Grigsby v. Mabry

Citation569 F. Supp. 1273
Decision Date05 August 1983
Docket NumberNo. PB-C-78-32,PB-C-81-2 and PB-C-80-429.,PB-C-78-32
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.
CourtU.S. District Court — Eastern District of Arkansas


James T. Grigsby, pro se.

Ardia V. McCree, pro se.

Matthew T. Horan, Fayetteville, Ark., for Dewayne Hulsey.

Victra L. Fewell, Joseph H. Purvis, Asst. Attys. Gen., Dennis R. Molock, James Cullum, Asst. Attys. Gen., Little Rock, Ark., for respondents.

William R. Wilson, Jr., Little Rock, Ark., Patrick T. Seaver, Los Angeles, Cal., Reed E. Hundt, Michael Chertoff, Washington, D.C., John Charles Boger, New York City, Sandra T. Berry, Little Rock, Ark., for petitioners.


EISELE, Chief Judge.

Pending before the Court are the habeas corpus petitions of James T. Grigsby, Dewayne Hulsey and Ardia McCree, who have been in the custody of the Arkansas Department of Correction since their convictions for capital murder. Each petitioner contends that his conviction must be set aside due to the exclusion for cause at the guilt determination phase of his trial of certain venirepersons who during voir dire professed adamant scruples against the death penalty. The Court concludes that the process, as used in these cases, of "death qualification" of prospective petit jurors suffers from two serious constitutional defects: first, it denies the accused a trial by a jury representative of a cross-section of the community; and second, it creates juries that are conviction-prone. The death-qualification process as practiced under Arkansas law, being unconstitutional, the writ must issue, but only in Mr. McCree's case for the reasons stated below.

I. Background: Prior Proceedings and Facts.

All three petitioners were convicted of capital murder. Mr. Grigsby was so convicted in Franklin County, Arkansas, in September 1976. Mr. Hulsey was convicted in Ouachita County, Arkansas, in November 1975. Mr. McCree was convicted in Ouachita County, Arkansas, in 1978.

After Mr. Grigsby's conviction, the State waived the death penalty, and he was sentenced to life in prison without parole. After Mr. Hulsey's conviction, a penalty trial was held in front of the same jury. Mr. Hulsey was sentenced to die. After Mr. McCree's conviction, he was sentenced to life in prison without parole.

This Court, in an earlier opinion, concluded that one of the prospective jurors in Mr. Hulsey's case was improperly excluded from the penalty phase of the trial because she did not unequivocally state that she could not impose the death sentence. This Court therefore ordered that the death sentence imposed upon Mr. Hulsey be vacated on the basis of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Mr. Hulsey's trial, nine jurors were excused for cause because of their opposition to the death penalty. The State used all but four of its peremptory challenges in excluding other jurors. Mr. Hulsey's trial attorney made no objection to the exclusion for cause of death-scrupled veniremen. This Court therefore concluded, in an earlier opinion, that Mr. Hulsey could not raise the "Grigsby" issue on Federal habeas corpus review because of the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (contemporaneous objection rule bars consideration absent cause and prejudice). See also Engle v. Issac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). Hulsey v. Sargent, 550 F.Supp. 179 (E.D.Ark.1981). The remainder of Mr. Hulsey's claims in support of his habeas corpus petition have been set for hearing commencing on September 30, 1983.

In petitioner McCree's trial, eight prospective jurors were excused for cause from the guilt-innocence phase because they stated that they could not impose the death penalty. The State used three of its peremptory challenges in excluding other prospective jurors from the panel who had expressed less adamant opposition to the death penalty, i.e., persons who could not be excluded for cause under Witherspoon. Mr. McCree's trial attorney made a timely objection to the exclusion of death-scrupled veniremen for cause. The remainder of Mr. McCree's arguments for the issuance of a writ of habeas corpus were considered and rejected by the Honorable Elsijane T. Roy. McCree v. Housewright, No. PB-C-80-429 (E.D.Ark. Jan. 6, 1982). Judge Roy's decision was affirmed by the Eighth Circuit Court of Appeals. McCree v. Housewright, 689 F.2d 797 (8th Cir.1982), cert. denied sub. nom., McCree v. Lockhart, ___ U.S. ___, 103 S.Ct. 1782, 76 L.Ed.2d 352 (1983).

