Billy Guice and Howard Claxton, Sr. v. Ray Fortenberry, Superintendent, East Carroll Parish Prison Farm, Louisiana

GARWOOD, Circuit Judge,

dissenting:

I respectfully dissent.

I agree with the majority and the trial court that petitioners established a prima facie case, and indeed that conclusion is virtually compelled by our holding on the prior appeal. Guice v. Fortenberry, 661 F.2d 496 (5th Cir.1981). 1 However, that holding does not speak to the issue presently before us: Whether the state’s rebuttal evidence was sufficient so that the trial court was not required to find that, absent racial considerations, the grand jury which indicted petitioners would have had a different foreman. In my view, the state’s evidence was sufficient for this purpose, and the findings of the trial court based thereon are not clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273 , 102 S.Ct. 1781 , 72 L.Ed.2d 66 (1982). 2

In assessing the contours and weight of the burden placed on the state by petitioners’ prima facie case, and hence the scale against which the sufficiency of the state’s rebuttal evidence is to be measured, I believe it appropriate to consider the character of the proceeding before us, and the nature of the interest here at stake. See Sumner v. Mata, 449 U.S. 539, 551 , 101 S.Ct. 764, 771 , 66 L.Ed.2d 722 (1979) (quoting with approval from Addington v. Texas, 441 U.S. 418, 423 , 99 S.Ct. 1804, 1807 , 60 L.Ed.2d 323 (1979)). Particularly significant in this connection is the fact that we are reviewing the trial court’s denial, following an eviden-tiary hearing, of a federal habeas corpus claim of racial discrimination in the selection of a state grand jury foreman, which has no relevance to the fairness or reliability of the proceedings by which petitioners’ guilt was ascertained. Whether the habeas *283 setting justifies the imposition of a somewhat less extensive and heavy burden in respect to the state’s rebuttal evidence to a prima facie case of grand jury discrimination has not been expressly addressed by the Supreme Court. In Rose v. Mitchell, 443 U.S. 545 , 99 S.Ct. 2993 , 61 L.Ed.2d 739 (1979), no prima facie case was made and, as Justice Powell pointed out in his concurring opinion there, until Rose it had “been an open question whether federal habeas corpus could be granted a state prisoner solely because the prisoner’s grand jury was discriminatorily chosen.” Id. at 582 , 99 S.Ct. at 3013 (footnote omitted). 3 As to discrimination in grand jury foreman selection, Rose merely assumed “without deciding” that it could be reached on habeas corpus, id. at 551 n. 4, 99 S.Ct. at 2998 n. 4, and though on the prior appeal herein this Court held that it could be so reached, we had no occasion to consider what character of evidence might suffice in rebuttal of a prima facie case. Guice at 499 . While it has been determined that the interests involved are sufficiently important to warrant federal habeas review, that does not necessarily mean that such review should be as extensive either as on direct appeal or as it would be if the accuracy or fairness of the determination of guilt or innocence were at issue. 4 Moreover, in Justice Black- *284 mun’s opinion in Rose one of the major reasons given for holding that such claims could be considered on federal habeas was the belief that “in general” such claims would not be likely to receive the necessary “full and fair hearing” in the state courts, whose own procedures and actions were being challenged, and that hence “[a] federal forum must be available if a full and fair hearing of such claims is to be had.” Id. 443 U.S. at 561 , 99 S.Ct. at 3003.

Accordingly, as this is a federal habeas proceeding and the nexus between petitioners’ substantial rights and the claimed constitutional violation is most attenuated, I would hold that the burden on the state, respecting the scope and character of rebuttal evidence necessary to meet a prima facie case to the extent of raising a fact issue for resolution by the trial court, is somewhat less broad and heavy than such burden would be in other jury discrimination claim contexts.

