Luther Bailey, Appellant, v. Lee Henslee, Superintendent of the Arkansas State Penitentiary, Appellee, 287 F.2d 936 (8th Cir. 1961)

On January 18, 1960, the Supreme Court of the United States, in Bailey v. Henslee, 361 U.S. 945, 80 S. Ct. 408, 4 L. Ed. 2d 364, entered the following order:

"Petition for writ of certiorari to the United States Court of Appeals for the Eighth Circuit denied without prejudice to a further application for writ of habeas corpus in the appropriate United States District Court, on the question whether members of petitioner's race were deliberately and intentionally limited and excluded in the selection of petit jury panels, in violation of the Federal Constitution."

Pursuant to this suggestion Luther Bailey, who is the defendant-prisoner concerned and who is now confined in the Arkansas State Penitentiary, petitioned the United States District Court for the Eastern District of Arkansas for a writ of habeas corpus. He based his case on the issue specified by the Supreme Court. After a hearing and the introduction of evidence his petition was denied. Bailey v. Henslee, D.C.E.D. Ark., 184 F. Supp. 298. Judges of this court granted the certificate of probable cause required by 28 U.S.C.A. § 2253 and the appeal is now before us.

Bailey, an adult Negro, was charged by information and convicted by an all-white petit jury in September 1956 (the March 1956 term) in the Circuit Court, First Division, Pulaski County, Arkansas, of the crime of rape (as defined in §§ 41-3401 and 41-3402 of Arkansas Statutes, 1947) committed in Little Rock on June 14, 1956. The jury did not render a verdict of life imprisonment in the state penitentiary at hard labor, as it had the right to do under §§ 41-3403 and 43-2153, and therefore, in line with the interpretation consistently given § 43-2153 by the Supreme Court of Arkansas,¹  Bailey was sentenced to death.²  Since his conviction and sentence, his case has found its way several times into the appellate courts. We set forth in the margin, for background, its step-by-step progress.³ 

We emphasize, initially, that the question of Bailey's guilt is not now before us.⁴  This is a situation where, as the United States Supreme Court once described the posture of another Arkansas case, "* * * what we have to deal with is not the petitioners' innocence or guilt but solely the question whether their constitutional rights have been preserved." Moore v. Dempsey, 261 U.S. 86, 87-88, 43 S. Ct. 265, 67 L. Ed. 543.

While the three of us who have heard the present appeal would naturally be hesitant and disinclined to differ with conclusions reached by the panel (on which one of us sat) of this court which heard the first federal appeal in the case, Bailey v. Henslee, 8 Cir., 264 F.2d 744, and while we agree that the posture of that appeal and the record then before the court clearly called for the affirmance of the District Court's denial of the second petition for a writ of habeas corpus, and for the reasons set forth in that opinion, we are now confronted with the Supreme Court's order of January 18, 1960. We regard that order as a directive authorizing not only a new petition by this defendant but, as well, his making of a new record on the single issue now presented. The record has been made at the hearing and upon the evidence presented to Judge Young on the third and present application for the writ. We must base the conclusion we are now to reach on this new record unencumbered by limitations and shortcomings, if any, which may have characterized the prior record in this long continued litigation. We also regard the Supreme Court's order as a directive requiring us to proceed to the merits of the issue apart from any procedural considerations, such as exhaustion of state remedies, or other concern for orderly administration of criminal justice which thus far seem to have defeated this particular defendant.

Arkansas Statutes, 1947, as amended, provide the method of choosing jury commissioners and jurors.⁵  This statutory procedure, of course, is followed in Pulaski County. The Circuit Court has a term in that county each September and March. § 22-310. As a matter of local practice, the Court there operates in three divisions. The First Division is concerned exclusively with criminal cases. The Second and Third Divisions are concerned with civil cases. Each division has its own jury commissioners and the juries selected by each set of commissioners operate only in the particular division. One exception to this division practice took place during the March 1956 term (the one at which the defendant was convicted) when 17 jurors were transferred from the Third Division to the First Division in connection with the trial of Emmett Earl Leggett;⁶  afterward they were returned to the Third Division and were not used again in the First Division. This transfer had nothing to do with Bailey's case. Between 1939 and 1956 any juror who was selected for service in either the Second or the Third Division was legally qualified to serve in the First Division.

