Woodard v. Sargent

• Citation: 753 F.2d 694
• Decision Date: 21 June 1984
• Docket Number: No. 83-2168,83-2168
• Parties: Billy Junior WOODARD, Appellant, v. Willis SARGENT, Warden, Cummins Unit, Arkansas Department of Correction, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 694

753 F.2d 694

Billy Junior WOODARD, Appellant, v. Willis SARGENT, Warden, Cummins Unit, Arkansas Department of

Correction, Appellee.

No. 83-2168.

United States Court of Appeals,

Eighth Circuit.

Submitted June 21, 1984 ^*.

Decided Jan. 31, 1985.

Latham, Watkins & Hills, Reed E. Hundt, Everett C. Johnson, Jr., Washington, D.C., Lessenberry & Carpenter, Thomas M. Carpenter, Little Rock, Ark., for appellant, Billy Junior Woodard.

Steve Clark, Atty. Gen. by Victra L. Fewell, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before McMILLIAN, BENNETT ^** and ARNOLD, Circuit Judges.

ARNOLD, Circuit Judge.

The appellant, Billy Woodard, has been tried by jury, found guilty of capital felony murder, and sentenced to death. See 261 Ark. 895, 553 S.W.2d 259. Woodard was tried by a so-called "death-qualified jury," from which all persons who refused to consider the death penalty had been excluded. In Grigsby v. Mabry, 758 F.2d 226 (8th Cir.1985) (en banc), we held that such juries are not fairly representative of the community and are not impartial on the question of guilt or innocence. In Woodard's case we must face the issue whether Grigsby is to be applied "retroactively," that is, whether Woodard, whose jury was selected before this Court decided Grigsby, is entitled to the benefit of the rule announced in that case. We hold that Grigsby does apply to Woodard's case and that no procedural default bars Woodard from raising the point in this federal habeas corpus proceeding. We therefore reverse the judgment of the District Court, which dismissed Woodard's petition, and remand this cause to it with directions to grant the writ unless the State of Arkansas, within such reasonable time as the District Court may fix, commences proceedings to retry Woodard before an impartial jury. ¹

I.

"As a rule, judicial decisions apply 'retroactively.' Robinson v. Neil, 409 U.S. 505, 507-08 [93 S.Ct. 876, 877-78, 35 L.Ed.2d 29] (1973)." Solem v. Stumes, --- U.S. ----, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (1984). Accord, United States v. Sager, 743 F.2d 1261, 1265 (8th Cir.1984). But ever since Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Supreme Court has held that "the interest of justice" and "the exigencies of the situation" may argue against imposing retroactively a new rule of law enlarging the rights of criminal defendants. Id. at 628, 85 S.Ct. at 1737. The Court's most recent full-dress treatment of the subject is its opinion in Solem v. Stumes, supra. There, as to cases, like the one before us, not involving the Fourth Amendment, the Court reiterated that the issue of retroactivity depends on three factors: (a) the purpose to be served by the new rule; (b) the extent to which law-enforcement authorities have relied on an older rule of law; and (c) the effect on the administration of justice of a retroactive application of the new rule. 104 S.Ct. at 1341.

The balance among these factors varies with the context in which they are applied. In each case, the purpose of the new rule of law, the degree of justifiable surprise that it produces in the minds of the authorities, and the effect of its retroactive application on the administration of justice, must all be examined. Here, we are fortunate in having the guidance of a Supreme Court opinion that is virtually on all fours with the present case. That opinion is Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), itself, the case that originated the whole line of recent analysis of the death-qualified jury.

The petitioner in Witherspoon made two main arguments: (1) that the exclusion for cause from his jury of persons with conscientious scruples against the death penalty made that jury less than impartial on the question of guilt or innocence; and (2) that the same jury was, in any event, not impartial on the issue of punishment. The Court rejected the first argument, not for any analytical fault or intrinsic lack of merit, but for failure of proof on the particular record before it. It accepted the second argument. Thus, Witherspoon's sentence, but not his conviction, was overturned.

