Brooks v. Beto
| Decision Date | 27 May 1965 |
| Docket Number | Civ. A. No. 64-H-418. |
| Citation | 241 F. Supp. 743 |
| Parties | Willie B. BROOKS, Petitioner, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent. |
| Court | U.S. District Court — Southern District of Texas |
William C. Bullard and Bill Chanslor, Houston, Tex., for petitioner.
Charles Swanner, Asst. Atty. Gen., Austin, Tex., and Sam R. Wilson, Asst. Atty. Gen., Houston, Tex., for respondent.
This is an application for the writ of habeas corpus. Petitioner is a state prisoner serving a sentence of fifty years imposed by judgment of the 86th Judicial District Court of Van Zandt County, Texas. The offense was rape by force or threat. Petitioner is a negro, his victim white. As seems to be true in every case in this period of racial conflict and tension—all else having failed—collateral attack is now made on the judgment on racial grounds. Petitioner's sole contention here is that the grand jury which returned the indictment upon which he was brought to trial was not constituted in conformity with constitutional standards, in that the members of the grand jury who were of the colored race were intentionally included because of their race. This question was raised in the trial court, and on appeal in the Court of Criminal Appeals of Texas, and there considered and denied. Brooks v. State, 170 Tex.Cr.R. 555, 342 S.W.2d 439, on reh. Thus petitioner has exhausted his state remedies as required by § 2254 of Title 28 U.S. C.A. and the question is ripe for decision in the federal courts. Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). A full evidentiary hearing was allowed petitioner in this court, where he was represented by able court-appointed counsel. The state court record and testimony from witnesses were received.
The facts are without dispute except as to a single point, and that is an exceedingly fine one; that concerns the motivating factors—or the mental processes, if you please—which actuated the jury commissioners in selecting the two colored persons as members of the grand jury panel of sixteen from which the District Judge of Van Zandt County selected the grand jury of twelve persons.
Under Texas statutes and procedures, the district judge (usually prior to the opening of a term of court) selects not less than three nor more than five qualified persons as jury commissioners. Tex.Code Cr.Proc. Art. 333 et seq. After proper instruction by the judge, such commissioners select sixteen persons "from the citizens of different portions of the county" (Art. 338). In making this selection, it is contemplated—indeed, commanded—that the commissioners will acquaint themselves with the qualifications of many potential jurors— both negro and white—in order to afford opportunity for selection from the members of both races. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Cassel v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Addison v. State, 160 Tex.Cr.R. 1, 271 S.W.2d 947. Those selected are listed and the list is sealed. In due course it is opened, and the sixteen persons are summoned. The qualifications of these persons are inquired into, and when twelve are found qualified, the court impanels them as a grand jury (Art. 357). The others are excused.
Under this procedure the selection of the sixteen members of the panel is not a matter of chance or luck of the draw, as in the selection of a petit jury. It is a matter of the conscious and conscientious exercise of a discretion vested by statute in the jury commissioners, charged with a mandate to select a group constituting a fair cross-section of the citizenry of the county. This procedure—as such—has been specifically approved by the Supreme Court of the United States on more than one occasion. Cassell v. Texas, supra, and cases there cited.
Van Zandt is a relatively small county in the eastern part of the state, with a population of approximately 25,000 persons, of which perhaps ten per cent are negroes. It is one of those counties where, within the memory of the oldest practitioner at the bar, negroes have been systematically excluded from jury service, both petit and grand. The jury commissioners seldom placed the name of a negro on the jury list, and in those few instances where this had occurred such person was always excused.
Petitioner was indicted by such an all white grand jury shortly following the commission of the offense with which he was charged. The Honorable A. A. Dawson, District Judge of Van Zandt County, recognized the invalidity of this long standing practice of exclusion, and that an indictment returned by such a grand jury against a member of a race so discriminated against was not valid. He likewise recognized that despite his instructions given the jury commissioners at a number of prior terms of court, to the effect that negroes would not be purposely and systematically excluded, his instructions had been disregarded. Hence at the beginning of the succeeding term of court, Judge Dawson appointed as his jury commissioners J. A. Cooley, C. C. Bailey, Leon Cox, J. E. Persons, Jr. and Mrs. Betty Smith. Mrs. Smith is a member of the negro race. I find, if it be material, which I think it is not, that Judge Dawson felt it likely that Mrs. Smith would suggest the names of qualified negroes for grand jury service; and that he felt it to be imperative that qualified negroes be considered as potential grand jurors in order to break irrevocably from the long standing systematic exclusion.
The jury commissioners were properly and accurately instructed by Judge Dawson1 to the effect that the practice of excluding negroes by reason of race could not and should not continue, that negroes should not be put on or kept off of the grand jury list because of race, and that race should play no part in the selection of the grand jurors (St.Facts, pp. 10-11).
The names of two negroes were among the sixteen placed upon the list, and ultimately were among the twelve chosen by Judge Dawson from the list of sixteen to compose the grand jury. It was this grand jury which re-indicted petitioner, upon which indictment he was subsequently brought to trial.
From the foregoing recitation, it would appear that the most scrupulous and painstaking efforts were made by all concerned to comply with the law as it has been announced in Cassell v. Texas, supra, and other recent cases dealing with the question of race in the selection of grand juries. Nothing would appear to indicate that these efforts have not been completely successful. However, petitioner contends that the two colored members of the grand jury were selected by the commissioners because they were negroes. He advances the broad proposition that this alone constitutes racial discrimination, placing reliance squarely upon Collins v. Walker, 329 F. 2d 100 (5th Cir., 1964), on reh. 335 F.2d 417 (1965).
Because in some respects the present case is quite like Collins, a careful analysis of that opinion is required. In Collins the defendant, a negro, was charged with an aggravated case of rape of a white woman. As shown by the Court of Appeals opinion, the Louisiana law then provided for the selection by the Court of jury commissioners, who were charged with the duty of compiling a "general venire list" of 300 names for jury and grand jury service. In the selection of a grand jury from time to time thereafter, twenty names were chosen from this general venire list by the commissioners, which twenty names were submitted to the trial judge. From this list of twenty, the twelve names which composed the grand jury were selected.
For sometime prior to Collins' offense —no doubt through an honest misunderstanding of the law—the practice had prevailed in the parish in question for the jury commissioners deliberately to include a number of negroes on each grand jury. The commission had been repeatedly instructed that this should be done. The number was determined by what the commissioners considered to be a "fair" representation.
At the time of Collins' arrest, a regular grand jury was in session. Through a misunderstanding among the jury commissioners which had selected this grand jury—which would be somewhat humorous if it were not so serious —no negroes were included, each commissioner having expected one of the others to insert the negro names. Disregarding this grand jury (which I suggest was properly chosen), the Louisiana authorities held Collins in jail until a new grand jury could be selected. It was this new grand jury which indicted Collins. It was composed of five negroes and seven whites.
The Court of Appeals was of the view (on original submission) that in selection of the new grand jury the list of twenty had not been selected from the "general venire panel" of 300 as required by law. I am convinced that the Court was further of the view that this new grand jury was literally "loaded" with negroes purely as a defensive measure against a later charge of racial discrimination; and that this grand jury was chosen in this fashion for the express purpose of considering an indictment...
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Brooks v. Beto
...Commission and that the practice followed was in conformity with approved Texas — and necessarily federal constitutional — procedure. 241 F.Supp. at 747-748. This brings us to an examination of the details of the evidence to determine factually the extent, if at all, to which race entered t......