United States v. Wiman, 19391.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation304 F.2d 53
Docket NumberNo. 19391.,19391.
PartiesUNITED STATES of America ex rel. Willie SEALS, Jr., Appellant, v. Martin J. WIMAN, Warden, Kilby Prison, Montgomery, Alabama, Appellee.
Decision Date29 June 1962


Charles S. Conley, Montgomery, Ala., for appellant.

MacDonald Gallion, Atty. Gen., of Alabama, George D. Mentz, Asst. Atty. Gen., Montgomery, Ala., for appellee.

Before RIVES, BROWN and WISDOM, Circuit Judges.

RIVES, Circuit Judge.

Seals, a Negro, was convicted of the rape of a white woman and was sentenced to death by electrocution. His conviction was affirmed by the Supreme Court of Alabama. Seals v. State, 1960, 271 Ala. 142, 122 So.2d 513. A petition for leave to file in the trial court a petition for writ of error coram nobis was denied by the Supreme Court of Alabama, Ex parte Seals, 1961, 271 Ala. 622, 126 So.2d 474. Certiorari was denied by the Supreme Court of the United States, "without prejudice to an application for a writ of habeas corpus in the appropriate United States District Court." Seals v. Alabama, 1961, 366 U.S. 954, 81 S.Ct. 1909, 6 L.Ed.2d 1246. Application was made pursuant to that suggestion, and this appeal is from the judgment of the district court denying the application for habeas corpus. The questions presented on appeal are stated in the brief filed on behalf of Seals as follows:

"Questions Presented
"1. Whether the all-white grand jury which indicted and the all-white petit jury which convicted the relator reflected a continuous pattern of discrimination against Negroes and limitation of Negroes in respect to jury selection and thus were selected in violation of the Fourteenth Amendment to the Constitution of the United States.
"2. Whether the conviction of relator can be sustained under the Fourteenth Amendment to the Constitution of the United States in view of the segregated system of justice, including the segregated court house, by and in which the defendant was tried.
"3. Whether the conviction of the relator can be sustained under the Fourteenth Amendment to the Constitution, in view of the misleading newspaper publicity appearing prior to the trial of the relator herein, contributing to the generation of an atmosphere of hysteria and prejudice, which publicity was instigated by the police and prosecuting officials.
"4. Whether the conviction of the relator can be sustained under the Fourteenth Amendment to the Constitution of the United States in view of the limitations upon the exercise of voting rights of Negroes by various branches of the Government of the State of Alabama, and the impact of such limitations upon the appellate judiciary which is required by the Constitution of the State to be elected.
"5. Whether the sentence of relator can be sustained under the Fourteenth Amendment to the Constitution of the United States in view of the fact that the conviction and sentence of death was affirmed by the State Supreme Court on the basis of evidence involuntarily extracted from relator during a period of illegal detention.
"6. Whether the sentence of the relator can be sustained under the Fourteenth Amendment to the Constitution in view of the consistent disparity of treatment as between white and Negro offenders in the State of Alabama."

Of the foregoing questions, those numbered 2, 4 and 6 were not presented to the State courts on the appeal from the judgment of conviction, on the petition for leave to file coram nobis, or in any other manner. Those questions cannot therefore be considered here. See 28 U.S.C.A. § 2254. "It has long been settled that the federal courts will not consider on habeas corpus claims which have not been raised in the state tribunal * * *" Darr v. Burford, 1950, 339 U.S. 200, 203, 70 S.Ct. 587, 94 L.Ed. 761; see also, Morris v. Mayo, 5 Cir., 1960, 277 F.2d 103, 105.

The three remaining claims to which this appeal is limited may be conveniently listed as (1) evidence illegally obtained; (2) misleading newspaper publicity; and (3) racial discrimination in jury selection. The first two of these claims do not appear to us to justify relief by habeas corpus, but because of the imposition of the death penalty they will be discussed.

I. Evidence Illegally Obtained.

The commission of the crime by two young Negro men on a white woman was conclusively established by the evidence. Its details are sufficiently described in the opinion affirming Seals' conviction. Seals v. State, 1960, 271 Ala. 142, 122 So.2d 513. The crime was committed about midnight on Sunday, June 15, 1958.

