Petition — Winston v. Eby

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80-1352

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IN THE f CLERK

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A seo Name

Supreme Court of the Bnkted States

OCTOBER TERM, 1980

No.

ANDREW J. WINSTON, Sheriff,

City of Richmond,

and

Don Hutto, Director of

Department of Corrections,

Petitioners,

V.

ROBERT G. EBY

and

FRANKLIN M. PHILLIPS,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

J. MARSHALL COLEMAN

Attorney General of Virginia

JAMES E. KULP

Deputy Attorney General

900 Fidelity Building

830 East Main Street

Richmond, Virginia 23219

(804) 786-6563

QUESTIONS PRESENTED

I. Does a master jury list composed of twenty-five percent

women meet the fair-cross-section of the community require-

ments of the Sixth Amendment?

II. Does the exemption from jury service of persons

necessarily and personally responsible for children sixteen years

of age or younger represent a significant state interest to justify

a failure to attain a fair-cross-section of the community under

the Sixth Amendment?

III]. Did the respondents make out a prima facie case of

jury discrimination?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED .............ccccsscssssssssssssssscenceseenees

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CONSTITUTIONAL PROVISIONS AND STATUTES

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ARGUMENT

1. A master jury list composed of twenty-five percent

women represents a fair-cross-section of the com-

munity under the Sixth Amendment................0004

2. The exemption from jury service of persons neces-

sarily and personally responsible for children six-

teen years of age or younger represents a signifi-

cant state interest and justified a failure to attain a

fair-cross-section of the community under the Sixth

TES AN ee UTI ORE TOE Te ET

3. The respondents failed to make out a prima facie

Case Of JULY GISCTIMIMALION............cccceeeeeereeereeeeteeeeees

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CERTIFICATE OF SERVICE ...............ssssssrccssercrsesesersesees

Page

TABLE OF CITATIONS

CASES

Bowen v. State, 260 S.E.2d 855 (Ga. 1979)...

Brewer v. Williams, 430 U.S. 387 (1977) wu.ccceceeeeeeeeeee

Duren v. Missouri, 439 U.S. 357 (1979) occeeeeeeeeeeeeee

LaVallee v. Delle Rose, 410 U.S. 690 (1973) wu...

Manyland Casualty Co. v. Rickenbaker, 146 F.2d 751

Ce sates siensinccsonssasnrsediicaktekecusckuckatinleness

Meaa’s Baker, Inc. v. C.1.R., 364 F.2d 101 (Sth Cir.

FE Biisdahdensisasiehbicsnucsbiancaveainicantenainansebooaaiek puciaeiains

People v. Hill, 415 N.Y. Supp. 2d 541 (1979) wo...

Stamps v. State, 603 S$.W.2d 59 (1980) (Ct. App.

STD sichxiaincaseiasnostamicnsarabecasbisicbiacbioiavendivaeieounaisics

Taylor v. Louisiana, 419 U.S. 522 (1975) ...ccccccceeeeeee.

United States v. Hanson, 472 F.Supp. 1049 (D.

fg) SERRRRN I Pane mn Cr meen rr Mine PAD eRe

Williams v. Dalsheim, 480 F.Supp. 1049 (E.D.N.Y.

PU sili slaphua scan hianea caisscsdan te scatdi saved deseateanicnnnastaveanios

Williams v. Florida, 399 U.S. 78 (1970) voccccccccccccceeeeee

Wright v. North Carolina, 483 F.2d 405 (4th Cir.

PFET lsh sci rcdenieaa a cbiainsncdalvbuldeensccalchusenibabiiotGie

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No.

ANDREW J. WINSTON, Sheriff,

City of Richmond,

and

Don Hutto, Director of

Department of Corrections,

Petitioners,

v

ROBERT G. EByY

and

FRANKLIN M. PHILLIPS,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

JUDGMENT OF THE UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals is unreported and is

included herein as Appendix A. The decisions of the United

States District Court are included herein as Appendix B.

2

JURISDICTION

The decision of the Court of Appeals was entered on

November 12, 1980. The jurisdiction of this Court to issue the

Writ of Certiorari in this case is invoked under 28 U.S.C.

§1254(1).

CONSTITUTIONAL PROVISION

AND

STATUTES INVOLVED

1. United States Constitution, Amendment VI.

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

state and district wherein the crime shall have been committed,

which district shall have been previously ascertained by law,

and to be informed of the nature and cause of the accusation; to

be confronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor, and to have

the assistance of counsel for his defense.

2. Section 8-208.6(26) of the Code of Virginia (1950), as

amended.

§ 8-208.6. The following shall be exempt from serving on

juries in civil and criminal cases:

* * *

(26) Any persons who notify the jury commissioners

within the time and in the manner prescribed by § 8-208.10 that

they have legal custody of and are necessarily and personally

responsible for a child ur children sixteen years of age or

younger or a person having a physical or mental impairment

requiring continuous care by them during normal court hours.

3. Section 8-208.10 of the Code of Virginia (1950), as

amended.

§ 8-208.10. The commissioners shall, not later than the

first day of December following their appointment, submit a list

3

showing the names, addresses and, if available, the occupations

of such of the inhabitants of their respective counties or cities as

are well qualified to serve as jurors and are not excluded or

exempt by §§ 8-208.2, 8-208.3, 8-208.4 and 8-208.6, such list to

become effective January first following. The number of per-

sons selected for each court shall be as specified in the order

appointing the commissioners.

* * *

STATEMENT OF THE CASE

The respondents were charged with possession of several

tons of marijuana with intent to distribute. Prior to trial in the

Circuit Court of Hanover County, Virginia, the respondents

filed a Motion to Quash the master jury list on the ground of

systematic exclusion of women. The respondents entered into a

stipulation with the State prosecutor that the 1970 census

indicated approximately fifty percent women in the adult

population in Hanover County. The stipulation also included

that the 1976 and 1977 master jury lists contained twenty-five

percent women. When the stipulation was presented at trial the

State judge questioned the reliability of the percentage of

women on the 1976 and 1977 master jury lists when it was

shown that these percentages had been arrived at by merely

looking at the master jury list and assuming certain names were

male and others were female. The State trial judge rejected this

stipulation as being unreliable and not accurately reflecting the

facts. Thereafter the trial judge denied the Motion to Quash

the master jury list and respondents were subsequently con-

victed. The respondents appealed their conviction to the

Supreme Court of Virginia where they raised the issue of Jury

discrimination. This appeal was denied by the Supreme Court

of Virginia. The respondents unsuccessfully sought Certiorari

in this Court which was denied on March 19, 1979, Case No.

78-5796.

After exhausting State court remedies, the respondents

filed a petition for a Writ of Habeas Corpus in the United States

District Court, asserting among other things the issue of jury

4

discrimination. Argument was had before the District Court on

August 20, 1979, at which time no evidence was presented. The

petitioners filed the affidavits of two former jury commissioners

explaining that when arriving at the names to be placed upon

the master jury list they did not consider an undetermined

number of women who they personally knew had to care for

infant children. On December 17, 1979, the District Court

granted respondents a Writ of Habeas Corpus on the ground

that they had been denied a jury composed of a fair-cross-

section of the community in violation of the Sixth Amendment

and upon another ground which was not considered by the

Circuit Court of Appeals.

ARGUMENT

I

A MASTER JURY LIST COMPOSED OF TWENTY-FIVE

PERCENT WOMEN REPRESENTS A_ FAIR-CROSS-

SECTION OF THE COMMUNITY UNDER THE SIXTH

AMENDMENT.

In Duren v. Missouri, 439 U.S. 357 (1979), this Court held

that the fair-cross-section requirement of the Sixth Amendment

was violated where jury venires averaged less than 15% women.

This Court did not undertake to decide what percentage of

women serving On juries would comport with the Sixth Amend-

ment. This case presents this Court with the opportunity to

answer this very question which was left open in Duren.

