Bumpus v. Gunter

• Decision Date: 16 February 1978
• Docket Number: Civ. A. No. 74-5197-G.
• Parties: Robert BUMPUS, Petitioner, v. Frank GUNTER and Frank Hall, Respondents.
• Court: U.S. District Court — District of Massachusetts

452 F. Supp. 1060

Robert BUMPUS, Petitioner, v. Frank GUNTER and Frank Hall, Respondents.

Civ. A. No. 74-5197-G.

United States District Court, D. Massachusetts.

February 16, 1978.

Norman Zalkind, Stephen L. Saltonstall, Boston, Mass., for petitioner.

Barbara A. H. Smith, Asst. Atty. Gen., Boston, Mass., for respondents.

MEMORANDUM OF RULING AND PROCEDURAL ORDER

GARRITY, District Judge.

Since May 1971 petitioner has been serving a life sentence after conviction in the state court of first degree murder. In November 1974 he petitioned for habeas corpus on the sole ground that he was denied due process by the trial judge's failure to question prospective jurors concerning racial prejudice inasmuch as he is black and the victim was white, citing Ham v. South Carolina, 1973, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46. Petitioner's contention was upheld in a similar case, Ristaino v. Ross, 1 Cir. 1974, 508 F.2d 754, and proceedings in the case at bar were stayed pending certiorari. In March 1976, the Supreme Court reversed Ristaino v. Ross, 1976, 424 U.S. 589, 96 S.Ct. 1017, 47 L.Ed.2d 258, and petitioner in the instant case was granted leave to amend his petition by adding a second claim, viz., denial of due process because of errors in instructions as to the prosecution's burden to prove guilt beyond a reasonable doubt. In June 1976, we granted the respondent's motion to dismiss the first claim and denied respondent's motion to dismiss the second claim on the ground of failure to exhaust available state remedies, and in September 1976 we heard the merits of the second claim. Thereafter the parties filed the transcript of the state court trial, including the complete charge to the jury.

Petitioner's second claim was considered and rejected by the Supreme Judicial Court of Massachusetts in 1972, Commonwealth v. Bumpus, 362 Mass. 672, 681-682, 290 N.E.2d 167. It was unaffected by the Supreme Court's grant of certiorari and remand for further consideration by the Supreme Judicial Court of the prospective juror interrogatories issue and the subsequent grant and ultimate denial of habeas corpus on that issue, except that petitioner delayed presenting it in this case until after the first claim was determined against him with finality. When urged before the Supreme Judicial Court in 1972, petitioner challenged the charge on reasonable doubt in terms of prejudicial error rather than denial of due process. However, petitioner's brief in the state appellate court, filed in the instant case, shows that the claim there was the same as here presented. It cites several federal cases, although not In Re Winship, 1970, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368.¹ In denying the motion to dismiss the second claim on the ground of failure to exhaust state remedies, we applied Picard v. Connor, 1971, 404 U.S. 275, 276-278, 92 S.Ct. 509, 30 L.Ed.2d 438, and concluded that the substance of the petitioner's second claim in this court was fairly presented to the state courts.²

Our ruling now, that errors in explaining the prosecution's burden of proof were of constitutional dimension, rests upon the recent decision by the Court of Appeals in Dunn v. Perrin, 1 Cir., 570 F.2d 21, holding that the cumulative effect of similar, though different, errors in charging a jury warrants relief by habeas corpus unless the error was harmless. The latter issue has not been briefed or argued in this case and therefore this aspect of the matter will be scheduled for further hearing.

The trial judge's instructions on burden of proof must be "viewed in the context of the overall charge", Cupp v. Naughten, supra, 414 U.S. at 147, 94 S.Ct. at 400. The part explicitly defining the burden, pp. 1503-1509 of the transcript, appears as an appendix to this memorandum (certain phrases have been underlined for ready reference). At six other places in the instructions (pp. 1462, 1463, 1469, 1486, 1489 and 1524), which ran for 84 pages, pp. 1457-1541, the court stated the prosecution's obligation to establish beyond a reasonable doubt every element of the crimes charged, but defined it only in the part set forth in the appendix.

