Sanford v. Hutto

• Court: U.S. District Court — Eastern District of Arkansas
• Writing for the Court: HENLEY, Circuit , Sitting by Designation
• Citation: Sanford v. Hutto, 394 F.Supp. 1278 (E.D. Ark. 1975)
• Decision Date: 03 June 1975
• Docket Number: No. PB-74-C-168.,PB-74-C-168.
• Parties: Maurice SANFORD and Jim Johnson, Petitioners, v. Terrell Don HUTTO, Commissioner, Arkansas Department of Correction, Respondent.

394 F. Supp. 1278

Maurice SANFORD and Jim Johnson, Petitioners, v. Terrell Don HUTTO, Commissioner, Arkansas Department of Correction, Respondent.

No. PB-74-C-168.

United States District Court, E. D. Arkansas, Pine Bluff Division.

June 3, 1975.

Robert A. Newcomb, Pine Bluff, Ark. (inmate atty.), for petitioners.

James W. Atkins, Asst. Atty. Gen., Little Rock, Ark., for respondent.

MEMORANDUM OPINION

HENLEY, Circuit Judge, Sitting by Designation.

The petitioners in this habeas corpus proceeding, Negro males named Maurice Sanford and Jim Johnson, are incarcerated in the Cummins Unit of the Arkansas Department of Correction pursuant to their conviction for rape in St. Francis County Circuit Court after a jury trial in October, 1969.¹ They challenge their conviction on the ground that county officials purposely and systematically excluded Negroes from the jury venire from which the jury panel that convicted the petitioners was chosen. After consideration of the evidence presented at a hearing and the parties' briefs, the court believes that the petitioners' motion for a writ of habeas corpus should be granted.

Before 1970 Arkansas remained one of the few states which selected its juries through the personal judgment of jury commissioners rather than by a random selection process. Petit juries were chosen in Arkansas by a panel of three jury commissioners who were appointed by the Circuit Court for each county.² Ark.Stat.Ann. § 39-208 provided that the county commissioners were to select from the qualified voters of each county 24 to 36 persons to serve as petit jurors and up to 12 persons as alternate petit jurors. In addition, the commissioners could provide a list of not less than 25 persons to serve on a special panel of petit jurors in the event that the regular and alternate panels were exhausted. Ark.Stat.Ann. § 39-220. Under this system, the commissioners could choose any elector to serve who was "of good moral character, of approved integrity, sound judgment, and reasonable information." Ark.Stat.Ann. § 39-206. In making these selections, the commissioners were required to meet continuously and in seclusion until they had completed their duties. Ark.Stat. Ann. § 39-205. From 1934 to 1969 all jury commissioners appointed in St. Francis County were white.

At the hearing, the parties stipulated that the jury venire for the August term of the St. Francis County Circuit Court consisted of a regular panel of 36 people of which 6 (16.6%) were Negro, an alternate panel of 18 people of which 3 (16.6%) were Negro, and a special panel of 46 persons of which 2 (4.0%) were Negro. The court also accepts plaintiffs' contention that for the ten terms of Circuit Court in St. Francis County between February, 1965 and August, 1969 there was an average of 11.7% Negro membership on the jury venires with a high of 15% Negro on the jury venire for February, 1968 term and a low of 4% Negro for the April, 1966 term of court.

The parties further stipulated that the population over the age of 21 in St. Francis County in 1960 was 16,366 of which 8,103 persons were Negroes (49.51% of the population), and that in 1970 the total population over the age of 21 was 16,363 of which 6,660 were Negro (40.7% of the population). The petitioners proved that the total number of registered voters in St. Francis County for the year ending May 31, 1966 was 10,100; for the year ending May 31, 1967, 11,225; for the year ending May 31, 1968, 12,300; for the year ending May 31, 1969, 13,133; and for the year ending May 31, 1970, 12,916.

