Appendix — Cobin v. Castleberry

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AU3 22 1991

No.

IN THE SUPREME COURT OF THE UNITED

October Term, 1991

OFSICE OF THE CLERK

Emogene Williams Cobin; Bonnie Williams

Gilbert; Caroline Williams Giles; Barbara

Williams Guinn; Verna Williams Hammond;

Donna Williams Lockhart; Ernestine Williams

Webb; Delavah Williams; Johnie Williams;

Ricky Williams; Ronnie Williams; Sharon

Williams PETITIONERS

VS.

James T. Castleberry, Co-executor of the

Estate of Joe L. Castleberry, Deceased;

City of Conway, Arkansas; Arkansas Faulkner

County; Joe Martin; Jocile C. Perry, Co-

executor of the Estate of Joe L.

Castleberry, Deceased, RESPONDENTS

APPENDIX

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ARKANSAS

JACK T. LASSITER

425 W. Capitol, #1500

Little Rock, AR 72201-3482

501/375-1820

Member of the Bar of the

Supreme Court

DANA A. REECE

324 Spring Plaza, #205

Little Rock, AR 72201

501/375-1412

Attorneys for Petitioners

August 22, 1991

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

RICKY WILLIAMS, et al.,

Plaintiffs

No. LR-C-84-791

FAULKNER COUNTY, ARKANSAS;

JOE MARTIN; and ESTATE OF

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JOE CASTLEBERRY, )

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Defendants.

MOTION FOR NEW TRIAL

Plaintiff move for a new trial on the

ground that the issue of race discrimination

in jury selection will require reversal of the

judgment under the eighth circuit’s latest

authority.

Under the decisions of the United States

v. Wilson, 816 F.2d 421, 422 (8th Cir. 1987)

(Wilson I) and United States v. Wilson,

F.2d _—s-: (8th Cir. No. 87-2280, decided Aug.

5, 1988) (Wilson II), the defendants were

constitutionally obligated to give a neutral

explanation of their preemptory challenges of

black jurors. Here, they failed to do so.

The reason given for striking the black

lady juror was that she did not sound like she

could be expected to understand the medical

testimony. The same could be said of anyone

because it was so subjective, and it fails as

a neutral justification under Wilson I & II.

To permit the verdict to stand in light of

Wilson I & II would facilitate pretextual

peremptory challenges. See Wilson II, slip

op. at 8:

Appendix AA-1

The Government also struck Paul

Harris, a black man, because of his

outlandish clothing worn the day of voir

dire. However, at the Batson hearing,

the Government failed to present evidence

or explanation as to the clothing of any

of the white panel members. Without such

an explanation, it is impossible to even

—"

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. a &

begin an examination of whether this

reason is neutral and comparable. The

government’s explanations for the three

other blacks suffer from the - same

infirmity.

At the time the mistrial motion was made,

the court denied plaintiff’s motion with great

reluctance. At the time, the court may not

have had the benefit of Wilson ‘ as alluded

to by the Eighth Circuit which required

reliance on Wilson I at the time of the trial.

Therefore, the plaintiff’s motion for new

trial should be granted or at least a hearing

held to further explore the neutrality

question.

Respectfully submitted,

JOHN WESLEY HALL, JR.

Attorney at Law

523 West Third Street

Little Rock, AR 72201

(501) 371-9121

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R ICA OF SERVIC

I, John Wesley Hall, Jr., certify that I

have mailed a copy of the foregoing to Robert

Henry, P. O. Box 1107, Conway, AR 72032, and

William Adkisson, P. O. Box 1390, Conway, AR

72032-1390, by regular mail, this _5th_ day

of August, 1988.

JOHN WESLEY HALL, JR.

Appendix AA-2

United States Court of Appeals

For the Eighth Circuit

No. 90-2276

Emogene Williams Cobin; Bonnie

Williams Gilbert; Caroline

Williams Guinn, Verna Williams

Hammond; Donna Williams

Lockhart; Ernestine Williams

Webb; Delavan Williams; Johnie

Williams; Ricky Williams;

Ronnie; Sharon

Williams,

Appellants,

Appeal fromthe United States

District Court for the Eastern

District of Arkansas.

(UNPUBLISHED)

Vv.

James T. Castleberry, Co-executor

of the Estate of Joe L. Castleberry,

Deceased; City of Conway, Arkansas;

Arkansas Faulkner County; Joe Martin;

Jocile cC. Perry, Co-executor of the

Estate of Joe L. Castleberry, Deceased.

Apellees.

Submitted: March 11, 1991

Filed: April 24, 1991

Before McMILLIN, Circuit Judge, BRIGHT,

Senior Circuit Judge, and NAGILL, Circuit

Judge.

PER CURIAM.

The plaintiffs filed this civil rights

action under 42 U.S.C.§ 1983 (1988) seeking

recovery as the surviving relatives of Marvin

Williams, an African-American who died in a

jail in Faulkner County, Arkansas in 1960.

They appeal the district court order denying

their motion for a new trial following a jury

verdict for the defendants. Faulkner County

and two former sheriff’s department employees.

The plaintiffs contend that defense counsel

exercised two of four peremptory challenges

against African-American venirepersons' in

violation of Batson v. Kentucky, 476 U.S. 79

(1986), and its progeny.

Appendix A-1

We have carefully examined the

record and are unable to reverse. The

district court’s findings that defense counsel

exercised their strikes according to neutral]

criteria, and not for racially discriminatory

purposes, contains adequate support in the

record. Inasmuch as these supported factual

findings form the basis of the district

court’s judgment, we affirm. See 8th Cir. R.

47B.

A true copy.

Attest:

Appendix A-2

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

RICKY WILLIAMS et al

PLAINTIFFS

v. NO. LR-C-84-791

FAULKNER COUNTY, ARKANSAS, et al

DEFENDANTS

ORDER

Pending before the Court is the motion of

the plaintiffs for a new trial. The motion

requires deciding, first, whether Batson v.

Kentucky, 476 U.S. 79 (1986) applies to the

use of peremptory challenges to jury

venirepersons in a Civil case. The second

issue, if Batson does apply, is whether the

striking of two persons from the jury panel in

this case violated plaintiffs’ equal

protection rights under the standards set

forth in Bat8on and in United States v.

Wilson, 816 F.2d 421 (8th Cir. 1987) and

United States v. Wilson, 853 F.2d 606 (8th

Cir. 1988).

Plaintiffs’ motion relies heavily upon

the “comparability” standard set forth in the

latter Wilson for determining whether a party

has articulated a racially neutral reason for

striking a prospective juror. However, the

judgment in that case was vacated upon the

granting of a motion for rehearing en banc.

See United States v. Wilson, 861 F.2d 514 (8th

Cir. 1988). Although the rehearing had been

set for December of 1988, no decision has been

Appendix B-1

issued to date. Because of these

circumstances, this Court will continue to

withhold its decision on the present motion

pending the final outcome of the Eighth

Circuit’s decision in Wilson.

SO ORDERED this 3rd day of August, 1989.

UNITED STATES DISTRICT JUDGE

Appendix B-2

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

RICKY WILLIAMS; SHARON WILLIAMS

BONNIE WILLIAMS GILBERT; DELAVAH

WILLIAMS; JOHNNIE WILLIAMS; RONNIE WILLIAMS;

ERNESTINE WILLIAMS WEBB; CAROLINE WILLIAMS

GILES; VERNA WILLIAMS HAMMOND; BARBARA

WILLIAMS GUINN; and DONNA WILLIAMS LOCKHART

The Survivors of MARVIN WILLIAMS PLAINTIFFS

vw. Civil No. LR-C-84-791

FAULKNER COUNTY, ARKANSAS;

JAMES T. CASTLEBERRY and

JOCILE C. PERRY, Co-executors

of the Estate of JOE L. CASTLEBERRY,

Deceased; and JOE MARTIN DEFENDANTS

MEMORANDUM AND ORDER

Pending before the Court is the

plaintiff’s motion for a new trial. For the

reasons stated below, the motion Will be

denied.

e¥)

On May 6, 1960, Mr. Marvin Williams,

black man, died while in police custody at the

Faulkner County Jail in Conway, Arkansas. The

plaintiffs allege that the individual

jefendants, a former Faulkner County sheriff

and his deputy, were responsible for the

wrongful death of Mr. Williams and deprived

him of his civil rights in violation of 42

U.S.C. § § 1981, 1982 and 1985. After a

seven-day trial, the jury returned a verdict

in favor of the defendants. The plaintiffs

contend that a new trial should be granted

because the defendants discriminated against

black members of the venire during the jury

selection process in violation of Batson v.

Kentucky, 476 U.S. 79 (1986).

Appendix C-1

The defendants used two of their three

peremptory challenges to exclude James

Fountain and Feola Sebastian, the only two

black persons on the venire. After the jury

was seated, the plaintiffs moved for a

mistrial contending that the strikes were

racially motivated. After debating whether

3atson applied to civil cases, defense counsel

volunteered their reasons for striking the two

Ll]

potential jurors. The Court found those

reasons racially neutral, and therefore denied

plaintiff’s motion. The trial then proceeded

before an all-white jury.

Plaintiffs now renew their contention

that the exclusion of the two potential jurors

was discriminatory. Plaintiffs also contend

that the explanations given by the defendants

for their strikes failed to adequately rebut

the inference of racial discrimination as

required by Batson and several cases

interpreting it within this circuit.

Specificaliy, the plaintiffs argue that the

defendants’ explanation for excluding Ms.

Sebastian failed to meet the comparability

standard for articulating racially-neutral

justifications for the use of peremptories

that had been set forth in United States v.

Wilson, 853 F2d. 606 (8th Cir. 1988). This

Court stayed ruling on the present motion

after Wilson now having been decided, Id., 884

Hi:

F.2d 1121 (8th Cir. 1989) (en banc), the Court

will rfiow rule on the motion.

The defendants first respond that Batson

applies only in criminal cases. Since the

filing of this motion, the Eighth Circuit

Appendix C-2 ?

rejected a similar argument and heid that

Batson does apply in civil cases in federal

court, at least where the discriminatory use

of peremptories may be attributed to a state

actor.

In Reynolds v. City of Little Rock, 893

F.2d 1004, 1009 (8th Cir. 1990) *he court

reversed a district court’s ruling that the

municipal defendant ina § 1983 case need not

explain its peremptory challenges against

black jurors. Rejecting the city’s claim that

Batson applied only in criminal cases, the

Court of Appeals reasoned that the Supreme

Court’s explicit choice to go beyond Sixth

Amendment analysis and rest its holding upon

the Equal Protection clause of the Fourteenth

Amendment, implicitly extended Batson’s reach

to civil cases at least where the state is a

party and can be tied to the discriminatory

use of peremptories. Id., at 1008.

The distinction that is crucial for

application of equal-protection

principals is that between governmental

actors and private actors. The

distinction explains the Court’s

reasoning in Batson far better than the

differences between criminal and civil

cases. The Batson Court specifically

declined to formulate any limit on the

exercise of peremptory challenges by

defense counsel. If the City’s rationale

were correct that Batson’s applicability

depends on the type of case, rather than

the governmental affiliation of the party

exercising peremptory challenges, then

° A

4. %

Criminal defense counsel would confront

the same limits on their peremptory

challenges as prosecutors. The more

natural reading of Batson is that its

rule of non-discrimination applies only

to governmental actors, without

distinguishing criminal and civil legal

proceedings.

