Grigsby v. Mabry, No. PB-C-78-32

CourtUnited States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
Writing for the CourtWilliam R. Wilson, Jr., Little Rock, Ark., for petitioner
Citation583 F. Supp. 629
PartiesJames 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.
Decision Date18 August 1983
Docket NumberPB-C-81-2 and PB-C-80-429.,No. PB-C-78-32

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

583 F. Supp. 630
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

583 F. Supp. 631
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...

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4 practice notes
  • McCray v. Abrams, No. 1272
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 4, 1984
    ...accord State v. Neil, 457 So.2d 481 at 485-486 (Fla.1984). 5 See Grigsby v. Mabry, 569 F.Supp. 1273, 1285-86 (E.D.Ark.), stay granted, 583 F.Supp. 629 (E.D.Ark.1983); State v. Neil, 457 So.2d at 486; People v. Wheeler, 148 Cal.Rptr. at 903-04, 583 P.2d at 761-62; Commonwealth v. Soares, 387......
  • Grigsby v. Mabry, No. 83-2113
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 18, 1985
    ...guilt, and second, assuming guilt, as to punishment. Grigsby v. Mabry, 569 F.Supp. 1273, 1321 Page 229 -23 (E.D.Ark.1983). Stay granted 583 F.Supp. 629 Based on the overall exhaustive record, we find substantial evidentiary support for the district court's findings. We find that substantial......
  • National Fire & Marine Ins. Co. v. Picazio, Civ. No. H-83-100.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 23, 1984
    ...National Fire and Marine's motion to amend the previous ruling in this case, requesting that the Court exclude it from any obligation to 583 F. Supp. 629 defend under Count 6 of the amended complaint; and hereby finds that National Fire and Marine does have a legal obligation to defend the ......
  • Pitts v. Lockhart, No. 83-2433-EA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 31, 1985
    ...impartial jury. This view was reiterated in another opinion on August 18, 1983, when the court in Grigsby granted a stay pending appeal. 583 F.Supp. 629 (E.D.Ark. August 18, Upon issuance of the Grigsby opinions, the district court in the present case considered the one issue it had reserve......
4 cases
  • McCray v. Abrams, No. 1272
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 4, 1984
    ...accord State v. Neil, 457 So.2d 481 at 485-486 (Fla.1984). 5 See Grigsby v. Mabry, 569 F.Supp. 1273, 1285-86 (E.D.Ark.), stay granted, 583 F.Supp. 629 (E.D.Ark.1983); State v. Neil, 457 So.2d at 486; People v. Wheeler, 148 Cal.Rptr. at 903-04, 583 P.2d at 761-62; Commonwealth v. Soares, 387......
  • Grigsby v. Mabry, No. 83-2113
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • March 18, 1985
    ...guilt, and second, assuming guilt, as to punishment. Grigsby v. Mabry, 569 F.Supp. 1273, 1321 Page 229 -23 (E.D.Ark.1983). Stay granted 583 F.Supp. 629 Based on the overall exhaustive record, we find substantial evidentiary support for the district court's findings. We find that substantial......
  • National Fire & Marine Ins. Co. v. Picazio, Civ. No. H-83-100.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 23, 1984
    ...National Fire and Marine's motion to amend the previous ruling in this case, requesting that the Court exclude it from any obligation to 583 F. Supp. 629 defend under Count 6 of the amended complaint; and hereby finds that National Fire and Marine does have a legal obligation to defend the ......
  • Pitts v. Lockhart, No. 83-2433-EA
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • January 31, 1985
    ...impartial jury. This view was reiterated in another opinion on August 18, 1983, when the court in Grigsby granted a stay pending appeal. 583 F.Supp. 629 (E.D.Ark. August 18, Upon issuance of the Grigsby opinions, the district court in the present case considered the one issue it had reserve......

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