As noted by Justice Rehnquist in his dissent in Duren, the

States need a more definitive guideline in this area in order to

avoid the unhappy prospect of having convictions set aside.

The Sixth Amendment’s focus is primarily upon a defen-

dant’s right to be tried by a jury fairly representative of the

community, and not with the right of a particular group to be

included in the jury pool. See, Williams v. Florida, 399 U.S. 78

(1970). Therefore, the standards under the Sixth Amendment

and under the Equal Protection Clause differ, and the Sixth

Amendment standards are somewhat more flexible. See,

United States v. Hanson, 472 F.Supp. 1049 (D. Minn. 1979).

5

This flexibility approach to Sixth Amendment cases was

recognized by this Court in Taylor v. Louisiana, 419 U.S. 522

(1975), when the Court observed:

“The fair-cross-section principle must have much leeway in

application. The States remain free to prescribe relevant

qualifications for their jurors and to provide reasonable

exemptions so long as it may be fairly said that the jury list

or panel are representative of the community.” 419 U.S. at

538.

Finally, this Court emphasized:

“That in holding that petit juries must be drawn from a

source fairly representative of the community we impose

no requirement that petit juries actually chosen must

mirror the community and reflect the various distinctive

groups in the population.” 419 U.S. at 538.

In Duren this Court found that less than one of every six

prospective jurors was female, and that the disparity of almost

40% between the percentage of women in the jury venires and

the percentage of women in the community required the

conclusion that women were not fairly represented. Contrasting

Duren with the present case one finds that one of every four

prospective jurors was female and that the disparity between

the percentage of women on the master jury lists and the

percentage of women in the community was 25%.

Such figures compare favorably with figures approved by

other Courts. In People v. Hill, 415 N.Y. Supp.2d 541 (1979),

the defendant alleged that the jury venires were 30% women

whereas the percentage of women in the county was 53%, a

23% disparity. The New York Court held such figures failed to

establish a prima facie case. In Williams v. Dalsheim, 480 F.

Supp. 1049 (E.D.N.Y. 1979), the Court found that jury venires

averaging approximately 33% female did not violate the Con-

stitution’s fair-cross-section requirement where women at the

time constituted 54% of the population. Likewise, the Supreme

Court of Georgia in Bowen v. State, 260 S.E.2d 855 (1979),

found no violation of the fair-cross-section requirement where

the jury panel indicated 29.5% females where the population

6

was 54.2% female. Additionally, the Court of Appeals for

Missouri found that a jury panel of 27.9% women did not show

a violation of the principles set forth in Duren. See, Stamps v.

State, 603 S.W.2d 59 (1980).

In the present case, one in every four persons on the master

jury list was a female. Can it be said that such a percentage

fails to provide a fair-cross-section of women on juries? What

can possibly distinguish a jury list consisting of 25% women

from one that consists of 27.9% or 29.5% found sufficient in

Stamps and Bowen, supra?

The District Court’s opinion of December 17, 1979, finding

that the respondents’ jury was composed of only 17% females is

misleading. The panel of twenty jurors from which respon-

dents’ jury was chosen contained four females, two of whom

were struck through the use of peremptory challenges. Addi-

tionally, the respondents agreed to excuse two other women

from the venire prior to obtaining the pane: of twenty. There-

fore, had these two women not been excused, and had the

peremptory strikes not excluded two additional women, the

respondents’ jury would have been composed of 50% women.

It is submitted that a jury list composed of 25% women

comports with the fair-cross-section requirements of the Sixth

Amendment.

ARGUMENT

II

THE EXEMPTION FROM JURY SERVICE OF PERSONS

NECESSARILY AND PERSONALLY RESPONSIBLE FOR

CHILDREN SIXTEEN YEARS OF AGE OR YOUNGER

REPRESENTS A SIGNIFICANT STATE INTEREST AND

JUSTIFIED A FAILURE TO ATTAIN A FAIR-CROSS-

SECTION OF THE COMMUNITY UNDER THE SIXTH

AMENDMENT.

In Duren this Court noted that the demonstration of a

prima facie fair-cross-section violation by the defendants is not

7

the end of the inquiry into whether a constitutional violation

has occurred. This Court explained:

“States remain free to prescribe relevant qualifications for

their jurors and to provide reasonable exemptions so long

as it may be fairly said that the jury list or panel are

representative of the community. ... However, we caution

that ‘[t]he right to a proper jury cannot be overcome on

merely rational grounds,’. . . . Rather, it requires that a

significant State interest be manifestly and primarily ad-

vanced by those aspects of the jury-selection process, such

as exemption criteria, that result in the disproportionate

exclusion of a distinctive group.” 99 S.Ct. at 670.

In expanding upon this holding this Court observed that

States may have an important interest in assuring that persons

responsible for the care of children are available to do so, and

that an exemption appropriately tailored to accomplish this

purpose would survive a fair-cross-section challenge.

The Legislature of Virginia has adopted just such an

exemption. At the time of respondents’ trial §8-208.6(26)

authorized the exemption of not only women but any persons

that have legal custody of and who are personally responsible

for a child or children sixteen years of age or under. Surely, the

State has a significant interest in assuring that young children

are properly cared for and that persons having this responsi-

bility are available to do so.

The petitioners submitted affidavits of two of the Jury

Commissioners during the relative period who stated that in

considering names of persons to be placed on the master jury

list they did not place on the list the names of some women

whom they knew had to care for infant.children. These

affidavits were uncontradicted and petitioners assert that any

disparity of women appearing on the master jury list was

directly related to their responsibility for the care and custody

of minor children.

As noted by the District Court, the Commissioners, rather

than the individual women, claimed the exemption. While it is

true that the Commissioners did not follow applicable State law

8

for exempting these women, this merely raises a question of

State law and does not implicate any constitutional claims. It is

uncontradicted that the Jury Commissioners did not exempt all

women, but only those whom they personally knew to have the

individual responsibility to care for infant children. The

reasons for the exemption for the women in this case is

constitutionally permissible under Duren, and demonstrates

that this exemption caused the underrepresentation complained

of. The evidence in this case stands in stark contrast to Duren

where the record contained no proof that the exemptions

caused the underrepresentation. The petitioners submit that the

exemption of women who were directly responsible for the care

of infant children establishes that the attainment of a fair-cross-

section was incompatible with a significant State interest.

ARGUMENT

Ill

THE RESPONDENTS FAILED TO MAKE OUT A PRIMA

FACIE CASE OF JURY DISCRIMINATION.

In the District Court the respondents relied solely upon the

State Court records as they presented no additional evidence.

The State Court records showed that during the trial the

respondents entered into a stipulation with the State prosecutor

that the 1970 census showed approximately 50% women in the

County and that the 1976 and 1977 master jury lists were

composed of 25% women. From the outset the State trial judge

questioned the reliability of the figures used in the stipulations.

When advised that the figures used to show the number of men

and women on the master jury lists were obtained by merely

scanning the lists to see whether it was a man’s or a woman’s

name, the trial judge indicated his doubts that such a procedure

would be reliable. The State judge pointed out deficiencies in

this method of trying to determine the sex of the persons on the

master jury lists. The trial judge advised the parties that the

stipulations were not absolute facts and he would have to take

that into consideration. The State judge was critical of the

manner the parties had used to arrive at the stipulation and

9

advised that he did not know how much attention he was going

to pay to the stipulation. The State trial judge denied the

Motion to Quash the master jury lists and in so doing rejected

the stipulations as proving the facts.

During the course of the proceedings in the District Court

the District Court disagreed with the petitioners’ interpretation

of the trial transcript and based its opinion on the assumption

that the State trial court had accepted the stipulation as to what

the best available evidence would show. In order to clarify any

question regarding the weight given the stipulation, the peti-

tioners filed the affidavit of the State court trial judge where he

expressly stated that he had not accepted the stipulation as

being what the best evidence would show and further that he

found that the figures were not obtained in a reliable manner.