We conclude that the actions of

government counsel in purposefully removing

black jurors. through peremptory challenges

violates the Equal Protection Clause, whether

the exclusion occurs in a criminal or a civil

case.

Appendix C-3

Id. (citations omitted).

Of course, the Equal Protection Clause

limits state but not private action, and the

Eighth Circuit left open the question whether

Batson would apply where peremptory challenges

are exercised by non-governmental litigants.

Id., n. 2. The rationale of the distinction

drawn above concerning criminal defense

counsel suggests that Batson should not apply

where a private litigant is charged with

making discriminatory strikes.

In Edmondson v. Leesville Construction

Co., Inc., 895 F.2d 218 (5th Cir. 1990) (en

banc), the Court held that a private litigant

in a federal civil case, who peremptorily

challenged a venire member of the same race as

his opponent, is under no obligation to rebut

the inference that he struck the juror because

of race. The Court concluded that subjecting

the use of peremptories to equal protection

analysis was inappropriate in such a case

because the alleged discriminatory conduct

could not be attributed to a state actor.

Therefore, the discriminatory conduct fell

outside the protection of the Fourteenth

Amendment and the holding in Batson. Id., 895

F.2d at 221-22.

In so ruling, the Fifth Circuit rejected

an earlier panel opinion that found state

action through the judicial oversight and

' At least one commentator has_ so

concluded because use of peremptories by

criminal defense counsel cannot not _ be

characterized as state action. Goldwasser,

Limiting A Criminal Defendant’s Use of

Peremptory Challenges: On Symmetry And The

Jury In A Criminal Trial, 102 Harv. L. Rev.

808 (1989). An analogous conclusion could be

drawn for a private litigant’s counsel in a

civil case.

Appendix C-4

administration of peremptory challenges.

Edmonson v. Leesville Construction Co., Inc.,

860 F.2d 1317 (5th Cir. 1989) ("The

government is inevitably and inextricably

involved as an actor in the process by which a

federal judge, robed in black, seated in a

paneled courtroom, in front of an American

flag, says to a juror, "Ms. xX, you are

excused.’" Id., 860 F.2d at 1313). The ruling

also conflicts with the decision in Fludd v.

Dykes, 863 F.2d 822 (11th Cir.), cert. denied,

110 S.Ct. 201 (1989), where the Eleventh

Circuit upheld a plaintiff’s argument that "a

district court denies a black litigant equal

protection of the laws whenever it permits his

adversary~--whether the government or a private

party--to use a peremptory challenge" to

exclude persons who are the litigant’s "racial

peers." Id., at 824 (emphasis added).

Here, plaintiffs sued both private

individuals and the County, which would

undoubtedly qualify as a state actor. The

attorney for Faulkner County also represented

separate defendant Joe Martin, and likely

exercised Joint responsibility for the

strikes. Under those circumstances, state

action would be apparent and Batson would

apply because despite counsel’s dual role as

attorney for a government entity and a private

litigant, the County "cannot exempt itself

from the Equal Protection Clause simply

because its counsel also represented

individuals." Reynolds v. City of Little

Rock, supra, 893 F.2d at 1009.

Appendix C-5

On the other hand, the record of the

hearing on the motion for mistrial reveals

that the reasons for the strikes were offered

by counsel for the Castleberry estate also

appeared to take responsibility for the

strikes against the two black jurors. If the

Challenges had been exercised exclusively by

the Castleberry estate, then, (assuming the

Eighth Circuit were to hold that judicial

oversight of the administration of peremptory

Challenges to be insufficient to constitute

governmental action) 1t would foliow that

Batson could not apply in this case--not

MUNA er Remi ie

because of the type of case--but because of

the absence of a link between the alleged

discriminatory conduct and a party who "may be

appropriately characterized as a state actor."

Lugar _v. Edmondson Oil Co., Inc., 475 U.S.

922, 937 (1982). However, the Court need not

reach this question because even assuming

Batson does apply, the striking of two black

venirepersons by the defendants in this case

did not deprive plaintiffs of equal

protection.

il.

In Batson, the Supreme Court held that

"the Equal Protection Clause forbids [the

exclusion of] potential jurors solely on

account of their race or on the assumption

that black jurors as a group will"favor black

litigants". Id., 476 U.S. at 89. The Court

outlined a three-step approach in considering

a litigant’s equal protection claim: First,

plaintiffs must show they are members of a

cognizable racial group- and that the

defendants used peremptory challenges’ to

remove from the venire members of the

Appendix C-6

plaintiffs’ own race. Id., 476 U.S. at 96. j

Second, plaintiffs may rely upon a presumption

that peremptory challenges permit "those to

discriminate who are of a mind to

discriminate," in pointing to any other

relevant circumstances from which an inference

of purposeful discrimination may be drawn.

Id. Third, once plaintiffs have made a prima

facie showing of discrimination, the burden

shifts to the party exercising the peremptory

challenges to come forward with a racially

neutral explanation for the strikes. Id.

Plaintiffs here have clearly met the

first requirement. As for the second, it must

be noted that the gravamen of the complaint is

that defendants Martin and Castleberry beat

Marvin Williams to death while he was in their

custody in the Faulkner County jail. The

defendants were white. Mr. Williams was

black. Of particular relevance was the racial

climate of the times. Therefore, defendants’

strikes against the only two black

venirepersons created an inference of

purposeful discrimination sufficient to

require an explanation for the challenges.

The defendants may not rebut a prima

facie case of discrimination by affirming

their "good faith in making’ individual

selections", Id., 476 U.S. at 98, or relying

on counsel’s "“assumption--or his intuitive

judgment--that [the venireperson] would be

partial to [the plaintiffs] because of their

shared race." Id., at 97. The defendants

must give a ‘clear and reasonably specific’

explanation of [their] ‘legitimate reasons’

for exercising the challenges." Id., at 98 n.

20 (citations omitted).

C-7

The plaintiffs may then attempt to demonstrate

that the proffered reasons are pretextual.

nited ates v. Wilson, 816 F.2d 421, 423

(8th Cir. 1987).

Responding to the motion for mistrial,

the defendants volunteered to offer their

reasons for striking the jurors without

conceding that Batson required them to do so.

Counsel explained first that Mr. Fountain

possessed characteristics that "create[{d] a

picture of instability." They noted that

despite having a Master’s degree in psychology

and past employment as a college professor and

minister, Mr. Fountain had been employed for

some time and had been a plaintiff in a suit

against his former employer. Plaintiffs do

not seriously contest the legitimacy of this

explanation, and the Court accepts the bona

fides of such explanation and concludes that

Mr. Fountain was struck for racially neutral

reasons. However, plaintiffs contend that the

defendants failed to offer an adequate reason

for the use of a peremptory challenge to

strike Ms. Veola Sebastian. It is necessary

to probe the factual circumstances surrounding

the exclusion of this juror.

The plaintiffs’ lawsuit, as well as a

related criminal investigation, generated

substantial media attention prior to trial.

During voir dire, the Court asked whether any

of the members of the venire had read or seen

news accounts about the case. Eighteen of the

first twenty-three members of the venire said

they had--including Ms. Sebastian. The Court

thereafter questioned each of these people

individually in chambers to determine whether

Appendix C-8

each such juror’s exposure to the media’s

coverage of the case would prejudice that

juror for or against either party.

Ms. Sebastian responded to the Court

Ss questioning in a noticeably slow and

tentative manner. The record revealed that

she was employed as a factory worker, and her

demeanor during voir dire suggested a poor

educational background. The trial was

expected to last several days, and would

include a good deal of. testimony and

documentary evidence of a forensic pathologist

and neurosurgeon. Responding to plaintiff

motion for mistrial, defense counsel cited

these factors as their reasons for excluding

Ms. Sebastian. Finally, the defendants

offered to withdraw this strike, but the Court

and plaintiffs rejected this offer concluding

that replacing members of a jury that had

already been seated might have created other

concerns for prejudice.

Plaintiffs state that the proffered

reason for excluding Ms. Sebastian was

pretextual. Relying on the panel decision in

United States v. Wilson, supra, plaintiffs

contend that the defendants’ explanation was

—————veaaaeeaeae

inadequate because they did not demonstrate

that they applied comparable assessments to

white jurors, who were left on the jury. In

Wilson, the panel concluded that the

government could not rebut a prima facie case

of discrimination if the proffered "reasons

for the strikes either apply to both blacks

struck and whites not struck, or cannot even

be examined to determine comparability." Id.,

853 F.2d at 611. Thus, in the present case,

plaintiffs argue that the defendants’

Appendix C-9

explanation that they struck Ms. Sebastian

because she did not appear capable of

following much of the testimony was

subjective, perhaps applicable to other

members of the venire, and therefore

inadequate to rebut the inference of

discriminatory intent.

It is unclear how much of this

comparability test remains. Upon hearing en

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ena

banc, the Eighth Circuit explicitly chose not

to address the government’s explanation for

five of the six strikes and focused on a sixth

in which comparability was not clearly an

issue. United States v. Wilson, supra, 884

F.2d at 1122. The government explained it had

exercised the sixth strike against a black

venireperson because it and information that

the defendant, a prominent black attorney,

would attempt to contact jurors and, the

government reasoned, would more likely

approach a black juror who resided in the same

town as the defendant than white jurors who

also lived in the same town. Id., 1122-23.

The Court concluded that this explanation

constituted "a stereotypical racial reason for

striking the potential black juror. . ." id.,

at 1124. In short, the Court held, the

explanation demonstrated that the strike was

used because of the juror’s racial

affiliation, and therefore violated Batson.

Unlike Wilson, the explanation offered by

the defendants for striking Ms. Sebastian does

not depend on her racial affiliation. If

through voir dire, or otherwise, it develops

that a particular juror is deficient in the

intelligence needed to understand some aspect

of the case, then that circumstance will

provide an adequate basis for exercise of a

peremptory challenge under Batson. Such

Appendix C-10

assessments are indeed subjective. Yet it is

the very essence of the peremptory challenge

to allow an attorney to "act on only limited

information or hunch" exercising his

"intuitive judgment" that a particular juror

would be unfit for the case to be tried.

Batson, 476 U.S. at 123 (Burger, Code

dissenting). Batson modifies the breadth of

an attorney’s discretion to strike jurors by

foreclosing as a possible reason for such

strikes the intuitive judgment that a

potential juror will favor his’ client’s

adversary because of shared racial or ethnic

affiliation. Batson does not- prohibit

subjective assessments of a juror’s

qualifications when such assessments are based

on qualities other than race.

Ultimately, this Court’s obligation to

determine whether peremptories were exercised

for the purpose of intentional discrimination

requires a finding of fact. Batson, 476 U.S.

at 98 n. 21. Having conducted the voir dire

in chambers, on a one-to-one basis, and having

had the opportunity to closely observe the

demeanor of the jurors, the Court finds that

the defendants’ proffered explanation was

Clear and specific and entirely credible.

Moreover, it is clear to the Court that none

of the other white venirepersons who formed

the petit jury exhibited characteristics

comparable to those that led the defendants to

make their strikes. In sum, the Court does

EEE

not find intentional discrimination in the

defendants’ exercise of peremptory challenges.

Appendix C-11

IT IS, THEREFORE ORDERED that the motion

for new trial be, and it is hereby, denied.

