Cobb v. Balkcom

• Decision Date: 03 December 1964
• Docket Number: No. 21085.,21085.
• Parties: Ex rel. Preston COBB, Jr., Appellant, v. R. P. BALKCOM, Jr., Warden, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

339 F.2d 95 (1964) Ex rel. Preston COBB, Jr., Appellant, v. R. P. BALKCOM, Jr., Warden, Appellee.

No. 21085.

United States Court of Appeals Fifth Circuit.

December 3, 1964.

D. L. Hollowell, Horace T. Ward, Atlanta, Ga., Robert L. Carter, New York City, for appellant.

Albert Sidney Johnson, Asst. Atty. Gen., Eugene Cook, Atty. Gen., Peyton S. Hawes, Jr., Asst. Atty. Gen., Atlanta, Ga., B. Daniel Dubberly, Jr., Glennville, Ga., George D. Lawrence, Sol. Gen., Ocmulgee Judicial Circuit, Eatonton, Ga., for appellee.

Before RIVES and BELL, Circuit Judges, and SPEARS, District Judge.

GRIFFIN B. BELL, Circuit Judge:

Appellant Cobb, having been indicted for murder, was tried and convicted without a recommendation of mercy in the Superior Court of Jasper County, Georgia, on August 16, 1961. Consequently, he was sentenced, on the same day, to death by electrocution. Cobb, a Negro, was the sixth of nine children, and lived with his mother on the victim's farm where both were employed. His father was deceased. He was fifteen years of age at the time of his trial and sentence.

An outstanding member of the Jasper County Bar was appointed by the court to act as his defense counsel on the trial. No challenge was made to the composition of the grand jury or the traverse jury either prior to or during the trial. Present counsel for Cobb were employed a few days after the imposition of sentence, and court-appointed counsel, upon motion, was permitted to withdraw from the representation.

A motion for new trial was then filed in which, for the first time, the constitutional validity of Cobb's indictment, trial and conviction because of the systematic exclusion of Negroes from grand and traverse juries in the trial court was drawn into question. It was also asserted that there had been no valid waiver of this constitutional right either by Cobb individually or through counsel. The evidence in support of these contentions, to be hereinafter detailed, was largely the same as that introduced in support of the petition for writ of habeas corpus in the District Court from which this appeal is taken. The motion for new trial was overruled, and an appeal duly taken to the Supreme Court of Georgia.

That court affirmed, holding that any objection to the composition of the grand jury and the traverse jury was waived upon the failure to challenge the array of the grand jury before indictment or to file a plea in abatement before arraignment; and with respect to the traverse jury, by failing to challenge the array at the earliest opportunity. Cobb v. State, 1962, 218 Ga. 10, 126 S.E.2d 231. The court pointed to the exception where a defendant is not afforded the opportunity to object, in which event the question may be raised by motion for new trial or by a habeas corpus proceeding. Cobb contended he had no fair opportunity to raise the question due to his age, lack of intelligence, and inexperience, and due to the inexperience or reluctance of his court-appointed counsel in such matters. The court concluded that the evidence was sufficient to show that trial counsel was capable of raising the issue, and was authorized to waive the objection in view of Cobb's lack of intelligence, experience, and knowledge sufficient to enable him to decide whether the waiver was beneficial to his defense. The Supreme Court denied certiorari, 371 U.S. 948, 83 S.Ct. 499, 9 L.Ed.2d 497. Thereafter an extraordinary motion for new trial on the ground of newly discovered evidence was filed on behalf of Cobb, and the denial of the motion by the trial court was affirmed on appeal. Cobb v. State, 1963, 219 Ga. 388, 133 S.E.2d 596.

The petition for writ of habeas corpus which is the subject matter of this appeal was then filed in the District Court. It presented the systematic exclusion issue as well as the additional contentions that Cobb was denied due process of law in that his confession was coerced, and that he was denied the effective assistance of counsel because of the failure of trial counsel to apprise him of his constitutional right with respect to the systematic exclusion question, or to explain it to his mother or any other person on his behalf, and because the issue was not raised.