Mrs. Dorothy Barnard, the County and Probate Clerk of St. Francis County, guessed that about 50% of the registered voters in St. Francis County were black. Unfortunately, available data does not reflect the exact percentage of registered black voters in St. Francis County since the voter lists from which juries are chosen contain no racial designation. However, the court believes that it can compute the least possible number of registered Negro voters by the following method. Beginning with the figure of 8,103 Negroes over the age of 21 in St. Francis County in 1960, and using a figure of 144 per year decrease in this Negro population between 1960 and 1970, a total Negro population over the age of 21 for any year can be reached by taking the appropriate yearly multiple of 144 and subtracting it from 8,103. This number is subtracted from 16,366 which represents the total population over the age of 21 in St. Francis County in 1960, thereby reaching a figure for the total white population over 21 for any given year. Next, the total white population over the age of 21 for any given year is subtracted from the total number of registered voters in St. Francis County for that year, thereby giving the number of Negro voters for that year assuming that every eligible white in the county was registered to vote. This same procedure can be used to find appropriate percentages where less than 100% white registration is assumed.

Using the above methodology, the following percentage of registered black voters can be computed. Assuming that every white person over the age of 21 was registered to vote in 1966, then 10% of all voters in St. Francis County in 1966 were black; for 1967 the percentage of black voters would be 17%; for 1968 the percentage would be 23%; and for 1969, the year of petitioners' conviction, the percentage would be 25%. Assuming that only 90% of all whites in St. Francis County over the age of 21 were registered in 1969, the percentage of black voters would be 32%; assuming only 85% white registration, the percentage of registered black voters would be 36%; and assuming 80% white registration, the percentage of black voters would be 40%.

While the record does not show whether the alternate and special panels were used in the selection of the panel which convicted the petitioners in 1969, the court holds that the mere possibility that these panels could have been used to select the petitioners' jury compels this court to consider the total racial composition of all three panels in passing judgment upon the constitutionality of the selection procedure used. Based on this total figure, the jury venire consisted of 11% Negro. Even assuming that every white over age 21 in St. Francis County registered to vote, a disparity of 14% exists between the percentage of blacks on the jury venire and the percentage of registered black voters in the county. Accepting Mrs. Barnard's 50% estimate, the disparity rises to 39%.

The purposeful exclusion or underrepresentation of blacks from a jury venire constitutes invidious discrimination violative of the Fourteenth Amendment. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Coleman v. Alabama, 377 U.S. 129, 84 S.Ct. 1152, 12 L.Ed.2d 190 (1964). A prima facie case of jury discrimination may be shown by any one of three methods. First, a prima facie case is established by a showing that (1) a "substantial disparity" exists between the percentage of presumptively qualified Negroes in the county and the percentage of Negroes actually chosen for jury duty and (2) the disparity is coupled with some positive indicia of discrimination or by a showing that the selection procedure provides an opportunity to discriminate. Turner v. Fouche, supra, 396 U.S. at 360, 90 S.Ct. 532; Stephens v. Cox, 449 F.2d 657, 659 (4th Cir. 1971). Secondly, a prima facie case may be proved by showing that Negroes have been totally excluded from jury service over a long period of years in the jurisdiction where the challenged trial occurred. Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947). Finally, the Fifth Circuit has held that a showing of a "spectacular" or "marked" underrepresentation of Negroes on juries in a particular jurisdiction is by itself a prima facie case. Singleton v. Estelle, 492 F. 2d 671 (5th Cir. 1974) (dicta); United States v. Hyde, 448 F.2d 815 (5th Cir. 1971). However, the Third and Fourth Circuits hold that mere statistical data alone is insufficient absent additional indicia of discrimination or a showing that the selection procedure either facially provides an opportunity to discriminate or is administered so as to effect discrimination. Smith v. Yeager, 465 F.2d 272, 274 (3rd Cir. 1972); Stephens v. Cox, supra.

While this court will not attempt to define precisely what percentage constitutes a "substantial" or "spectacular" disparity, the court finds that the petitioners' showing that Negroes were underrepresented by at least 14% in St. Francis County in 1969 constitutes a "substantial" disparity. While in Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), the Court concluded that a 10% underrepresentation between eligible blacks and blacks chosen for the venire did not constitute evidence of a prima facie case, there was no evidence in Swain of an attempt to apply valid juror qualifications in a discriminatory manner so as to exclude Negroes. Since the commissioners in Swain selected hundreds of names to be placed in a jury wheel, there was less likelihood that they applied their own standards of personal qualifications for jury duty than under the Arkansas system of hand picking jurors.

What constitutes a "substantial" disparity depends largely on how the disparity occurred, and if it results from the use of subjective criteria — e. g., "good moral character" — rather than objective criteria — e. g., education, then the tolerable disparity is reduced because of a...