Most of the pertinent facts having to do with Negro representation on the Pulaski County panels are set forth in the opinion below at 184 F. Supp. 298, as well as in this court's first opinion in 264 F.2d 744, and these facts need not be reviewed in detail here. We mention only that there has been Negro representation, at least since 1952, on the regular panels of the First Division; that there has been no (or, at the most, one) instance of Negro representation on the alternate panels; that there is no positive evidence of any Negro representation on the special panels; that since 1939 no Negro has served on any panel in the Second and Third Divisions; and that there has been, to an extent at least, some designation of race in the jury records. Bailey's Exhibit 1, to which reference is made in Judge Young's Table at page 301 of 184 F. Supp., also covers the 4 years from September 1956 through March 1960 and would show race representation for the court terms held during that period. Specifically, that exhibit (which the parties stipulated sets forth facts to which the present Deputy Clerk would have testified if called) shows the presence of from one to three Negroes on the regular panel in each of these later terms, the identity of all Negroes who have served since 1952, and the absence of any Negro's name among the alternates.⁷ 

So much for the facts. In turning to the legal aspects of the case, we feel that a preliminary review of established principles is in order:

The right of a defendant in a criminal prosecution to a trial "by impartial jury" is guaranteed by Article 2, Section 10, of the Constitution of the State of Arkansas.⁸  When a right to a jury trial exists,⁹  then, as was emphasized many years ago by the United States Supreme Court, a jury's proper composition is fundamental:

"(T)he constitution of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds." Strauder v. West Virginia, 1879, 100 U.S. 303, 308, 25 L. Ed. 664.

Strauder and a long line of succeeding Supreme Court cases hold that discrimination on the basis of race or ancestry in the selection of persons for service on grand or petit jury panels is violative of the equal protection clause of the Fourteenth Amendment.¹⁰  A federal statute supplements this rule. 18 U.S.C.A. § 243. This does not mean, however, that a jury must have proportional representation of races in order to assure the equal protection of the laws. State of Virginia v. Rives, 100 U.S. 313, 322-323, 25 L. Ed. 667; Akins v. State of Texas, 325 U.S. 398, 403, 65 S. Ct. 1276, 89 L. Ed. 1692. Proportional racial limitation as such is forbidden. Cassell v. State of Texas, 339 U.S. 282, 286-287, 70 S. Ct. 629, 94 L. Ed. 839. A defendant has no right even to have his race represented on his jury.¹¹ 

"What an accused is entitled to demand, under the Constitution of the United States, is that, in organizing the grand jury as well as in the empaneling of the petit jury, there shall be no exclusion of his race, and no discrimination against them, because of their race or color". Martin v. State of Texas, 200 U.S. 316, 321, 26 S. Ct. 338, 339, 50 L. Ed. 497.

Furthermore, inequality or disproportion in the number finally selected does not in itself show discrimination. Akins v. State of Texas, supra, at page 403 of 325 U.S., at page 1279 of 65 S. Ct.

Discrimination in a jury's selection must of course be proved; it is not to be presumed. Tarrance v. State of Florida, 188 U.S. 519, 520, 23 S. Ct. 402, 47 L. Ed. 572. The burden of establishing the discrimination is upon the defendant. Akins v. State of Texas, supra, at page 400 of 325 U.S., at page 1277 of 65 S. Ct. He may, however, establish a prima facie case of discrimination of this kind and, if he does, the burden then passes to the state to refute the discrimination. Evidence that Negroes have never served on a jury in the county or parish has been held to make a prima facie case.¹²  Such a case is established where race differentiating tickets are used to identify jurors and no Negro is selected in a panel of 60. Avery v. State of Georgia, 345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244. The presence on the panel of a few Negroes who would probably be disqualified does not constitute sufficient rebuttal of the prima facie case. Reece v. State of Georgia, supra, at page 88 of 350 U.S., at page 169 of 76 S. Ct. Testimony of non-discrimination expressed in generalities is not sufficient to rebut.¹³  Discriminatory selection in prior years does not nullify a present conviction if the selection of the jury for the current term is on a proper basis. "Former errors cannot invalidate future trials". Brown v. Allen, 344 U.S. 443, 479, 73 S. Ct. 397, 418, 97 L. Ed. 469.¹⁴ 

A state's restriction in the selection of jurors to males, freeholders, citizens, persons within certain ages, or those having educational qualifications, has been held not to violate the Fourteenth Amendment. Neal v. Delaware, 103 U.S. 370, 386, 26 L. Ed. 567; Gibson v. State of Mississippi, 162 U.S. 565, 580, 16 S. Ct. 904, 40 L. Ed. 1075. A restriction to those whose names appear on the tax list has been similarly upheld. Brown v. Allen, supra, at page 474 of 344 U.S., at page 416 of 73 S. Ct.