Dated this 27th day of June, 1990

UNITED STATES DISTRICT JUDGE

Appendix C-12

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

RICKY WILLIAMS, et al, the

survivors of Marvin Williams PLAINTIFFS

V. NO. LR-C-84-791

FAULKNER COUNTY, ARKANSAS,

et al DEFENDANTS

DEFENDANTS’ PRE-TRIAL BRIEF

COMES the Defendants and for their trial

brief state:

I. STATEMENT OF THE FACTS

On May 5, 1960, Marvin Williams left

his pregnant wife, Bonnie, at home while he

attended the high school prom at Menifee with

his sisters and friends. Joe Flakes will

testify that Marvin Williams, along with

others, consumed wine and whiskey before they

went to the prom. :

At approximately 11:30 p.m., the

principal of Menifee High School announced

that a weather report indicated an approaching

tornado and called an end to the prom. Marvin

Williams, along with Joe Flakes, Robert Delph,

Robert Oliver and Alan Powell and his wife,

left the prom in Williams’ car and proceeded

west toward Plumerville, Arkansas. The

purpose of traveling to Plummerville was to

take Alan Powell and his wife home. Upon

dropping off the Powells, Williams, Delph,

Flakes and Oliver proceeded to the Sunset Cafe

in Conway, Arkansas, with Robert Delph driving

the Williams’ automobile. When they arrived

at the Sunset Cafe, Delph and Oliver went

inside, while Marvin Williams and Joe Flakes

remained in the car.

At approximately 9:00 p.m., Conway Police

Officer Marvin Iberg and Chief C.O. Hensley

picked up Harvey Macon’s son, Curtis, for

drunkenness and took him home. The house was

located next door to the Sunset Cafe. Upon

Appendix D-1

leaving Curtis Macon at the house, Officer

Iberg proceeded to take the Chief to his

_———_—

house. At approximately 12 to 12:15 a.m., on

May 6, i960, the Conway Police Department

received a call from Harvey Macon requesting

that the Conway Police respond and come to his

home and pick Curtis who was drunk and causing

problems. Upon receipt of the telephone call,

Officers Iberg and Bill Mullenax responded to

the call and proceeded to the Macon house.

They placed Curtis Macon in the car along with

the father and proceeded back to the Faulkner

County Jail. Upon arriving at the Faulkner

County Jail, the officers took Curtis Macon

upstairs and placed him in a cell. Harvey

Macon, the father, remained in the police car.

After incarcerating Curtis Macon, Officers

Iberg and Mullenax proceeded to take Harvey

Macon back to his home.

When they arrived back at the Macon home,

the Williams’ car was parked between the Macon

home and the Sunset Cafe. There were a pair

of feet protruding from the car and Mr. Macon

7 i

: 7

> 2b

requested that the officers remove’ the

occupants, whom he feared were drunk, from the

front of his house. Officers Iberg and

Mullenax then proceeded to the automobile and

found two black youths apparently passed out

in the automobile. Marvin Williams had to be

physically picked up and assisted to the

police car as he was unresponsive. Joe Flakes

was awakened and he was able to make it to the

police car under his own power. Iberg and

Mullenax proceeded to the Faulkner County Jail

and upon their arrival, they were assisted by

Officer Bill Langford. Officer Langford took

Joe Flakes up the stairs and incarcerated him

in a cell in the Faulkner County Jail.

Officers Iberg and Mullenax assisted Marvin

Williams out of the patrol car. They were

supporting him and taking him to the building

when a strong wind arose and it began to rain

very hard. When the wind and rain hit Martin

Appendix D-2

Williams, he revived briefly, straightened up

and the officers relaxed their grip on him.

At that time, Marvin Williams suddenly fell

forward and the officers were unable to catch

him and prevent his fall. The result of the

fall was that Marvin Williams struck his head

on the courthouse steps. The officers then

picked Marvin Williams up and took him inside.

Once inside and in a lighted area, they

observed the cut that Marvin Williams had

received on his forehead as a result of the

fall. The cut did not appear to be serious to

the officers and they thereupon’ escorted

Marvin Williams upstairs to be placed in the

jail. They met officer Langford coming back

down from the jail area and they also met

Deputy Sheriff and Jailer Joe Martin on the

third floor by his apartment and the officers

had a short conversation with Deputy Martin

about the impending storm. They thereupon

escorted Marvin Williams up to the fourth

—eEeEyE——E—eEEEee ee

floor jail area, whereupon they incarcerated

him in the first available cell on the left

hand side. Officers Iberg and Mullenax then

proceeded back down the stairs, and went back

out on patrol.

Approximately 15 to 30 minutes after

Marvin Williams’ incarceration, Deputy Martin

heard a rattling of the cell door coming from

the jail area. He proceeded up to the fourth

floor whereupon he had a conversation with

Marvin Williams. Marvin Williams expressed

concern to Deputy Martin that he be let out of

jail by j a.m., so that he could be at Ward

Body Works by 7 a.m. Deputy Martin responded

by informing Marvin Williams that he was a

city prisoner and it would be up to city

officials to secure his release. Deputy

Martin returned downstairs to his apartment

and shortly thereafter received a telephone

call that a tornado had touched down at

Appendix D-3

Er SS”S”—”—

Greenbrier, Arkansas. Deputy Martin thereupon

proceeded to Greenbrier where he _ worked

traffic and generally assisted with storm

victims.

At approximately 2:30 a.m., Officer Iberg

and Chief Hensley returned to jail to check on

Marvin Williams and found him sleeping. The

purpose of the return was to allow Chief

Hensley to check the cut on Williams’ forehead

and his general physical condition. The

bleeding from the cut had stopped, and there

was no bleeding from the mouth. Consequently,

they decided not to call a doctor.

Deputy Martin returned to the Faulkner

County Jail at approximately .7 a.m., whereupon

he checked in on the prisoners to see how many

he had and how many wanted breakfast.

Included in the check was a check on Marvin

Williams, who was at that time sleeping.

Deputy Martin thereupon went back downstairs

and prepared breakfast for those who had

[

EEE

requested same and coffee for those who did

not want breakfast. He returned to the jail

area and furnished those prisoners with

breakfast and coffee. Marvin Williams was

still asleep at this time. Deputy Martin

heard Williams snoring and observed his

breathing. Deputy Martin left the jail area

and proceeded about his duties for that day

and did not return to the Faulkner County Jail

until approximately 9 a.m. He proceeded back

up to the jail area where he picked up the

breakfast trays and, once again, looked in on

Marvin Williams who at that time was still

asleep. At approximately 11 a.m., Deputy

Martin returned to the jail area and once

again checked on the prisoners. This time

entering the cell of Marvin Williams. He felt

of his pulse, and determined that Marvin

Williams was’ dead. Deputy Martin then

proceeded back downstairs and notified the

Sheriff, who, in turn, notified the Coroner,

ltt

ee aeaeaeEeeEe

who then came to the Faulkner County Jail.

Appendix D-4

A coroner’s inquest was called on the

afternoon of May 7, 1960, by Coroner R. A.

McNutt. A twelve-member coroner’s jury heard

testimony from Iberg, Mullenax, Martin,

Langford, Delph, Flakes, Oliver, Charles

Hackney and Lou Cogbill (prisoners in the jail

with Williams during the night he died) and

every other person from Conway and Menifee who

knew anything about Williams’ activities on

May 5 and 6, 1960. The jury was specifically

informed by Coroner McNutt that the cause of

death, as reported by the State Pathologist

who performed the autops:, was a fracture to

the back of the skull and a resulting hematoma

to the brain. The jury recessed at one point

for several hours so that some witnesses from

the area could be summoned to testify. After

hearing all the evidence, and physically

viewing the body, the coroner’s jury found

that there had been no foul play by the local

law enforcement authorities from the time of

Williams’ arrest until the time of his death.

Defendants’ medical proof will show that

Marvin Williams’ forehead injury was

consistent with a fall to the courthouse

steps. In addition, Dr. Stevenson Flannigan,

chairman of the University of Arkansas Medical

Center, Department of Neurology, will testify

that the fracture at the base of Williams’

skull was, in his best medical judgment, a

distant fracture caused by Williams’ fall to

the courthouse steps. He will also testify

that the autopsy and medical reports available

from 1960 are consistent with a coup/counter-

coup theory of injury to the brain. Testimony

from Dr. Alexandrous A. Pappas, a toxicologist

at the University of Arkansas Medical Center,

Will testify that Marvin Williams could have

been drunk at the time of his arrest and have

dissipated all of the alcohol from his system

——OOoeEeEOE—e—eE—eEe—

by the time of his death.

Appendix D-5

Although Plaintiffs allege that Sheriff

Joe Castleberry beat Marvin Williams in the

jail in the early hours of May 6, 1960, the

proof will show that Sheriff Castleberry was

at his home until between approximately 4:15

to 4:30 a.m., and will further show that he

received a telephone call at home of storm

damage and he proceeded to an area east of

Guy, Arkansas, which is approximately 20 miles

from Conway, Arkansas.

II. Issues

The Plaintiffs have raised five basic

issues in their complaint:

1) False arrest

2) Assault and battery

3) Denial of medical treatment

4) Conspiracy to injure Plaintiff’s

decedent

5) Conspiracy to cover up the manner of

death

The defendants hare responded by fiiing 12 (b)

(6) Motions to Dismiss which have since been

transformed into Motions for Summary Judgment

and raised tne following issues:

The applicable statue of limitations

has expired.

The allegations of conspiracy to

cover up the manner of death should

be dismissed

Punitive damages are not available

against the city or county

Monell should not have retroactive

application

The plaintiffs have no. standing

to sue

Respondeat superior is not a proper

legal basis upon which to impute

liability to the city and county.

The Defendants will not restate the arguments

submitted

in the briefs, previously filed

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liability.

4) Faulkner County, Arkansas, can have

no liability based on a theory of

respondeat superior.

III. THE DEFENDANTS ARE QUALIFIEDLY IMMUNE

FROM ANY PURPORTED LIABILITY FOR THE

FAILURE TO PROVIDE MEDICAL TREATMENT.

County 3 of Plaintiffs’ Complaint

contains an allegation asserting that the

Defendants should be liable because of their

failure to provide medical treatment to the

decedent, Marvin Williams. It is the

Defendants’ position that they are qualifiedly

immune from any such liability because they

exercised reasonable diligence and case under

the circumstances. Furthermore, the law was

not well settled in 1960 as to what standard

of care was necessary in providing medical

treatment to inmates.

in Harlow v Fitzgerald, 102 s. Ct. 2727

(1982), the Supreme Court held that the

reliance on the objective reasonableness of an

official’s conduct, as measured by reference

to clearly establish law, should avoid

excessive claims on summary judgment.

",..the judge appropriately my determine,

not only the currently applicable law,

but whether’ that law was clearly

established at the time and action

occurred. If the law at that time was

not clearly established, an official

could not reasonably be expected to

anticipate subsequent legal developments,

Appendix D-7

nor could he fairly be said to

‘know’ that the law forbade conduct

not previously identified as lawful.

Until this threshold immunity

question is_ resolved, discovery

should not be allowed." (Id.)

The basis of this allegation contained in

the Plaintiffs’ Complaint arises out of a

purported Eighth Amendment violation. The

Supreme Court clarified in Estelle v. Gamble,

429 U.S. 97 (1976) that Eighth Amendment

violations in the area of medical care require

at least "deliberate indifference" on the part

of prison authorities; inadvertence and

negligence are insufficient. It is, thus, the

defendants’ position that the specific "duty"

imputed to police officers and jail officials

to provide medical treatment to incarcerated

prisoners did not become well settled law

until the Estelle v. Gamble decision was

rendered in 1976.

