Collins v. Walker

• Decision Date: 09 November 1964
• Docket Number: No. 20537.,20537.
• Citation: 335 F.2d 417
• Parties: Woodman J. COLLINS, Appellant, v. Victor G. WALKER, Warden, Louisiana State Penitentiary, Angola, Louisiana, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

335 F.2d 417 (1964)

Woodman J. COLLINS, Appellant, v. Victor G. WALKER, Warden, Louisiana State Penitentiary, Angola, Louisiana, Appellee.

No. 20537.

United States Court of Appeals Fifth Circuit.

July 21, 1964.

Certiorari Denied November 9, 1964.

Herschel N. Knight, Stephen P. Coco, Jennings, La., for appellant.

Teddy W. Airhart, Jr., Asst. Atty. Gen. of La., Jack P. F. Gremillion, Atty. Gen. of La., Baton Rouge, La., Bernard Marcantel, Dist. Atty., Jennings, La., for appellee.

Before RIVES and JONES, Circuit Judges, and DAWKINS, Jr., District Judge.

Certiorari Denied November 9, 1964. See 85 S.Ct. 189.

RIVES, Circuit Judge.

Additional briefs have been submitted on this second petition for rehearing, and the Court has heard further oral argument. At the outset, appellee objects that our opinion, reported at 329 F.2d 100, contains substantial errors of fact. In particular, appellee urges the following:

(1) "There is nothing in the record to support the Court's finding that `* * * no other case was scheduled to be considered by that Grand Jury.'" The burden of appellee's criticism is contained in the following sentence of his brief: "Indeed, when the Court considers the fact that a grand jury serves for six months, it would be literally impossible for the jury commission to know that no other cases would be scheduled for consideration by that grand jury." That is quite true. Our statement was in the past tense, "was scheduled" not "would be scheduled," and was plainly limited to the crucial time when the jury commission chose the list of names of twenty citizens from which the foreman was selected and the other eleven grand jurors were drawn. That statement was accurate and we adhere to it.

(2) Appellee urges that: "Mr. Arceneaux did not testify that the 20 names selected for the Grand Jury Venire were in addition to the General Venire of 300." In the opinion we quoted at length from the testimony of Mr. Arceneaux, including the following:

"A. That grand jury was not picked out of that original group of three hundred.

"Q. It was not?

"A. No.

"Q. How was that —

"A. The grand jury is picked by names in the additions to the three hundred.

"Q. In additions to the three hundred?

"A. Correct."

"Q. Now, as I understand it, when you prepare the grand jury you don\'t look in the box of three hundred and select out twenty names? You simply get together and you all select twenty names, period, and put them on there. Is that right?

"A. That\'s correct." 329 F.2d at 102, 103.

Appellee insists that "instead the grand jury venire was taken from those names added to the 1958 list, which 1958 list had been depleted because of the removal of those names drawn or selected for the various juries drawn since 1958." While we think that our statement was accurate, we will accept the appellee's version. The difference is immaterial for the reasons stated in our opinion, as follows:

"* * * even if the list of twenty had been selected from the general venire list, it would nonetheless remain true that six Negroes were purposely included in that list of twenty because of the fact that they were Negroes; that the identities of the six Negroes so included were known to the jury commissioners; that they knew also that the grand jury to be chosen from that list of twenty was to consider whether to return an indictment against Collins, and that no other case was scheduled to be considered by that grand jury." 329 F.2d at 104.

(3) Appellee urges: "At page 10 of the March 11th opinion, it is stated that Collins was indicted for aggravated kidnapping. The only suggested source of this finding is in appellant's brief, for Collins was not indicted for aggravated kidnapping." The order of the State Court appointing counsel to represent Collins stated that he was "* * * charged with the crimes of aggravated rape, aggravated kidnapping, and attempted murder by warrants signed by this Court * * *." (R. p. 29.) He was not, however, indicted for aggravated kidnapping, but was indicted for aggravated rape and attempted murder (R. p. 5). This correction, though immaterial, is made for the sake of accuracy.

In the list of twenty from which the foreman was selected and the other eleven grand jurors drawn, six Negroes were purposefully included because they were Negroes. The other fourteen on the list of twenty were white persons. In such an organization of the grand jury, there was discrimination against Collins because of his race or color and he was deprived of the equal protection guaranteed by the Fourteenth Amendment. Cassell v. Texas, 1950, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839; Akins v. Texas, 1945, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692; Hill v. Texas, 1942, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559. That was the extent of our holding. Collins v. Walker, 5 Cir. 1964, 329 F.2d 100, 105.