In avoiding racial discrimination in the selection of jurors it is not enough for the jury commissioners or any other selecting agency to be content with persons of their personal acquaintance. Smith v. State of Texas, 311 U.S. 128, 132, 61 S. Ct. 164, 85 L. Ed. 84; Hill v. State of Texas, 316 U.S. 400, 404, 62 S. Ct. 1159, 86 L. Ed. 1559. It is "their duty to familiarize themselves fairly with the qualifications of the eligible jurors of the county without regard to race and color". Cassell v. State of Texas, supra, at page 289 of 339 U.S., at page 633 of 70 S. Ct.

Although the question whether racial discrimination exists has been said to be a question of fact, this does not relieve a federal court of the duty to make independent inquiry and to determine whether a federal right has been denied.¹⁵ 

The Supreme Court of Arkansas itself has recognized these principles and has done so both in opinions affirming convictions against the challenge of unconstitutionality and in opinions reversing.¹⁶ 

Our task here is to apply these principles to the facts before us. We should note, however, what we are not now concerned with: (1) There is no contention here that the Arkansas Constitution or statutes themselves authorize any discrimination on account of race in the selection of jurors. (2) There is no contention here that the statutory provision that jurors be "persons of good character, of approved integrity, sound judgment and reasonable information" is improper. (3) There is no complaint here resting on the fact that the charge against the defendant was by information rather than by indictment.¹⁷  (4) There appears to be no contention on this appeal that the stipulated fact that since 1938 no Negro has ever been a jury commissioner in Pulaski County is itself unconstitutional discrimination.¹⁸  (5) There is no contention here that the use of peremptory challenges to eliminate representatives of a defendant's race is improper.¹⁹  (6) And there is no contention here that the Pulaski County three division system itself, with its separate sets of jury commissioners and panels, is invalid.

While the cited authorities establishing the general principles which govern here are numerous, four of the Supreme Court decisions afford special guidance for this case:

1. Norris v. State of Alabama, 294 U.S. 587, 55 S. Ct. 579, 79 L. Ed. 1074. The jury commissioners, through their clerk, prepared a preliminary list of all males between stated ages as prescribed by statute. However, the designation "col." was placed after the names of Negroes on the list. The final grand jury roll was compiled from this list. There was testimony, which the court found acceptable and not overcome, that there were Negroes in the county qualified to serve. No Negro, however, had been called for many years. Similar practices appeared with respect to the selection of the petit jury in another county where the trial took place. The court held that testimony of non-discrimination by way of generalities was not sufficient to overcome the "strong prima facie case". The Negro defendant's rape conviction was reversed.

2. Smith v. State of Texas, supra, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84. Over 3,000 Negroes of the county met the qualifications prescribed by the state statutes for grand jury service. In a 7-year period, however, only 5 of 384 grand jurors who served were Negroes. Of the persons called for grand jury duty only 18 were Negroes and of these the names of 13 appeared last on the 16 man lists; the custom was to select the first 12 on the list. Of the 5 called who were not given No. 16, 4 were placed between Nos. 13 and 16 and one was No. 6. One of the 5 Negroes who served did so 3 times so only 3 individual Negroes served at all during the 7-year period. The court held that chance and accident alone could not have brought about a listing of so few or been responsible for the numbering circumstances surrounding the names. The Negro defendant's rape conviction was reversed.

