Witcher v. Peyton
| Decision Date | 15 December 1966 |
| Docket Number | Civ. A. No. 66-C-44-D. |
| Citation | 261 F. Supp. 1018 |
| Parties | Dan WITCHER, Petitioner, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Respondent. |
| Court | U.S. District Court — Western District of Virginia |
No appearance for petitioner.
Reno S. Harp, III, Asst. Atty. Gen., Richmond, Va., for respondent.
This case comes before the Court upon a petition for a writ of habeas corpus, filed by a State prisoner pursuant to the provisions of 28 U.S.C. § 2241(a) and (c) (3).
Petitioner is currently serving a term of thirty-five years and one day pursuant to his conviction for rape by the Circuit Court for the County of Pittsylvania, Virginia on January 25, 1963. He previously sought and was granted a hearing by the circuit court. After the hearing the state court discharged the writ of habeas corpus by order entered November 29, 1965. On October 3, 1966, the Supreme Court of Appeals of Virginia rejected a petition for a writ of error and affirmed the judgment of the circuit court.
Petitioner now seeks a hearing from this Court, charging that he "is in custody and is deprived of his liberty without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States." This claim is based upon the contention that the grand and petit juries which indicted and tried him were illegally constituted in that members of petitioner's race were intentionally and systematically excluded from jury service. Petitioner is a Negro.
The facts supporting petitioner's contentions may be recited briefly. Slightly more than one-fourth of the adult population of Pittsylvania County is Negro. The 1950 census shows that Pittsylvania County had an adult population of 35,711 of which 9,271 were non-white. The 1960 census reveals an adult population of 31,439, of which 8,604 were nonwhite. Petitioner contends that within memory of persons living, the number of Negroes summoned for grand jury service has been limited so that the affirmative vote of a Negro member of a grand jury was not essential to an indictment. This contention is supported by petitioner's allegation that on each of the writs of venire facias for the thirty-seven grand juries impaneled from January 1957 through September 1962, the names of Negroes were followed by the designation "(Col.)".
Furthermore, petitioner contends that at no time within the memory of persons living had a Negro served as one of the jury commissioners for the Circuit Court of Pittsylvania County. Never had more Negroes been summoned for jury duty than either litigant might peremptorily strike.
No Negroes were included on ten of the grand juries impaneled from January 1957 through September 1962. Petitioner grants however that one Negro was included on each of the other twenty-seven grand juries, including the grand jury for the September 1962 term which indicted petitioner.
The 1962-63 jury list, from which the jury that tried petitioner was drawn, was compiled about February 1962 by five jury commissioners. These commissioners made selections from the county's seven magisterial districts. The total selected was 400, of which thirty-one were Negroes. All but one of the magisterial districts were represented by Negroes. The number of Negroes selected in the other six districts ranged from four to six, representing from 4.4% to 19.4% of the total number of jurors selected. During the six terms of court that year, 265 names were drawn, of which sixteen were Negroes. Of thirty-five persons named in the writ of venire facias for the trial of petitioner and others during the January 1963 term, three were Negroes. None of these three was sworn as a juror for the trial of petitioner. On these facts petitioner seeks a hearing by this Court on his writ of habeas corpus.
This Court will treat petitioner's contentions with regard to both the grand and petit jury at the same time. It is well established that systematic exclusion of a race from juries which indict or try constitutes a denial of constitutional guarantees which must be afforded to the accused in a state court. United States ex rel. Goldsby v. Harpole, 249 F.2d 417 (5th Cir. 1957). This systematic exclusion is generally considered in connection with Negro civil rights cases, but has been held to apply equally to defendants of Mexican descent, where a substantial number of such persons are qualified for jury service. Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954). In all of these alleged systematic exclusion cases conscious and purposeful discrimination because of race must be shown and the burden of proof rests with the defendant. United States v. Brandt, 139 F. Supp. 349 (N.D.Ohio 1966).
To determine what constitutes satisfying the burden of proof, it would be well to examine some of the cases that develop the point. Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940), reversed the 1938 rape conviction of a Negro. Negroes represented 20% of the population and almost 10% of the poll tax payers. The Court felt that a minimum of 3000 to 6000 Negroes were qualified under the Texas statute for grand jury service. However, during the period from 1931 to 1938 only five of 384 persons who served were Negro. Only eighteen of the 512 persons summoned were Negro. It was pointed out that thirteen of the eighteen Negroes summoned were listed last on the 16-man jury list, the custom being to select the 12-man grand jury in the order of names on the list. Only one of the remaining five Negroes summoned was listed among the first twelve on the list. Only five grand juries during the period had Negro representation; twenty-seven had none. No Negroes served on any grand juries in 1935, 1937 and 1938, the latter being the term which indicted the defendant. The Court held this practice of token representation was "ingeniously or ingenuously" discriminating.
In Hill v. State of Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942), the Court again reversed a rape conviction, where evidence was sufficient to make out a prima facie case of systematic discrimination against Negroes in the selection of grand jurors. The evidence showed a large number of Negroes in Dallas County were literate. From this there was no room to infer that there were none of good moral character, qualified and available for grand jury service under state law. No effort had been made to ascertain whether any Negroes were qualified, which was held a failure by the commissioners to perform their constitutional duties.
Although only one Negro served on the grand jury, the record in another Dallas County case failed to establish that the commissioners deliberately and intentionally limited the number of Negroes on the panel, or that there was discrimination on account of race in the selection of the grand jury. The defendant's murder conviction was affirmed, the court stating:
Purposeful discrimination is not sustained by a showing that on a single grand jury the number of members of one race is less than that race's proportion of the eligible individuals. The number of our races and nationalities stands in the way of evolution of such a conception of due process or equal protection. Defendants under our criminal statutes are not entitled to demand representatives of their racial inheritance upon juries before whom they are tried. But such defendants are entitled to require that those who are trusted with jury selection shall not pursue a course of conduct which results in discrimination `in the selection of jurors on racial grounds.' Akins v. State of Texas, 325 U.S. 398, 403, 65 S.Ct. 1276, 1279, 89 L.Ed. 1692 (1945).
Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947), involved the murder of a white man. A Negro was indicted by an all-white grand jury and convicted by an all-white petit jury, notwithstanding a timely motion to quash the indictment. The facts indicated that more than one-third of the adult population of the county was Negro. At least 25 qualified male Negro electors were eligible for jury service. However, the venire for the term did not contain the name of a single Negro. No Negro had served on a grand or petit jury in criminal court within the county for thirty years. This was held to be systematic, purposeful, administrative exclusion of Negroes from jury...
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Witcher v. Peyton
...U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), which the District Court thought presented a similar factual situation. 261 F.Supp. 1018, 1020 (W.D.Va. Dec. 15, 1966). There was no allegation in Swain, as there is here, that the names on the jury lists compiled by the commissioners for Talla......
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