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

• Decision Date: 18 August 1983
• Docket Number: PB-C-81-2 and PB-C-80-429.,No. PB-C-78-32,PB-C-78-32
• Citation: 583 F. Supp. 629
• Parties: James T. GRIGSBY, Petitioner, v. James MABRY, Commissioner, Arkansas Department of Correction, Respondent. Dewayne HULSEY, Petitioner, v. Willis SARGENT, Superintendent of the Cummins Unit Penitentiary, Grady, Arkansas, Respondent. Ardia MCCREE, Petitioner, v. Vernon HOUSEWRIGHT, Director, Arkansas Department of Correction, Respondent.
• Court: U.S. District Court — Eastern District of Arkansas

583 F. Supp. 629

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

Dewayne HULSEY, Petitioner, v. Willis SARGENT, Superintendent of the Cummins Unit Penitentiary, Grady, Arkansas, Respondent.

Ardia MCCREE, Petitioner, v. Vernon HOUSEWRIGHT, Director, Arkansas Department of Correction, Respondent.

Nos. PB-C-78-32, PB-C-81-2 and PB-C-80-429.

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

August 18, 1983.

William R. Wilson, Jr., Little Rock, Ark., for petitioner.

Victra Fewell, Deputy Atty. Gen., Little Rock, Ark., for respondent.

MEMORANDUM OPINION AND ORDER

EISELE, Chief Judge.

Pending before the Court is the Respondents' "Motion for Stay Pending Appeal."

The merits of the death qualification issues appear clear enough.¹ Before elaborate and exhaustive attention is given to one of the possible penalties, death, the focus should be upon fairly determining if the defendant in a capital case is or is not guilty.² If, but only if, he is found guilty may broad attention be turned to the selection of jurors who can, fairly to the state and the defendant, consider all penalties (including the penalty of death) prescribed by the State law. Such propositions appear, as a matter of constitutional law, almost self-evident.

The serious and difficult problem arises because of the potential consequences of the Court's ruling. The United States Supreme Court itself may have considered the potential wrenching consequences when it failed to adopt a per se rule in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, back in 1968. By its ruling in that case it invited further study. Although the results of such studies are in, and are overwhelming in the direction of their thrust and in their consistency, this Court now believes they were unnecessary. The Supreme Court should, it is respectfully suggested, have relied upon traditional legal analysis, rather than social science and empirical studies, in adopting a per se rule back in 1968 consistent with established constitutional principles. There is no good or convenient time to correct a broadly-followed unconstitutional practice. Fifteen years after Witherspoon, however, the issues can no longer be avoided despite the turmoil which may result from the delay in coming to grips with those issues.

While, as stated, the merits appear clear to the Court, the State is correct in noting that no other court has yet held death qualification under Witherspoon standards unconstitutional. So very serious and fundamental issues will be presented to the appellate courts by virtue of the State's appeal. And, of course, the outcome cannot be predicted with any degree of assurance.

The remedy creates the larger problems. If the ruling could be applied only prospectively there would be few problems. But, because the death qualification procedure contaminates the fact-finding function of the jury charged with deciding the guilt-innocence of the defendants in capital cases, the obvious remedy according to traditional constitutional notions is a new trial. This is the remedy this Court, after long consideration and much hesitation, felt compelled to order. But the Eighth Circuit in its Grigsby decision made a point about the appropriate remedy that suggests its great concern also. Of course this Court has held in Hulsey v. Sargent, 550 F.Supp. 179 (E.D.Ark.1981), that the death qualification issues may not be considered unless raised before the trial in State court.³ If its Hulsey ruling is upheld then that will greatly reduce the number of persons who may ask for a new trial on this ground. Still, it is likely that many defendants, particularly those tried in the last five years, may have challenged the death qualification procedures during their trials in state court. So, it is likely that many may be in a position to raise the issue. However, higher courts might, even if they affirm this court's rulings on the underlying issues,—a proposition which the State contends is most questionable—decide to give such rulings only a prospective effect. Such a decision would dramatically reduce the problems facing the states, leaving the relatively simple problem of adopting procedures which will permit the states in future trials to provide for the death qualification of those "penalty" juries which are asked by the State to impose the death penalty.⁴

Because of the great State interest in ascertaining what procedures will ultimately be required and because of the great number of potential habeas petitions which could result from, or be affected by, the court's rulings, this Court will grant the State's petition for a stay pending appeal. The State is entitled to adequate time to obtain appellate review unhampered by the necessity of dealing with the problems incident to the possibility of new trials.

The Court's order does not deprive Mr. McCree of any legally compelling cognizable right to be released on bond pending his new trial. The Arkansas Constitution provides that all "all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great." Art. 2, § 8. It is clear that Mr. McCree's prior conviction for the capital offense would satisfy the state constitutional requirement that the "proof is evident" or that the "presumption is great." Furthermore, the relevant provisions of the Federal rules grant this Court the discretion to deny a petitioner his release pending an appeal of a decision granting his petition for a writ of habeas corpus. Rule 23(c) of the Federal Rules of Appellate Procedure provides that: "Pending review of a decision ordering the release of a prisoner in such a proceeding, the prisoner shall be enlarged upon his recognizance, with or without surety, unless the court ... shall otherwise order." For the reasons expressed in this memorandum, the Court in the exercise of its discretion is, consistent with Arkansas law, ordering "otherwise."

It is therefore ordered that respondents' "Motion for Stay Pending Appeal" be, and it is hereby, granted. Respondents are hereby ordered to retry or to free Mr....