In the present case, the facts indicate

that after the decedent, Marvin Williams, fell

on the courthouse steps, Officers Iberg and

Mullenax inspected the decedent’s forehead

before incarcerating him, but determined at

that time that the injury did not appear to be

serious. In addition, Officer Iberg notified

Chief C.O. Hensley of the incident’ and

returned to the Faulkner County Jail at

approximately 2 to 2:30 a.m., whereupon the

chief inspected the injury. On both

occasions, the officers determined from the

appearance of the injury that it was not of a

serious nature. The Plaintiffs assert that

Iberg, Mullenax, Martin and Castleberry knew

or reasonably had to have known that

Plaintiffs’ decedent was seriously injured and

in need of medical treatment, which they had a

duty to provide but knowingly denied him. It

is the Defendants’ position, of course, that

the assertion is baseless and without merit.

In fact, the Defendants took reasonable steps

to determine the nature and extent of the

injury to the decedent’s forehead, but were

not aware of any overt signs that the injury

Appendix D-8

was more serious than what it appeared to be.

If the Defendants were required to do more,

the law in this area did not begin to evolve

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until Estelle v. Gamble in 1976. MTherefore,

it is the Defendants’ position that they

should have qualified immunity from any

allegation that they failed to provide medical

treatment.

IV. H NTS, IBERG AND MULL X

HAD PROBABLE CAUSE TO ARREST THE

DECEDENT.

In Count 1 of Plaintiffs’ Complaint, the

Plaintiffs allege that the Defendants, Iberg

and Mullenax, arrested the Plaintiffs’

decedent for public drunkenness. The

plaintiffs further assert that at the time of

the arrest, the Plaintiffs’ decedent was not

drunk and Iberg ant Mullenax knew it or

reasonably should have known it. The

Plaintiffs also assert that the decedent was

then subjected to a false arrest without

probable cause in violation of the Fourth and

Fourteenth Amendments to the United States

Constitution. It is the defendants’ position

that Officers Iberg and Mullenax had probable

cause to arrest Marvin Williams and thus there

can be no liability for false arrest.

The objective facts indicate that Marvin

Williams had been drinking wine and whiskey on

the evening of May 5, 1960. Joe Flakes was

with marvin Williams that evening and will

testify as to the drinking of alcoholic

beverages by the decedent. In addition,

Marvin Williams was arrested by Officers Iberg

and Mullenax at approximately 12:30 a.m., on

May 6, 1960, in front of the Sunset Cafe.

Marvin Williams, along with Joe Flakes, gave

the officers every appearance of being

intoxicated.

In the case of Heslip v. Lobbs, 554 F.

Supp. 694 (E.D. Ark. 1982) this court noted:

Appendix D-9

*.. police officers do not incur

liability merely because a court

subsequently acquits the arrestee of the

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Up, wherein it is alleged by the Plaintiffs

that Defendant Hartje conspired with the other

defendants to fraudulently cover up the manner

of the death of Marvin Williams.

Specifically, Plaintiffs allege that Defendant

Hartje coerced Charles Hackney into committing

perjury at the Coroner’s inquest and faiied to

present evidence that would have led to a

finding of criminal culpability on the part of

the police officers.

The depositions of the Plaintiffs, filed

previously with this Court, show that there i

absolutely no evidence of Defendant Hartje

taking any actions outside of his actions as

prosecuting attorney in the Coroner’s inquest.

Appendix D-10

It is the position of Defendant Hartje

that he has absolute immunity from liability

Appendix D-10

for any acts entertaken in his capacity as a

prosecuting attorney. The Supreme Court’s

seminal decision is Imbler v. Pachtman, 424

U.S. 409 (1976), which relies on Tenney v.

Brandhove, 341 U.S. 367, Pierson v. Ray, 386

U.S. 547, and later cases relating to the

immunity of various governmental officials.

In Imbler, plaintiff sued a state prosecutor

for the alleged knowing use of perjured

testimony and the suppression of material

evidence at plaintiff’s trial which resulted

in his conviction for murder. The Court,

speaking through Justice Powell, put the issue

this way: "Whether a state prosecuting

attorney who acted within the scope of his

duties in initiating and pursuing a criminal

prosecution is amenable to suit under 42

U.S.C. § 1983, for alleged deprivations of the

defendant’s constitutional rights." The Court

held the prosecutor absolutely immune. The

Court reasoned that prosecutors have always

been immune from suit at common law, and those

policies underlying common law prosecutorial

immunity apply with equal force to Section

1983 actions.

The Court stated that absolute

prosecutorial immunity would not leave the

public powerless because prosecutors guilty of

misconduct could be punished under criminal

law or by disciplinary action. 424 U.S. at

428-429.

Imbler is expressly limited to those

activities of a prosecutor which are

"intimately associated with the judicial phase

of the criminal process,...functions to which

the reasons for absolute immunity apply with

full force." Id. at 430-431. The decision

noted that a prosecutor in the role of

advocate frequently acts outside of the

courtroom as well as in it, thereby suggesting

that this role is quite broad and is protected

in its entirety by absolute immunity.

Appendix D-11

Since Imbler, it is clear that

prosecutorial immunity from liability for

damages attaches to those acts that the

prosecutor performs in the role of advocate.

For example, immunity protects the prosecutor

who allegedly withholds evidence favorable to

plaintiff and instructs the witness to testify

evasively, if not falsely (Hilliard v.

Williams, 540 F. 2d. 220 (6th Cir., 1976) (Per

Curiam): and who allegedly improperly has the

plaintiff indicated and, at the criminal

trial, suborns perjury and files’ false

affidavits (Brude v. Wade, 537 F. 2d. 850 (5th

Cir. 1976).

The Issue of the prosecutor’s absolute

immunity in Section 1983 actions has been more

recently developed in Hauptmann v. Wilentz,

570 F. Supp. 351 (D.C.N.J. 1983). The case

arose out of the prosecution, conviction and

execution of Bruno Richard Hauptmann for the

murder of Charles A. Linbergh, Jr., the 20-

month old son of the famous aviator, Charles

Linbergh and his wife, the writer Ann Morrow

Linbergn, was kidnapped from his home near

Hopewell, New Jersey, on the night of March 1,

1932. Charles Linbergh paid $50,000 ransom on

April 2, 1932; however, the child was not

returned. On May 12, 1932, the remains of a

child, later identified as those of Charles A.

Linbergh, Jr., were found in a shallow grave.

Over two years later, on September 19, 1934,

Hauptmann was arrested in New York after

passing one of the bills included in the

ransom payment. Defendant David T. Wilentz,

Attorney General for the State of New Jersey,

served as prosecutor during Hauptmann’s trial

and during all post-trial proceedings.

Hauptmann was convicted and executed. Over 40

years after the conclusion of the Hauptmann

trial, his widow brought suit against former

Attorney General Wilentz, alleging that

Appendix D-12

Wilentz coerced a witness not to testify as to

certain facts; that he knowingly presented

perjured, false and misleading testimony at.

trial; that he deliberately withheld

exculpatory evidence; that he conspired with

defendant Hearst Corporation to deprive

Hauptmann of his right to a fair trial; and

that he conspired with state police officers

who carried out illegal searches and seizures,

contaminated the jury, and deprived Hauptmann

of his right to privacy and his right to

counsel.

Defendant Wilentz countered that the

Court should dismiss the complaint against

him, pursuant to F.R.C.P. 12 (b) (6), because

all the claims against him fall within the

zone of absolute immunity afforded to

prosecutors by Imbler v. Pachtman, supra. The

Court in Hauptmann followed Imbler, reasoning

that prosecutors have always been immune from

suit at common law, and that the policies

underlying common law prosecutorial immunity

SS LLC

apply with equal force to Section 1983

actions. The District Court found that

defendant Wilentz had absolute immunity on the

claims that he used false, perjured or

misleading testimony and concealed exculpatory

evidence. 570 F. Supp. at 389. Specifically

concerning the allegation that Wilentz had

coerced a witness into giving perjured

testimony, the Court stated: "Coercing a

witness not to testify to an exculpatory fact

is one means of withholding exculpatory

evidence; thus, Wilentz is absolutely immune

from suit on this claim under Imbler." 570 F.

Supp. at 377.

There is support for the rationale found

in Hauptmann throughout the various district

courts and circuit courts of the United

tates. Thus, in the case of Fullman v.

Graddick, 739 F. 2d 553 (llth Cir. 1984), the

Court held that allegations of filing an

information without an investigation, filing

charges without jurisdiction, filing a

baseless detainer, offering perjured

testimony, suppressing exculpatory evidence,

refusing to investigate complaints about the

prison, and threatening defendant with further

criminal prosecution were within the absolute

immunity recognized in Imbler and could not be

the basis for recovery under Section 1983. It

was further determined that the prosecutor was

entitled to absolute immunity from civil

rights actions based upon the prosecutor’s

alleged conspiracy to withhold evidence and to

create improper and perjured testimony in the

prosecution of a civil rights plaintiff on

charges of capital murder, mayhem and assault

in connection with the bombing of City Hall.

In the case of Tate v. Grose, 412 F.

Supp. 487 (E.D. Penn. 1976), it was alleged

that the prosecutor had conspired to deprive,

and had deprived the accused of his

constitutional rights by obtaining and issuing

an arrest warrant without probable cause; by

maliciously prosecuting a murder indictment;

and by knowingly using perjured testimony

against the accused. The Court ruled that the

allegation that the prosecutor actually

solicited perjured testimony did not remove

the bar of immunity.

In accord with granting absolute immunity

to prosecutors, see Goldschmidt v. Patchette,

686 F. 2d 582, 501 (7th Cir. 1982) (the

sending of a letter threatening prosecution

was part of the prosecutor’s advocate role

because it is "not the sort of activity which

could be performed by a layman with the same

effectiveness that a letter from the

prosecutor’s office would accomplish."); Lee

v. Willins, 474 F. Supp. 970 (E.D. N.Y. 1979)

(prosecutors immune from civil rights suit

alleging that they force woman into testifying

against plaintiff by arresting her without

Appendix D-14

cause and threatening to not release her

unless she agreed to falsely testify against

plaintiff.); Corby v. General Motors Corp.

373 F. Supp. 967 (S.D. N.Y. 1974) (prosecutor

absolutely immune in case where plaintiff

alleged that prosecutor conspired to obstruct

justice by releasing evidence necessary for

trial and presenting perjured testimony, court

holding the prosecutor’s actions arose out of

the performance of his duties.); Ney v.

California, 439 F. 2d 1285 (9th Cir. 1971)

(that deputy district attorney used altered

tapes at prisoner’s preliminary hearing and

trial failed to state a claim under 42 U.S.C.,

Section 1983.); eidelberg v. Hammer, 577 F.

ld 429 (7th Cir. 1978) (prosecutor absolutely

immune where sued for destroying and

falsifying a lineup report and police tapes) ;

Hilliard v. Williams, 540 F. 2d 220 (6th Cir.