The victim identified Seals and a Negro named Lott as the men who raped her. The officers obtained a confession from Lott in which he said that he and Seals pulled the victim from a telephone booth, beat, robbed and raped her. Lott repudiated that confession, claiming that it had been obtained by beating and threats, and Lott did not testify against Seals. Following Seals' trial, Lott was tried separately, found guilty and sentenced to life imprisonment.

Seals has, from the beginning, denied that he was one of the guilty parties. He was defended upon his trial by a white lawyer employed by his family. Six Negro witnesses were introduced to establish an alibi for Seals. Three Negroes testified to Seals' good character. And Seals testified in his own behalf.

The day following the commission of the crime, the officers arrested about twenty Negro men and took them to the police station for questioning. Of these they "booked" five. During the afternoon of that day, the officers went to the home of Josephine Coulston, a Negro woman who lived two lots away from the filling station at which was located the phone booth from which the victim had been dragged. Seals was at the Coulston woman's home and, along with other members of the household, he was questioned but was not then arrested. At the time Seals was wearing a blue-green plaid shirt.

About 8:00 o'clock the following morning a friend of Seals, one John Middleton, was arrested, questioned, and then released. About 1:00 P.M. Middleton met Seals on the street near Middleton's home, and told Seals that the police were looking for a Negro wearing a blue plaid shirt. According to Middleton, Seals asked that they exchange shirts, and, according to Seals, Middleton exclaimed, "Man, you got one on. If you don't want to be picked up, best thing you can do is pull it off." Seals pulled off the shirt and left it with Middleton, and put on Middleton's shirt. About fifteen minutes later, at about 2:00 P.M., Tuesday, June 17, Seals was arrested while walking along the street.

Seals was then questioned for about four and a half hours. Among other subjects, the officers questioned him as to the whereabouts of the shirt he had worn the day before. The officers deny beating Seals at this time or at any time during any of the questioning periods. After several hours of questioning Seals told the officers that the shirt was at his, Seals' home, in order, according to Seals, to stop the officers from beating him. The officers searched Seals' home for about 35 minutes before Seals admitted to them that he had given the shirt to Middleton. The shirt was then recovered and was introduced in evidence upon Seals' trial. The Alabama Supreme Court held that the testimony of Middleton about the shirt was admitted without error, saying, "Any indication of a consciousness of guilt by a person suspected of or charged with a crime or who may, after such indications, be suspected or charged is admissible evidence against him." Seals v. State, 1960, 271 Ala. 142, 122 So.2d 513, 516. Peculiarly there was no testimony to connect the plaid shirt with the crime in any way, and even the police were not sure why they considered it important.

Seals was returned to jail, and on the next day, Wednesday, June 18, was questioned by the officers in relays from 8:30 A.M. until dark. No confession was obtained, but the officers did get certain admissions which put Seals near the scene of the crime at the time of its commission. Seals told the officers that he had passed a car in the ditch on Chestang Street somewhere around midnight, the time of the commission of the crime, and that he had then heard the voices of two men and the muffled screams of a woman coming from the vicinity of an outside toilet, that he had stood there listening for some ten minutes before going home. At the trial Seals claimed that he had made these admissions to stop beatings, and that in fact he had neither seen the car nor heard the voices and screams.

Seals claims that he was questioned on Thursday as well, and at one time Detective Bryant stated that Seals was questioned continually from the time of his arrest until the arrival of one lawyer Finch late on Thursday. Bryant then stated, however, and all the other officers agreed, that Seals was not questioned at all on Thursday. On the afternoon of Thursday, the 19th, a lawyer named Finch from New York came to the police station to find Seals and obtain his signature on a warranty deed unrelated to the criminal charge. Bryant told Finch that he did not know where Seals was, and Finch was forced to get a court order allowing him to see Seals. The testimony of Finch has never been obtained by deposition or otherwise. On Thursday evening, Seals was transferred to the Mobile jail. He was questioned at least 40 minutes on Friday in the Mobile jail by Mobile and Prichard police, and was at that time confronted by his co-defendant Lott and Lott's confession implicating Seals. Seals also claimed that while in the Mobile jail he was kept continually in solitary confinement and could not tell night from day. He was there from the time his lawyer, Mr. Johnson, first saw him Thursday night, the 19th, until he was sent to Mt. Vernon for psychiatric tests, apparently about a month later. Detective Donald Riddle of the Mobile Police admitted that the one time he...

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