The finding by the State court that the figures representing

the number of women on the master jury lists were unreliable is

presumed to be correct. 28 U.S.C. §2254(d); Wright v. North

Carolina, 483 F.2d 405 (4th Cir. 1973). The burden was thus

on respondents to establish in the District Court by convincing

evidence that the State court’s determination was erroneous.

LaVallee v. Delle Rose, 410 U.S. 690 (1973).

The respondents might well have requested an evidentiary

hearing in the District Court in order to establish their claim by

reliable evidence, but they chose not to do so. See, Brewer v.

Williams, 430 U.S. 387 (1977).

The District Court held that the petitioners were bound by

the stipulation in the face of the State trial court's affidavit that

it had rejected the stipulation as being unreliable.

A trial court is not bound by stipulations of fact which

appear contrary to facts disclosed by the record. Mead’s

Baken, Inc. v. C.1.R., 364 F.2d 101 (Sth Cir. 1966). Addition-

ally, a stipulation by counsel originally designed to expedite the

trial should not be rigidly adhered to when it becomes apparent

that it may inflict a manifest injustice upon one of the con-

tracting parties. Maryland Casualty Co. v. Rickenbaker. 146

F.2d 751 (4th Cir. 1944).

To hold the petitioners to the stipulation which they did

not enter, and which was rejected by the State trial court as

being unreliable, would inflict a manifest injustice upon the

petitioners. To allow the respondents to use the unreliable

stipulation is to grant them relief upon evidence which is

untrustworthy.

Since the State trial court’s rejections of the stipulation

regarding the number of women on the master jury lists is

presumed to be correct, and the respondents having presented

no reliable evidence to establish a prima facie case, the District

Court erred in granting the Writ of Habeas Corpus and this

decision should not have been affirmed by the Circuit Court of

Appeals.

CONCLUSION

This case raises serious questions of Federal law which go

to the very heart of the jury system operated by the States.

Guidance by this Court in this sensitive area of State and

Federal relations is necessary to avoid reversals of what purport

to be valid State Court convictions.

For the foregoing reasons, Certiorari should be granted,

and the judgment of the Circuit Court should be reversed.

Respectfully submitted,

J. MARSHALL COLEMAN

Attorney General of Virginia

JAMES E. KULP

Deputy Attorney General

900 Fidelity Building

830 East Main Street

Richmond, Virginia 23219

(804) 786-6563

CERTIFICATE OF SERVICE

I, James E. Kulp, Deputy Attorney General of Virginia, of

Counsel for the Petitioners, and a member of the Bar of the

Supreme Court of the United States, do hereby certify that on

the 10th day of February, 1981, I mailed a copy of the

foregoing petition for Writ of Certiorari to Michael Morchower,

Esquire, 13 East Franklin Street, Richmond, Virginia 23219,

Counsel of Record for Respondents.

James E. Kulp

Deputy Attorney General

APPENDIX A

UNITED STATES COURT OF APPEALS

For THE FOURTH CIRCUIT

No. 80-6176

Rosert G. Esy,

FRANKLIN M. PHILLIPS,

Appellees,

-V-

ANDREW J. WINSTON, Sheriff, City of Richmond;

Don Hutto, Director of Department of Corrections;

MARSHALL COLEMAN, Attorney General of Virginia,

Appellants.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Robert R. Merhige, Jr.,

Judge.

Argued October 10, 1980 Decided November 12, 1980

PER CURIAM:

The Commonwealth of Virginia appeals the judgment of

the district court granting Robert Eby and Franklin Phillips

writs of habeas corpus. The district court found that the jury

selection process employed in connection with their state court

trial systematically excluded women in violation of Eby and

Phillip’s Sixth and Fourteenth Amendment rights. Alternately,

the court based its issuance of the writ on a statement by the

prosecutor in his summation.

2

Upon consideration of the record, briefs, and oral argu-

ment, we conclude that the district court correctly granted the

writs because of systematic underrepresentation of women on

the master jury list and their jury panel. See Duren v. Missouri,

439 U.S. 357, 363, 370 (1979). We affirm on this issue for

reasons adequately stated by the district court. Winston v. Eby,

No. 79-0543 (E.D. Va. Dec. 17, 1979).* Because we hold that

the judgment was correctly based on this issue, we need not

reach the alternate ground for issuance of the writ.

AFFIRMED.

* Inasmuch as the statistics concerning the composition of the master list

and jury panel were presented to the state court by stipulation applicable only

to this prosecution, our affirmance of the district court’s judgment does not

constitute precedent for other cases tried in the state court,

APPENDIX B

IN THE

UNITED STATES DISTRICT COURT

For THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

Civil Action No. 79-0543-R

RoBERT G. EBy

and

FRANKLIN M. PHILLIPS,

Petitioners,

Vv.

ANDREW J. WINSTON, et al.,

Respondents.

MEMORANDUM

Petitioners, Robert G. Eby and Franklin M. Phillips,

inmates of the Commonwealth of Virginia’s penal system, seek

a writ of habeas corpus under 28 U.S.C. §2254. Petitioners

advance several challenges to their conviction in the Circuit

Court of Hanover County, Virginia for possession of marijuana

with the intent to distribute. Defendant Winston is Sheriff of

the City of Richmond, in charge of the City of Richmond jail to

which the petitioners have been assigned for the serving of their

respective sentences. Marshall Coleman is the Attorney Gener-

al of the Commonwealth of Virginia. Subject matter jurisdic-

tion is vested in this Court pursuant to 28 U.S.C. §2241.

The petition first challenges the jury selection scheme

employed by Hanover County in connection with petitioners’

trial; contending that the scheme systematically excluded wom-

en and young adults,’ in violation of petitioners’ rights under

‘Young adults”, for purposes of this memorandum, describes those

persons between the ages of eighteen and twenty-nine. This ts in accordance

with petitioners’ use of the term and corresponds to the ages at which a person

becomes eligible for jury service and the age of petitioner Eby

2

the Sixth and Fourteenth Amendments to the Constitution of

the United States.

Petitioners also allege a denial of their rights secured by

the Fifth and Fourteenth Amendments; premised upon the

prosecution’s alleged comment upon petitioner Eby’s failure to

testify at trial.

Petitioners, additionally, attack their conviction under the

Fourteenth Amendment’s due process guarantee of a fair trial,

contending that certain statements of the Commonwealth At-

torney were prejudicial and inflammatory. Petitioners lastly

contend? that they were denied a fair trial by reason of the state

court’s exclusion of expert pharmacological evidence con-

cerning marijuana.

Respondents have answered the petition, denying its oper-

ative paragraphs. The Court has considered, in addition to the

state court record, affidavits, offered by respondents from two

jury commissioners who served at the time of petitioners’ trial,

has heard the argument of counsel, and having been twice

advised that none of the parties have any further evidence to

offer, the matter is ripe for disposition.

2 The petition originally sought habeas relief upon the basis of an

unconstitutional arrest, search and seizure as well as the grounds noted in the

text. These allegations were dismissed with prejudice on July 18. 1979 upon

mouon of petinoners.

3The answer denied that petitioners had established a prima facie

challenge to the jury selection scheme. The answer then stated, “Respondents

reserve the right to present evidence on the issue of jury selection should the

petitioners make out a prima facie case of discrimination.” In disposing of the

petition at this time the Court emphasizes several points. First, the “reserva-

tion” is contrary to the directive of Fed.R.Civ.P. 12(b) which provides. in

pertinent part:

Every defense, in law or fact, to a claim for relief in any pleading.

whether a claim. counterclaim, crossclaim, or third-party claim.

shall be asserted in the responsive pleading thereto... . (emphasis

added ).

Further. respondents did not choose to supplement the record or submit

rebuttal pleadings as authorized by the Court in its orders of November 19,

1979 and December 10, 1979. Third. the “reservation”, by its terms, 1s limited

to rebutting a prima facie showing of discrimination. Because of the Court's

views in this case. the “reservation” could not have become significant.

