Ford v. Seabold

• Decision Date: 16 May 1988
• Docket Number: No. 86-6275,86-6275
• Citation: Ford v. Seabold, 841 F.2d 677 (6th Cir. 1988)
• Parties: Louis M. Parker FORD, Petitioner-Appellant, v. Bill SEABOLD, Warden, Luther Luckett Correctional Complex, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 677

841 F.2d 677

Louis M. Parker FORD, Petitioner-Appellant, v. Bill SEABOLD, Warden, Luther Luckett Correctional Complex Respondent-Appellee.

No. 86-6275.

United States Court of Appeals Sixth Circuit.

Argued Oct. 8, 1987.

Decided March 7, 1988.

Rehearing and Rehearing En Banc Denied May 16, 1988.

Kevin M. McNally, argued, Asst. Public Advocate, M. Gail Robinson, Frankfort, Ky., for petitioner-appellant.

David L. Armstrong, Atty. Gen. of Kentucky, Frankfort, Ky., David A. Smith, argued, for respondent-appellee.

Before WELLFORD and GUY, Circuit Judges, and HARVEY, Senior District Judge. ^*

JAMES HARVEY, Senior District Judge.

Louis Ford appeals the decision of the district court denying his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254. For the reasons set forth below, the judgment of the district court is affirmed.

I.

Ford was convicted of capital murder in the beating and stabbing death of Suzanne Schick which occurred on September 11, 1980. At the time of the murder, Ford was an inmate at LaGrange Reformatory, but was housed in a dormitory in Frankfort and working as a "trusty" about the grounds of the capitol and the governor's mansion. Schick lived in an apartment directly across from the governor's mansion. Schick's body was discovered inside the hallway leading upstairs to her apartment. She had been stabbed repeatedly and her clothes had been torn away.

Ford was indicted by a grand jury in Franklin County, but because of the publicity surrounding Schick's murder, the venue was changed to Scott County. The jury found Ford guilty of murder, and Ford was sentenced to life imprisonment. His sentence was affirmed by the Kentucky Supreme Court. Ford v. Commonwealth, 665 S.W.2d 304 (1983), cert. denied, 469 U.S. 984, 105 S.Ct. 392, 83 L.Ed.2d 325 (1984). Ford then filed his petition for a writ of habeas corpus. The district court referred the petition to a United States Magistrate who recommended that the petition be denied. Ford filed timely objections to the magistrate's recommendation. The district court adopted the findings of fact and recommendation of the magistrate as the opinion of the court.

On appeal, Ford contends that his petition should be granted because: (1) his sixth amendment right was violated because the Scott County jury was selected from a pool in which women and young adults were underrepresented and college students excluded, and his sixth amendment and fourteenth amendment right of equal protection were violated because for over ten years an insufficient number of women and no young adults were appointed to serve as a jury commissioner in Scott County; (2) his fourteenth amendment due process and equal protection rights were violated because the Franklin County grand jury was selected from a pool in which women, young adults and nonwhites were underrepresented and Kentucky State University students excluded, and for twenty years an insufficient number of women and young adults and no nonwhites were appointed to serve as a jury commissioner in Franklin County; (3) his sixth amendment right to a fair trial and effective assistance of counsel and fourteenth amendment equal protection right were violated by the district court's refusal to order funds for employment of an expert to complete the jury challenges, order an evidentiary hearing, and permit the filing of Dr. Edgell's affidavit; (4) the evidence introduced at trial was constitutionally insufficient to support a murder conviction; (5) he was denied his fourteenth amendment due process right when the state's serologist wasted or permitted the deterioration of the blood on his tee shirt, threw out Schick's blood sample and was permitted to give a surprise expert opinion that skin found at the scene of the crime was Ford's; and (6) his sixth and fourteenth amendment rights to confrontation and due process were violated by the trial court's ruling that his counsel could not see the state serologist's handwritten notes or have his expert serologist present during the state serologist's testimony to assist him.

A.

1.