SANRINcccn smssaceasa

1976) (prosecutor absolutely immune from 42

U.S.C., fCection 1983 claim based on alleged

withholding of certain evidence and presenting

deceptive cnd misleading testimony.); French

v. Corrigan, 432 F. 2d 1211 (7th Cir. 1970)

district attorney immune in 42 U.S.C., Section

1985 suit alleging conspiracy between himself

and defense counsel to falsify statement to

the court.); Coffman v. Moss, 420 F. 2d 1270

(3rd Cir. 1970) (district attorney immune from

suit alleging conspiracy between himself and

three law enforcement officers to use perjured

testimony. )

All of the allegations in this case

against Defendant Hartje state contentions

that he coerced Charles Hackney into giving

perjured testimony at the Coroner’s inquest,

and that he presented this false evidence and

failed to present other evidence which could

have led to a finding of criminal culpability.

All of these alleged actions were in his

sch i, a

official capacity as Prosecuting Attorney.

Appendix D-15

All of these actions were of a "quasi-

judicial" nature, undertaken in Defendant

Hartje’s advocate role, and thus satisfy the

law set down in Imbler and its progeny.

It is Defendant Hartie’s position based

upon the authority cited above that he should

be afforded absolute immunity for’. any

activities undertaken by him during the course

of his preparation for and participating in

the Coroner’s inquest’ process. In the

alternative, the Defendant Hartje submits that

he is surely at least entitled to qualified

immunity for any acts undertaken by him as

prosecutor in 1960. —— :

VI. FAULKNER COUNTY CANNOT BE HELD

LIABLE UNDER ANY THEORY OF

RESPONDENT SUPERIOR.

Vicarious liability on the part of the

City of Conway and Faulkner County has been

previously challenged in motions to dismiss

previously filed. In addition, however, the

county submits that the statutory relationship

existing in Arkansas in 1960 between a county

and its sheriff precludes any liability claim

against a county for the acts of its sheriff.

Prior to the adoption of Amendment 55 to

the Arkansas Constitution, Section 12 101 et

seq, Ark. Stats, Ann., controlled the

operations of the sheriff’s office. As a

constitutional officer (Act 7, Section 46,

Arkansas Constitution), the sheriff was

elected by the voters of his county and could

only be removed for statutory cause.

Sheriff Castleberry was also the

exofficio collector of Faulkner County and was

paid on a commission basis from his tax

collections.

Faulkner County had no control over the

selection of deputies. Section 12-106, Ark.

Stats. Ann., granted to the sheriff the

Appendix D-16

exclusive right to appoint deputies. In

Parker, County Judge, v. Adkins, 223 Ark. 455,

266 SW 2d 7°59 (1954), the Arkansas Supreme

Court held that the sheriff had the power to

select a deputy:

"Tt is hard to believe that by Act 53 of

1951 the legislature intended that

someone other than the sheriff would have

the authority to appoint a deputy sheriff

for whose official conduct the sheriff

would be responsible. If this were true,

conceivably, the sheriff’s worst enemy

could be appointed as his deputy." (266

SW 2d at 800)

As Sheriff and Collector, Mr. Castleberry

was paid in accordance with Ark. Stat. 12-726;

so long as he kept the cost of operating his

office within the commission limitations of

that statute, no other county officer or

agency could in any manner control the conduct

of the Sheriff’s office; not even the power of

" |

the purse string was available since the

Sheriff only remitted to the county its net

share of the tax collections, after retaining

his commission to cover operating costs of his

office. Almost concurrently with statehood,

the Arkansas Supreme Court held that the

sheriff must compensate the deputies from the

fees collected by the office (Jefferson County

v. Hudson, 22 Ark. 595); the county, as such,

had no control or opportunity for control over

the sheriff’s deputies. The Faulkner County

Sheriff’s Office was a separate entity,

distinct from the county, for employer’s tax

reporting purposes; it had its own account

with the Internal Revenue Service upon which

it filed appropriate withholding reports

covering employees of the Sheriff’s Office,

while the county per se, had its own IRS

account used for most other county employees.

Simply put, the relationship between

Faulkner County and its sheriff was not one of

employee-employer, nor of any other nature by

which the Sheriff’s activities were subject to

control, question or direction. Liability

founded upon principles of respondeat superior

must, of necessity, be limited to those

Appendix D-17

situations in which one party has control over

the other, which control over the Sheriff’s

activities was non-existent as to Faulkner

County.

Conclusion

For the reasons noted in Defendant’s

Motions to Dismiss and the foregoing pre-trial

brief, the Defendants respectfully request

that the Complaint filed against them be

dismissed

RESPECTIVELY SUBMITTED,

FAULKNER COUNTY, ARKANSAS, ET AL

DAVID H. WHITE

Attorney for City of Conway, Defendant

P.O. Box 38

North Little Rock, Arkansas 72115

| 66

and

WINSTON BRYANT

Attorney for City of Conway, Defendant

P.O. Box 38 |

North Little Rock, Arkansas 4ana0

and

JEFFREY A. BELL

Attorney for Defendant Hartje

Justice Building

Little Rock, Arkansas 7220]

Appendix D-18

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

RICKY WILLIAMS,

individually and as

| the Administrator cf the

Estate of Marvin Williams;

| SHARON WILLIAMS; BONNIE

| (WILLIAMS) GILBERT;

DELAVAH WILLIAMS, JOHNIE

WILLIAMS; RONNIE WILLIAMS;

EMOGENE WILLIAMS COBIN;

ERNESTINE WILLIAMS WEBB;

CAROLINE WILLIAMS GILES;

VERNA WILLIAMS HAMMOND; No. LR-C-384-

BARBARA WILLIAMS GUINN; 791

and DONNA WILLIAMS

LOCKHART, the survivors of AMENDED

Marvin Williams COMPLAINT

Plaintiffs, 42 U.SeCe. §

198]

Vs 42° Us Sse

§ 1983

FAULKNER COUNTY, ARKANSAS; 4i U.S.C.

JAMES T. CASTLEBERRY and § 1985 (3)

JOCILE C. PERRY, co- 20 U.8.C;

executors of the Estate . 23Sa

of Joe L. Castleberry, 18 U.S.C

deceased; Joe Martin; § 1343

CITY OF CONWAY, ARKANSAS;

MARVIN IBERG, OH.H. (BILL) FOURTH,

MULLENAX; and GEORGE F. EIGHTH,

HARTJE, JR., THIRTEENTH,

and

DEFENDANTS. FOURTEENTH

- AMENDMENTS

Mee eee eee eee eee eee eee eee eee ee

AMENDED COMPLAINT

The plaintiffs allege against the

defendants:

I. INTRODUCTION

i. This action is brought on behalf of

the survivors and the estate of Marvin

Williams to redress violators of his civil

richts when he died in police custody in

Conway, Arkansas on May 6, 1960 and because of

the conspiracy to cover-up the cause of death.

Appendix E-1

II. JURISDICTION AND VENUE

2. This action is brought pursuant to

42 U.S.C. §§ 1981, 1983, 1985, and 1986 and

their jurisdictional predicates, 28 U.S.C. §¥

1331 & 1343 (3).

3. The act complained of occurred in

Faulkner County, Arkansas, in this district.

III. PARTIES--PLAINTIFFS

4. The plaintiffs are the survivors of

the decedent, Marvin Williams:

(a) Plaintiffs Ricky Williams and Sharon

— Lit)

Williams are residents of Faulkner County,

Arkansas. They are decedent’s children.

(b) Plaintiff Bonnie (Williams) Gilbert

is a resident of the State of California. She

is decedent’s widow. (She has remarried.)

Johnie Williams are residents of Conway

County, Arkansas. They are decedent’s

parents.

(d) Plaintiff Ronnie Williams is a

resident of Conway County, Arkansas. He is

decedent’s brother.

(e) Plaintiffs Emogene Williams Cobin,

Caroline Williams’ Giles, Verna Williams

Hammond, and Barbara Williams Guinn are

residents of Missouri. They are decedent’s

sisters.

Appendix E-2

(f) Plaintiff Ernestine Williams Webb is

a resident of Michigan. She is decedent’s

Sister.

(g) Plaintiff Donna Williams Lockhart is

a resident of Pulaski County, Arkansas. She

is decedent’s sister.

4A. Also, Ricky Williams is suing as

administrator of the estate of Marvin

Williams.

IV. PARTIES-DEFENDANTS

S. Defendant Faulkner County and the

City of Conway are municipal corporations of

the State of Arkansas.

6. Defendants James T. Castleberry and

Jocile C. Perry are sued as Co-executors of

the Estate of Joe L. Castleberry, deceased for

the acts of Joe L. Castleberry during his

life. Joe L. Castleberry was a resident of

and died in Faulkner County Arkansas on July

8, 1984. James T. Castleberry is a resident

of Oklahoma, and Jocile C. Perry is a resident

of Florida. Joe L. Castleberry’s will was

admitted to probate in the Probate Court of

Faulkner County Arkansas on July 17, 1984

(case no. P

R 84-110). This action is a claim against the

Estate of Joe L. Castleberry. (Hereafter,

references to "Castleberry" or "defendant

Castleberry" mean Joe L. Castleberry or his

estate, as the context requires.)

Ve Defendants Joe T. Martin, Marvin

Iberg, and George F. Hartje, Jr., are

residents of Faulkner County, Arkansas.

8. Defendant O. H. (Bill) Mullenax is a

resident of Pulaski County, Arkansas.

Appendix E=-3

9. At the time of the acts complained

of, defendants Iberg and Mullenax were police

officers of the City of Conway, and the City

of Conway put all its prisoners into the

Faulkner County Jail.

10. At the time of the acts complained

of Joe L. Castleberry was the Sheriff of

Faulkner County. By law, he was the custodian

of prisoners. Ark. Stat. Ann. § 12-1110

(since repealed), 46-401 & 46-412.

11. At the time of the acts complained

of, Joe Martin was the head jailer and guard

of the Faulkner County Jail appointed by Joe

L. Castleberry. § 46-402.

V. ACTS COMPLAINED OF

12. In the early morning hours of May 6,

1960, defendants Iberg and Mullenax arrested

plaintiffs’ decedent and Joe Flakes for public

drunkenness and transported them to jail.

13. & the time of the arrest

plaintiffs’ decedent was not drunk, and Iberg

and Mullenax knew it or reasonably should have

known it.

14. Plaintiffs’ decedent was thus

subjected to a false arrest without probable

cause in violation of the Fourth’ and

Fourteenth Amendments to the U.S.

Constitution.

Count 2--ASSAULT AND BATTERY

15. At the jail, Iberg or Mullenax or

both of them either (a) knowingly and

maliciously dropped or knocked plaintiffs’

decedent to the ground or steps leading to or

Appendix E-4

inside the courthouse leading up to the jail,

knowingly causing plaintiffs’ decedent

physical injury, pain and suffering, emotional

distress, and mental anguish, or (b) knowingly

and maliciously beat plaintiffs’ decedent

knowingly causing physical injury, pain and

suffering, emotional distress, and mental

anguish, or (c) both. This beating could also

have occurred before they arrived at the jail

or after decedent was in jail or both. If

only one acted to harm plaintiffs’ decedent,

the other stood by knowing an unlawful assault

was occurring but failed his duty to

plaintiffs’ decedent to act to stop it.

16. Plaintiffs’ decedent did nothing to

Warrant being assaulted.

17. Inside the jail, plaintiffs’

decedent was placed in the custody of

defendants Martin and Castleberry and

incarcerated in the Black section of the

segregated Faulkner County jail.