For present purposes, the important thing about Witherspoon is that the Court specifically declined to make its holding on the second issue prospective only. A brief amicus curiae filed by 27 States, pointing to the statement in Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 628, 36 L.Ed. 429 (1892), that it was permissible to exclude from capital juries those who had conscientious scruples against the death penalty, asked the Court (assuming its determination to depart from Logan ) not to make any new rule retroactive. The Court weighed the three criteria given above and squarely rejected this request:

[T]he jury-selection standards employed [at Witherspoon's trial] necessarily undermined "the very integrity of the ... process" that decided the petitioner's fate, and we have concluded that neither the reliance of law enforcement officials, nor the impact of a retroactive holding on the administration of justice, warrants a decision against the fully retroactive application of the holding we announce today.

Witherspoon, 391 U.S. at 523 n. 22, 88 S.Ct. at 1777-78 n. 22 (citations omitted).

The new rule announced in Grigsby, of course, is not the same new rule announced in Witherspoon, though it was foreshadowed by the Witherspoon opinion, id. at 520 n. 18, 88 S.Ct. at 1776 n. 18. The Witherspoon rule is that juries from which jurors with any conscientious scruple against the death penalty have been excluded are not impartial on the issue of life or death. The Grigsby rule is that juries from which jurors who refuse to consider the death penalty have been excluded are not impartial on the issue of guilt or innocence.

We see no relevant difference between these two rules for purposes of the Supreme Court's three retroactivity criteria. Like Witherspoon, the purpose of Grigsby is to make jury verdicts more reliable, to purge them of partiality, to make it less likely that the innocent will be convicted (or, as in Witherspoon, that a defendant unworthy of death will receive that extreme penalty). This purpose goes to the heart of the truth-finding function of a trial by jury. We doubt that law-enforcement officials are markedly more surprised by Grigsby, which was foreshadowed in Witherspoon, than they were by Witherspoon 's rejection of Logan. Nor do we believe that a significantly greater number of convictions will be endangered by Grigsby, than sentences of death were by Witherspoon. The Supreme Court has weighed the three retroactivity factors for us in an indistinguishable context, and the balance struck by the Court clearly indicates that Grigsby should be given fully retroactive effect.

Probably the two cases that come closest to supporting a ruling against retroactivity here are Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790 (1975) (per curiam), and DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968) (per curiam). Daniel holds that Taylor v Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), which invalidated a conviction returned by a jury from which women had been systematically excluded, is not to be applied retroactively. And DeStefano reaches the same conclusion as to the rules announced in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (States may not deny jury trial in serious criminal cases), and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968) (right to trial by jury extends to serious criminal contempts). As to DeStefano, it was handed down only two weeks after Witherspoon, which it does not cite, and it is not to be supposed that the Court so soon decided to change its mind. DeStefano can hardly be read, therefore, to cast any doubt on the Witherspoon retroactivity passage quoted above.

But more fundamentally, the rules of law announced in Taylor, Duncan, and Bloom, respectively, are all less directly related to the need for impartiality in the search for truth than are either Witherspoon or Grigsby. Taylor is based on the abstract ideal that juries should be representative of the community, not on any theory that juries composed of men only, or with few women members, are less likely to reach accurate verdicts. Duncan is simply an application of the Sixth Amendment's command to the States. It does not depend on any notion that juries are more likely to be impartial than judges. The rule in Bloom is perhaps closer for present purposes to that in Grigsby, because judges who are themselves the objects of contemptuous behavior may be less impartial in judging that behavior than juries would be, but that was only "[o]ne ground" underlying the holding in Bloom. DeStefano, 392 U.S. at 634, 88 S.Ct. at 2095. Grigsby, by contrast, holds not only that juries shorn of Witherspoon excludables are not a fair cross section of the community, but also that they are prone to convict and not impartial. "[A] petit jury without WEs is 'conviction prone' and, therefore, not an impartial or cross-representative jury." Grigsby, at 237. This is necessarily so, because the group (WEs) whose exclusion prevents the jury from being a fair cross section is defined on the basis of an attitude towards criminal justice. It is the resulting attitude of those who remain on the jury that makes them more likely to be conviction-prone and therefore less than impartial on the issue of guilt or innocence.

The purpose of Grigsby, in short, is "to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials ...." Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971) (plurality opinion), approved in Hankerson v. North Carolina, 432 U.S. 233, 241, 97 S.Ct. 2339, 2344, 53 L.Ed.2d 306 (1977)....