Ford first contends that the underrepresentation of women and "young adults" between the ages of 18 and 29 and exclusion of college students from the pool from which his jury was selected in Scott County denies his right, under the sixth amendment, to a petit jury selected from a fair cross-section of the community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). ¹

The Duren Court set forth the criteria necessary to establish a prima facie violation of the fair-cross-section requirement. The defendant must show "(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Id. at 364, 99 S.Ct. at 668. Even if a prima facie fair-cross-section violation has been established by the defendant, the government may overcome the right to a proper jury by proffering a significant state interest that manifestly and primarily advance "those aspects of the jury selection process, such as exemption criteria, that result in the disproportionate exclusion of a distinctive group." Id. at 367-68, 99 S.Ct. at 670.

With respect to the first part of the prima facie test, women undoubtedly are a distinctive group. Id. at 364, 99 S.Ct. at 668; Taylor v. Louisiana, 419 U.S. 522, 531, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975). Young adults and college students, however, do not comprise distinctive groups.

Although the Supreme Court has declined to define the term "distinctive group," Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 1765, 90 L.Ed.2d 137 (1986), several circuits have adopted the following three-prong test in determining whether young adults are a distinctive group under the sixth amendment: (1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as by race or sex); (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group's interests cannot be adequately represented if the group is excluded from the jury selection process. See, e.g., Barber v. Ponte, 772 F.2d 982 (1st Cir.1985) (en banc); Willis v. Zant, 720 F.2d 1212 (11th Cir.1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3546, 82 L.Ed.2d 849 (1984).

In Barber, the court concluded that "young adults," described as persons between the ages of 18 and 34, did not meet any of the three requirements because there was no clear line of delineation between those who were "young adults" and those who are not, and even if such a boundary could be identified, there would still remain "clear differences in the attitudes, values, ideas and experiences" among the members of such a group. Barber, 772 F.2d at 998-99. See also Anaya v. Hansen, 781 F.2d 1, 5 (1st Cir.1986). The court also rejected categorizing "young adults" as a distinctive group because it is not one of the groups that the Supreme Court has traditionally sought to protect from underrepresentation.

The Duren court used the concept of 'distinctive group' in a case where women were subjected to discrimination. It is fair to assume that the court wanted to give heightened scrutiny to groups needing special protection, not to all groups generally. There is nothing to indicate that it meant to take the further step of requiring jury venires to reflect mathematically precise cross sections of the communities from which they are selected. Yet if the age classification is adopted, surely blue-collar workers, yuppies, Rotarians, Eagle Scouts, and an endless variety of other classifications will be entitled to similar treatment. These are not the groups that the court has traditionally sought to protect from underrepresentation on jury venires.

Barber, 772 F.2d at 999 (citations omitted).

We agree with the First Circuit that it is impossible to clearly delineate the age boundaries of "young adults" and that such a group, therefore, cannot by definition be distinctive.

The only way to establish the present group, particularly in view of the absence of any scientific or expert evidence in this record, is by arbitrary fiat superimposed on intuition. Even assuming we can be flatly arbitrary, we cannot seriously say that a grouping whose contours are rationally unsupportable is "distinctive." Is not a "distinctive" group, by definition, one whose membership is reasonably set apart from others by clear lines of demarcation.

Id. at 998. The arbitrary selection of ages in determining who constitutes a "young adult" is evident from the disparity in the ages used by the defendant in Barber and by Ford in this case. In Barber, persons between 18 and 34 years old were considered young adults, whereas Ford defines a young adult as anyone between the ages of 18 and 29. ² We also agree that young adults are not a group traditionally protected by the Supreme Court and that if an age classification is adopted, the door would be opened to countless other "distinctive groups."

Finally, we note that each circuit that has considered the question has rejected the contention that young adults comprise a distinct group. See Barber, 772 F.2d at 1000; Cox v. Montgomery, 718 F.2d 1036, 1038 (11th Cir.1983); Davis v. Greer, 675 F.2d 141, 146 (7th Cir.), cert. denied, 459 U.S. 975, 103 S.Ct. 310, 74 L.Ed.2d 289 (1982); United States v. Potter, 552 F.2d 901, 905 (9th Cir.1977); United States v. Test, 550 F.2d 577, 591 (10th Cir.1976); United States v. Olson, 473 F.2d 686, 688 (8th Cir.), cert. denied, 412 U.S. 905, 93 S.Ct. 2291, 36 L.Ed.2d 970 (1973); United States v. DiTommaso, 405 F.2d 385, 391 (4th Cir.19...