Davis v. Davis

Citation361 F.2d 770
Decision Date31 May 1966
Docket NumberNo. 21976.,21976.
PartiesEdward DAVIS, Appellant, v. The Honorable James H. DAVIS, Governor of the State of Louisiana, et al., Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

361 F.2d 770 (1966)

Edward DAVIS, Appellant,
The Honorable James H. DAVIS, Governor of the State of Louisiana, et al., Appellees.

No. 21976.

United States Court of Appeals Fifth Circuit.

May 31, 1966.

361 F.2d 771

Bruce C. Waltzer, Adolph J. Levy, New Orleans, La., for appellant.

Jack P. F. Gremillion, Atty. Gen. of Louisiana, Teddy W. Airhart, Jr., Asst. Atty. Gen., Baton Rouge, La., Bertrand DeBlanc, Dist. Atty., Fifteenth Judicial District of Louisiana, for appellees.

John Doar, Asst. Atty. Gen., David L. Norman, Alan G. Marer, Attys., Dept. of Justice, Washington, D. C., for the United States as amicus curiæ.

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

THORNBERRY, Circuit Judge:

This is an appeal from the United States District Court for the Eastern District of Louisiana, where appellant's petition for writ of habeas corpus was denied after a hearing. The case was heard by this Court en banc, together with several other cases, because all of the cases contained the common issue of alleged discrimination in the selection of grand and/or petit juries.1

In the early morning hours of May 4, 1959, appellant, a Negro, was arrested by State authorities for the murder on the previous evening of a white police officer in the City of Crowley, Louisiana. A confession was obtained from appellant on the day of his arrest. Appellant was subsequently indicted by an Acadia Parish grand jury for murder in the first degree, and was tried, convicted and sentenced to be executed. His conviction and sentence were affirmed on appeal by the Supreme Court of Louisiana. State of Louisiana v. Davis, 1961, 241 La. 974, 132 So.2d 866.

Appellant's first application for a writ of habeas corpus was denied by the 20th Judicial District Court of the Parish of West Feliciana on August 30, 1963. He then asked the Supreme Court of Louisiana to issue the writ, but his request was denied on September 4, 1963. State ex rel. Davis v. Davis, 1963, 244 La. 1008, 156 So.2d 222. On the following day application was made to the United States District Court for writ of habeas corpus. The questions presented to the District Court and which are before this Court on appeal are the following: (1) Whether there was a systematic exclusion or a token systematic inclusion of Negroes in the selection of grand and petit juries; and (2) whether appellant's confession was taken under circumstances which rendered it involuntary or which otherwise constituted a deprivation of appellant's constitutional rights.

Both of the above questions were decided adversely to appellant below. Each will be considered separately in this opinion.


Discrimination in the Selection of Grand and Petit Juries

The applicable Louisiana law governing the qualifications for and the selection of grand and petit jurors is discussed fully in the case of Scott v. Walker, 5th Cir. 1966, 358 F.2d 561 (also considered by this Court en banc), and will not be repeated here in detail. Briefly summarized, the method of selecting grand and petit jurors is as follows: Five jury commissioners are required to select 300 persons from the parish who are qualified to serve as jurors. A list of these 300 names (known as the "general venire list") is then made by the clerk of the district court.2 From the

361 F.2d 772
general venire list, the jury commissioners select the names of 20 citizens from different portions of the parish, "who shall be subject to duty as grand jurors during the term of six months after the grand jury is impaneled and until a succeeding grand jury shall have been impaneled." The names of the persons so selected are placed in a sealed envelope upon which is written the words, "List of Grand Jurors."3 After the selection of the list of grand jurors, the commission then draws one or more panels of thirty persons from the remaining names in the "general venire box." These panels of thirty are used in the selection of petit juries in the parish.4 Louisiana law also provides for the supplementing of the original general venire list at six-month intervals, to replace those persons on the original list who have served, have died or become exempt or disqualified, or who have moved from the parish.5

We shall consider first appellant's contention that Negroes were systematically excluded from petit jury service. The evidence with regard to the jury selection process in this case dealt only with the years 1958 and 1959. While the record does not contain a list of the names making up the original general venire list, it does show that during these two years there were four supplemental venire lists compiled (containing a total of 502 names). From the general venire list, as supplemented by the four supplemental venire lists, eleven thirty-member petit jury panels were drawn (330 persons).

According to the 1960 Census, Negroes comprised approximately 20% of the total population of Acadia Parish, Louisiana, Negro males represented about 20% of the total male population in the parish, and Negro males of age 21 and over made up about 16% of all males in Acadia Parish in that age group.6

Although these data show that Negroes were an identifiable group in Acadia Parish, the five jury commissioners were unable to find a single Negro on any of the eleven petit jury lists of thirty persons each. Furthermore, of the 502 names submitted over the two-year period by the commissioners to supplement the general venire list, the commissioners were able to identify only nine Negroes, or less than 1.8%.

Thus, we are faced with a significant discrepancy between the proportion of Negroes in the parish and the number of Negroes subject to selection from the general venire lists as petit jurors. The record contains more, however, than this discrepancy in percentages; it contains admissions by several of the jury commissioners which establish that the most probable reason for the discrepancy was a constitutionally defective method of selecting prospective jurors by the commissioners.

For example, Commissioner Johnson (in charge of the first ward, which is 25% Negro) admitted that he did not know many Negroes and that there were "a lot" of Negroes who were probably qualified for jury service whom he did not know, but "I don't go check them to see." He also stated that he knew only about 5% of the Negroes in his ward. Likewise, Commissioner Myers stated that he knew very few Negroes in his ward living outside his own town. Commissioner Daigle (in charge of the second and third wards, which are 20% Negro) testified that he used voter registration records primarily in picking names to be submitted for jury service. He further testified that almost all Negroes in his wards are qualified to vote and are registered

361 F.2d 773
voters. Yet, out of a total of 117 names submitted by Commissioner Daigle for the four supplemental venire lists, he was able to identify only one name as that of a Negro person

While the courts have repeatedly held that no defendant is entitled to a proportionate number of his race or class on the particular petit jury that tries him, the grand jury that indicts him, or the venire from which the jurors are chosen, see Swain v. State of Alabama, 1965, 380 U.S. 202, 208, 85 S.Ct. 824, 829, 13 L.Ed.2d 759, and cases cited therein, the law is well established that the type of selection procedure employed by the commissioners in this case cannot be excused. The frequently quoted language from Cassell v. State of Texas, 1950, 339 U.S. 282, 289, 70 S.Ct. 629, 633, 94 L.Ed. 839, is particularly applicable here:

"When the commissioners were appointed as judicial administrative officials, it was their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color. They did not do so here, and the result has been racial discrimination. We repeat the recent statement of Chief Justice Stone in Hill v. State of Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559: `Discrimination can arise from

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    ...sentence of death for rape, charged that Negroes were excluded from petit juries in Livingston Parish. In Davis v. Davis, 5 Cir. 1966, 361 F.2d 770, a Negro, under sentence of death for the murder of a white police officer, charged that Negroes were excluded from the jury system in Acadia P......
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