United States v. Brady

• Decision Date: 03 May 1943
• Docket Number: No. 5034.,5034.
• Citation: 133 F.2d 476
• Parties: UNITED STATES ex rel. JACKSON et al. v. BRADY, Warden.
• Court: U.S. Court of Appeals — Fourth Circuit

133 F.2d 476 (1943)

UNITED STATES ex rel. JACKSON et al. v. BRADY, Warden.

No. 5034.

Circuit Court of Appeals, Fourth Circuit.

February 9, 1943.

Writ of Certiorari Denied May 3, 1943.

C. Arthur Eby, of Baltimore, Md. (William Curran, of Baltimore, Md., on the brief), for appellants.

D. Heyward Hamilton, Jr., Asst. Atty. Gen., and William C. Walsh, Atty. Gen., of Maryland (J. Bernard Wells, State's Atty., and Douglas N. Sharretts and Joseph G. Finnerty, Asst. State's Attys., all of Baltimore, Md., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

Writ of Certiorari Denied May 3, 1943. See 63 S.Ct. 1029, 87 L.Ed. ___.

SOPER, Circuit Judge.

The appellants, who are Negroes, complain of the dismissal by the District Court of their petition for habeas corpus wherein they sought release from a sentence of death imposed by the Criminal Court of Baltimore after a conviction by a jury of murder in the first degree committed in the course of an attempted robbery. The judgment was affirmed on appeal by the Court of Appeals of Maryland. Jackson v. State, 26 A.2d 815. The point now raised is that the defendants in the Criminal Court were deprived of their constitutional rights at the trial in that there was racial discrimination in the selection of the Grand Jury which indicted, and the Petit Jury which tried and convicted them.

The defendants were without means to employ counsel, and the Criminal Court therefore appointed three able and experienced lawyers, one for each of the defendants, whose earnest efforts on their clients' behalf were indicated by their voluntary payment, at their own expense, of the cost of a large record in the Court of Appeals. The defendants did not ask for a severance, but were tried jointly before a jury. At the beginning of the trial the jurymen on the regular panel in the Criminal Court were sworn on their voir dire and examined by counsel, and as the result of peremptory challenges and challenges for cause the whole panel was exhausted. Additional jurymen were then successively brought from three other courts in Baltimore, and similarly examined and challenged, and at the end of the examination eight jurors only had been chosen. More jurymen were then brought in, and thereupon counsel for the defendants, pointing out that of fifty-two jurymen submitted to them only two were colored, challenged the array on the ground that the jury had not been selected in accordance with the Constitution of the United States or the Constitution and laws of Maryland. No evidence or argument was offered to sustain the charge and it was overruled by the court. This action formed the basis of one of the objections considered on appeal, but it was overruled by the Court of Appeals on the ground that prejudice could not be assumed from the presence of only two Negroes on a list of fifty-two jurymen, but must be proved by substantial evidence tending to show that Negroes were intentionally excluded in the formation of the jury panel. No objection was made at any time in the trial or in the appellate court as to the mode of selection of the Grand Jury.

The opinion of the Court of Appeals was filed on June 17, 1942, and later the Governor of Maryland appointed October 2, 1942, as the date of execution of sentence. The petition for habeas corpus was filed in the District Court on October 1, 1942 after application for a writ to a State judge had been refused on the same day. From the denial of the writ of habeas corpus by a State judge no appeal lies to the Court of Appeals under the law of Maryland. Betts v. Brady, 316 U.S. 455, 460, 62 S.Ct. 1252, 86 L.Ed. 1595.