Against this background, I turn to consideration of whether the state’s rebuttal evidence here was such that it could legitimately be credited by the federal trial court. The Louisiana trial judge, in his testimony at the hearing following our pri- or remand, not only stated that his appointment of the foreman of the grand jury which indicted petitioners was not based on racial considerations and was made on a “best qualified” basis, but also concretely described his specific reasons for appointing this particular individual as foreman of this particular grand jury:

“Q. .. . why, Judge Adams, from that particular list of people [the forty-person grand jury venire] did you pick Mr. Harvey Mounger [as foreman]? What factors went into your consideration in that choice?

“A. I have to admit that I had appointed Mr. Mounger back in 1965. Mr. Mounger is the president of the bank; he’s a graduate in Business Administration; he’s, a graduate in Law from Tulane; he served in the Army as an enlisted man; he went through Officers Candidate School and became an officer; he’s —my wife is of the same church that he is and they keep him on the Vestry all the time; he’s just a sound, good, reliable, dependable person and — you brough [sic] it up — we had had district attorneys in there fighting and all and I just thought that would be a good man to watch you and everybody else, so I put him on there and I believe I’d put him on there again.”

While the lack of any prior appointment of a black as grand jury foreman properly weighs heavily against Judge Adams, 5 it nevertheless seems highly unlikely that in a parish such as this, with a population less than 15,000, there would be any significant number of individuals with qualifications equal or superior to those of Mr. Mounger, 6 and vastly more unlikely that any of such individuals would be on this particular forty-person grand jury venire. 7 It according *285 ly appears to me that, there being no indication that this venire included anyone even arguably as well qualified as Mr. Mounger, the trial court — who observed Judge Adams’ demeanor on the stand — could legitimately conclude that Judge Adams appointed Mounger foreman for the reasons Adams stated under oath — Mounger’s specifically described qualifications — and no other.

Judge Adams’ testimony goes beyond the “mere generalities” and “mere general assertions by officials of their performance of duty” condemned in Norris v. Alabama, 294 U.S. 587, 598 , 55 S.Ct. 579, 583 , 79 L.Ed. 1074 (1935), and subsequent cases. 8 Here the testimony states concrete, specific, and prima fade reasonable and valid, grounds for having made the single choice at issue. While the trial court could legitimately have determined not to credit this evidence, it was not required to reject it. Certainly testimony of this kind is neither incompetent nor unworthy of belief as a matter of law. See Castaneda, 430 U.S. at 498-99, 97 S.Ct. at 1282; Akins v. Texas, 325 U.S. 398, 401-02 , 65 S.Ct. 1276, 1278-79 , 89 L.Ed. 1692 (1945). In my opinion it was within the province of the federal trial court, as fact finder, to credit this testimony and determine that the foreman of this grand jury was not selected on racial grounds. Therefore, I must dissent from our reversal of the court below and rendition of judgment for the petitioners.

. While the state’s arguments do not destroy the prima facie case, they nevertheless in my opinion do weaken it somewhat. Over the years there obviously has been significant relevant change in the jury selection system, and otherwise, in Madison Parish.

. Pullman-Standard clearly holds that the issue of intent to racially discriminate is one of fact within the meaning of the “clearly erroneous” rule, and recognizes that this remains true even where determination of a constitutional issue depends on such a fact-finding. Id. at 287-88 , 102 S.Ct. at 1789-90 . If the trial court’s factual finding is influenced by an erroneous view of the law, this will normally require a remand but does not authorize the appellate court to itself resolve the disputed fact issue. Id. at 291-92 , 102 S.Ct. at 1791-92 .

. Indeed, Justice Powell’s opinion in Rose suggests that the question still remains open, id. at 582 n. 3, 99 S.Ct. at 3013 n. 3, and that was apparently the view of the majority of this Court in Barksdale v. Blackburn, 639 F.2d 1115, 1120 (5th Cir.), cert. denied, 454 U.S. 1056 , 102 S.Ct. 603 , 70 L.Ed.2d 593 (1981). However, our prior opinion in this case holds to the contrary and is clearly binding on this panel. Guice, at 498 n. 2.

