Maxwell v. Stephens, No. 17729.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: MATTHES, BLACKMUN, and RIDGE, Circuit
• Citation: 348 F.2d 325
• Parties: William L. MAXWELL, Appellant, v. Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Appellee.
• Docket Number: No. 17729.
• Decision Date: 30 June 1965

348 F.2d 325 (1965)

William L. MAXWELL, Appellant,
v.
Dan D. STEPHENS, Superintendent of Arkansas State Penitentiary, Appellee.

No. 17729.

United States Court of Appeals Eighth Circuit.

June 30, 1965.

348 F.2d 326

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Frank H. Heffron, New York City and George Howard, Jr., Pine Bluff, Ark., Jack Greenberg and James M. Nabrit, III, New York City, and Harold B. Anderson, Little Rock, Ark., and also Leroy D. Clark and Michael Meltsner, New York City, of counsel, for appellant

Jack L. Lessenberry, Chief Asst. Atty. Gen., Little Rock, Ark., Bruce Bennett, Atty. Gen., Little Rock, Ark., on the brief, for appellee.

Before MATTHES, BLACKMUN, and RIDGE, Circuit Judges.

BLACKMUN, Circuit Judge.

William L. Maxwell, a Negro possessing an eighth grade education, stands convicted by a jury in the Circuit Court of Garland County, Arkansas, of the crime of rape, as defined by § 41-3401, Arkansas Statutes 1947. The offense was committed on November 3, 1961. Maxwell at the time was 21 years of age. The jury did not "render a verdict of life imprisonment in the State penitentiary at hard labor", as it had the right to do under §§ 43-2153 and 41-3403, and for which it had been given an alternate verdict form. As a consequence, and in line with the interpretation consistently given § 43-2153 by the Supreme Court of Arkansas.¹ the death sentence was imposed. On appeal the conviction was affirmed. Maxwell v. State, 236 Ark. 694, 370 S.W.2d 113 (1963).²

Four days before the execution date which was fixed following that unsuccessful appeal Maxwell filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Arkansas. Judge Young conducted a hearing on the federal constitutional issues raised by that petition. Briefs were filed. The court wrote a detailed opinion denying the relief requested, Maxwell v. Stephens, 229 F. Supp. 205 (E.D.Ark.1964), but then granted Maxwell's petition for a certificate of probable cause, as contemplated by 28 U.S.C. § 2253, and further stayed execution.

Except for an early period prior to the state trial when court appointed attorneys were in the case, Maxwell has been represented through all the state and federal proceedings by competent, although different, non-court-appointed counsel.

We note, as we have noted before in other cases of this type,³ that Maxwell's

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guilt or innocence is not in issue before us. This is still another situation where, as the United States Supreme Court described the posture of an earlier Arkansas case, "* * * what we have to deal with is not the petitioners' innocence or guilt but solely the question whether their constitutional rights have been preserved". Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S.Ct. 265, 67 L.Ed. 543 (1923)

The circumstances and details of the crime are, as usual, sordid. They are set forth in the Arkansas opinion, pp. 114-116 of 370 S.W.2d, and need not be repeated here. It suffices only to say that the victim was a white woman, 35 years old, who lived with her helpless ninety-year-old father; that their home was entered in the early morning by the assailant's cutting or breaking a window screen; that in the ensuing struggle the victim bit her assailant and caused bleeding; and that she was assaulted and bruised, her father injured, and the lives of both threatened. Confessions taken from Maxwell were not employed at the trial. The defense presented no evidence. The jury was out several hours. No question is raised as to the sufficiency of the evidence.

On this habeas corpus appeal Maxwell presses three issues:⁴ (1) he was denied due process of law and the equal protection of the laws, guaranteed by the Fourteenth Amendment, because he was sentenced under statutes which are discriminatorily enforced against Negroes; (2) he was denied due process and equal protection because the Garland County jury lists revealed race and were compiled from racially designated poll tax books; and (3) the taking of his coat while he was in custody, and references to it in testimony at the trial,⁵ violated rights guaranteed to him under the Fourth, Fifth, and Fourteenth Amendments.