There is no charge that Negroes are discriminated against for jury service by the Constitution or laws of the State; the complaint relates to the method by which the laws have been executed. The record on appeal contains a full description of the mode of selection of jurors in Baltimore, accompanied by the testimony of the Chief Judge and an Associate Judge of the Supreme Bench of Baltimore City, the court of superior jurisdiction in the city, and by the testimony of the clerical official under whose supervision the work is done. Detailed findings of fact and conclusions of law, accompanied by an exhaustive opinion, were filed by the District Judge. 47 F. Supp. 362. Summarizing the findings of fact it appears that in accordance with the statute law of the State a list of seven hundred and fifty persons qualified for jury service is selected by the judges of the Supreme Bench in the following manner: A jury clerk obtains the names of prospective jurymen from city and telephone directories and other reliable sources and summons them to appear for examination as to their qualifications before a member of the Supreme Bench called the Jury Judge. He either accepts or rejects them after they have filled in the answers to a written questionnaire and he has personally examined them. A service file is made up of the names of the persons accepted, from which the clerk takes from time to time as needed seven hundred and fifty names and submits them to the Bench, and from them the names of four or five hundred persons, as needed, are drawn by chance from a wheel for service as petit jurors in the courts of the city. In addition, the members of the Bench at each term of court personally select twenty-three persons believed to be of good character and of more than average intelligence to serve on the Grand Jury.

In 1942 the service file was made up of the names of 18,901 white and 653 colored persons, so that the latter comprised approximately 3.34 per cent of the whole. Over a period of years the number of colored jurors has varied from one to four per cent of the whole. At the time of the trial of the case in the Criminal Court there were seven jury panels of twenty-five each in the courts of the city, containing eight Negroes out of a total of one hundred and seventy-five men. The Grand Jury has always contained one colored juror.

It is not suggested that any one engaged in the selection of jurors in Baltimore is actuated by a conscious personal bias against Negroes; but it is pointed out that the colored population, according to the 1940 census, was approximately nineteen per cent of the whole population, and it is contended that racial discrimination must be presumed from the contrast between this figure and the small percentage of Negroes actually in jury service. Other facts found by the District Judge must be considered in weighing this argument. The names of jurors in the service file are kept on cards which are classified by months selected by the jurors themselves as most convenient for service. For convenience white cards are used for white jurors, brown cards for colored jurors, pink cards to indicate military service, and blue cards to indicate disability. When the jury clerk draws seven hundred and fifty names from the service file for submission to the Supreme Bench, the list always contains the name of twenty-five colored persons, in other words, approximately the same percentage of Negroes as is found in the whole service list. Consequently there is no numerical discrimination against Negroes at this point, and discrimination, if it exists, must be found in the method by which the names are selected and placed on the service list. It appears from the record in the pending case that in selecting names from directories and from other sources, the jury clerk takes pains to select names of persons who live in that large section of Baltimore City occupied exclusively by colored persons and also makes use of lists of members of colored clubs and associations. The evidence, however, fails to show how many of the persons notified to appear for examination by the Jury Judge are Negroes or what percentage of persons rejected by the Judge are of the colored race. There is evidence, however, from which it may be inferred that the percentage of rejections for normal causes is greater amongst Negroes than amongst whites. The District Judge found that of the persons in Baltimore City twenty-five years of age who have completed seven or eight years of grade school, sixty per cent are whites and twenty per cent colored, and of those who have completed high school or some part thereof twenty-two per cent are white and eight per cent are colored. It has been the policy of the Supreme Bench to exclude from service persons on relief, and in recent years a very large proportion of Negroes in comparison to the white population has been on relief. The percentage of convictions for crime of Negroes is higher than that of whites. Moreover, the Jury Judges have found it difficult to secure the service of qualified Negroes, many of whom present excuses based on professional or industrial occupations. Two judges of the Supreme Bench testified that, unless it is necessary, it is not the custom in Baltimore to compel jury service from professional men or from small business men or industrial workers, white or colored, whose service would entail financial sacrifice. The judges and the jury clerk also testified without contradiction that there has been no systematic or arbitrary exclusion of Negroes because of their race but, on the contrary, a positive effort, especially by the jury judges, to obtain the service of qualified Negro jurors.

The District Judge found from the evidence the ultimate fact "that there has been no intentional and systematic exclusion of Negroes from juries in Baltimore City; and no discrimination against them in practice on account of race and color in the selection of jurors by the Supreme Bench of Baltimore City"; and he reached the conclusion of law that the petition for the writ of habeas corpus should be dismissed (1) on the substantial ground that racial discrimination against Negroes for jury service had not been shown, and (2) on the procedural ground that the petitioners, when represented by competent counsel...