Defining reasonable doubt, at 1505-1506, the judge instructed that "it has to be a doubt in your mind that you can stand up in the jury room and argue with principle and integrity to your fellow jurors." This was equivalent to the instruction, "It is such a doubt as for the existence of which a reasonable person can give or suggest a good and sufficient reason", which was ruled improper in Dunn v. Perrin, 570 F.2d 21, p. 23. In rejecting petitioner's appeal on this point, the Supreme Judicial Court, Commonwealth v. Bumpus, supra, 362 Mass. at 682, 290 N.E.2d 167, stated that the language in question was figurative and symbolic and not an instruction which could or should have been taken literally. We do not disagree but believe that it makes no difference. Whether understood literally or figuratively, the instruction "suggested that a doubt based on reason was not enough to acquit." Dunn v. Perrin, p. 23. It would have to be one which the holder could, at least in his own mind, support "with principle" — presumably either legal or moral.

Adverting to the concept of "moral certainty" theretofore used in defining proof beyond a reasonable doubt, the judge defined it as "the same degree of satisfaction that you would look for when you took action in the major affairs of your life" and then gave the example of a young man suffering from heart disease from which he "might die at any time" who was contemplating surgery which he "might not survive"; what the young man should do is "to weigh all the evidence on both sides and then when it has been concluded make a judgment, either to have the operation or not to have it".³ Applying the analogy to the instant case, the jurors should be "satisfied to a moral certainty that . . . the course of action you are taking is the right course for you to take. If you have a settled conviction that you are doing the right thing, that is what the law considers to be satisfaction to a moral certainty." Jurors should "look for the same degree of satisfaction, of proof of the essential elements of these crimes that you would look for in major affairs of your own lives before you took action."

Unlike the charge discussed in Dunn v. Perrin, supra, pp. 24-25, the charge in this case referred to "taking action" as distinguished from "refraining from acting" or "hesitating to act". See Holland v. United States, 1954, 348 U.S. 121, 140, 75 S.Ct. 127, 99 L.Ed. 150, Scurry v. United States, 1965, 120 U.S.App.D.C. 374, 376, 347 F.2d 468, 470. Also it posed the heart patient's dilemma without relating it directly to proof beyond a reasonable doubt or the existence of a reasonable doubt, but rather only to moral certainty which came down to "taking the right course for you" or "doing the right thing" after weighing all the evidence on both sides. Moreover, under the hypotheses stated to the jury, a decision "either to have the operation or not to have it" could not be free from reasonable doubt since death might reasonably follow either course. Principally the analogy is inherently and necessarily confusing: to decide upon a future course of action, whether to have an operation, change a job, get a divorce, etc., is essentially different from accepting or rejecting the truth of a factual proposition such as a criminal indictment. Deciding the wisdom of future action involves a different type of judgment than that used in deciding whether something did or did not happen. It is doubtless permissible for judges to instruct jurors that they should take their responsibility very seriously, and a careful reference to important personal problems has been said to be of assistance to the jury. But to give such an instruction in conjunction with an explanation of the Government's burden of proof, rather than at some different part of the charge, serves only to lighten the Government's proper burden. In the instant case, the analogy to the young man with heart disease in conjunction with the definition given of moral certainty permitted the jurors to convict provided they conscientiously weighed all the evidence and arguments on both sides of the case and concluded that they were doing the right thing.

The Supreme Judicial Court recognized the "inherent difficulty in using such examples" but rejected petitioner's appeal on the ground at issue because "the instructions as a whole were comprehensive, were based upon traditional language, and adequately conveyed the concept of reasonable doubt to the jury."⁴ We respectfully disagree.

The concluding words of the jury instructions included a second analogy to medical practice which we believe compounded the error in discussing the patient with the heart valve deficiency. The last paragraphs of the charge were as follows, at pp. 1540-1541:

All I can say to you is you are not responsible for this defendant being here. You are like the family doctor who listens to symptoms and makes a diagnosis of what's wrong with the patient. You are not responsible because the patient is sick. You don't listen to symptoms in a court of law. You listen to evidence, but they are just like symptoms.

When you have digested and weighed all the evidence, then you make a diagnosis, too, but you don't call it a diagnosis. You call it a verdict. It's a serious responsibility you have, and I am sure you will decide it with integrity and principle. Emphasis added.

Medical diagnosis is a form of opinion which seldom rests upon proof beyond a reasonable doubt. It is almost always based upon a preponderance of the evidence. A verdict in a criminal case is not an opinion or diagnosis comparable to a medical diagnosis. The jury's verdict decides all questions of fact with finality and is non-reviewable, whereas medical diagnoses are frequently revised and regularly reviewed. A much higher degree...