Ford v. Hollowell

• Decision Date: 05 December 1974
• Docket Number: No. WC 73-41-K.,WC 73-41-K.
• Citation: 385 F. Supp. 1392
• Parties: R. B. (Bud) FORD, Petitioner, v. W. I. HOLLOWELL, acting Superintendent, Mississippi State Penitentiary, Respondent.
• Court: U.S. District Court — Northern District of Mississippi

385 F. Supp. 1392

R. B. (Bud) FORD, Petitioner, v. W. I. HOLLOWELL, acting Superintendent, Mississippi State Penitentiary, Respondent.

No. WC 73-41-K.

United States District Court, N. D. Mississippi, W. D.

December 5, 1974.

COPYRIGHT MATERIAL OMITTED

Rex F. Sanderson, Houston, Miss., for petitioner.

Timmie Hancock, Asst. Atty. Gen., Jackson, Miss., for respondent.

MEMORANDUM OPINION

KEADY, Chief Judge.

At the September 1968 term of the Calhoun County, Mississippi, Circuit Court, R. B. (Bud) Ford was tried for the murder of his wife, Virgie Ford, convicted of the lesser included offense of manslaughter, and sentenced to a term of 20 years in the Mississippi State Penitentiary. Prior to trial, Ford moved to quash the indictment against him, alleging that members of his race, i. e. Negro, had been systematically excluded from the grand jury which indicted him. This motion was denied by the trial court. Upon his conviction, Ford prosecuted an appeal to the Supreme Court of Mississippi, again protesting that the indictment returned against him was void owing to racial discrimination in the selection of the grand jury. The only factual support offered on this issue in the appeal to the state appellate court was a showing that although the county population was approximately 35% black, "there were no Negroes on the 75 person venire from which the grand jury was selected that returned the indictment against him. . . . Appellant made no effort to show that there had been long continued practice of omission of Negroes from jury service in this county." Ford v. State, 227 So.2d 454, 456 (Miss.1969). Noting that exclusion on account of race cannot be established solely on evidence of an absence of blacks on a particular grand or petit jury, the state supreme court affirmed the conviction.

Now Ford has initiated this habeas corpus proceeding¹ under 28 U.S.C. § 2241 et seq., renewing his contention that his conviction was invalid because based on an indictment rendered by a grand jury from which blacks were systematically excluded. Other issues here raised by the petitioner were disposed of by this court in a Memorandum Order of October 12, 1973. Pursuant to that order, counsel was appointed for petitioner and a report was submitted by the United States Magistrate after a preliminary hearing. On December 3, 1974, the court conducted an evidentiary hearing to determine whether racial discrimination by the State of Mississippi or its official agents did systematically exclude blacks from petitioner's grand jury and thus deny Ford his Fourteenth Amendment rights.

At the hearing, highly significant facts were adduced by stipulations of counsel and oral testimony. The present record thus presents a far different picture than that heretofore portrayed in the state courts.

In 1960, the adult male population of Calhoun County consisted of 3,486 whites (80.49%) and 845 blacks (19.51%).² By 1970, this racial composition had altered only minutely, with 3,413 adult white males (81.28%) and 786 (18.72%) adult black males residing in the county. In 1968, the year in which petitioner was tried, the adult male population was composed of 3,427 whites (81.11%) and 798 blacks (18.89%).

In sharp contrast is the racial composition of jurors during that period. From 1960 through 1968, 1520 citizens were summoned as veniremen for jury duty in the circuit court. Of that number only 62, or 4.08%, were black. Prior to September 1964, no blacks served as jurors in the county. From 1965 through the term of petitioner's trial in 1968, blacks comprised 7.14% of the circuit court veniremen. No master jury lists for Calhoun County are available for the years 1960-66. However, the master lists, from which the veniremen are selected, contained in 1967 and 1968 the names of 13 blacks, or only 2.47% of all citizens on the master jury lists for those years. These consistent and serious disparities may be explained once Calhoun County's jury selection procedure is understood. In 1968 and prior years, the names of citizens selected for jury duty were taken exclusively from the rolls of registered voters.