. The nature of the nexus between the petitioners’ substantial rights and the claimed constitutional wrong is even more attenuated here than in other grand jury or grand jury foremen cases, because under Louisiana law these petitioners had no right to be free of prosecution for the offenses charged except on indictment by a grand jury. They could have been prosecuted on information filed by the district attorney (and it is evident that the grand jury here in no sense thrust this indictment upon the district attorney, who apparently was eager to prosecute before the grand jury considered the case). See L.S.A.-Const. art. 1, § 15; L.S.A.C.Cr.P. art. 382; State v. Qualls, 353 So.2d 978 (La.1977); Henderson v. Cronvich, 402 F.2d 763 (5th Cir.1968). And, of course, the United States Constitution not only does not require that state prosecutions be on grand jury indictment, but also does not require that such prosecutions be on the basis of any neutral, third-party probable cause determination. Gerstein v. Pugh, 420 U.S. 103, 119 , 125 n. 26, 95 S.Ct. 854 , 869 n. 26, 43 L.Ed.2d 54 (1975). In Rose Justice Blackmun specifically noted that Tennessee required the offenses in question to be prosecuted only on grand jury indictment. Id. 443 U.S. at 547 n. 1, 99 S.Ct. at 2996 n. 1. Similarly, in Pierre v. Louisiana, 306 U.S. 354, 357 , 59 S.Ct. 536, 538 , 83 L.Ed. 757 (1939), a direct review case, Justice Black’s opinion expressly mentions that under Louisiana law prosecution of the offense in question, being capital, required a grand jury indictment. The opinions in other Supreme Court cases dealing with claims of discriminatory grand jury selection in Louisiana likewise disclose that the offenses involved were capital. See Eubanks v. Louisiana, 356 U.S. 584, 585 , 78 S.Ct. 970, 972 , 2 L.Ed.2d 991 (1958); Alexander v. Louisiana, 405 U.S. 625 , 626 n. 1, 92 S.Ct. 1221 , 1223 n. 1, 31 L.Ed.2d 536 (1972). See also Michael v. Louisiana, 350 U.S. 91 , 76 S.Ct. 158 , 100 L.Ed. 83 (1956); Francis v. Henderson, 425 U.S. 536 , 96 S.Ct. 1708 , 48 L.Ed.2d 149 (1976). In Castaneda v. Partida, 430 U.S. 482 , 97 S.Ct. 1272 , 51 L.Ed.2d 498 (1977), discriminatory grand jury selection in a Texas felony prosecution was raised on habeas corpus but, as Justice Powell notes in his dissent, the availability of habeas corpus “was not addressed below and was not briefed or argued in” the Supreme Court. Id. at 508 n. 1, 97 S.Ct. at 1287 n. 1. See also Rose, 443 U.S. at 582 , 99 S.Ct. at 3013 . Texas law requires all felony prosecutions to be by grand jury indictment. Tex. Const, art. I, § 10.

It is, of course, absolutely vital that there be complete racial neutrality in the administration of justice (as well as in other areas of governmental action). But it in no way denigrates the importance of that most fundamental principle to attach significance to the presence and nature of any nexus between its claimed violation and the substantial rights of the party asserting such claim in a proceeding to set aside a criminal conviction. We would not, I assume, set aside a conviction where the jury in question was not selected on a racial basis merely because there were other juries impaneled in the same county at that time whose selection was racially motivated. Cf. Cassell v. Texas, 339 U.S. 282, 290 , 70 S.Ct. 629, 633 , 94 L.Ed. 839 (1950) (direct appeal of Texas murder conviction “... the issue must be whether there has been discrimination in the selection of the jury that has indicted petitioner .. . ”). Even when the particular grand jury involved is racially selected, actual prejudice is relevant on habeas *284 corpus if there has been a failure to comply with state rules concerning grand jury challenges, notwithstanding that there is cause for such failure. Francis v. Henderson, 425 U.S. at 542 , 96 S.Ct. at 1711 (“... not only a showing of ‘cause’ for the defendant’s failure to challenge the composition of the grand jury before trial, but also a showing of actual prejudice ...”). See also Tollett v. Henderson, 411 U.S. 258 , 93 S.Ct. 1602 , 36 L.Ed.2d 235 (1973) (guilty plea made on advice of competent counsel bars habeas attack on indicting grand jury as having been racially selected).

