Waters v. State

Darrell Hickman, Justice, dissenting. There are two approved methods of selecting a jury panel in Arkansas, both deemed constitutional. One is a purely random method where every person is selected by numbers. The other, the one used in this case, is a more selective method where the jury commissioners are advised to use some judgment in selecting people who will serve as jurors:

The majority concedes that there was no evidence of any purposeful discrimination in this case. There is not a hint in the record that the judge or any of the commissioners used or intended to use race as a criterion for selecting or excluding anyone. The only evidence that can be the basis of the majority decision is statistics. The commissioners agreed that the judge told them to select jurors who had the courage of their convictions and who were honest, trustworthy, fair-minded, and impartial. One commissioner was black. He said that he did not use race as a criterion in his selection. He said the judge told them to select good jurors, which to him meant people who would be fair whether black or white.

The other jury commissioners testified in a like manner and it would be fair to conclude from their testimony that it never occurred to any of them that they were supposed to select or exclude anybody because of race. Without any facts or evidence to support its conclusion except some statistics, the majority concludes that the system used in this case amounted to purposeful discrimination.

What did the appellants show? First, they simply made the assertion, “The percentage of black people is not sufficient.” The United States Supreme Court said in Swain v. Alabama, 380 U.S. 202 (1964): “[P]urposeful discrimination may not be assumed or merely asserted. ... It must be proven.” The sheriff testified that he thought the percentage of black people in Howard County was about 20 percent. On appeal, the 1970 Census figures for that county are offered as evidence that the county was composed of 20.32 percent black people. The trial judge did not even have this evidence when he made his ruling. We must find this ruling to be clearly erroneous in order to overturn it.

Second, no evidence at all was offered of past practices in Howard County which might indicate a pattern of invidious discrimination. No evidence was offered of the percentage of black people registered to vote or even the percentage of black people eligible to vote. There was not a hint that the commissioners resorted to racial discrimination in selecting prospective jurors. In Patton v. Mississippi, 332 U.S. 463 (1947), it was shown that no Negro had been called for jury service for thirty years.

Arkansas voter registration records do not reflect race so it cannot be argued that those records afforded an opportunity to exclude black people. In Alexander v. Louisiana, 405 U.S. 625 (1971), the records did reflect the race of those being selected. Certainly the names of black people could give no clue of race. In Castaneda v. Partida, 430 U.S. 482 (1977), the court found that the names of Mexican-Americans did reflect their race.

What we have is a bare assertion of racial discrimination, one set of statistics, and merely an opportunity to discriminate. In the Castaneda case, on which the majority relies, the court pointed out that the State put on virtually no proof to rebut a comprehensive showing of a ten-year pattern of discrimination. The Court remarked:

Inexplicably the State introduced practically no evidence. The testimony of the State District Judge dealt principally with the selection of the jury commissioners and the instruction given to them. The commissioners themselves were not called to testify. [Emphasis added.]

The commissioners did testify in this case and, unless their testimony is totally disregarded or found to be unworthy of belief, their testimony cannot be ignored. The law requires proof of a racially discriminatory intent before the Equal Protection Clause is violated. Swain v. Alabama, supra; Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977). There is no such proof in this case.

The majority decision is legally inexplicable to me. I can only understand it because it concerns a sensitive issue, but that is no reason to relax the standards of the law. Racism is not an evil that can be overcome with legal gymnastics. It is best dealt with by confrontation and a determination that equality will have only one meaning.

I would suggest the courts have been wrong to approve the jury selection method used in this case. The majority decision is evidence of just how restrictive the law can be. For the selection to meet the approval of the courts, the jury commissioners are placed in an untenable situation. They must not discriminate and yet the panel they choose must contain a certain percentage of people of a particular race. That is a form of discrimination. The commissioners’ intentions, however good and however innocent, will be for naught unless the panel fits a pattern which the courts have ill-defined. It is basically unfair to ask commissioners to be so devious.

It would be better to abandon altogether the idea that such a system will work. If this idea were abandoned, a person’s integrity would not be questioned without evidence; criminal defendants would not have to be concerned about the composition of the jury; the courts would not have to constantly deal with this difficult question; and, more importantly, there would be one less problem that would be a divisive instrument among people.

I would suggest that no Arkansas jury should be chosen again as this one was, not because I think it was an unconstitutional jury, since I feel it was constitutional, but because we can ill afford this problem in our criminal justice system.

Stroud, J., joins in this dissent.