3

I.

The jury which convicted petitioners was selected under a

“key man” system pursuant to Va. Code Ann. §8-208.10 (Cum.

Supp. 1976). Each of the five jury commissioners appointed

under Va. Code Ann. §8-208.8 (Cum. Supp. 1976) selected

seventy to eighty potential jurors and, after comparing the lists

to avoid duplication, the individual lists were combined to

comprise the master jury list.

In formulating their individual lists the jury commissioners

tended to select persons known to them. It does not appear

from the record that the commissioners were authorized to

employ random selection techniques under the optional alterna-

tive of §8-208.10, of the Va. Code.4

Four of the jury commissioners who selected the master

jury list relevant to this action were males, and the same

number were at least fifty-four years of age. Petitioners place

special emphasis upon these facts in light of the commissioners’

practice of selecting persons known to them.

The 1970 census statistics indicate that approximately 50%

of the adult population of Hanover County was female. Peti-

tioners argue, and respondents do not deny, that the master

jury lists used in 1976 and 1977 were only 25% female. Two of

the twelve persons impaneled as jurors at petitioners’ trial, or

17% of the panel, were females.

The same census figures aforementioned reveal that 20% of

the adult population of Hanover County was between the ages

of eighteen and twenty-nine years. It was stipulated by the

parties that of the 89% of the persons on the master jury list

whose ages could be determined, only 6% were young adults.

4Va. Code Ann. § 8-208.10 (Cum. Supp. 1976) reads in pertinent part:

When authorized by the chief judge of the Circuit. the jury

commissioners may utilize random selection techniques. either

manual, mechanical or electronic, using a current voter registra-

tion list and other such lists as may be approved by the judge. to

select Jurors to be placed on the master jury list. . . .

4

The Court first addresses petitioners’ Sixth Amendment

claims. While that amendment guarantees, inter alia, trial by a

jury representing a fair cross-section of the community, there is

no requirement that the jury be a statistical mirror of the

community. Swain v. Alabama, 380 U.S. 202 (1965); Hoyt v.

Florida, 368 U.S. 57 (1961) overruled on other grounds, Taylor

v. Louisiana, 419 U.S. 522 (1975). Indeed, the states have

been afforded considerable latitude in their attempts to meet

the fair cross-section requirement. See, e.g. Brown v. Allen, 344

U.S. 443, 473-474 (1953), overruled on other grounds, Towns-

end v. Sain, 372 U.S. 293 (1963). It is within this context that

the Court considers the merits of the petition.

The Court is satisfied that petitioners have established a

prima facie case with regard to the underrepresentation of

women on the master jury list and their jury panel. In reaching

this conclusion the Court is guided by Duren v. Missouri, 439

U.S. 357 (1979). Duren set forth the elements of a prima facie

fair cross-section case thusly:

.. . The [petitioner] must show (1) that the group

alleged to be excluded is a “distinctive” group in the

community; (2) that the representation of this group

in venires from which juries are selected is not fair

and reasonable in relation to the number of such

persons in the community; and (3) that this under-

representation is due to systematic exclusion of the

group in the jury-selection process.

Duren, supra at 364. It is these requirements which must be

applied to the facts of the instant case.

There can be no doubt that petitioners have established the

first element of the prima facie case. Women are a cognizable

group for Sixth Amendment cross-section purposes. Taylor v.

Louisiana, 419 U.S. 522 (1975). As reiterated in Duren,

women “are sufficiently numerous and distinct from men” so

that “if they are systematically eliminated from jury panels, the

Sixth Amendment’s fair-cross-section requirement cannot be

satisfied.” Duren, supra at 364, quoting Taylor, supra at 53}.

5

Petitioners have shown the underrepresentation of women

by their unrefuted statistics comparing the gender composition

of the community with the master jury lists and their jury panel.

While this is not a matter which can be reduced to specific

numerical standards, the Court notes that the statistical evi-

dence in the instant case is comparable to that in Duren.5 See

also, Stephens v. Cox, 449 F.2d 657 (4th Cir. 1971). (Two-to-

one disparity in racial composition of community and jury,

when coupled with proof of “an opportunity for dis-

crimination,” establishes a prima facie case of racial dis-

crimination. )

The state court records, the statistical evidence and the

affidavits demonstrate the requisite systematic exclusion of

women. As previously stated, the jury commissioners tended to

select persons known to them. At least two commissioners, as

evidenced by their affidavits, purposely did not select women

whom they knew to be caring for children. The opportunity to

exclude women, and indeed, actual exclusion of some, was thus

shown. As in Duren, the underrepresentation occurred in

roughly the same proportion during consecutive periods. Fur-

ther, petitioners have shown at what stage of the selection

process the exclusion occurred.

Having satisfied the three-part test of Duren, petitioners

have established an unrebutted case of denial of a jury

composed of a fair cross-section of the community.

Respondents’ response to the present challenge was a mere

denial. Upon the Court’s invitation, twice made, to supplement

the record to rebut the evidence, respondents cited Rose v.

Mitchell, US. . 47 L.W. 4948 (1979), and advised

the Court that there were “no further matters to supplement the

record in this case.” Respondents contend that Rose, which

dealt with alleged racial discrimination in the selection of a

SIn Duren the census data revealed that 54% of the adult population of

Jackson County, Missouri was female. Petitioner there showed that 26.7% of

those summonsed for jury duty were women and that only 14.5% of the venire

was female

6

Grand Jury and its Foreman, supports their position that

petitioners have not met their burden of proving a prima facie

case. The Court disagrees.

Respondents’ reliance upon Rose is misplaced. At the

outset it should be noted that Rose addressed the jury com-

position issue from the perspective of the equal protection

clause of the Fourteenth Amendment.® The elements of a prima

facie equal protection case, while similar to the Sixth Amend-

ment’s requirements, are not identical. In Rose these elements

were said to be:

The first step is to establish that the group is one that

is a recognizable, distinct class, singled out for differ-

ent treatment under the laws, as written or as ap-

plied.... Next, the degree of underrepresentation

must be proved, by comparing the proportion of the

group in the total population to the proportion called

to serve ... over a significant period of time ....

Finally... a selection procedure that is susceptible of

abuse or is not racially neutral supports the presump-

tion raised by the statistical showing.

Rose, supra at 4954, quoting Castaneda vy. Partida, 430 US.

482, 495 (1977) (emphasis added). Respondents, during oral

argument, challenged the sufficiency of petitioners’ statistical

evidence in light of the requirement emphasized in the passage

from Rose, a contention which warrants careful consideration.

In Rose the Court found insufficient evidence tending to

show the jury foreman selection practices for at least five or six

years during the period from 1951 to 1973. The Court stated:

Thus, even assuming that the period 1951-1973 is the

significant one for purposes of this case, respondents’

6 The fact that Rose involved an equal protection, rather than Sixth

Amendment challenge suggests that it might more appropriately be ad-

dressed, infra. Two factors counsel the course adopted by the Court. First.

Rose is the only authority which respondents asserted in the pleadings

Second, the Court does not address petitioners’ equal protection challenge to

the underrepresentation of women and, hence, Rose must be addressed at this

stage, if at all

7

evidence covered only portions of that time and left a

number of years during that period about which no

evidence whatsoever was offered.

Rose, supra at 4955. We may assume, as respondents maintain,

that pursuant to Rose, petitioners’ evidence in the instant case

was insufficient to make out a prima facie case under the equal

protection clause. That assumption does not alter the Court’s

view of the merits of the Sixth Amendment challenge, however.

Duren did not require that the underrepresentation be shown

“over a significant period of time.” Indeed, the evidence in

Duren covered a period /ess than the two year period of the

instant case.”

