Willis v. Kemp

• Decision Date: 12 February 1988
• Docket Number: No. 82-8677,82-8677
• Citation: 838 F.2d 1510
• Parties: Henry WILLIS, III, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent- Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1510

838 F.2d 1510

Henry WILLIS, III, Petitioner-Appellant, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification

Center, Respondent- Appellee.

No. 82-8677.

United States Court of Appeals, Eleventh Circuit.

Feb. 12, 1988.

Millard C. Farmer, Joseph M. Nursey, Atlanta, Ga., for petitioner-appellant.

Michael J. Bowers, Atty. Gen., W. Davis Hewitt, Asst. Atty. Gen., Mary Beth Westmoreland, Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT, FAY and ANDERSON, Circuit Judges.

TJOFLAT, Circuit Judge:

Petitioner, Henry Willis III, is a Georgia death row inmate, having been convicted of malice murder and sentenced to death by the Superior Court of Bleckley County, Georgia for the shooting of a Ray City, Georgia policeman. ¹ He challenges the district court's denial of his petition for a writ of habeas corpus. In Willis v. Zant, 720 F.2d 1212 (11th Cir.1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3546, 82 L.Ed.2d 849 (1984) (hereinafter Willis I ), we rejected four of petitioner's eight claims for relief. We concluded that two of the remaining four claims required an evidentiary hearing. While retaining jurisdiction over the appeal, we remanded those two claims to the district court, directing the court to hold an evidentiary hearing on those claims. The district court held the hearing and submitted its findings and conclusions to this court. We can now dispose of the four claims left undecided in Willis I.

Petitioner's first claim, which is one of the two claims that we remanded to the district court, is that at trial he was denied his sixth amendment right to a venire representing a fair cross-section of the community because a cognizable group--young adults aged eighteen to twenty-nine ²--was systematically excluded from the venire. On remand, the district court found that young adults did not constitute a cognizable group for sixth amendment fair cross-section purposes, and held that any underrepresentation of young adults therefore did not amount to a violation of petitioner's rights under the sixth and fourteenth amendments.

Petitioner's second claim, also one of the claims that we remanded, is that the prosecutor peremptorily challenged all blacks from petitioner's petit jury in violation of Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). On remand, the district court rejected this claim, holding that petitioner failed to prove that the prosecutor had engaged in a systematic and intentional practice of excluding blacks from petit juries.

Petitioner's third claim is that prosecutorial misconduct rendered petitioner's sentencing proceeding fundamentally unfair, denying him due process. As we noted in Willis I, the district court denied relief on this claim. Petitioner has since abandoned his fourth claim. ³

We affirm the district court's denial of habeas corpus relief with respect to the claims now before us. We begin with a discussion of petitioner's fair cross-section claim.

I.

The purposes of the sixth amendment fair cross-section requirement are to prevent the improper conviction of defendants by biased or partial juries, promote public confidence in the fairness of the criminal justice system, and ensure that the civic responsibility of jury service is shared by all members of the community. Taylor v. Louisiana, 419 U.S. 522, 530-31, 95 S.Ct. 692, 698, 42 L.Ed.2d 690 (1975); see also Lockhart v. McCree, 476 U.S. 162, 174, 106 S.Ct. 1758, 1765, 90 L.Ed.2d 137 (1986). To establish a prima facie violation of the fair cross-section requirement, a complainant must prove

(1) that the group alleged to be excluded is a "distinctive" group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S.Ct. 664, 668, 58 L.Ed.2d 579 (1979). Once a complainant establishes all three elements of his prima facie case, the government bears the burden of "showing attainment of a fair cross section to be incompatible with a significant state interest." Id. at 368, 99 S.Ct. at 671.

In Willis I, we set forth what a complainant must prove to satisfy the "distinctive" or "cognizable" element of a fair cross-section claim. We stated that:

[t]o show that a group is distinct or cognizable under the sixth amendment, a defendant must show: (1) that the group is defined and limited by some factor (i.e., that the group has a definite composition such as by race or sex); (2) that a common thread or basic similarity in attitude, ideas, or experience runs through the group; and (3) that there is a community of interest among members of the group such that the group's interests cannot be adequately represented if the group is excluded from the jury selection process.

