Brooks v. Beto, 22809.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 366 F.2d 1
• Docket Number: No. 22809.,22809.
• Parties: Willie B. BROOKS, Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.
• Decision Date: 29 July 1966

366 F.2d 1 (1966)

Willie B. BROOKS, Appellant,
v.
Dr. George J. BETO, Director, Texas Department of Corrections, Appellee.

No. 22809.

United States Court of Appeals Fifth Circuit.

July 29, 1966.

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William VanDercreek, Dallas, Tex. (court-appointed), for appellant

Charles B. Swanner, Asst. Atty. Gen., Waggoner Carr, Atty. Gen. of Texas, Hawthorne Phillips, First Asst. Atty. Gen., T. B. Wright, Executive Asst. Atty. Gen., Howard M. Fender, Asst. Atty. Gen., Austin, Tex., for appellee.

John Doar, Asst. Atty. Gen., David L. Norman, Albert S. Pergam, Charles R. Nesson, Attys., Dept. of Justice, Washington, D. C., for the United States as amicus curiae.

Before TUTTLE, Chief Judge, and BROWN, WISDOM, GEWIN, BELL, THORNBERRY and COLEMAN, Circuit Judges.

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JOHN R. BROWN, Circuit Judge:

Unlike the other cases¹ heard en banc, this one does not challenge the exclusion of Negroes from grand or trial juries. Rather, this case seeking habeas from a Texas conviction for rape complains of purposeful inclusion of Negroes in the grand jury returning the indictment.

Following the exhaustion of state remedies and rejection of this challenge by the Court of Criminal Appeals of Texas, Brooks v. State of Texas, Tex.Cr.App., 1960, 342 S.W.2d 439, on rehearing, 1961, 342 S.W.2d 442, the Federal District Court after a full evidentiary hearing denied habeas by Memorandum Opinion.² The case is a tribute to the Bar, for beginning with the initial trial in the State Court through the habeas in the Federal District Court and the appeal before us, the accused has been represented by court-appointed counsel who have sharply defined the issues and presented them with zeal.³

At the heart of the matter, the question facing us is whether we should adhere to Collins v. Walker, 5 Cir., 1964, 329 F.2d 100, on rehearing, 1964, 335 F.2d 417, cert. denied, 379 U.S. 901, 85 S.Ct. 189, 13 L.Ed.2d 175. For while the District Judge, conscious of Collins and his obligation to follow it, undertook to distinguish it, we do not think this may fairly be done as to its broad holding and rationale. On re-examination of the problem, we disapprove Collins, conclude that there has been no denial of equal protection or due process, and affirm the Federal District Court.

I.

The Texas system — passing muster on three occasions⁴ — for constituting the grand jury is highly selective, and relying at no stage on random choice or the laws of chance, it commits much to the Jury Commissioners. Under Texas law⁵ the District Judge, usually prior to the opening of the term of court, selects not less than three nor more than five qualified persons from different portions of the county as Jury Commissioners, Art. 333. The judge instructs them on their duties, Art. 336, and administers a comprehensive oath, a significant portion of which is the obligation not to "knowingly elect any man as juryman whom you believe to be unfit and not qualified," Art. 335. This means, of course, that only those having the qualifications prescribed

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in Art. 339 may be chosen for the list⁶ of 16. Besides the traditional ones on residence, a limited voter qualification, absence of a criminal record, the most notable are the requirements that the grand juror "4. * * * must be able to read and write" and "3. * * * must be of sound mind and good moral character."

The Jury Commissioners thereupon select 16 qualified persons "from the citizens of different portions of the county," Art. 338. The 16 selected are put on the list which is sealed and filed, Art. 340. When, in due course, the list is opened, the 16 persons on the list are summoned and inquiry is held as to their qualifications, and when the 12 are found qualified, the District Court impanels them as a grand jury. Arts. 344-345, 352-355, 357.

II.

Before examining the details as to why or how it came about, it sharpens the focus to state broadly that in the operation of the grand jury selection machinery in this case, two members of the list (who subsequently became two members of the panel) were selected because, among other reasons, they were Negroes.