Once petitioners established, as they have, a prima facie

case of infringement of their Sixth Amendment right, the

burden shifted to respondents. Respondents’ task was difficult.

for the burden wes to demonstrate that attainment of a fair

cross-section jury was “incompatible with a Significant state

interest.” Duren, supra at 367. As in Duren, respondents have

offered no such justification. See n.3, supra. Accordingly,

petitioners are entitled to relief upon this ground.

Petitioners’ challenge to their jury’s composition premised

upon the underrepresentation of young adults must be rejected.

Young adults, despite petitioners’ arguments to the contrary,

are not a cognizable group for purposes of the Sixth Amend-

ment’s fair cross-section requirements. Petitioners have thus

not satisfied the first element of Duren’s prima facie case.

In United States v. DiTommaso, 405 F.2d 385 (4th Cir.

1968), cert. denied 394 U.S. 934 (1969), the defendant chal-

lenged the composition of the grand and petit juries which

indicted and convicted him. The challenge was premised upon

the underrepresentation of certain groups upon the basis of age,

Sex, geography, occupation and education. With regard to the

first classification the Fourth Circuit Court of Appeals spoke

unambiguously:

’ Duren produced evidence of the gender composition of juries serving

for two periods: June-October 1978 and January-March 1976

8

As to age as a measure of representation, we do not

believe that members of arbitrarily drawn age brack-

ets necessarily constitute valid categories for measur-

ing the legality of jury selection.

DiTommaso, supra at 391. DiTommaso is in accord with the

weight of authority. See Reed v. Wainwright, 587 F.2d 260

(5th Cir. 1979); United States v. Test, 550 F.2d 577 (10th Cir.

1976); United States v. Geelan, 509 F.2d 737 (8th Cir. 1974),

cert. denied sub nom. Moore v. United States, 421 U.S. 999

(1975); United States v. Dellinger, 472 F.2d 340 (7th Cir.

1972); United States v. Gusman, 468 F.2d 1245 (2d Cir. 1972),

cert. denied 410 U.S. 970 (1973); and United States v. Ross,

468 F.2d 1213 (9th Cir. 1972), cert. denied 410 US. 989

(1973) Overruled on other grounds, United States v. Brady, 5\9

F.2d 1121 (9th Cir. 1978).

To the extent the issue is not resolved by DiTommaso,

petitioners cite the case of United States v. Butera, 420 F.2d 564

(Ist Cir. 1970). In Butera the Court concluded that young

adults are a cognizable group for purposes of a prima facie case

under the fair cross-section protection. Petitioners rely upon the

following language of the First Circuit:

We cannot allow the requirement of a “distinct”

group to be applied so stringently with regard to age

grouping that possible discrimination against a large

class of persons—in our case those between 21 and

34 will be insulated from attack.

Butera, supra at 570. The Butera Court, additionally, noted

that if there is a “generation gap”, then its influences should be

represented on the jury. Petitioners contend that this rationale

is especially convincing in a case involving the possession or

distribution of marijuana.

The Court declines to adopt the reasoning of Butera. First.

the Court is of the opinion that young adults are not properly

described as a cognizable group. A cognizable or distinct group

is one which: (1) Possesses some quality or attribute which

defines and limits the group; (2) demonstrates a cohesiveness

of ideas, attitudes or experiences which distinguishes the group:

9

and (3) shares a community of interest which may not be

represented by other societal groups. United States v. Test,

supra. A group such as young adults, which is defined solely by

age, does not possess the aforementioned characteristics. Indi-

viduals of the same age group will not necessarily share a

community of interest. There wil! also be vast variations in

attitudes, experiences and opinions among those within the

same age group. Gusman, supra at 146.

Second, the Court is of the opinion that Butera should not

be extended beyond the extreme factual situation presented

therein. Young adults were there treated as a cognizable group

largely because each age group below forty was under-

represented while each age group above forty years was over-

represented. It was this continuum of over- and under-

representation, and not the statistics for a particular age group,

which supported the Court’s conclusion. Petitioners have

shown no analogous pattern in the instant case. In any event,

this Court is bound by its Court of Appeals’ pronouncements on

the subject. See, United States vy. DiTommaso, supra.

For all of the aforementioned reasons, the petitioners’

Sixth Amendment challenge premised upon the under-

representation of young adults must be rejected.

Il.

Petitioners also challenge the Hanover County jury selec-

tion scheme under the due process and equal protection clauses

of the Fourteenth Amendment. As with the Sixth Amendment

claims, these allegations rest upon the underrepresentation of

women and young adults. There can be no doubt that

petitioners possess the requisite standing to assert these claims

even if they are not members of the class which is discriminated

against. Peters v. Kiff, 407 U.S. 493 (1972).

As a general rule the Court customarily attempts to fully

address each claim asserted in a petition for habeas corpus

relief. With regard to the underrepresentation of women.

however, this would entail unnecessary consideration of an

10

issue under the Fourteenth Amendment. The Court has

determined that petitioners are entitled to relief under the Sixth

Amendment. The due process and equal protection challenges

are identical to the Sixth Amendment issue in terms of the jury

composition and the relief sought. No purpose would be served

by consideration of the Fourteenth Amendment claim and,

therefore, in this context, none will be given in regard to the

underrepresentation of women.

The Fourteenth Amendment claim with regard to the

underrepresentation of young adults has, however, been consid-

ered and found to be without merit. Underrepresentation of a

cognizable group is an element of the prima facie case both

under the Sixth and Fourteenth Amendments. The distinctions

between the prima facie case under these separate protections

do not affect the definition of a cognizable group. Accordingly,

what was previously stated under I, supra applies with equal

force to the present claim. Additionally the statistical evidence

is insufficient to establish a practice of discrimination under

Rose, supra. The petitioners’ equal protection and due process

claims must, therefore, be rejected.

II]

The petition’s sixth paragraph alleges that petitioners’

Fifth and Fourteenth Amendment rights were abridged by

reason of the prosecution’s closing argument. The Fifth

Amendment provides, in pertinent part, that “No person...

shall be compelled in any criminal case to be a witness against

himself....” The protection from compulsory _ self-

incrimination is, of course, made applicable to state proceedings

through the Fourteenth Amendment. Malloy v. Hogan, 378

U.S. 1 (1964)

Implicit in the Fifth Amendment guarantee is the accused's

right to choose not to testify without fear of penalty for

invoking the privilege. Griffin v. California, 380 U.S. 609

(1965). One penalty from which the accused is protected is

comment upon his silence by the prosecution. Jd.

Petitioners contend that the following statement, made by

the prosecutor, constituted a comment upon their failure to

testify:

Mr. Robbins said that they were to deliver the

marijuana to a point in the United States. He didn’t

know the destination, but he said that Mr. Eby was

the pilot. He said that they were to land this plane

somewhere in the United States for distribution. .. .

I asked him how much he was supposed to get out of

his—for his part in the, uh, caper. He said forty

thousand dollars. I asked him about Mr. Eby. He

said forty percent of the entire take. I don’t know

how much that is because Mr. Robbins didn’t know

how much it was. Only Mr. Eby can answer that

question.

Tr. at 2153. Initially, the Court must consider whether this

statement constituted an impermissible comment upon petition-

er Eby’s silence. If that question be answered in the affirma-

tive, the Court must further consider whether petitioner Phillips

is entitled to relief on this ground.

A common problem presented in issues such as the instant

One involves distinguishing impermissible comment upon the

accused's silence and proper argument upon the evidence.

United States v. Johnson, 337 F.2d 180 (4th Cir. 1964), aff'd

383 U.S. 169 (1966); and United States v. Borda, 285 F.2d 405

(4th Cir.), cert. denied 365 U.S. 844 (1961), are illustrative of

the permissible scope of closing argument.

