Grigsby v. Mabry, PB-C-78-32.

• Citation: 483 F. Supp. 1372
• Decision Date: 07 March 1980
• Docket Number: No. PB-C-78-32.,PB-C-78-32.
• Parties: James T. GRIGSBY, Petitioner, v. James MABRY, Commissioner, Arkansas Department of Correction, Respondent.
• Court: United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas

483 F. Supp. 1372

James T. GRIGSBY, Petitioner, v. James MABRY, Commissioner, Arkansas Department of Correction, Respondent.

No. PB-C-78-32.

United States District Court, E. D. Arkansas, Pine Bluff Division.

January 28, 1980.

Motion To Reconsider and Amend Judgment Granted March 7, 1980.

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William R. Wilson, Jr. and Thomas M. Carpenter, Little Rock, Ark., for petitioner.

Ray E. Hartenstein, Darrell F. Brown, Asst. Attys. Gen., State of Ark., Little Rock, Ark., for respondent.

MEMORANDUM AND ORDER

EISELE, Chief Judge.

James Grigsby filed a petition for writ of habeas corpus on March 15, 1978, setting forth seven different grounds challenging the validity of his state court conviction.¹ On March 7, 1979, relief on the first six grounds was denied, judgment on the seventh ground was reserved, counsel was appointed for the defendant and the attorneys for both parties were directed to brief the issues. An evidentiary hearing was scheduled for, and held on, May 16, 1979, to determine whether the state trial court abused its discretion when it refused a continuance sought by Grigsby for the purpose of developing evidence to show that a "death qualified" jury is a guilt prone jury and is also not a representative jury and thus denies to the defendant due process and his Sixth Amendment right to an impartial and properly constituted jury.² The Court then took the case under advisement.

Grigsby, who is in custody in the Arkansas Department of Correction, was convicted in Franklin County of capital felony murder, a crime which is punishable by death or life imprisonment. Four days before the state court trial, his appointed counsel filed several motions, including one asking for a ruling that potential jurors opposed to capital punishment not be excluded for cause during the guilt-determination phase of the trial; a motion for payment of witness fees; and a motion for continuance so that the evidence to support defendant's allegation that a death qualified jury is guilt prone could be developed. Counsel proposed in the last motion to bring Dr. F. J. Goldberg and Dr. Daniel Taub to support the defendant's position. On September 15, 1975, these motions were denied, the Court stating that Franklin County was not obligated to pay the witnesses' expenses.

Trial began on September 19, 1976. Thirty-eight potential jurors were examined on voir dire.³ Nine were excused for cause by the Court—three on Witherspoon grounds.⁴ Eight were challenged by the State and seven by the defense. The jury returned a guilty verdict (after over 12 hours of deliberations during which they returned to ask questions and on one occasion to report "deadlocked"). Thereupon the State waived the death penalty. Grigsby was sentenced to life in prison without parole.

On appeal, the conviction and sentence were affirmed by the Supreme Court of Arkansas. Although there the petitioner did raise the issue now before this Court, the Arkansas Supreme Court dealt with it in one line, relying upon its prior decision in Venable v. State, 260 Ark. 201, 538 S.W.2d 286 (1976). Grigsby then sought post-conviction relief pursuant to Rule 37; an evidentiary hearing was held; and the Franklin Circuit Court denied the motion. He has thus exhausted his state remedies.

The question first presented here is whether the state trial court, if it had granted the continuance and held the requested hearing, must have, or could have, on the basis of the evidence then available, found that a death qualified jury is not representative, or is not impartial, as guaranteed by the Sixth and Fourteenth Amendments. If the answer is in the affirmative on either issue, additional questions arise.

I.

The Sixth Amendment guarantees, made applicable to the states in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), include the right to be tried by a jury drawn from all segments of the community,⁵ in order to serve the historic jury function, as stated in Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), of serving as a link between the contemporary values of the total community and the penal system.

In Taylor v. Louisiana, 419 U.S. 522, 527, 530, 95 S.Ct. 692, 696, 697, 42 L.Ed.2d 690 (1974), the Supreme Court explained:

"The Court has unambiguously declared that the American concept of the jury trial contemplates a jury drawn from a fair cross section of the community.

* * * * * *

"We accept the fair cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has a solid foundation. . . . This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool."