A. The statute's enforcement. The argument here is that § 41-3403, which prescribes the death penalty for rape, and § 43-2153, which, since its enactment as Acts 1915, No. 187, § 1, permits a jury in a death punishment case to render a verdict of life imprisonment, although perhaps constitutionally valid on their face, have been discriminatorily enforced against members of the Negro race and in favor of members of the white race. It is claimed that in practice "Negroes remain liable to the supreme penalty for the crime of rape, but whites, with very rare exceptions, suffer lesser punishments"; that "there is reason to believe that every person suffering the death penalty has been convicted of a crime against a white woman"; that "All but two of the men executed for rape since 1913 have been Negroes"; that Negro defendants are more likely to be sentenced to death and only white women are protected by the deterrence of the supreme penalty; that in Garland County (Hot Springs), Pulaski County (Little

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Rock), and Jefferson County (Pine Bluff), in the decade beginning January 1, 1954, only three charges were lodged against white men for the rape of Negro women; that one of these resulted in an acquittal and the other two in reduced charges; that in the same period seven Negroes were charged with raping white women; that of these, two were sentenced to death, three to life imprisonment, one dismissed, and one not apprehended; that "This history raises serious doubts about the fairness of Arkansas' system of criminal justice"; that the figures are not to be explained by the proportion of Negroes in the state's total population nor by any claim that the crime rate is higher among Negroes, for in the three counties about two-thirds of the rape charges were against white persons; that the proportion of Negroes who receive the death penalty "cries out for an explanation"; that race is the answer; and that the state should be required to come forward with a rational explanation

It is further argued that there is no basis for assuming a Negro's victims have better character than the victims of whites; that differing sentences for Negroes and whites are consistent with Arkansas' system of justice; that responsibility for administration of penalties in rape cases lies with other officials besides juries; that "it is not what public officials say but what they do which must be determinative when discrimination is at issue"; that in Maxwell's state court proceedings "several occurrences underscored the presence of the racial factor", namely, the use of the term "nigger", the excuse or successful challenge of the nine Negroes who were called for jury service, and the prosecutor's reference to the race of the defendant and the victim three times during the state trial "under the guise of requesting the jurors to dismiss the fact from their minds"; that the state's laws on segregation and the history of the resistance to desegregation of schools in Little Rock are consistent with the contention that race is a factor in the disposition of rape cases and the imposition of the death penalty; that the court erred in restricting the defense proof of race figures to the three counties; and that, finally, the imposition of the death penalty for rape violates due process in that it is a cruel and unusual punishment.

This question of unconstitutionality in application was raised both in the Supreme Court of Arkansas and in the United States district court. Each tribunal decided the issue adversely to Maxwell. Pp. 117-118 of 370 S.W.2d; pp. 216-217 of 229 F.Supp.

There can be no doubt that the equal protection clause of the Fourteenth Amendment and 42 U.S.C. § 1981,⁶ which implements it, (and, it would appear, Art. 2, § 3, of the Arkansas Constitution)⁷ operate to invalidate any state statute which would differentiate punishment solely on the basis of race. Virginia v. Rives, 100 U.S. 313, 318, 25 L.Ed. 667 (1879); Strauder v. State of West Virginia, 100 U.S. 303, 307, 25 L.Ed. 664 (1879); McLaughlin v. State of Florida, 379 U.S. 184, 192-194, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964); see Skinner v. State of Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). We recognize, too, that a statute's discriminatory administration or enforcement, dictated solely by considerations of race, runs afoul of the equal protection clause. Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); see Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 88 L.Ed. 497 (1944).

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This court has not been insensitive to constitutional claims based upon race. See, for example, Aaron v. Cooper, 257 F.2d 33 (8 Cir. 1958), aff'd 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5; Bailey v. Henslee, 287 F.2d 936 (8 Cir. 1961), cert. denied 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78; and Henslee v. Stewart, 311 F.2d 691 (8 Cir. 1963), cert. denied 373 U.S. 902, 83 S.Ct. 1289, 10 L.Ed.2d 198. "But purposeful discrimination may not be assumed or merely asserted. * * * It must be proven * * * ", and the burden is on the one asserting discrimination. Swain v. State of Alabama, 380 U.S. 202, 205, 209, 85 S.Ct. 824, 827, 13 L.Ed.2d 759 (1965); Tarrance v. State of Florida, 188 U.S. 519, 520, 23 S.Ct. 402, 47 L.Ed. 572 (1903).

A meticulous review of the entire record in the United States district court and of the entire record in the state court convinces us that no federally unconstitutional application of the Arkansas rape statutes to this defendant has been demonstrated. We reach this result upon the following considerations:

1. The statistical argument is not at all persuasive. The evidence as to the state at large showed that, in the 50 years since 1913, 21 men have been executed for the crime of...