The evidence adduced in support of the petition included sworn statements of the sheriff and deputy clerk of the Superior Court of Jasper County, who had held their positions, respectively, for 21 and 30 years, that no Negroes had ever served on a grand or traverse jury in the county during the past 30 years, that no names of Negroes had ever been placed on the jury lists, and that there were no Negroes on the grand or traverse jury involved in Cobb's case. Each of these officials named ten Negroes whom they believed to be intelligent and upright citizens of the county and who were property owners listed on the tax digest of the county. The tax digest contained the names of 615 Negroes and 2,076 whites. These officials stated also that they had never heard counsel for a Negro defendant in a criminal case raise any constitutional objection to the composition of a jury panel from which the names of grand and traverse jurors were drawn. Cobb stated by affidavit that he had had no prior experience in court or with lawyers and that he did not intend to waive any of his constitutional rights. He had not instructed or authorized his trial counsel to waive any of his rights. It is not contended that the right in question was called to the attention of Cobb or his mother or anyone in parens patriae to him. The affidavit of Cobb's trial counsel showed that he had been a member of the Georgia Bar since 1934; that he had defended many Negroes charged with felonies in the county, and that he had never seen a Negro serving on a traverse jury in the county. He stated that he had never raised the issue of systematic exclusion of Negroes from juries because he had never seen a jury panel in the county from which a fair and impartial jury could not be obtained even though there were no Negroes on the panel. He stated that he would have raised the issue in Cobb's case if he had felt that a fair and impartial trial could not be had, and that he is familiar with the procedure to be followed in raising such an issue and would have done so had be believed it to be in the best interest of Cobb. The District Court denied the petition; this appeal followed, and this court subsequently granted the application of Cobb for a stay of execution pending appeal.

We reverse on the systematic exclusion question. In this view of the case, and because the evidence on the coerced confession question may be different on another trial, we pretermit a ruling as to it. We also pretermit the question of denial of the effective assistance of counsel as guaranteed to a state prisoner by the Sixth Amendment and its inclusion in the Fourteenth Amendment. Powell v. State of Alabama, 1932, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.

It has long been settled that a Negro defendant in a criminal case is entitled to indictment by a grand jury and trial before a traverse jury from which Negroes have not been arbitrarily and systematically excluded. A conviction cannot stand where such is established for it constitutes a denial of due process and of the equal protection of the laws. Struader v. State of West Virginia, 1879, 100 U.S. 303, 25 L.Ed. 664; Reece v. State of Georgia, 1955, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77; and Arnold v. North Carolina, 1964, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77. The appellate courts of Georgia have long recognized and given effect to this principle. Wilson v. State, 1882, 69 Ga. 224; Crumb v. State, 1949, 205 Ga. 547, 54 S.E.2d 639; and Glass v. State, 1964, 109 Ga.App. 353, 136 S.E.2d 199. See also Allen v. State, 1964, 110 Ga.App. 56, 137 S.E.2d 711, extending the right to challenge a jury composition on this ground to white defendants as well as Negroes, thus demonstrating the abhorrence of the appellate courts of Georgia to any discriminatory selection of jurors.

On the factual question of systematic exclusion, it is not seriously contended that Negroes were not systematically excluded from the juries that indicted and tried Cobb. The evidence adduced below was ample to make out a prima facie case, and the State offered no evidence to rebut this showing.

However, the crux of this case lies not in the recognition of this principle or in its normal effectuation, but whether its protection may be claimed post-trial. As has been noted, the Supreme Court of Georgia considered the question waived by the failure to timely object either as to the composition of the grand jury or the traverse jury, but as we recently pointed out in Whitus v. Balkcom, 5 Cir., 1964, 333 F.2d 496, the scope of the power of a federal court in the administration of its habeas corpus jurisdiction relating to federal constitutional rights may go beyond state court procedural confines. There we relied on Fay v. Noia, 1963, 372 U.S. 391, 83 S. Ct. 822, 9 L.Ed.2d 837, and the language used by the Court in discussing the question of the waiver (there a coerced confession), and the applicability of the doctrine of foreclosure by an adequate and independent state law ground in federal habeas corpus proceedings. The Supreme Court said:

"Although we hold that the jurisdiction of the federal courts on habeas corpus is not affected by procedural defaults incurred by the applicant during the state court proceedings, we recognize a limited discretion in the federal judge to deny relief to an applicant under certain circumstances. Discretion is implicit in the statutory command that the judge, after granting the writ and holding a hearing of appropriate scope, `dispose of the matter as law and justice require,\' 28 U.S. C. § 2243; and discretion was the flexible concept employed by the federal courts in developing the exhaustion rule. Furthermore, habeas corpus has traditionally been regarded as governed by

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