In Johnson one of four defendants argued that the prose-

cution had commented upon his failure to testify. The chal-

lenged remark was to the effect that the government's witnesses

and other evidence established defendant’s involvement in the

alleged conspiracy and that defendant had offered no evidence

on his behalf. The United States Court of Appeals for the

Fourth Circuit found this argument unobjectionable since it

merely reviewed the evidence and truthfully concluded that the

government's case stood uncontradicted. Johnson, supra at 203:

citing Davis v. United States, 279 F.2d 127 (4th Cir.), cert.

denied sub nom., Cope v. United States, 364 U.S. 822 (1960).

12

United States v. Borda, supra, was an identical challenge to

the prosecutor’s summarization of and comment upon a wit-

ness’ testimony. A witness had testified as to a conversation he

had with the defendant in the former’s hotel room. The

prosecutor commented that the witness’ testimony was uncon-

tradicted. The Court of Appeals rejected defendant’s challenge

because: (1) The witness’ wife was present and could have

been called to contradict her husband’s testimony or (2) the

defendant could have offered evidence to support his claim of

never being in the hotel room. Each possibility interrupted the

syllogism advanced by the defendant.

In the instant case it is apparent that most of the prose-

cutor’s argument set out above is permissible under Johnson.

But for the last sentence of the passage the prosecuting attorney

merely summarized the testimony of Mr. Robbins. The final

sentence, however, cannot be so characterized.

The standard for ascertaining when argument of the

prosecution represents improper comment on a defendant’s

failure to testify was well stated in Leak vy. Follette, 418 F.2d

1266, 1269 (2d Cir. 1969), cert. denied 397 U.S. 1050 (1970):

Was the language used manifestly intended to be, or

was it of such character that the jury would naturally

and necessarily take it to be a comment on the failure

of the accused to testify?

This standard has been adopted by the Court of Appeals for the

Fourth Circuit. United States v. Anderson, 481 F.2d 685, 701

(4th Cir. 1973), aff'd 417 U.S. 211 (1974).

The Court is of the opinion that the prosecution’s argument

constituted a comment upon petitioner Eby’s silence. While

there has been no suggestion that the remark in question was

manifestly intended to comment upon Eby’s failure to testify,

the Couut is, however, cognizant that Leak may be satisfied by

an unwitting statement. There can be no doubt that the

prosecuting attorney was referring to petitioner Eby for he was

identified by name. The statement specifically pointed out that

only the petitioner could respond to the inference of the

argument. The prosecution was not merely summarizing the

13

evidence, and thus, Johnson, supra, is inapplicable. Borda,

supra, is distinguishable upon the basis that, “Only Mr. Eby can

answer that question.” The self-incrimination clause protects

against such inferences and petitioner Eby is thus entitled to

relief under paragraph six of the petition.

Petitioner Phillips also seeks relief premised upon the

comment upon Eby’s silence. The Court is satisfied that Phillips

is not entitled to relief under the self-incrimination clause. The

protection against compulsory self-incrimination is a personal

right and Phillips is without standing to assert the denial of

Eby’s Fifth Amendment right. United States v. Wise, 603 F.2d

1101 (4th Cir. 1979), See also, United States v. Skolek, 474

F.2d 582 (10th Cir. 1973) and the cases cited at 584-85,

Nor may petitioner Phillips contend that his own right to

Silence was abridged by the prosecution’s comment. The

specific reference to petitioner Eby which rendered the state-

ment objectionable precludes the Court from finding that it was

also a comment upon Phillips’ silence.

Wise, supra does not, however, end the Couut’s inquiry of

petitioner Phillips’ challenge. Phillips grounds his attack upon

fair trial principles rather than the self-incrimination clause. A

brief review of Wise reveals that the Court of Appeals did not

foreclose a petitioner's fair trial attack to a conviction even

where he lacks standing to assert the more specific con-

stitutional objections.

In Wise, supra, two individuals, Wise and Edmonds, were

indicted under the Controlled Substances Act, 21 U.S.C. §

841(a)(1). Edmonds entered into a plea agreement under

which he agreed to plead guilty and testify against his codefen-

dant. At Wise’s trial Edmonds first attempted to remain silent

and then gave false testimony concerning Wise’s involvement.

On appeal Wise sought relief from his conviction upon the

Court’s ordering Edmonds to testify. The Fourth Circuit had

little difficulty with the challenge.

The district court ruled that Edmonds had waived his

Fifth Amendment privilege by entering into the plea

14

agreement requiring him to cooperate with the gov-

ernment and by testifying to his participation in the

heroin sale when he entered his guilty plea. We

agree. Even if there were doubt whether Edmonds’

waiver was knowing and voluntary, we hold that

Wise has no standing to assert the violation of

Edmonds’ Fifth Amendment privilege. See, ¢.g.,

United States v. Skolek, 474 F.2d 582, 584-85 (10th

Cir. 1973).3 Wise, supra at 1104.

The Court’s footnote 3 suggests that the standing question

might have been resolved in Wise’s favor “if Edmonds’ testi-

mony had been obtained by such coercion as to make it

unreliable and thus deny Wise a fair trial.” Jd. The Court is

reluctant to read footnote 3 to permit such arguments only

where the codefendant’s testimony is unreliable. Rather, the

Court is of the opinion that the operative portion of footnote 3,

and thus that which deserves emphasis, is the reference to the

right to a fair trial. The question presented is thus whether the

violation of Eby’s right to silence so prejudiced Phillips that the

latter was denied a fair trial.

The Sixth Circuit addressed this issue under similar facts in

Kinser v. Cooper, 413 F.2d 730 (6th Cir. 1969). In that case,

Kinser sought habeas corpus relief from his state conviction for

rape. Also indicted and convicted with Kinser (as an aider and

abettor) was one Chapman. Kinser testified at trial but

Chapman elected to remain silent. Chapman’s conviction was

reversed upon the prosecutor’s comment and jury manual

instructions regarding inferences that may be drawn {.om a

defendant’s silence at trial.

The Sixth Circuit agreed with Kinser that the comment

upon Chapman's silence denied Kinser a fair trial. The Court

stressed that an inference of guilt raised as to Chapman

necessarily carried over to Kinser. Chapman had been indicted

as an aider and abettor; he could not have been convicted

unless Kinser committed the substantive offense.

Admittedly, Kinser is distinguishable from the instant case.

It is readily apparent that the Sixth Circuit was influenced, in

large part, by the nature of the case. It was “not like a joint

15

indictment of two persons for a crime where either one or both

may be convicted.” Kinser, supra at 732. The charge against

the petitioners was obviously not of the same character, for

petitioners’ fortunes were not logically linked together.

The distinction is, however, one without a purpose. The

Court is impressed more with the realities of petitioners’ trial

and the nature of the charge than it is with the absence of a

logical connection between the two cases. Petitioners were

arrested upon the same event, tried together and represented by

the same counsel. More importantly, the only material issue in

the case was the presence or absence of intent to distribute the

marijuana, See Tr. at 2131. Petitioners admitted to possession

of the contraband.

The defense strenuously rejected the natural inference of

intent to distribute arising from the quantity of marijuana

seized. Accordingly, evidence of contemplated sale, if believed,

would have been even more probative of the intent to dis-

tribute. The impermissible comment by the prosecuting at-

torney related to the terms of the alleged sale. It is doubtful that

the jury would not view evidence of an intended sale by Eby as

evidence against Phillips as well. To hold otherwise would

countenance an inference as to Phillips which is barred as to

Eby. Respondents have not shown why any different conclusion

is appropriate.

IV,

Paragraph seven of the petition alleges that the prosecution

engaged in prejudicial and inflammatory argument in violation

of petitioner’s right to a fair trial. A review of the trial transcript

and an awareness of the narrow standard for review under 28

U.S.C. § 2254 satisfies the Court that petitioners are not entitled

to the relief sought.

Petitioners strenuously challenge three statements made by

the prosecuting attorney in his closing argument to the jury. As

set out by petitioners the statements are:

... [T]his is a crime against the whole society.