.However, it is to be noted that Judge Adams had thrice previously appointed black jury commissioners and likewise appointed the first black grand jury foreman in the parish. While the significance of the latter appointment is diminished since it occurred after petitioners’ state trial, at which they raised the issue of discrimination in appointment of the foreman, it nevertheless occurred prior to any of our rulings on the prior appeal.

. It may also be noted of those serving as grand jury foremen in this parish from 1956 through the hearing below, Mounger was the only person to so serve as many as three times (he also served in 1962), and, with a single possible exception, the only person to so serve more than once. There was no impeachment of Mounger’s qualifications, nor any suggestion that they were not unusually outstanding in this community.

. Such a remote probability is even further decreased by reason of the fact that persons *285 such as teachers, lawyers, doctors and ministers, actively engaged in the practice of these professions, were entitled to, and usually did, claim exemption from grand jury service. There is no evidence of the number of blacks in this grand jury venire (though two served on the grand jury which indicted petitioners); nor is there any evidence as to the qualifications of any individual on it other than Mounger. Such evidence was obviously easily accessible to the petitioners. Judge Adams’ testimony indicates he was generally knowledgeable about those serving on the Madison Parish grand jury ve-nires, and there was no evidence he was not aware of the qualifications of any member of this particular venire.

Although the offense for which petitioners were indicted was apparently something of a local cause célebre, as they were the chief and assistant chief of police of the largest city in the parish, it occurred after the grand jury foreman had been selected, and hence could not have influenced the selection.

. In Norris the testimony was “that black residents were not excluded from this general list; that in compiling the jury roll he did not consider race or color; that no one was excluded for that reason”; other evidence, however, indisputably showed many qualified blacks who were not listed. Id. at 597-98 , 55 S.Ct. at 583 . In Alexander v. Louisiana, 405 U.S. 625, 632 , 92 S.Ct. 1221, 1226 , 31 L.Ed.2d 536 (1972), “a member of the jury commission, testified that no consideration was given to race during the selection process.” Turner v. Fouche, 396 U.S. 346, 361 , 90 S.Ct. 532, 540 , 24 L.Ed.2d 532 (1970), an injunction proceeding, refused to give decisive weight to “testimony of the jury commissioners and the superior court judge that they included or excluded no one because of race.” Similarly, in Hernandez v. Texas, 347 U.S. 475, 481 , 74 S.Ct. 667, 672 , 98 L.Ed. 866 (1954), the testimony held to be insufficient rebuttal was that by “five jury commissioners that they had not discriminated against persons of Mexican or Latin American descent in selecting jurors. They stated that their only objective had been to select those whom they thought were best qualified.” Eubanks v. Louisiana, 356 U.S. 584, 587 , 78 S.Ct. 970, 973 , 2 L.Ed.2d 991 (1958), applied the same approach in respect to rebuttal evidence of “... judges now serving on the local court [who] testified generally that they had not discriminated against Negroes in choosing grand juries, and had only tried to pick the best available jurors.”

It is also to be noted the choice of a foreman — of whom there can only be one for each grand jury and who is to be selected by the judge from the grand jury venire, while the remaining grand jurors are selected therefrom by lot — obviously contemplates and requires a different sort of selection than that for the usual grand or petit jury venire. Plainly, the choice must be made on the basis of something beyond the presence of qualifications normally common to large groups of people, such as broad age ranges, minimal educational attainment, voter qualification, lack of a criminal record and the like. Moreover, as but a single individual is selected, in any given instance this is necessarily exclusive of all but one race, while in a group selection it is to be expected that in most instances members of both races in a community such as this would be included. Finally, the selection is made from a limited group, so that the selection of a person with unusually high qualifications is a particularly strong indication that such qualifications were the basis of the choice.