Hale v. Henderson, Civ. No. 67-130.

• Decision Date: 04 October 1972
• Docket Number: Civ. No. 67-130.
• Citation: 349 F. Supp. 567
• Court: U.S. District Court — Western District of Tennessee
• Parties: Albert William HALE v. C. Murray HENDERSON, Warden Tennessee State Penitentiary.

349 F. Supp. 567

Albert William HALE v. C. Murray HENDERSON, Warden Tennessee State Penitentiary.

Civ. No. 67-130.

United States District Court, W. D. Tennessee, Memphis Division.

October 4, 1972.

Walter L. Bailey, Jr., Memphis, Tenn., for petitioner.

James M. Tharpe, Special Counsel, State of Tennessee, Memphis, Tenn., for respondent.

MEMORANDUM

SWINFORD, District Judge.

The record of this case upon a petition for the writ of habeas corpus is finally submitted. An evidentiary hearing was held on May 3, 1972, at Memphis, Tennessee, and the parties having been placed upon terms to do so, have filed memoranda of law. A summary of the proceedings leading up to the evidentiary hearing is contained in Judge Brown's Memorandum Opinion reported as Hale v. Henderson, at 336 F.Supp. 512 (1972).

The single issue before the court is whether the petitioner's conviction was obtained upon an indictment returned by an improperly constituted grand jury. The petitioner contends that blacks have been systematically excluded from the position of foreman for the grand juries of the criminal court in which he was convicted, and contends that those juries have, therefore, been improperly formed in violation of the Equal Protection of the Law Clause as it has been applied to the selection of grand juries under the law of Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967).

It is the opinion of the court for reasons hereinafter stated that, although the petitioner may well have brought to light constitutional shortcomings in the general method of selection of grand jury foremen for the State of Tennessee, the particular facts of his case do not entitle him to relief.

Under the law of Tennessee, grand juries are composed of 12 jurors selected at random from the venire, and one foreman appointed by the Judge having criminal jurisdiction in that county. Tennessee Code Annotated sec. 40-1506 (hereinafter T.C.A.). The Judge may within his discretion select the foreman from the community at large, and his selection may be completely divorced from the selection of the venire and the selection of the other jurors. T.C.A. sec. 40-1506. An indictment may not be returned by fewer than 12 votes, but the foreman is possessed of all of the powers of the other members of the jury, including the right to vote. T.C.A. sec. 40-1706 and 40-1506. The petitioner has not contended that the method of selection of the venires from which the grand juries are chosen has been such as to systematically exclude members of racial groups; he contends that the selection of the foremen, who are, as mentioned, voting members of the grand juries, is not safeguarded by a racially neutral and random method, but is wholly within the discretion of the criminal Judge. He further contends that since 1940 there have been no black grand jury foremen, thus demonstrating a prima facia case of racial discrimination under the law of Coleman v. Alabama, 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22 (1967). The petitioner argues that inasmuch as a voting part of the grand juries have been improperly chosen, the whole of the grand juries have been tainted; which is to say that a grand jury that is 1/13 unconstitutional cannot render constitutionally valid indictments.

The petitioner's entitlement to relief must depend on the particular facts of his case, and although his argument with respect to the method of selection for grand jury foremen is well taken, it is the opinion of the court that he cannot successfully assert that his right to equal protection of the law has been abridged by the purposeful exclusion of blacks from any part of the grand jury which returned the...