We've got a situation where one of the largest

16

problems in this country is your drug problem. Tr. at

2164.

and,

Ladies and gentlemen, this case has received a lot of

publicity, but ! want you. . . . Tr. at 2166.

and,

Ladies and gentlemen, these men came in—came

into Hanover County and they had a large amount of

drugs and the Commonwealth’s theory, as I stated in

my opening remarks, is they came in to distribute this

marijuana to—and that this marijuana would go into

the local area . . . . Now these are not your local

people. These people are from out of state. Tr. at

2167-68.

The citations to the record demonstrate that the challenged

statements followed each other in close succession. Timely

objections were made by petitioners’ counsel to each of the

above-quoted statements.

Petitioners contend that these statements warrant habeas

corpus relief for four reasons. It is first argued that the

statements inferred that the prosecuting attorney possessed

knowledge of matters outside the record. Next, petitioners

assert that the statements urged a conviction upon the ground

that marijuana is a major problem in the community. Third,

petitioners argue that the statements called for conviction

because that result was expected by the community. Finally.

petitioners maintain that the statements urged the jurors to be

“moved by. . . considerations of parochialism.” United States

v. Diamond, 561 F.2d 557, 559 (4th Cir. 1977).

There can be little disagreement with petitioners’ charac-

terization of the role of the prosecutor in our system of justice.

The prosecutor is an agent of the state who must serve both as

an advocate seeking to vindicate the public’s rights as well as a

defender of justice. See e.g., Berger v. United States, 295 U.S.

78 (1935).

Petitioner’s argument, in the Court’s view, fails to appre-

ciate the narrow standard against which the petition must be

17

measured. The allegations of paragraph seven do not raise a

denial of a specific constitutional protection but instead argue a

denial of the petitioners’ right to a fair trial. General, unspecific

claims such as those found in paragraph seven present a claim

cognizable in the federal courts only when the error is of

constitutional magnitude. Chance v. Garrison, 537 F.2d 1212

(4th Cir. 1976); Grundler v. North Carolina, 283 F.2d 798 ( 4th

Cir. 1960). Not every error at trial rises to this level; petitioners

had a right to a fair trial, not a perfect one. United States v.

Curry, 512 F.2d 1299 (4th Cir.) cert. denied, 423 U.S. 832

(1975). The Court’s review is thus narrower even than that

which is appropriate for direct appeal.

Consideration of the challenges to the statements, individ-

ually, reveals that petitioners are of the view that the first

Statement infers that the prosecutor had knowledge of matters

beyond the record. Petitioners’ reliance on the cases cited in his

memorandum in support of their contention is misplaced,

however, for each of those cases is distinguishable from the

instant controversy.

Unlike the instant case, Berger, supra, presented much

more egregious prosecutorial misconduct. There the prosecutor

was found to have misstated facts during cross-examination,

assumed prejudicial facts which were not in evidence and put

answers in the witnesses mouths in addition to implying that he

possessed extra-record knowledge. In short, the misconduct of

the Berger prosecutor was so extreme that it is unpersuasive in

the present context.

Nor does United States v. Barker, 553 F.2d 1013 (6th Cir.

1977), also cited by petitioners, require issuance of the writ on

these grounds. In Barker the prosecution urged the jury to

remember that the defendants were “‘undesirables” and that

law and order could be maintained only if those individuals

were convicted. The instant case presents no similar conduct by

the prosecuting attorney. Additionally, Barker was an appeal

from a conviction, not a collateral attack, and it is unclear

whether the Sixth Circuit Court of Appeals premised its deci-

sion On a constitutional mandate or its supervisory powers over

the district court.

18

Petitioners’ challenge to the second above-quoted state-

ment is equally without merit. A review of the transcript

demonstrates the importance of considering more than the

excerpt set out by petitioners. In a fuller, more revealing

excerpt, the argument is as follows:

[ Prosecutor ]: Ladies and gentlemen, this case has

received a lot of publicity, but I want you—

[ Defense]: I’m objecting to that.

[ Prosecutor]: —to forget—forget the publicity.

Viewed in this light it is doubtful that the jury would have

viewed the statement as suggested by petitioners. Petitioners

argue that the remark urged a conviction upon the community’s

expectation. It is more likely that the jury interpreted the

statement as emphasizing their role of making a decision solely

upon the evidence. This is in accord with the cases cited by

petitioners. See United States v. Corona, 551 F.2d 1386 (Sth

Cir. 1977) and Hale v. United States, 25 F.2d 430 (8th Cir.

1928). Furthermore, any prejudice which might have inured to

the petitioners should have been dissipated by the learned trial

judge’s instructions to disregard the statement.

Petitioners’ final argument under paragraph seven chal-

lenges the prosecution’s remark that they were not residents of

either Hanover County or Virginia. Petitioners maintain that

this statement encouraged the jury to premise its verdict on

considerations of parochialism. Diamond, supra. The Court

does not believe that Diamond is entirely apposite and is

satisfied that no error of constitutional proportions was com-

mitted.

At the outset it should be noted that the jury was instructed

not to be influenced by the prosecution’s reference to petition-

ers’ domicile in another state. While the limiting instructions

did not come immediately after the statement, the jury was

removed during counsel’s argument to the court, and the court

instructed the jury at its first opportunity. The delay was not

objectionable because it was brief, and, at least for the jury, did

follow the objection without interruption for consideration of

other matters.

19

Despite the apparent similarities, Diamond, supra does not

require issuance of the writ on this ground. Diamond was an

appeal from the sentence imposed by the trial judge. The

remarks found to be prejudicial by the Fourth Circuit Court of

Appeals were those of the judge, not the prosecutor.

In the instant case, the jury, not the prosecutor who

displayed the alleged bias, was charged with determining the

penalty upon conviction. Any possible bias which may have

resulted to petitioners should have been dispelled by the trial

judge’s instruction. Obviously, no curative measure would have

been realistic under the circumstances of Diamond, supra.

For the aforementioned reasons, the Court concludes that

the separate statements did not deprive petitioners of the fair

trial to which they were entitled. Nor is the Court persuaded

that the arguments viewed together rise to the requisite con-

stitutional magnitude. Petitioners’ trial lasted two days and the

segment of the argument here attacked was a de minimus part

of the proceedings. Curative instructions were given promptly

after two of the statements. While the Court does not endorse

the prosecution’s statements exhibited in the heat of a highly

contested trial, it cannot conclude that petitioners were denied

the fair trial guaranteed by our constitution.

V.

Petitioners further contend that the state court’s rulings on

admissibility of certain evidence deprived them of the fair trial

guaranteed by the due process clause of the Fourteenth

Amendment. The proferred evidence was in the nature of

expert pharmacological evidence to the effect that marijuana is

harmless and not physically addictive.

This claim is totally without merit and thus requires little

discussion. Questions of admissibility of evidence are entrusted

to the state courts. Chance v. Garrison, 537 F.2d 1212 (4th Cir.

1976); Grundler v. North Carolina, 283 F.2d 798 (4th Cir.

20

1960). No federal question cognizable by this Court is present-

ed unless the error in an evidentiary ruling rises to con-

stitutional magnitude. Jd. The Court is satisfied that the instant

case presents no such error. Indeed, petitioners impliedly

recognize this shortcoming in that this claim is expounded only

in a footnote in their memorandum in support of the petition.

Relief on this claim must therefore be denied.

An appropriate order shall issue.

ROBERT R. MERHIGE, JR.

United States District Judge

Date: 17 Dec. 1979

IN THE

UNITED STATES DISTRICT COURT

rOR THE EASTERN DIstRICT OF VIRGINIA

RICHMOND DIVISION

Civil Action No. 79-0543-R

Rosert G. Esy,

and

FRANKLIN M. PHILLIPS,

Petitioners,

Ve

ANDREW J. WINSTON, ef ai,

Respondents.

