Jackson v. Thigpen, Civ. A. No. 87-C-2046-W.

• Decision Date: 30 November 1990
• Docket Number: Civ. A. No. 87-C-2046-W.
• Citation: 752 F. Supp. 1551
• Parties: Patricia Ann Thomas JACKSON, Petitioner, v. Morris THIGPEN, Respondent.
• Court: U.S. District Court — Northern District of Alabama

752 F. Supp. 1551

Patricia Ann Thomas JACKSON, Petitioner, v. Morris THIGPEN, Respondent.

Civ. A. No. 87-C-2046-W.

United States District Court, N.D. Alabama, W.D.

November 30, 1990.

David G. Hymer, Bradley Arant Rose & White, Birmingham, Ala., Hank Hawkins, Tuscaloosa, Ala., for petitioner.

John Gibbs, Don E. Siegelman, Montgomery, Ala., for respondent.

MEMORANDUM OF OPINION

CLEMON, District Judge.

In this petition for a writ of habeas corpus under 28 U.S.C. § 2254, Patricia Ann Thomas Jackson ("petitioner") urges that her death sentence is constitutionally invalid for four reasons. She maintains that the death sentence was obtained by the unconstitutional use of an earlier crime both as an element of the capital crime and as an aggravating circumstance and that the trial judge impermissibly considered her uncounseled misdemeanor convictions in determining whether she had a significant criminal history. Furthermore, petitioner alleges that the conviction was obtained by the unconstitutional use of peremptory challenges to exclude all blacks from service on the jury that convicted her. Finally, petitioner claims that she was denied the effective assistance of counsel at trial and in sentencing. Finding merit in the latter two grounds, the Court shall grant the petition for habeas corpus.

I. Procedural Background

A grand jury sitting in Tuscaloosa County, Alabama in July, 1981 returned an indictment¹ charging petitioner with capital murder in violation of Section 13A-5-31(a)(13) of the Alabama Code. Ralph Burroughs, a Tuscaloosa County public defender, and Joel Sokol, a private attorney, were appointed to represent her and on October 30, 1981, she entered pleas of not guilty and not guilty by reason of insanity.

On December 16, 1981, petitioner was convicted of capital murder after a three-day trial. At a separate punishment proceeding the jury fixed her punishment at death. The trial judge then conducted an independent evaluation of the jury's sentence and affirmed. He filed a written order embodying his findings of fact and conclusions of law.

On appeal, both the Alabama Court of Criminal Appeals and the Alabama Supreme Court affirmed the findings of the trial judge. Jackson v. State, 459 So.2d 963 (Ala.Crim.App.1984); Ex parte Jackson, 459 So.2d 969 (Ala.1984). The United States Supreme Court denied certiorari. Jackson v. Alabama, 470 U.S. 1034, 105 S.Ct. 1413, 84 L.Ed.2d 796 (1985).

On or about April 23, 1985, Sokol filed a petition for the writ of error coram nobis in the trial court. He made numerous attacks on the validity of both the conviction and the sentence. Among other things, Sokol claimed that he and his colleague had been ineffective in many aspects of their representation of petitioner. By letter dated July 2, 1985, Sokol asked the court for permission to withdraw on the basis that he would probably be called as a witness for petitioner in a hearing on the coram nobis petition. Thereafter, the petition was amended by attorney Walter Braswell to add an additional ground for the claim that petitioner's trial attorneys had been ineffective.

The trial judge conducted a coram nobis evidentiary hearing on October 3, 1985 and, on December 13, 1985, entered a written order denying the petition. The Alabama Court of Criminal Appeals affirmed, Jackson v. State, 501 So.2d 542 (Ala.Crim.App. 1986), and the Alabama Supreme Court denied a petition for the writ of certiorari, Jackson v. State, No. 86-269 (Ala.1987). The United States Supreme Court once again denied petitioner's request for the writ of certiorari. Jackson v. Alabama, 483 U.S. 1010, 107 S.Ct. 3242, 97 L.Ed.2d 746 (1987).

The present habeas petition was filed in this court on November 16, 1987, by Hank Hawkins, one of the attorneys who represented the petitioner at both the trial and appellate stages of the coram nobis proceedings. By order entered on December 2, 1987, the court appointed Hawkins and David G. Hymer, an attorney practicing in Birmingham, Alabama, to represent petitioner. In an effort to avoid piecemeal litigation of issues that might arise in the federal habeas context, the court in that same order required counsel to consult with petitioner regarding all possible habeas claims and the judicial disfavor of successive petitions. Additionally, counsel was required to certify that such consultation had taken place, and either amend the petition to include all grounds or certify in writing that all grounds which might entitle the petitioner to relief were included in the original petition. On December 17, 1987, counsel for petitioner filed the required certifications.