3. Avery v. State of Georgia, supra, 345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244. Jury commissioners selected prospective jurors from county tax returns. The names of white persons so selected were printed on white tickets and the names of Negroes on yellow tickets. A drawing was then made from a jury box. The tickets drawn were handed to a sheriff. He gave them to a clerk who arranged the tickets and typed up the final list of persons to serve. The judge who picked out the tickets testified that he practiced no discrimination. However, no Negro was selected to serve on a panel of 60. It was conceded that Negroes were available for jury service. The Negro defendant's rape conviction was reversed. Mr. Justice Frankfurter, in concurring, said, at page 564 of 345 U.S., at page 894 of 73 S. Ct. :

"* * * (O)pportunity for working of a discriminatory system exists whenever the mechanism for jury selection has a component part, such as the slips here, that differentiates between white and colored; such a mechanism certainly cannot be countenanced when a discriminatory result is reached. The stark resulting phenomenon here was that somehow or other, despite the fact that over 5% of the slips were yellow, no Negro got onto the panel of 60 jurors from which Avery's jury was selected. The mind of justice, not merely its eyes, would have to be blind to attribute such an occurrence to mere fortuity."²⁰ 

4. Eubanks v. State of Louisiana, 356 U.S. 584, 78 S. Ct. 970, 2 L. Ed. 2d 991. A jury commission made up a grand jury list of not less than 750 persons meeting the qualifications prescribed by the state statutes. Twice each year the commissioners drew the names of 75 persons from that group. This smaller list was then submitted to one of the criminal court judges who chose a new grand jury of 12 every six months. Some of these judges interviewed prospective jurors; others made the selection on the basis of personal knowledge or reputation. However, the evidence showed that only one Negro had been picked for grand jury duty within memory; that this one instance apparently resulted from a mistaken impression that he was white; that Negroes comprised about one-third of the population of the parish; that there was a substantial number of qualified Negroes; that since 1936 Negroes were included on each list submitted to the judges; and that for the following 18 years only the single Negro was chosen. The Negro defendant's murder conviction was reversed.

In the light of these decisions, this case may be a close one. On the one hand, there is no dispute that, whatever may have been the pre-1953 situation, there has been representation of the Negro race on the regular petit jury panel in each of the terms which have come and gone in the Pulaski County Circuit Court, First Division, from March 1953 through March 1960. The actual number of Negroes has varied from one to three.²¹  There were at least 31 instances of a Negro juror on the regular panel of the 15 terms during the 7½ year period. One Negro may also have been named among the alternates for the September 1954 term. Obviously, then, there has been no exclusion, systematic, studied or otherwise, of Negroes from regular jury panels in the criminal division since 1952.

On the other hand, the record discloses the presence of the following:

1. Since 1939 no Negro has ever served on any kind of panel, regular, alternate or special, in the Second or Third Divisions of the Pulaski County Circuit Court. A fact of this kind, as has been noted above, would support a conclusion that a prima facie case of discrimination in the selection of juries in these civil divisions has been established.

2. The First Division's panels of alternates, from 1952 to 1960, with one possible exception, contained no Negro name. Here again it can be said that this fact creates an unrebutted prima facie case of discrimination in the selection of these alternates.

3. The 5 special panels assembled for the March 1956 term in the First Division, which contained an aggregate of approximately 450 names, included according to the stipulated Exhibit 1, the name of no Negro.²² 

4. Fourteen of the persons on the defendant's own petit jury panel of 37 names came from those 2 special panels consisting exclusively of white persons. In a not dissimilar situation the Supreme Court of Arkansas has said:

"The State contends, and not without attention-compelling force, that commingling of the original thirteen jurors with the panel containing Negroes gave to the defendant in principle the identical opportunity he was contending for: that is, the right to select twelve names from a list partially composed of members of his race. The answer is that we are dealing primarily with the Constitution as distinguished from a particular defendant. * * * But there is no doubt that the local system of jury selection resulted in systematic exclusion of Negroes in violation of the Fourteenth Amendment, * * *

"Our own cases, and decisions by the Supreme Court of the United States, are too clear for misunderstanding." Maxwell v. State, 217 Ark. 691, 232 S.W.2d 982, 983.

5. Over the years presented no more than 3 Negroes appeared in any regular panel of 24 persons. At the most (6 of 15 times) therefore, Negroes have represented one-eighth of the total. This is a little less than what the evidence seems to show, at least for 1954 and 1955, to be the proportion between the races for persons holding the qualifying poll tax receipts.²³  We recognize, of course, that mere lack of identity in proportions is not in itself unconstitutional.²⁴ 