The facts concerning the voir dire and challenges in the Grigsby capital murder trial are set forth in the earlier decision of this Court, Grigsby v. Mabry, 483 F.Supp. 1372 (E.D.Ark.1980). Based upon these facts, this Court on May 16, 1979, sent the Grigsby case back to the Franklin County Circuit Court so that Mr. Grigsby would have an opportunity to present evidence in support of his motion that potential jurors opposed to capital punishment not be excluded for cause during the guilt determination phase of his trial. It was further Ordered that the evidentiary hearing commence not later than May 31, 1980. Id. at 1391. Both parties appealed. By a two-to-one decision, the Eighth Circuit Court of Appeals affirmed the trial court's decision to require an evidentiary hearing, but determined that the federal district court would be the appropriate forum therefor. In that connection Judge Lay stated:

This court has recognized the broad discretion of the district court to "send a case back to the state courts to resolve issues more properly considered by the judge who experienced the trial first hand." United States ex rel. McQueen v. Wangelin, 527 F.2d 579, 581 (8th Cir. 1975); see also Hart v. Eyman, 458 F.2d 334, 338-40 (9th Cir.), cert. denied, 407 U.S. 916 92 S.Ct. 2441, 32 L.Ed.2d 691 (1972). The issues in this case, however, are not of the kind more properly considered by the judge who experienced the trial first hand. Cf. Jackson v. Denno, 378 U.S. 368 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Boles v. Stevenson, 379 U.S. 43 85 S.Ct. 174, 13 L.Ed.2d 109 (1964); Patterson v. Lockhart, 513 F.2d 579, 581 (8th Cir.1975); United States ex rel. Fisher v. Driber, 546 F.2d 18, 22 (3d Cir.1976). The issues here are (1) whether prospective jurors were disqualified because of their death penalty views, (2) if they were, whether the resulting death-qualified jury was more prone to convict Grigsby or to convict him of a higher degree of murder, and (3) if it was, what legal remedy should be accorded Grigsby. There are no special circumstances or relevant cases which indicate that the trial court is a more appropriate forum than the district court for resolution of these issues.

Grigsby v. Mabry, 637 F.2d 525, 528-29 (8th Cir.1980).

The district court, after the original hearing, had "hesitantly" concluded that petitioner Grigsby would be denied relief based upon his contention that his constitutional right to a jury drawn from a fair, representative cross-section of the community was violated.1 In a footnote to Judge Lay's majority opinion, it is stated:

We also vacate the district court's finding that the defendant was not denied a jury composed of a cross-section of the community. Because the record is to be supplemented by further evidence and in view of the close relationship of petitioner's claim on the cross-section issue to the guilt-proneness claim, the district court should, upon completion of all the evidence, enter its findings on both claims. In this way there can be a single appeal on both issues regardless of the outcome in the district court on either issue.

Id. at 529 n. 5.

As noted above this decision is made with respect to three different habeas petitions. James Grigsby, Dewayne Hulsey, and Ardia McCree filed separate habeas corpus petitions in which they challenge, among other things, the exclusion for cause by the State from the guilt determination phases of their capital murder trials of those prospective jurors who were adamantly opposed to the death penalty. The petitions were therefore consolidated for the determination of this issue only. An evidentiary hearing was held on July 13-17 and July 29-31, 1981, in this Court. The case was submitted much later after extensive briefing.2

As a result of the evidence introduced at the hearing scheduled after the remand of the case, and after further research, this Court has reconsidered its decision that petitioners not prevail on their claim that they were unconstitutionally denied a jury composed of a representative cross-section of the community. The Court now concludes, as stated above, that the petitioners must prevail, both on that contention and also upon their claim that juries death-qualified under the Witherspoon standard are more likely to convict than juries from which persons are not excused on the basis of their adamant feelings for or against the death penalty. An analysis of the substantive issues follows.

II. Denial of a Jury Drawn From a Fair, Representative Cross-Section of the Community
A. The History of This Issue in This Case:

After a long discussion of the development of the principle that there is a constitutional right to a jury drawn from a group which represents a fair cross-section of the community, this Court stated that:

The exclusion on Witherspoon grounds of scrupled jurors from the guilt determination phase of a trial would seem to run afoul of the Sixth Amendment guarantees.

Grigsby 483 F.Supp. at 1384. However, the Court concluded that there were two "roadblocks" to this conclusion:

(1) Witherspoon itself, and (2)

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