After extensive discovery, an evidentiary hearing was conducted by this court on February 23, 1989.

Based on the evidence adduced at that evidentiary hearing, the factual findings of the state courts and the record of the state court proceedings, the Court reaches its conclusion on the ultimate issues.

II. The Facts

A. The Substantive Crime

Because this Court generally must defer to the state court determinations of factual issues pursuant to 28 U.S.C. § 2254, it adopts the Alabama Court of Criminal Appeal's summary of the evidence presented at trial.

The pertinent fact is that Bonnie Walker was stabbed on her front porch by petitioner on February 28, 1981. It is not clear how the dispute began. Apparently, there had been a lengthy argument between the petitioner and victim over liquor that the former wished to purchase. The argument quickly escalated into a heated exchange of accusations, name-calling and death-threats. Petitioner proceeded to hit the victim in the chest with what seemed a closed fist. Petitioner immediately left the scene while victim disappeared into her house. Moments later, Walker returned to the porch with a knife in her hand. It was at this time that witnesses first became aware that the victim had been stabbed. While one particular witness attempted to assist her, Walker exclaimed that petitioner "had cut her."

Bonnie Walker died later that day because of a fatal stab wound inflicted by petitioner.

Petitioner denied having any knowledge of the victim's death until the next day. Petitioner maintains that she voluntarily presented herself to law enforcement officials as soon as she became aware of Walker's death. See Jackson v. State, 459 So.2d 963, 964-965 (1984).

B. Peremptory Challenges of Black Jurors

Petitioner's venire consisted of eighty-six persons — seventy whites and sixteen blacks. Six whites and four blacks were excused for cause, leaving a reduced venire of twelve blacks and sixty-four whites. The prosecutor used his twenty-two peremptory challenges to remove all of the twelve blacks and ten of the whites.

Gerald Hudson, the lead prosecuting attorney, testified that he struck all blacks from petitioner's venire because, in his judgment, black jurors are less willing to give the State a fair trial and are less likely to convict. Hudson also testified that black jurors tend to be more forgiving and more willing to give a defendant a second or third chance than are white jurors.

Credible anecdotal evidence shows that Hudson's opinion of black jurors was universally shared by other assistant district attorneys in Tuscaloosa County. Where a prosecutor was personally acquainted with a black venireperson, that venireperson might not be stricken by the prosecutor. Otherwise, the standard operating procedure of the Tuscaloosa County District Attorney's Office at the time of petitioner's trial was to use the peremptory challenges to strike as many blacks as possible from the venires in cases involving serious crimes.

The statistical evidence confirms that the prosecutor's use of the peremptory challenges at petitioner's trial and prior thereto excluded black citizens from participation in the administration of the criminal justice system.² The report of Dr. Chester I. Palmer, Jr., an expert called by respondent, indicates that

... there can be no reasonable doubt that, both in all cases 1981-85 and in Hudson's cases, there was a pattern that blacks were more likely to be subjected to peremptory strikes by the prosecution than were whites on the same venires. On the average, in 1981-85 the prosecution used 2.42 more peremptory strikes on blacks than expected by random selection; in Hudson's cases, the comparable figure is 2.58. * * *

Thus, these analyses indicate that the prosecution was more likely to exercise its peremptory challenges against blacks than against whites on the same venires. As indicated above, it is not possible to determine from the data the extent that effect might have been caused by differences other than race between the pools of blacks and whites on the venires.

Respondent Exhibit (RX) 1, p. 29.

According to Dr. Palmer, the probability is de minimis that the disparate use of peremptory challenges against blacks is attributable to chance—less than three out of ten million. Reviewing the same evidence, petitioner's expert, Dr. Robert Sigler, a professor of Criminal Justice, agreed. Dr. Sigler concluded that blacks were systematically excluded from jury service in serious criminal cases by prosecutors who felt that blacks would not convict. The experts were in agreement that 28% fewer blacks served on criminal juries in Tuscaloosa County than would have been expected to serve by random selection; that blacks were underrepresented on 70% of the criminal juries in Tuscaloosa County; and that the Tuscaloosa County District Attorney's Office struck 28% more blacks than would have been expected by random selection. This situation existed at the time of petitioner's trial and it continued for the next four years.

The Tuscaloosa County prosecutors also manipulated the trial docket in their effort to preserve the racial purity of criminal juries.³ Inasmuch as they actually set the criminal trial dockets until 1982, they implemented a scheme in which juries with fewer black venirepersons would be...