18. After decedent was in the custody of

defendants Martin and Castleberry, defendant

Iberg returned to the jail with Conway Police

Chief Hensley allegedly to check on decedent’s

injuries. At that time, either Iberg or

Hensley beat decedent again or Castleberry and

Martin beat decedent or both knowingly causing

plaintiffs’ decedent further physical injury,

pain and suffering, and emotional distress and

mental anguish (if he was conscious to begin

with). If less than all actually beat

plaintiffs’ decedent, the others stood by

knowing an unlawful assault was occurring but

Appendix E-5

failed his duty to plaintiffs’ decedent to act

to stop the other from doing so or acquiesced

in or condoned the act.

19. Plaintiffs’ decedent did nothing to

warrant being assaulted.

20. [Omitted]

21. After the beating in the jail was

administered, someone, apparently Castleberry,

said: "That ought to take care of that Black

son-of-a-bitch forever," and that person

directed another, apparently Martin to clean

up the area where the beating occurred.

Count 3--DENIAL OF MEDICAL TREATMENT

22. After each of these assaults, Iberg,

Mullenax, Hensley, Martin, and Castleberry

knew or reasonably had to have known the

plaintiffs’ decedent was seriously injured and

in need of medical treatment which they had a

duty to provide but knowingly denied him.

23 After the initial assault, defendant

Iberg returned to the jail with Hensley to

check on plaintiffs’ decedent’s condition, and

both had to have known or reasonably should

have known that plaintiffs’ decedent was in

need of medical treatment.

24. These defendants and Hensley left

plaintiffs’ decedent in his jail cell, and he

died in a few hours of a fracture at the base

of the skull, an epidural hematoma, and

contusion of the brain.

25. The acts alleged in Counts 1, 2, and

3 were the proximate cause of the death of

plaintiffs’ decedent.

Appendix E-6

Count 4--CONSPIRACY TO INJURE PLAINTIFFS’

DECEDENT

26. At the time of the acts complained

of, the officers of the Conway Police

Department and the Faulkner County Sheriff’s

Office had a de facto policy of abusing

arrestees in general and Black arrestees in

particular of which responsible person in the

City and County were aware but did not prevent

when they had a duty to do so.

27. At the time of the acts complained

of, defendant Iberg’s superiors know or

reasonably should have Known that he had a

pattern and practice of abusing arrestees in

general and Blacks in particular, and the City

took no action to control his abuse and

racially discriminatory conduct.

28. Defendants Mullenax and Hensley were

also aware of Iberg’s propensities but took no

action to limit Iberg’s actions. Both stood

by and watched what happened or they

participated at one time or another in the

beating, thus acquiescing in it.

29. AT the time of the acts complained

of, Castleberry and Martin both had a pattern

and practice of abusing arrestees in general

and Blacks in particular, each was aware or

reasonably should have been aware of their

propensity, and neither took any action to

limit the abuse and racially discriminatory

conduct of the other.

30. Castleberry, Martin, Iberg, and

Mullenax combined and conspired either

tacticly or overtly to knowingly (a) arrest

and cause plaintiffs’ decedent to be jailed

without probabie cause, (b) assault and injure

or kill plaintiffs’ decedent without

Appendix E-7

justification, and (c) deny him medical

treatment after his assault. If they did not

initially conspire, they joined the conspiracy

knowing the objectives of it and the past

occurrences. Shortly thereafter, they

conspired to give a false account of the

manner of plaintiffs’ decedent’s injury and,

later, death [count 5].

| 31. Because these defendants entered

into a conspiracy to harm 0»plaintiffs’

decedent, each became legally liable for the

acts of the others in the course of the

conspiracy.

32. This conspiracy was also a proximate

cause of the plaintiffs’ decedent’s death.

Count 5--CONSPIRACY TO COVER-UP THE MANNER OF

DEATH

33. In 1960, defendant Hartje was the

elected Prosecuting Attorney of Faulkner

County’s judicial district.

34. The morning of May 6, 1960,

defendant Hartje entered the jail area and

inquired as to whether any prisoners saw

anything. Prisoner Charles Larone Hackney

said that he did.

35. Later that morning, Castleberry or

Martin or both removed or caused to be removed

Hackney from his cell and took him to another

room where they met with defendant Hartje.

Hartje told Hackney (in effect): "You didn’t

see a God-damned thing, you didn’t hear a God-

damned thing, and you don’t know a God-damned

thing. If you want out of my jail, you’1ll say

as you’re told."

Appendix E-8

36. That night, Hackney was told by a

co-conspirator whose identity is presently

unknown, that if Hackney talked about what he

saw, he “would go out the same way."

37. The next day, a coroner’s inquest

was called by R. A. McNutt, Faulkner County

Coroner, pursuant to Ark.Stat.Ann. § 42-301 et

seq.

38. Defendant Hartje participated in the

inquest as Prosecuting Attorney in summoning

coroner’s jurors and in examining witnesses.

39. Castleberry, Hackney, Martin, Iberg,

Mullenax, and others testified at the inquest.

40. The officers testified that

plaintiffs’ decedent was arrested for being

drunk and that he was stuporous when removed

from the patrol car at the jail by defendants

Iberg and Mullenax, They also testified that

plaintiffs’ decedent "come to" and fell

forward onto the steps outside the courthouse

injuring his head, and he must have died from

that. This was false testimony and the co-

conspirators all knew it.

41. Because he was threatened by co-

conspirators, Hackney testified that he did

not see anything but only heard plaintiffs’

decedent’s moans from the Black section of the

jail.

42. An autopsy was sought the day before

the Coroner McNutt, but, as a part of the

conspiracy, the complete results were not

sought by nor given to the coroner’s jury even

though available. Neither was the pathologist

Appendix E-9

who performed the autopsy, Dr. Charles O. Fox,

called to testify at the inquest. He would

have testified the death was from a direct

blow from a billy club or other instrument to

the back of the head and that decedent’s blood

alcohol level was negative.

43. [Omitted]

44. Hartje, Castleberry, Martin, Iberq,

Mullenax, Hensley, and McNutt combined and

conspired tacticly or overtly to knowingly

provide a false account of the manner and

cause of plaintiffs’ ‘tecedent’s injury and

death prior to, in testimony before, and after

the coroner’s inquest in order to protect

those responsible for the death and conceal

the true manner and cause of death. Thus,

there is no immunity associated with a quasi-

judicial proceeding.

45. Because these defendants expanded

the original conspiracy to injure plaintiffs’

decedent into one to cover-up the cause of

plaintiffs’ decedent’s injuries and manner of

death, each became liable for the acts of all

the others from the beginning of the

conspiracy.

45A. A part of the conspiracy was to

produce a quick resolution on the question of

police fault in the death ot decedent because

the conspirators were generally aware of the

racial climate at the time whicn would

effectively bar plaintiffs from pursuing the

truth or any claim.

45B. Plaintiffs Delavah and Johnie

Williams diligently pursued the true facts to

the extent the racial climate of 1960 Faulkner

County alilowed. They sough legal counsel, who

Appendix E-10

told them it would be pointless to pursue a

further investigation.

45C. Because they had neither the

financial nor social means of investigating

the death, they could not penetrate the cover-

up devised by the defendants’ conspiracy.

46. This combination and_ conspiracy

successfully concealed this cause of action

until 1984 when Hackney made it public and

scientific evidence surfaced which

corroborated his statements.

47. Because an object of this conspiracy

was to knowingly fraudulently conceal the

manner and cause of plaintiffs’ decedent’s

death, the statute of limitations has been

tolled as to all defendants.

VI. STATUTORY AND CONSTITUTIONAL VIOLATIONS

48. The acts of defendants Castleberry,

martin, Iberg, Mullenax, and Hartje were done

under color of state law with the intent to

violate plaintiffs’ decedent’s civil rights

protected by 42 U.S.C. § 1983:

(a) to be free from unlawful arrest

protected by the Fourth and Fourteenth

Amendments to the United States

Constitution (Count 1);

(b) to not be subjected to an

unjustifiable assault and cruel and

unusual punishment by law enforcement

officers protected by the Fourth, Eighth,

and Fourteenth Amendments to the United

States Constitution (Count 2);

treatment for his injuries while in

Appendix E-11

custody protected by the Eighth and

Fourteenth Amendments to the United

States Constitution (Count 3);

(d) to substantive due process of law

and the privileges and immunities of

citizens protected by the Fourteenth

Amendment to the United States

Constitution (Counts 1, 2, and 3);

(e) to be free from their conspiracy to

falsely arrest him, subject him to

unlawful assault and battery, and deny

him medical treatment in violation of the

Fourth, Eighth, and Fourteenth Amendments

to the United States Constitution (Count

4);

(f) to be free from their conspiracy to

cover-up the manner, Cause, and

responsibility for his death protected by

the due process, privileges and

immunities, and equal protection clause

of the Fourteenth Amendment to the United

States Constitution (Count 5).

48A. The acts of the defendants were done

under color of state law with the intent to

violate plaintiffs’ civil rights protected by

42 U.S.C. § 1983:

(a) The rights of Delavah and Johnie

Williams to enjoy a parent-child

relationship with their son without

state intrusion or interference, a

liberty interest protected by the

Fourteenth Amendment to the United

States Constitution.

(b) The rights of Rickey and Sharon

Williams to a father’s love,

Appendix E-12

companionship, and support

without state intrusion and

interference, a liberty

interest protected by the

Fourteenth Amendment to the

United States Constitution.

(Cc)

(d)

49.

The rights of Bonnie Williams

Gilbert to the love, companionship,

consortium, and support of her

husband without state intrusion and

interference, a liberty interest

protected by the Fourteenth

Amendment to the United States

Constitution.

The rights of Ronnie Williams,

Emogene Williams Cobin, Caroline

Williams Giles, Verna Williams

Hammond, Barbara Williams Guinn,

Ernestine Williams Webb, and Donna

Williams Lockhard, to the love and

companionship of their’ brother

without state intrusion and

interference, a liberty interest

protected by the Fourteenth

Amendment to the United States

Constitution.

The acts of these persons were also

racially motivated (because plaintiffs’

decedent was Black) and under color of state

law in violation of 42 U.S.C. §§ 1981, 1982,

1985 (3), and 1986 and the Thirteenth and

Fourteenth Amendments to the United States

Constitution.

Vil. LIABILITY FOR ACTS OF OTHERS

50. Each of these individuals willingly

joined this conspiracy. Therefore, each is

jointly and severally liable for the acts of

the other co-conspirators even occurring

before the conspiracy was joined or after they

left it because they did not reveal or

otherwise repudiate the conspiracy with a

purpose to end it and reveal its purposes.

Appendix E-13

51. Under 42 U.S.C. § 1981, Faulkner

County and the City of Conway are liable under

principles of respondeat superior for the

racially discriminatory acts of their

officers, employees, or agents done under

89 ”

color of law.

52. Under 42 U.S.C. §§ 1983, 1985 (3), &

1986 responsible parties of the City of Conway

and Faulkner County were aware of the

propensity for Officer Iberg, Sheriff

Castleberry, and Jailer Martin for abusing

arrestees in general and Blacks in particular

before the death of plaintiffs’ decedent, and

no action was taken to correct this situation

when they had a duty to do so. Also, Chief

Hensley was directly involved. This

constitutes a failure to supervise or train or

both. Thus, the County and City also have

direct liability.

53. Under Ark.Stat.Ann. §§ 12-1101 et

seq, 46-402, 46-412, 46-511 & 46-701,

Castleberry, Faulkner County, Hensley, and the

City of Conway had a duty to provide a safe

jail, and they are liable for any acts which

occur in the jail.