The Petitioner, Brooks, a Negro, was convicted in 1960 after a jury trial before Judge A. A. Dawson, 86th Judicial District, Van Zandt County, Texas, for raping a white woman. Petitioner was originally indicted in August 1959 by an all white grand jury impaneled under a system that concededly excluded Negroes for racial reasons. Van Zandt County, located in the eastern part of Texas, had a population of about 25,000 of which approximately 10% were Negroes. Although the state trial Judge, in giving the statutorily required instructions to the Grand Jury Commissioners, had apparently instructed them from term-to-term that they were not to exclude jurors because of race, historically Van Zandt County had never had a Negro serve as a member of a grand or petit jury.⁷

The significance of all of this was apparently brought sharply to Judge Dawson's attention by the January 1960 decision of the Texas Court of Criminal Appeals in Stoker v. State, Tex.Cr.App., 1960, 331 S.W.2d 310, in which a criminal conviction was reversed and the indictment dismissed because over the past 50 years no Negro had been included in the grand jury list.⁸ Aware that Jury Commissioners had not carried out their instructions to select persons for the list without racial discrimination, and thus that the indictment of Petitioner would not pass muster under Stoker, Judge Dawson appointed five new Jury Commissioners, one of whom, Mrs. Betty

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Smith, was a Negro. Judge Dawson, as his later testimony revealed, included Mrs. Smith on the new Commission for the purpose of complying with the mandate of the Court of Criminal Appeals in Stoker (see note 8, supra). This new Jury Commission then proceeded to select and put upon the list 16 prospective jurors, two of whom were Negroes. Those two Negroes were among the 12 on the panel chosen by Judge Dawson. It was this grand jury which subsequently re-indicted Petitioner.⁹

On the basis of that second indictment, Petitioner was brought to trial. His court-appointed counsel moved to quash the indictment because there had been impermissible inclusion of Negroes on the grand jury. An evidentiary hearing was held by Judge Dawson which included testimony from him and one of the Jury Commissioners, Cooley. The motion was denied, Brooks was tried and found guilty. On direct appeal, the Texas Court of Criminal Appeals, on rehearing, Judge Davidson dissenting, rejected this claim of unconstitutional racial inclusion. Brooks v. State, Tex.Crim.App., 1960, 342 S.W.2d 439, on rehearing, 1961, 342 S.W. 2d 442.

It rounds out the procedural picture to state here that on the federal habeas, Chief Judge Connally also held a full evidentiary hearing which included the transcript of the State Court proceeding and testimony on the motion to quash. He also considered affidavits, 28 U.S.C.A. § 2246, of Jury Commissioners Bailey, Persons, and Cox. No testimony by affidavit or otherwise came from Mrs. Betty Smith, the Negro Commissioner.

In denying the petition, Judge Connally's opinion by a sort of built-in syllabus held that under the circumstances there was no systematic and purposeful inclusion of a fair or otherwise predetermined number of Negroes by the Jury Commission and that the practice followed was in conformity with approved Texas — and necessarily federal constitutional — procedure. 241 F.Supp. at 747-748.

III.

This brings us to an examination of the details of the evidence to determine factually the extent, if at all, to which race entered the minds of one or more of the Commissioners in the selection of the two Negros for the list. The Federal District Judge by an exception which almost swallows up the whole pinpointed it this way:

"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, * * * which actuated the jury commissioners in selecting the two colored persons * * * for the list."

241 F.Supp. at 743.

There is, first, the matter of Judge Dawson's instructions to the new Jury Commissioners.¹⁰ As to them, Judge Dawson testified: "Generally, for the last few terms of court in this county * * * I have told * * * the Jury Commission that * * * Negroes could not be excluded, and I have told them, of course, that they couldn't be put on or kept off on account of race, but I had told them that they couldn't any longer operate with them excluded from juries." In crediting fully this testimony Judge Connally found that Judge Dawson did not instruct the Commissioners that a Negro must be included on the list. 241 F.Supp. at 744-745, 747 & n. 2.

But since the inclusion of the Negroes on the list is not so much a question of the instructions given by the Court as it is a question of the understanding by

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the Commissioners of such instructions or their legal obligations, it is not either to discredit Judge Dawson nor to raise a factual controversy to recognize frankly that Commissioner Cooley's understanding was quite different. Commissioner Cooley, the sole one to testify subject to cross examination at a time then within 4½ months of the events under scrutiny, was quite emphatic. Regardless of the instructions and of where he might have gotten the information concerning standards for selection, Commissioner Cooley acknowledged that he purposely included some Negroes in making his selection. Answering the prosecutor's questions on cross examination, he testified that he did so in an effort to avoid showing discrimination on the basis of race. On redirect examination, he categorically answered affirmatively when asked "Did you put more Negroes than one on this grand jury because you thought you were under a mandate so to do?" He adhered to this on recross examination by stating, "It was my...