and the case remanded to the Circuit Court of Warren County, Mississippi. Subsequently, the District Court stayed the order of remand pending the outcome of this appeal.

I. Race Exclusion

Besides the claim of unconstitutional statutory exclusion of women as jurors, the petition for removal set forth in considerable, but abbreviated, detail the facts as to the claim of systematic exclusion of Negroes. In the view we take of this, we find it unnecessary to set out or summarize the statistics. The theory pursued here is that since the lists of jurors from which Grand and Petit jurors are drawn are made up from the role of qualified electors,³ the source is constitutionally "infected." This is so because the electors were, in turn, qualified pursuant to then existing sections⁴ of the Election Code which violate the Fourteenth and Fifteenth Amendments under United States v. Mississippi, 1965, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717, and United States v. Louisiana, 1965, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709 by reason of the "read and interpret" requirement.

On this structure it is further contended that, because the infirmity inheres in the statutory scheme for voter qualification, the denial of equal civil rights to a jury free from exclusion by reason of race makes this case one for removal under Strauder v. State of West Virginia, 1880, 100 U.S. 303, 25 L.Ed. 664 rather than Virginia v. Rives, 1880, 100 U.S. 313, 25 L.Ed. 667, involving discrimination from maladministration, not statutory mandate, both of which cases were substantially reaffirmed in State of Georgia v. Rachel, 1966, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925.

We reject this theory. In doing so, we assume, without deciding, that despite the Supreme Court's disclaimer of a determination that the Mississippi voter qualification statutes were facially unconstitutional, United States v. Mississippi, supra, 380 U.S. 128, 143, 85 S.Ct. 808, the decision of the companion case, United States v. Louisiana, supra, foreshadows a like, ultimate declaration as to Mississippi. Despite this assumption, this is not enough to obtain removal to the Federal Court. For Georgia v. Rachel, supra, put new emphasis on the dual standard as the insertion of brackets reveals. "Section 1443(1) entitles the defendants to remove these prosecutions to the Federal Court only if they meet both requirements of that subsection. They must show both that 1 the right upon which they rely is a `right under any law providing for * * * equal civil rights,' and that 2 they are `denied or cannot enforce' that right in the courts of the State." 384 U.S. 780, at 788, 86 S.Ct. 1783, at 1788, 16 L.Ed.2d 925, at 931.

This is of great importance. For although the operation of the interrelated voter qualification statute and jury qualification statute might work to deny the right to a jury selected free of racially discriminatory exclusion, the right here sought is the right to that sort of trial. The right at issue is not the right to vote or register to vote. The existence of the voter qualifications statute does not therefore of itself deny this right. Of course, Rachel, reiterating the standard that removal is warranted only if by reference to a law of general application it can be predicted that the rights will be denied or cannot be enforced, goes on to say, "A state statute authorizing the denial affords an ample basis for such a prediction." 384 U.S. 780, at 800, 86 S.Ct. at 1794, 16 L.Ed.2d at 938. But we think that relates to a state statute which denies the right asserted and not an antecedent statute which might have that operative effect. Its operative effect, decisive as it might be, does not eliminate the great likelihood that the state courts could and would afford corrective action. It is entirely possible that the state courts would recognize that the mere existence of the incorporated statutory standard does not foreclose judicial inquiry into, and determination of, whether the immediate right asserted has been constitutionally satisfied.

Once that view is taken, neither from the face of these statutes nor from administrative application of them is there the "firm prediction that the defendant would be `denied or cannot enforce' the specified federal * * * `right' to a constitutionally selected jury in the state court." 384 U.S. at 804, 86 S.Ct. at 1796, 16 L.Ed.2d at 940. There is, first, nothing in the voter registration statutes, even if assumed to be unconstitutional, which denies to the Mississippi Courts the power to inquire into whether the jury under scrutiny was subject to the vice of unconstitutional racial exclusion, whether attributed to the deficiencies in the voter registration rolls or from other causes. To the contrary, the action of the Supreme Court of Mississippi in this very case demonstrates that that Court has and will vindicate the federally guaranteed right of constitutionally selected juries. And as they had done just previously in Harper v. State, 1965, 251 Miss. 699, 171 So.2d 129, the existence of the voter registration laws did not handicap the Supreme Court of Mississippi either in reaching the result of reversal in a spectacular capital case or in delivering the admonition to the Mississippi trial courts and prosecuting officers in these strong terms. "Our courts and officials charged with the duty of selecting jurors should heed these laws, if we hope to continue to handle violations of our laws. Our courts, whenever facts such as these are shown, can do nothing except reverse." 182 So.2d 591, 595. If the record either made or to be made in the State trial court proves the truth of the charge that even though five Negroes were on the Grand Jury which reindicted Bass, it came from a larger list which was constitutionally infected, Davis v. Davis, 5 Cir., 1966, 361 F.2d 770, 775 (en banc),⁵ the "firm prediction", 384 U.S. 780, at 804, 86 S.Ct. at 1796, 16 L.Ed.2d 925 at 938 and 940, is not that the equal civil rights will be denied or unenforced. To the contrary, the Mississippi Court will, as it has before, vindicate that right without equivocation.

This forecast is all the more certain from the intervening sweeping changes in Mississippi voter registration laws following ratification of the Mississippi Constitutional amendment on August 17, 1965. The statutory amendments did away with the elaborate registration application and the read and understand tests. To this must also be added the Voting Rights Act of 1965, 79 Stat. 437, 42 U.S.C.A. § 1973 et seq., which eliminated the remaining "read and write" test, and provided for voting registrars in some 18 Mississippi counties including Warren County followed subsequently by the declaratory order requiring state election officials to treat holders of Certificates of Eligibility as qualified Mississippi voters. United States v. State of Mississippi, (3-Judge), S.D.Miss., 1966, 256 F.Supp. 344, 349, parts I and III, following remand, United States v. Mississippi, 1965, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717.

With these legislative changes and the passage of time, it is almost a certainty that the voter registration rolls have been markedly expanded.⁶ The "universe" from which the list of jurors for service as petit jurors in Bass' forthcoming trial will undoubtedly include a much larger number of Negroes and in any event will be free from the statutorily imposed discriminatory features of the former law. Whether the resulting jury list does or does not then satisfy federally imposed constitutional standards (see note 5, supra) will depend therefore almost altogether on factors other than the voter registration system. As far as the present reindictment is concerned, these intervening occurrences read in the light of the strong admonition of the Mississippi Supreme Court may lead the authorities to conclude that to eliminate all doubts concerning the constitutional validity of the Grand Jury of March 1966, a further new indictment should be sought before the current Grand Jury drawn on post-1965-1966 standards. C...