Except for numbers, the grand jury was organized according to a system remarkably like that considered in Hill, Akins and Cassell, supra. As said in Cassell, "Acting under the Texas statutes, the Dallas County grand-jury commissioners chose a list of sixteen males for this September 1947 grand jury from citizens eligible under the statute. The judge chose twelve of these for the panel. No challenge is now made to the fairness of this statutory system. We have approved it." 339 U.S. at 283, 284, 70 S.Ct. at 630. As further observed in Cassell, the grand-jury commissioners for 21 consecutive lists subsequent to the Hill case had limited Negroes in the list of 16 selected for grand jury service to not more than 1 on each grand jury. 339 U.S. at 285, 286, 70 S.Ct. 629. Mr. Justice Reed said that, "If, notwithstanding this caution by the trial court judges, commissioners should limit proportionally the number of Negroes selected for grand-jury service, such limitation would violate our Constitution. Jurymen should be selected as individuals, on the basis of individual qualifications, and not as members of a race." 339 U.S. 286, 70 S.Ct. 631. "* * * the Constitution requires only a fair jury selected without regard to race. Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible." 339 U.S. 286, 287, 70 S.Ct. 631-632. "Proportional racial limitation is therefore forbidden. An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race." 339 U.S. 287, 70 S.Ct. at 632. Chief Justice Vinson and Justices Black and Clark concurred in the opinion of Mr. Justice Reed. Justices Burton and Minton concurred in the opinion of Mr. Justice Frankfurter, who said: "It (the Constitution) does command that no State purposefully make jury service turn on color." 339 U.S. 291, 70 S.Ct. 634. "The basis of selection cannot consciously take color into account." 339 U.S. 295, 70 S.Ct. 636. Mr. Justice Clark, also concurring, recognized the holding that there must be no "purposeful systematic limitation of the number of Negroes on grand juries," 339 U.S. 296, 70 S.Ct. 636; and "that representation on the grand jury by race in proportion to population is not permissible for there must be `neither inclusion nor exclusion because of race.'" 339 U.S. 298, 70 S.Ct. 637. Mr. Justice Jackson dissented on the ground that the defendant had not been harmed by the method of selection of the grand jury. 339 U.S. 305, 70 S.Ct. 629.

The main difference between this Collins case and the Cassell case is that in Cassell one Negro was purposefully placed on the list of sixteen from which the grand jury was selected, while in Collins six Negroes were purposefully placed on the list of twenty from which the grand jury was selected. In both instances, the basis of selection was race. That is the fatal defect.

The appellee's most serious apprehensions relate to the effect of our holding on the "general venire list" of three hundred persons. LSA-R.S. 15:- 179. We recognized (see 329 F.2d 105) the affirmative constitutional duty resting upon the jury commissioners "* * not to pursue a course of conduct in the administration of their office which would operate to discriminate in the selection of jurors on racial grounds. Discrimination can arise from the action of commissioners who exclude all negroes whom they do not know to be qualified and who neither know nor seek to learn whether there are in fact any qualified to serve. In such a case discrimination necessarily results where there are qualified negroes available for jury service." Hill v. Texas, supra, 316 U.S. at 404, 62 S.Ct. at 1161, followed in Avery v. Georgia, 1953, 345 U.S. 559, 561, 73 S.Ct. 891, 97 L.Ed. 1244. We further recognize that "our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty." Brown v. Allen, 1953, 344 U.S. 443, 474, 73 S.Ct. 397, 416, 97 L.Ed. 469. Further, in United States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F.2d 53, 67, we stated that "very decided variations in proportions of Negroes and whites on jury lists from racial proportions in the population, which variations are not explained and are long continued, furnish sufficient evidence of systematic exclusion of Negroes from jury service. Brown v. Allen, 1953, 344 U.S. 443, 471, 73 S.Ct. 397, 97 L.Ed. 469." Thus it may be that the "general venire list" of three hundred persons is required to reflect a suitable cross-section of the population, and that the jury commissioners have an affirmative duty to include qualified Negroes in that list. If such a requirement and...