6. There is an unexplained and seemingly unusual amount of repetition of the names of Negroes which do appear on the regular panels from 1953 to 1960 and which in the aggregate made up the 31 instances. A. E. Nabors, who was named in September 1955, was named again in September 1957 and in March 1960. D. B. Lacefield, who was named in September 1955, was also named in March 1958 and March 1960 (he had been named, too, in March 1951). Simon Herron, who was named in March 1956, was also named in September 1958. W. E. Hayes, who was named in September 1955, was named again in March 1959. I. S. McClinton, who was named in March 1957, was also named in September 1959 (he had been named, too, in March 1951). Vilma T. Nabors, who was named in September 1956, was the wife of A. E. Nabors. The 31 names for the 1953-60 period thus come down to only 24 different persons and 2 of these are husband and wife.²⁵ 

7. The Pulaski County poll tax receipts were given racial marks. They contained a "C" when the holders were known to be colored and a "W" when they were known to be white. Where race was unknown, as was often the case when payment of the tax was made by mail, they were marked "W".²⁶ 

8. The jury commissioners, except, perhaps, for two terms, themselves identified names of Negroes on the lists by the designation "(C)" or "(Col)" or "(Colored)". Why this was done does not appear. There is testimony, as is usually the situation in these cases, that this was of no persuasion so far as the jury commissioners were concerned.

9. The testimony of the jury commissioners as to their efforts to ascertain the names of qualified Negroes leaves much to be desired.²⁷ 

The foregoing facts, taken in the aggregate, lead us to the conclusion that a prima facie case of limitation of members of the Negro race in the selection of this defendant's petit jury panel was established, that the State did not rebut it, and that the District Court's conclusion to the contrary was clearly erroneous. Here there appears to be a definite pattern of race selection; here there is a device for race identification with its possibility of abuse; here there is exclusion from the alternate panels and from the special panels actually used; here there is an element of recurrence of the same Negro names; and here there is the additional factor, for what atmosphere it may provide, of exclusion from the civil divisions' panels.

Our determination that the procedure followed in the defendant's trial does not measure up to the standards of the equal protection clause of the Fourteenth Amendment of the Constitution of the United States, as interpreted by the Supreme Court, does not mean that he need go free. The State of Arkansas is at liberty to try him again upon the same information by procedure which meets constitutional requirements. That this may result in further time consuming proceedings, both trial and appellate, before there can be an end to Bailey's case, is, of course, regrettable. Long delays in the attainment of an ultimate decision "may show a basic weakness in our government system",²⁸  may present "a sorry chapter",²⁹  and may be exasperating at times. Nevertheless, it is to the credit and not to the shame of our system that, no matter what the alleged crime may be, a defendant in this nation will receive a trial conducted with the safeguards guaranteed by our fundamental law. The Fifth Circuit recently said: "The very heinousness of the crime and the weight of the physical evidence made it all the more necessary that the defendant's constitutional rights be not lightly or unadvisedly surrendered". United States v. Harpole, 5 Cir., 263 F.2d 71, 83, certiorari denied 361 U.S. 838, 850, 80 S. Ct. 58, 4 L. Ed. 2d 78. Mr. Chief Justice Stone summarized the situation in Hill v. State of Texas, supra, at page 406 of 316 U.S., at page 1162 of 62 S. Ct. :

"A prisoner whose conviction is reversed by this Court need not go free if he is in fact guilty, for Texas may indict and try him again by the procedure which conforms to constitutional requirements. But no State is at liberty to impose upon one charged with crime a discrimination in its trial procedure which the Constitution, and an Act of Congress passed pursuant to the Constitution, alike forbid. Nor is this Court at liberty to grant or withhold the benefits of equal protection, which the Constitution commands for all, merely as we may deem the defendant innocent or guilty * * *. It is the State's function, not ours, to assess the evidence against a defendant. But it is our duty as well as the State's to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. * * * Equal protection of the laws is something more than an abstract right. It is a command which the State must respect, the benefits of which every person may demand. Not the least merit of our constitutional system is that its safeguards extend to all — the least deserving as well as the most virtuous."

The State of Arkansas is entitled to a reasonable time within which to retry this defendant for the crime charged against him. Pending a retrial by the State, the District Court is directed to grant a stay of execution. If he is retried, the Court is directed to enter a dismissal of Bailey's present petition for release on habeas corpus. If he is not retried within nine months from the filing date of this opinion, the District Court is directed to grant Bailey's petition for a writ of habeas corpus.

The judgment appealed from is reversed and the case is remanded for further proceedings consistent with this opinion.