Spratley v. Paderick, 74--1326

• Decision Date: 25 November 1975
• Docket Number: No. 74--1326,74--1326
• Citation: 528 F.2d 733
• Parties: Frank Lee SPRATLEY, Appellant, v. E. L. PADERICK, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 733

528 F.2d 733

Frank Lee SPRATLEY, Appellant, v. E. L. PADERICK, Superintendent of the Virginia State

Penitentiary, Appellee.

No. 74--1326.

United States Court of Appeals,

Fourth Circuit.

Argued March 5, 1975.

Decided Nov. 25, 1975.

George K. Walker, Winston-Salem, N.C. (Court-appointed) (Wake Forest University School of Law, on brief), for appellant.

Gilbert W. Haith, Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Virginia, on brief), for appellee.

Before HAYNSWORTH, Chief Judge, WIDNER, Circuit Judge, and HALL, ^* District Judge.

PER CURIAM:

The petitioner sought a writ of habeas corpus, claiming that he was convicted by a jury selected in a racially discriminatory manner. The district court denied the petition. We disagree and find that the petitioner has made out a prima facie case of discrimination, but that the state must have an opportunity to present evidence in rebuttal of that showing.

On February 2, 1966, an Isle of Wight County, Virginia jury convicted Frank Lee Spratley, a Negro, of attempting to rape a white woman and of burglary. He was sentenced to life and twenty-five years imprisonment. At his trial petitioner's counsel moved to quash the venire on the ground that it had been discriminatorily constituted, but the trial court overruled the motion without a hearing. Later, in state postconviction proceedings, the Virginia Supreme Court of Appeals ordered a hearing on the question. After it was held, the trial court again denied relief, and that decision was affirmed.

The record from the state hearing reveals that in Isle of Wight County, according to the 1960 census, 46.4 percent of the presumptively eligible voters were Negroes and that in the 1970 census 42.6 percent of them were blacks. The method of jury selection also appears in the record. Each year a group of jury commissioners would select names for a jury master list. ¹ From 1961--1965, one of the four members of the Commission was a Negro. Just how the commissioners accomplished their task, however, is not entirely clear. The court clerk would provide them with land and tax registry books, but they apparently could select jurors from outside the books. The commissioners, however, were required to select only persons of 'good repute for intelligence and honesty,' ² and in its brief the state concedes that to make such a choice, a commissioner must know the individual. Once the commissioners had made up the master list, the names on it were placed on papers in a box. Disinterested persons would then randomly select venires from that box.

In 1965 and the four preceding years, the percentage of Negroes on the jury master list ranged from a low of 11.7 percent to a high of 21.4 percent. ³ In 1965 blacks made up 16 percent of the master list. The petitioner presented little evidence on the numbers of blacks actually serving on Isle of Wight County juries. In the jury panel selected for Spratley's trial, however, four members were blacks, but since the prosecutor struck all four on peremptory challenges, no Negro actually served. Petitioner's trial attorney testified that there were always a few Negroes on juries in that county, but the extent of his trial experience there was limited.

Undeniably, the Constitution forbids racial discrimination in the selection of juries. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). A showing of a substantial disparity between the proportion of eligible Negroes in the county's population and their proportion on juries establishes a prima facie case of racial discrimination, if it is coupled with positive proof of racial discrimination or with a showing that the selection process left open an opportunity for discrimination.

In this case the divergence between the proportion of blacks in the population presumptively eligible for jury service (approximately 44 percent) and the proportion of blacks on the master list (16 percent in 1965) was extreme. In each of the five years considered, the disparity approached or exceeded the two-to-one disparity that we have already condemned. Stephens v. Cox, 4th Cir., 449 F.2d 657. The showing in this case differs in one respect from that in Stephens. In that case the petitioner presented statistical evidence concerning the representation of Negroes on venires in addition to their representation on the master list. Nevertheless, we do not deem the difference crucial because the drawing of venires from the box was admittedly at random and thus not susceptible to weighting in favor of one race. After the selection of a number of venires, presumably the proportion of Negroes on all venires approximated the...