54. [Omitted]

55. The co-executors of the Estate of

Joe Castleberry are sued because the estate of

Joe Castleberry is liable.

VIII. PRAYER FOR RELIEF

56. Plaintiffs have been damaged in the

amount of two million dollars in compensatory

damages for the conduct of all defendants and

Castleberry alleged herein: (a) for the

decedent’s unlawful arrest, beating, denial of

medical treatment, physical injuries, pain and

E-14

suffering, intentional infliction of emotional

distress, and mental anguish before death, (b)

for their loss of love, ztompanionship,

society, consortium, and financial support of

their father, husband, son, and brother, and

recover for decedent’s loss of life and the

enjoyment thereof ("hedonic damages").

57. Plaintiffs have further been damaged

in the amount of two million dollars in

compensatory damages for the conduct of all

defendants and Castleberry and those acting in

concert with them in conspiring to cover-up

the manner, cause and responsibility for

plaintiffs’ decedent’s death.

58. Defendants and the Castleberry

estate should further be assessed punitive

damages assessed in the jury’s discretion for

the defendants’ willful, wanton, and malicious

conduct in killing plaintiffs’ decedent or

covering up the manner, cause, and

responsibility for his death or both. The

nature of the claim makes Fact Concerts

inapplicable.

59. Plaintiffs should further be awarded

their costs, reasonable attorney’s fees and

reasonable litigation expenses under 42 U.S.c

§ 1988, and any other appropriate relief.

60. Plaintiffs demand a jury trial.

Respectfully submitted,

JOHN WESLEY HALL, JR., P.A.

523 West Third Street

Little Rock, Arkansas 72201

(501) 371-9131

Appendix E-15

-and-

LARRY D. VAUGHT

523 West Third Street

Little Rock, Arkansas 72201

(501) 372-6962

John Wesley Hall, Jr.

Attorneys For Plaintiffs

CERTIFICATE OF SERVICE

I, John Wesley Hall, Jr., swear that I

have served this pleading on the attorneys of

record in this case by U.S. Mail on the 4th

day of April, 1985.

William M. Clark

801 Parkway

Conway, AR 72032

Robert W. Henry

P.O. Box 1107

Conway, AR 72032

Winston Bryant and

David White, Legal Counsel

Arkansas Municipal League

P.O. Box 38

N. Little Rock, AR 72115

Bart Mullis

P.O. Box 7247

Pine Bluff, AR 71603

Jeffery A. Bell

Asst. Attorney General

Justice Building

Little Rock, AR 72201

John Wesley Hall,

Appendix E-16

Jr's

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

RICKY WILLIAMS, et al PLAINTIFFS

Vv. No. LR-C-84-791

FAULKNER COUNTY, ARKANSAS,

et al DEFENDANTS

MEMORANDUM AND ORDER

For the reasons stated by the Court on

the record during the after the oral argument

held on April 30, 1986, and for the additional

reasons stated below, the combined motions to

dismiss and motions for summary judgment

(based on the statue of limitations) cf the

defendants Faulkner County, the Estate of Joe

L. Castleberry, Joe Martin and George F.

Hartje are hereby denied and the same motions

filed on behalf of the defendants City of

Conway, Arkansas, Marvin Iberg and O. H.

(Bill) Mullenax are hereby granted.

According to the Court’s analysis of the

undisputed evidence, the only fraudulent

concealment by any of the defendants relates

to the testimony of Charles Hackney. The

Court has found that all of the other evidence

upon which the plaintiff will rely in the

trial of this cause was readily available to

the plaintiffs between May 6, 1960 and May 6,

1963, i.e., during the statute of limitations

period.

Appendix F-1

The Court has concluded that the

plaintiffs have evidence from which a

reasonable jury could find that the defendants

Castleberry, Martin and Hartje conspired to

cover up and conceal evidence of castleberry’s

and Martin’s involvement in an assault on

Marvin Williams. The Court has also concluded

that, under all of the facts and

circumstances, the plaintiffs did not lack due

diligence simply because they did not contact

Mr. Hackney before May 6, 1963, to make some

independent inquiry about his knowledge of the

facts. The plaintiffs first learned in 1984

that Mr. Hackney claimed that he witnessed an

assault upon Marvin Williams by the defendants

Castleberry and Martin on May 6, 1960.

The plaintiffs argue that the defendants

Iberg and Mullenax have also fraudulently

concealed the truth by, in effect, not

admitting that they assaulted the deceased.

In other words they believe those defendants

to be lying. But it is undisputed that

plaintiffs have disbelieved all of the

defendants from the date of Marvin Williams’

death. If the statute of limitations is to

have any effect at all in cases of this

nature, that defense cannot simply converted

into a jury issue based solely upon the

contention that a part of parties are lying

(and thereby fraudulently concealing) and,

arguably, that therefore the lawsuit can be

brought at any time. The reason is that the

Same evidence that the plaintiffs would rely

on at some trial being conducted after the

running of the statute - that is, that the

party or parties are lying about their

involvement - that same evidence would have

Appendix F-2 ;

been available, and the same trial could have

been conducted, prior to the running of the

statute of limitations. To toll the statute,

evidence concealed by the fraud must surface

after the statute of limitations has expired.

To illustrate, let us use the facts of

this case but assume that Mr. Hackney had not,

years later, recanted his testimony before the

coroner’s jury. In that situation, could the

plaintiffs argue that all of the defendants

and the defendant’s witnesses were lying about

their involvement - and thereby fraudulently

concealing evidence - and that, therefore, the

plaintiffs could bring their cause of action

at any time - 20, 30 or 40 years after the

event? The answer is clearly that they may

not. And the reason is that the plaintiffs

have the same evidence available to them

before the running of the statute of

limitations as they do after the expiration of

that period. The plaintiffs respond that we

are not simply arguing that defendants Iberg

and Mullenax were lying; they say they have

extrinsic evidence that they were. That

evidence is the autopsy or coroner’s report

stating that there was no alcohol in the blood

of the deceased. And since the deceased was

allegedly arrested for intoxication (according

to the defendants Iberg and Mullenax),

plaintiffs argue that a jury would have good

reason to find that Iberg and Mullenax were

lying. With that predicate, plaintiffs go on

to argue that the jury, from other

circumstantial evidence, could then find that

those defendants actually assaulted and beat

Appendix F-3

the deceased and were responsible for his

death.

Conceding for the purpose of argument only

that such inferences could be drawn from a

jury’s conciusion that the defendants Iberg

and Mullenax were lying about the grounds for

arrest and apprehension of the deceased, the

argument nevertheless avails the plaintiff

nothing. The reason is that the autopsy and

coroner’s report were readily available to the

plaintiffs within a very short period after

the death of Marvin Williams and long before

the statute of limitations ran in 1963.

Therefore, the evidence which the plaintiffs

would present to the jury at a trial in 1986

would have been the same evidence that they

could have presented to a jury if the trial

had been held prior to May 6, 1963.

So for fraudulent concealment to toll the

statute, the fraud must be discovered and some

concealed evidence revealed after the

expiration of the statutory period. j That was

100

the situation in the Bell case. This leads us

to a consideration of the effect of the

recantation of the witness Hackney.

It must be clearly understood that

Hackney testified in 1985 at the criminal

trial of Iberg and Mullenax (consistent with

statements that he had given press and media

coverage in 1984) that he observed the

defendants Castleberry and Martin bring a

person, later identified as Marvin Williams,

up the stairs in front of his cell. He

testified that he observed their drooping

Marvin Williams and also beating him with

blackjacks, administering some ten blows, and

Appendix F-4

then dragging him off to a cell where he heard

other blows administered.

Hackney was shown photos of Iberg and Mullenax

and Chief Hensley and clearly testified that

those persons were not the ones he observed

with Marvin Williams. So the testimony that

101

ss a haart See

the plaintiffs now have that they probably

could have had' prior to May 6, 1963, is the

testimony of a witness who claims that he saw

defendants Castleberry and Martin beat marvin

Williams. Assumedly, if that testimony had

been available prior to May 6, 1963, it would

have helped, not harmed, the defendants Iberg

and Mullenax. Although it can be argued that

Iberg and Mullenax, city police officers, may

have had some interest in covering up the acts

of the sheriff and his deputy, Martin, in

order to protect the latter, that coverup was

not for their benefit in regard to the charge

made by the plaintiffs that Iberg and Mullenax

had beaten the deceased.

There is nothing in the submissions of

the parties that the Court can find that would

permit the conclusion by a jury that Iberg and

Mullenax participated in the conspiracy after

the death of Marvin Williams to cover up the

testimony of Hackney relating to the

102

involvement of Castleberry and Martin.

The reascn that the Court has concluded

that the statute of limitations has been

tolled, with respect to the Court has

concluded that the statute of limitations has

been tolled, with respect to the plaintiffs,’

leet cele ee ee ee ee ee ee ed

'Of Course, defendants argue that plaintiffs

could have obtained this testimony before

running the statute of limitations had they

exercised reasonable diligence in contacting

Mr. Hackney after he was free from any

coercive influence of the defendants, i.e.,

after the criminal charge against him had been

disposed of and he had left the county. For

the reasons stated from the bench, the Court

disagrees.

Appendix F-5

claims against Castleberry and Martin, is

found in the testimony of Hackney that the

prosecutor, Hartje, and the sheriff,

Castleberry, after allegedly having been told

the truth by Hackney about Castleberry’s and

Martin’s involvement, threatened and coerced

Hackney not to reveal that information before

the coroner’s jury. And in 1984, Mr. hackney

103

recanted the testimony that he gave before the

coroner’s jury. So, consistent with Bell the

evidence fraudulently concealed has’ been

discovered, the hidden evidence revealed, and

therefore the statute of limitations has been

tolled with respect to the claims of the

plaintiffs against the defendants Castleberry,

Martin, and Hartje.

It should be pointed out that there is no

claim that Hartje was in any way involved in

the conspiracy to arrest, assault or otherwise

harm Marvin Willians. His involvement is

alleged to have commenced after the death of

Marvin Williams. Therefore there is only the

concealment-conspiracy cause of action against

the defendant hartje.

It is necessary to comment on an

additional argument of the plaintiffs and that

is that they should be excused (by the tolling

of the statute for not pressing their claims

because of the racial climate allegedly

104

prevailing in Arkansas during the early ’60’s.

They point to the poignant testimony of Marvin

Williams’

father, for example:

Who was going to -- who was going to

hurt you and your children if you

had done anything about -- gone any

further with your son with -- in

investigating your son’s death?

Appendix F-6

I don’t know just who, but you know

how it was back in 1960? A black

man’s word didn’t mean a thing.

Well, you know, I -- you told us a

few months ago that you were afraid,

that you were scared?

I -- yes, I was, because they killed

-- my son had been killed.

Who killed your son?

I believe the law officials at --

from the Sunset Cafe over here --

over here to the courthouse -- some

105

of the officials that had him in

custody did something to him.

kkk

Who was going to hurt you back in

1960 had, had you gone forward with

this investigation?

I don’t Know who, but back -- like I

said, the instance in ’57, you know,

they had to get -- the President had

to get troops, troop soldiers to

send to Little Rock to -- for eight

kids to go to school. You remember

that?

Yes sir?

And if they were -- you had to get

troops for kids to go to school,

what would you have to get if you

protest about somebody killing your

son? I feared for the life of my

family.