The Taylor Court, in considering the exclusion of women from jury service, strongly implied that the defendant need not show specific prejudice from any exclusion of a distinct group, for such an exclusion "deprived him of the kind of factfinder to which he was constitutionally entitled." (Emphasis supplied.) Taylor, supra at 526, 95 S.Ct. at 696.

The dissenting opinion of Justice Douglas in Witherspoon speaks directly to this issue. He states at 524, 95 S.Ct. at 1778:

"The constitutional question is whether the jury must be `impartially drawn from a cross-section of the community,' or whether it can be drawn with systematic and intentional exclusion of some qualified groups to use Mr. Justice Murphy's words in his dissent in Fay v. New York, 332 U.S. 261, 296 , 67 S.Ct. 1613, 91 L.Ed.2d 2043.

"Fay v. New York, which involved a conviction of union leaders for extortion, was the `blue ribbon' jury case in which the jury was weighted in favor of propertied people more likely to convict for certain kinds of crimes. The decision was 5-4, Mr. Justice Murphy speaking for Mr. Justice Black, Mr. Justice Rutledge, and myself:

"`There is no constitutional right to a jury drawn from a group of uneducated and unintelligent persons. Nor is there any right to a jury chosen solely from those at the lower end of the economic and social scale. But there is a constitutional right to a jury drawn from a group which represents a cross-section of the community. And a cross-section of the community includes persons with varying degrees of training and intelligence and with varying economic and social positions. Under our Constitution, the jury is not to be made the representative of the most intelligent, the most wealthy or the most successful, nor of the least intelligent, the least wealthy or the least successful. It is a democratic institution representative of all qualified classes of people.' Id., at 299-300 , 67 S.Ct. 1613.

"The idea that a jury should be `impartially drawn from a cross-section of the community' certainly should not mean a selection of only those with a predisposition to impose the severest sentence or with a predisposition to impose the least one that is possible'"

and, at 528, 95 S.Ct. at 1780:

"I see no constitutional basis for excluding those who are so opposed to capital punishment that they would never inflict it on a defendant. Exclusion of them means the selection of jurors who are either protagonists of the death penalty or neutral concerning it. That results in a systematic exclusion of qualified groups, and the deprivation to the accused of a cross-section of the community for decision on both his guilt and his punishment."

The cross-sectional, "representative" quality of a jury is a question apart from "guilt proneness" or "non-guilt proneness."⁶ The requirement that juries be drawn from a representative cross section of the community does not mean that any particular jury so drawn will in fact be a representative cross section of the community.⁷ But here people were excluded by the Court from the guilt determining phase of the trial because of their Witherspoon opposition to the death penalty. If the jurors so excluded were not to have anything to do with the imposition of the sentence, their opposition to the death penalty would not likely interfere in any way with their assessment of the defendant's guilt or innocence. If it could be shown that it would interfere, then, of course, they could be excused for cause. For instance, if a juror on voir dire stated that he could not find a person guilty even if the facts and law warranted it because of his knowledge that, upon a finding of guilt, someone else might impose the death penalty, then that juror could be excused for cause. Cf. Lockett v. Ohio, 438 U.S. 586, 596, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1977).

But in any event, the Court itself should not be the instrumentality which skews the representative nature of a jury by permitting the injection of considerations irrelevant to a "guilty" or "not guilty" determination. If the parties skew it by the use of their preemptories, they should not be heard to complain. Besides, it is assumed that these things even out. It is true, of course, that sometimes someone guesses wrong, and a jury may turn out to be more homogeneous than may be thought desirable.⁸ Still, the Court itself should have nothing to do with destroying the cross section.⁹

The jury which convicted Witherspoon of murder did not have anyone on it who had conscientious scruples against capital punishment or who simply opposed capital punishment because all of such persons had been removed upon challenges for cause under the Illinois statute. Mr. Justice Stewart noted in Witherspoon, supra, 391 U.S. footnote 16 at page 520, 88 S.Ct. 1770, that, in 1966, approximately 42% of the American public favored capital punishment for convicted murders, while 47% opposed it and 11% were undecided. Since the Illinois "for-cause" statute permitted challenges of anyone "opposed" to capital punishment, it must be surmised that Mr. Justice Stewart and the majority in Witherspoon...