According to the testimony of the county officials, the names of prospective jurors were annually culled from the voter registration lists in a three-step process. First, the circuit clerk chose every eighth name appearing on the alphabetized voter registration rolls. Only where a person selected was recognizable to the clerk as one who, for some reason, could not serve would this procedure be varied; in that case, the person thought to be exempt was passed over and the next succeeding name selected. The process, which was applicable to each supervisor's district, would then continue on to the next eighth name. The circuit clerk stated that the registration records contained no indication of the race of the voters and that personal or racial considerations played no part in this initial stage of selection. Secondly, the circuit clerk transmitted the completed list of 250 to 300 names thus selected from each district to the county board of supervisors, who then picked names from the list. The supervisors' selections in each district appear to have been accomplished by a random method, with the personal discretion of a supervisor being exercised where the random process might reveal the name of one who was known to the board as a person who would not or could not serve. By this method, the list was reduced to about 100 names for each district. The revised list, known as the master jury list, was then returned to the circuit clerk, who placed the names contained on the list into jury boxes. Finally, approximately 10 days prior to the beginning of a court term, the sheriff, chancery clerk, and circuit clerk met and drew blindly from the boxes the names of prospective jurors or veniremen, in the numbers directed by the circuit judge.

Although the stated procedure left room for subjective and potentially discriminatory judgments by county officials, we find no evidence of racial discrimination in the selection of names by the officials. It is clear that the underrepresentation of blacks on Calhoun County juries at the time of petitioner's conviction was due, not to any subjective conduct or bad faith by individual officials, but to a fatal weakness in the selection vehicle itself. The parties agree that, in 1968, black males registered to vote constituted only .5% to 1.5% of the total male voting population of the county. Thus, at every stage of the jury selection process, blacks were spectacularly underrepresented in the universe of potential jurors. Given this imbalance in the selection vehicle, a statistically flawless random selection of the type described by the county officials would have resulted in a master jury list approximately 1% black — not far from the actual 2.47% figure present on the 1967-68 master list.

Both sides presented the court with evidence relating to the reasons why adult black males, who constituted almost 19% of the county's 1968 population, made up no more than 1% of the registered voters. The circuit clerk testified without contradiction that after the passage of the Voting Rights Act of 1965, blacks suffered no official impediment in voter registration. Black citizens testified, however, that the general feeling within the black community, even after 1965, was one of continuing fear and apprehension by blacks in attempting to register to vote. They stated that accordingly small success was achieved in the 1965-68 era in organized efforts in Calhoun County to get blacks to register. These feelings of repression, engendered from past racial discrimination, were reinforced by various contemporaneous incidents, such as the night burning of two Negro churches and several cross-burnings on a single night, in the courthouse yard at Pittsboro, in the town square at Calhoun City, and at Bruce and elsewhere. Also, there were several incidents of shooting into houses. Knowledge of these events spread throughout the black community, which requested FBI agents to join local officers in investigations. Although never solved, the incidents were commonly regarded as harassments of blacks who sent their children to the formerly all-white public schools or who engaged in voter registration or other civil rights activity. The court finds from this evidence that the failure of black males to register in greater numbers was due, not to disinterest in government affairs, but to their fear, anxiety, and apprehension for safety. The credible testimony is that blacks were eager to register and vote, but were deterred by what they reasonably perceived to be acts of hostility and intimidation. The lack of black voter registration, after the passage of the Voting Rights Act of 1965, may not be ascribed in any manner to official discrimination, intimidation or coercion. Nevertheless, the extent of black underrepresentation on the registration rolls, in relation to the adult male population, was known to, or readily ascertainable by, the county officials when they compiled the master jury lists in the 1960-68 period.

Two issues are presented for resolution. First, has petitioner sufficiently exhausted his state remedies so that consideration of federal habeas corpus relief is now appropriate? Second, if exhaustion has occurred, do the facts reveal an unrebutted prima facie case of racial discrimination in jury selection sufficient to justify setting aside petitioner's conviction?

Federal habeas relief may not be granted to overturn a state criminal conviction until the petitioner has exhausted available state remedies. 28 U. S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). It is equally fundamental that where, as here, the petitioner has presented his federal claim both to the trial court which convicted him, and again to the highest state appellate court on direct appeal from his conviction, state remedies have been...