MEMORANDUM

On December 27, 1979, respondents moved the Court to

amend its findings and to alter judgment in accordance with

Fed.R.Civ.P. 52(b) and 59(e). For the reasons which follow.

the Court’s memorandum of December 17, 1979 will be

amended, in part, and respondents’ motion to alter judgment

will be denied.

Respondents’ contentions will be addressed seriatim.

Respondents first contest the Court's finding that “petition-

er’s argue, and respondents do not 4eny, that the master jury

lists used in 1976 and 1977 were only twenty-five percent

female.” The basis for respondents’ contention in this regard is

premised on their denial in their answers that petitioners had

set forth a prima facie case. Respondents’ answer was neither

responsive, nor determinative, to the Court’s finding. The

answer challenged the legal effect of the anticipated evidence,

not the evidence itself.

Respondents continue their objection upon the basis of

their August 20, 1979 oral argument. In the Court's view, this

argument is well taken, and the fifth paragraph on page 2 of the

Court’s memorandum should be amended to read as follows:

The 1970 census statistics indicate that approximately

50% of the adult population of Hanover County was

female. Petitioners argue that the master jury lists used in

1976 and 1977 were only 25% female. Two of the twelve

persons impaneled as jurors at petitioners’ trial, or 17% of

the panel, were females. These figures represent the best

available evidence of the gender composition as well as the

stipulation entered into by petitioners and the prosecution.

Contrary to respondents’ interpretation of the tria¥ tran-

script, the trial judge did not reject the statistical evidence, but

merely emphasized its limitations.

In accordance with respondents’ motion and memo-

randum, paragraph 6 of page 2 of this Court’s memorandum

should be amended as follows:

The same census figures aforementioned reveal that

20% of the adult population of Hanover County was

between the ages of eighteen and twenty-nine years. At

trial, it was stipulated that of the 89% of the persons on the

master jury list whose ages could be determined, only 6%

were young adults.

Respondents further challenged the memorandum’s state-

ment that, “petitioners have shown the underrepresentation of

women by their unrefuted statistics comparing the gender

composition of the community with the master jury list and the

jury panel.” In support of this contention, respondents rely

upon their denials at oral argument. Additionally, they chal-

lenge the method by which the statistics were formulated. First,

while respondents denied the accuracy of the statistics, they did

not refute them. Secondly, the prosecution and the tna! court

accepted the stipulation as to what the best available evidence

would show.

Respondents also contest the Court’s reliance upon the jury

commissioners’ affidavits. At the outset, the Court expresses its

reluctance to decide a controversy on less than all the evidence:

especially when such result is compelled by strict interpretation

3

of the rules of pleading and evidence. In any event, however,

the Court stresses that a prima facie Sixth Amendment chal-

lenge was made out by petitioners, even without consideration

of the affidavits. Their effect was, at best, cumulative. The

affidavits would have been more probative of discriminatory

intent with regard to the Fourteenth Amendment challenge.

That issue, however, was not reached by the Court.

Page 4, paragraph 3 of the Court’s memorandum will be

amended to read, in part:

Respondents’ response to the present challenge was a

mere denial. On October 17, 1979, respondents filed the

affidavits of two former jury coinmissioners. Upon the

Court’s invitation... .

Respondents further contend that petitioners’ prima facie

case was rebutted by the affidavits of the former jury commis-

sioners. They argue that the state may exempt women with

child care responsibilities from jury service, and that the jury

commissioners’ actions were thus beyond attack.

The Court is of the opinion that respondents’ reliance in

this regard, fails to appreciate the crucial distinction between

the instant case and the permissible scope of a jury exemption.

Va. Code Ann. §8-208.6(26) (Cum. Supp. 1976) permitted the

following people to seek exemption from jury service:

Any persons who notify the jury commissioners within the

time and in the manner prescribed by §8-208.10 that they

have legal custody of and are necessarily and personally

responsible for a child. .. during normal court hours.

The validity of this exemption, as written, was never ques-

tioned. What was in issue, and what respondents have yet to

address, is the validity of the commissioners, rather than the

individual women, claiming such exemption. In short, women

were excluded without their invoking the exemption. The

practice is reminiscent of womens’ need to “opt-in” to jury duty

as presented in Jaylor v. Louisiana, 419 U.S. 522 (1975).

Assuming, arguendo, that the commissioners’ exclusion

was permissible, the prima facie case would remain unrebutted.

The commissioners’ affidavits expressly state that they cannot

4

establish the extent of their exclusion for child care reasons.

There thus remains an undetermined amount of under-

representation which was not justified. Petitioners were thus

entitled to the relief which they were afforded.

Finally, the Court is satisfied that the case proceeded in

accordance with the approach of Browder v. Director, Ill. Dept.

of Corrections, 434 U.S. 257 (1978); Aston v. Warden, Pow-

hatan Correctional Center, 574 F.2d 1169 (4th Cir. 1978). The

Court’s November 19, 1979 order directed that the parties

“submit any matters in rebuttal” that they deem necessary.

The order of December 10, 1979 specifically referred to re-

spondent’s reservation on the issue of jury selection and noted

that absent the presentation of additional evidence the Court

would “proceed to render judgment on the instant record.” The

Court frankly is at a loss as to any more effective way to solicit a

rebuttal to a prima facie case.

The Court will amend its memorandum as heretofore

stated. Respondents’ motions in all other respects are denied.

An appropriate order shall issue.

ROBERT R. MERHIGE, JR.

United States District Judge

Date: January 9, 1980

IN THE

UNITED STATES DISTRICT COURT

For THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

Civil Action No. 79-0543-R

ROBERT G. EBy,

and

FRANKLIN M. PHILLIPS,

Petitioners,

Vv.

ANDREW J. WINSTON, et al..

Respondents.

MEMORANDUM

Respondents, pursuant to Fed.R.Civ.P. 60(b)(6), filed a

motion for relief from judgment on January 30, 1980. The

motion rests upon respondents’ assertion that the state trial

judge did not accept the stipulation regarding the gender

composition of the master jury list and the venire from which

the petit jury was drawn. Respondents have also filed the

affidavit of the Honorable Edward P. Simpkins, Jr., the pre-

siding judge, in support of their motion. Petitioners have

responded to said motion and the issue is thus ripe for

disposition.

The purpose of a habeas corpus proceeding is to challenge

the legality of the restraints on an individual’s liberty. Under

the circumstances presented by the instant action, the over-

riding issue is the Commonwealth of Virginia’s right to confine

petitioners. While the formal respondents are petitioners’ custo-

dians, the right to restrain petitioners’ liberty is derivative of the

same right of the Commonwealth.

2

The stipulation in question was entered into by counsel

representing petitioners and the Commonwealth. A stipulation

of fact voluntarily agreed upon by opposing parties is, absent

special circumstances, binding upon those parties. Marshall v.

Emerson’s Lid., 593 F.2d 565 (4th Cir. 1979); Maryland

Casualty Co. v. Rickenbaker, 146 F.2d 751, 753 (4th Cir.

1944). Respondents have offered no justification for releasing

them from the stipulation.

Respondents again assert that the stipulation was not

accepted by the trial judge. It may be assumed that the trial

judge, as fact-finder in the pretrial motion, was free to weigh

the probity of the evidence. That is not to say, however, that

upon that basis respondents are no longer bound by the

Commonwealth’s stipulation.

The very reason asserted by respondents in paragraph 2 of

the present motion counsels against the relief sought. The

petition was decided without an evidentiary hearing, solely

upon the state court records. Petitioners, at trial, did not offer

evidence on the gender composition of the jury because the

need for such proof was obviated by the stipulation. In seeking

to avoid the effect of the stipulation, respondents would, on the

one hand, expunge petitioners’ evidence from the record, while

on the other hand, condemn petitioners for the absence of such

proof. Such contentions are not only illogical, but devoid of

fairness on their face.

The motion will be denied, and an appropriate order will

issue.

ROBERT R. MERHIGE, JR.

United States District Judge

Date: Feb 12 1980