Willis I, 720 F.2d at 1216; see also United States v. Potter, 552 F.2d 901, 904-05 (9th Cir.1977). Because the cognizability of a given group involves the relationship between that group and the community, whether the group is cognizable depends on the time and location of the trial. Willis I, 720 F.2d at 1216.

With respect to the cognizability element of his fair cross-section claim, petitioner presented an expert witness, Dr. Abbott L. Ferriss, a professor of sociology and anthropology at Emory University, who testified that young adults across the country generally held views differing from those held by older adults. Dr. Ferriss testified that he had studied national Gallup opinion polls conducted between 1973 and 1978 and had determined that young adults aged eighteen to twenty-nine and older adults held significantly different attitudes on issues such as capital punishment. ⁴

Petitioner also asserted that young adults constituted a cognizable group within Bleckley County itself. Petitioner contended that because Bleckley County schools had not been desegregated until 1970-71, "[o]nly the young adults in the community had grown up in a desegregated society; they were the only white group eligible for jury duty who had attended desegregated schools and had an opportunity to socialize with black persons." In support of this proposition, petitioner presented another expert, Dr. John B. McConahy, a professor of political science and psychology at Duke University. Dr. McConahy testified on deposition that, in general, adults who attended racially desegregated schools tend to exhibit less racial prejudice than adults who attended racially segregated schools. Petitioner also submitted into evidence a public opinion survey taken in Bleckley County in 1978 and supervised by Dr. McConahy. Dr. McConahy contended that the results of the survey showed a difference in attitude between young adults aged eighteen to thirty and older adults within Bleckley County. ⁵

With respect to the underrepresentation element of his fair cross-section claim, petitioner offered evidence showing that while 35.1 percent of the jury-eligible population in Bleckley County fell within the eighteen to twenty-nine age group, only 10.1 percent of the jury pool from which petitioner's petit jury was selected fell within this group--an underrepresentation of 25 percent. ⁶ With respect to the systematic exclusion element, petitioner offered evidence showing that young adults were consistently underrepresented in Bleckley County jury pools. Petitioner sought to show that this underrepresentation was attributable to the "key man" system used to select jury members. Petitioner contended that Bleckley County key men were typically older citizens, and the underrepresentation of young adults resulted from the natural propensity of the key men to select for jury duty older adults like themselves rather than younger adults with whom they were unfamiliar. ⁷

The district court concluded that petitioner failed to establish a fair cross-section violation. Applying this court's definition of cognizability, see Willis I, 720 F.2d at 1216, the district court held that petitioner failed to prove that young adults aged eighteen to twenty-nine residing in Bleckley County in 1977 constituted a cognizable group. Specifically, the court found that:

(1) 18-29 year old persons in Bleckley County, Georgia, in 1977 were not defined or limited as a group by any factor. The group of 18-29 year old persons had no definite composition such as by race or sex.

(2) While there was some similarity of opinion on matters of public interest among 18-29 year old Bleckley County persons, there was no common thread or basic similarity in attitude, ideas, and experience among such persons.

(3) There was no community of interest in 1977 among 18-29 year old Bleckley County persons such that their interests could not be adequately represented if they were excluded from the jury selection process.

We agree with the conclusions of the district court.

The essential characteristic of a cognizable group is its distinctiveness within the community. In other words, a cognizable group, when viewed objectively, is defined or limited by some factor in a manner that sets it apart from the remainder of the community. Willis I, 720 F.2d at 1216; United States v. Potter, 552 F.2d 901, 904-05 (9th Cir.1977). Moreover, the group must be internally cohesive, i.e., there must be a common thread or similarity of attitudes binding all members of the group. Willis I, 720 F.2d at 1216; Potter, 552 F.2d at 904. Finally, these attitudes must not be shared by the remainder of the community, such that the interests of the cognizable group will not be represented if it is excluded from jury service. Willis I, 720 F.2d at 1216; United States v. Musto, 540 F.Supp. 346, 354-55 (D.N.J.1982), aff'd sub nom. United States v. Aimone, 715 F.2d 822 (3d Cir.1983), ...