Had any member of your family ever

106

been abused by any local -- any

Faulkner County or Conway County --

City of Conway police officers?

Not to my knowledge -- but my son.

([D. Williams at 59-61]

kak

Mr. Williams, now lets, lets take

this thing one step at a time

because -- you had told us that the

reasons you didn’t take any action

in this matter in 1960, when you

believed that Marvin had been killed

by somebody, was the fact that you

were frightened?

I said I was feared for my kids, my

family.

All right sir. Now,I’m asking you,

in 1970 were’ you still afraid for

your family?

Appendix F-7

Well I had just put it out of my

107

mind because I didn’t have anything

to work on.

Mr. Williams, now, I want you to

answer my question, please, sir. In

1970 were you still frightened for

your family?

Well, I would say, yes.

In 1975 were you still frightened

for your family?

I didn’t have anything to work from,

mister.

Mr. Williams, in 1975 were you still

frightened for your family?

I still didn’t have anything to work

on until 1984 -- till these reports

come out, and this man...

I, I realize that, -- that’s not

what I’m asking you. What I’m

asking you is, whether or not you

were frightened for your family?

Well yes, I was, I was still

108

frightened for my family. I was --

you know, you -- you Know, yourself.

Well what -- who are you frightened

of?

Well the abuse that blacks sometime

gets. It’s still going on. Id. at

75-77)

kkk

Okay. Tell us, if you could -- this

is a tough question, but tell us if

you could, what it was like to be

black in 1960 in this area?

Well, it was really rough to be a

black man, because everywhere you

went you were second -- on the bus,

on the job, the schools, and

everywhere else. And your word

didn’t mean a thing in 1960. You

Just didn’t dispute what a white man

said.

Now, Conway in 1960, did they have

109

colored and white water fountains?

No, you don’t drink out of -- yeah,

they had different fountains. One

Sor black, and one for the white.

Were blacks allowed to go _ into

restaurants?

No. Train stations either.

Appendix F-8

Hotels?

No, you didn’t go to -- huh-uh

(negative), no, unless you- were the

bell boy, you know, toting suitcases

or something like that.

If you were to tell anybody about

what you thought happened to Marvin,

do you think anybody would believe

you?

Back in ‘60?

Right?

No, that’d just went in one ear, and

come out the other. [{Id. at 92-93]

110

There are various problems with this argument

even if one accepts the factual basis

therefor. First, the then adult members of

the Williams family did pursue the matter in

1960-1963 period. They had at least two

lawyers look into the matter. They had a

doctor make an independent examination of the

body of Marvin Williams. They noted the

physical injuries and took photographs of the

body. The inference is that they did not

pursue the matter because their lawyer

reported finding no basis to proceed. The

argument is put forth as bearing upon the

issue of plaintiffs’ diligence in pursuing and

investigating their possible claims. But

plaintiffs’ diligence is only one of the

requirements for tolling. Before the Court

may decide that the statute should be tolled

it must also have evidence that the

defendant’s conduct is responsible for the

plaintiffs’ being unable to. byring their case

111

within the statutory period. Ordinarily this

requirement is stated in terms of the

defendant’s fraudulently concealing needed

evidence. But even if one states it more

broadly, how many one legitimately hold the

defendants here responsible for the racial

Appendix F-9

climate allegedly prevailing in Arkansas in

1960-63? And this Court does not believe it

can be accepted through judicial knowledge

that blacks could not have gotten a fair trial

in federal court on their Section 1983 claims

during the years 1960-1963.

And the "racial climate" argument, if it

is intended to relieve black plaintiffs of the

duty of ordinary diligence and of the duty to

fix responsibility for their delay in bringing

the action upon the acts of the defendant or

defendants, cuts entirely too far. It would

suggest that all such claims by blacks should

never be time barred because of the racial

112

climate prevailing since the enactment of

Section 1983 until such time as courts could

certify the absence of such a racial climate.

Would that point have come in 1950, 1960, 1970

or 1980? Indeed, although the plaintiffs wish

to pursue their 1960 cause of action in 1986,

Mr. Williams believes racial prejudice is

"still going on". And he may be right. Such

a rule could encourage the initiation -of

thousands of decades-old cases. Perhaps that

would he a good, just and salutary result.

But such a pqlicy determination should not be

made by judicial fiat.

This Court believes strongly that

statutes of limitations are public policy

decisions that should be established by the

Legislative Branch of our government. Absent °

some different pronouncement by that branch,

the courts should determine tolling issues in

keeping with established precedent.

Appendix F-10

All of the defendants claim that the

statute of limitations has run and that there

was no fraudulent concealment which would

cause the statute to be tolled. If they are

right, the case should stop now before they

are put to the expense and trauma of a trial.

By the same token, the plaintiffs strongly

urge that the statute has been tolled with

respect to all the defendants and that the

fraudulent concealment issue is for the jury

to decide. They are concerned that the jury

may not believe Mr. Hackney and they urge that

if the jury did disbelieve him, it might then

determine that Iberg and/or Mullenax were

responsible for the death of Marvin Williams.

It is therefore, extremely important to all of

the parties to this action to finally resolve

the statute of limitations issues at this

point in this proceeding

Title 18 U.S.C. § 1292 provides in part:

(b) When a district judge, in making

114

a civil action an - order- not

otherwise appealable under this

section, shall be of the opinion

that such order involves a

controlling question of law as to

which there is substantial ground

for difference of opinion and that

an immediate appeal from the order

may materially advance the ultimate

termination of the litigation, he

shall so state in writing in such

order. The Court of Appeals which

would have jurisdiction of an appeal

of such action may thereupon, in its

discretion, permit an appeal to be

caken from the entry of the order:

Provided, however, That application

for an appeal hereunder shall not

stay proceedings in the district

court unless the district judge or

the Court of Appeals or a judge

i R.

thereof shall so order.

This Court is of the opinion that its Order

granting and denying the various defendants’

motions to dismiss/motions for summary

judgment as set forth above involves a

controlling question of law as to which there

Appendix F-11

is substantial ground. for difference of

opinion. It is this Court’s further opinion

that an immediate appeal from said order may

materially advance the ultimate termination of

this litigation.

It is therefore Ordered that the combined

motions to dismiss and the motions for summary

judgment (based upon the statute of

limitations) of the defendants Faulkner

County, the estate of Joe L. Castleberry, Joe

Martin and George F. Hartje be, and they are

hereby denied.

It is further Ordered that the combined

motions to dismiss and motions for summary

116

judgment (based upon the statue of

limitations) of the defendants, City of

Conway, Marvin Iberg and O. B. (Bill) Mullenax

be, and they are hereby, granted, and the case

dismissed as to said defendants.

It is further Ordered that the parties

hereby may apply to the Court of Appeals for

the Eighth Circuit to permit an appeal to be

taken from this Order provided applications

therefor are made within ten (1 lays after

the entry of this Order.

It is further Ordered t t f h an

application or applications for appeal is, or

are, made within ten (10) days after the entry

of this Order, then, and in that event, al]

proceedings in this matter in the District

Court shall be stayed pending disposition of

such applications in the Court f Appeals.

Dated this 12th day f May, 198¢

Inquiry Finds New Facts In Death in Conway

Jail - July 15, 1984 issue of Arkansas

Democrat

Conway - An Arkansas Democrat investigation

into the case closed last month by the FBI has

turned up evidence that a young black man

likely died of a bludgeoning rather than from

a fall while in the Faulkner County Jail 14

years ago.

Marvin Williams of Menifee, was 21 when

he was found dead of a "concussion" in a cell

on the morning of May 6, 1960. Two Conway

police officers had arrested Williams a few

hours earlier for being "very drunk" in a

parked car on Markham Street in Conway.

At a hastily called coroner’s inquest

that began about noon on the same day,

Officers O. H. Bill Mullenax and Marvin Iberg

testified they had found Williams in the car

and taken him and a friend, Joe Flakes, to

jail at the Faulkner County courthouse.

The policemen described williams as being

118

in a stuporous condition as he _ regained

consciousness, he stumbled on the wet side of

the courthouse steps’ and fell forward,

striking his forehead above the right eye,

according to accounts of the Conway Log Cabin

Democrat.

After four hours, the 12 white men who

comprised the coroner’s jury ruled William’s

death as accidental, apparently without

studying the results of an autopsy conducted

at 3:00 p.m. that same day at the University

of Arkansas Medical Center. The postmortem

was conducted by Dr. Edward 0. Fox, who now

lives in New Jersey.

Mullenax, who later became Conway police

chief before joining the Arkansas State Police

in 1963 recently told the Democrat that he

remembered the incident pretty much as news

accounts had described it. He said he was

"sure" that Williams drunkenness had prompted

the arrest.

119

Iberg now a freight truck driver out of

Little Rock said earlier this week that he

couldn’t remember much about the incident

except that he never saw Williams abused.

However, an eight week inquiry by the

Democrat has revealed that Williams died from

severe head injuries caused from a direct blow

behind his left ear. The blow was so powerful

that it literally split his skull almost half

way down the back side of his head, medical

records’ show. A superficial injury to

Williams’ right forehead that was reportedly

suffered in the alleged fall was considered

minor. But an unnamed Conway physician was

quoted at that time by then prosecutor George

Hartje, Jr., (now circuit judge) as saying

that the obvious bruised and swollen area

behind Williams’ left ear could have somehow

been caused by the minor injury to his

forehead.

Appendix G-1

120

Marvin Williams’ blood tested negative

for alcohol content at the University of

Arkansas Medical Center, according to the

autopsy report and a separate report signed by

Dr. Lloyd OD. Seager, chairman of the

department of Pharmacology. These findings

were never presented at the inquest, the

Democrat learned from interviews.

Dr. Fox, who performed the autopsy on

Williams on May 6 at 3 p.m., said his findings

showed Williams had been struck forcefully

behind the left ear with some instrument. Fox

said the indentation in Williams’ skull from

the blow was clearly definable. Three other

medical experts also examined Fox’s findings

at the request of the Democrat and concurred

the injury was from a blow. Dr. Fahmy Malak,

the state’s chief medical examiner, is

currently reviewing the case at the request of

prosecutor William C. Brazil of Conway.

Charles Hackney, an inmate at the

121

Wrightsville Unit of the Arkansas Department

of Correction, serving time for his sixth

conviction, said he was incarcerated in the

Faulkner County Jail on May 6, 1960, and

witnessed Williams being beaten by two

officers in civilian clothes.

Hackney provided the Democrat with a

sworn statement in May in which he described

Williams as being dragged into a cell out of

his view and being beaten after he had already

been struck at least 10 times in Hackney’s

Sight about 2 a.m. on May 6.

He also said he was taken into a small

room in the courthouse later that morning and

threatened by two county officials who ordered

Hackney to lie at the inquest about what he

had seen. Hackney said he followed their

instructions. Last week he agreed to take a

polygraph avout the statement if others would

also agree to such a test.

Hackney said two FBI agents interviewed

122

him in 1961 about his version of the incident

but the federal investigation never developed.

Hackney said last week that he had left the

Faulkner County Jail shortly after the

inquest, and had not heard the story about

Williams’ alleged fall on the steps until

March 10, 1964, when another inmate informed

him.

He said that revelation prompted him to

begin writing state and federal officials

about what he alleged had witnessed.

James T. Blasingame, director of the FBI

in Arkansas, Tuesday confirmed the U.S.

Department of Justice "closed" its most recent

inquiry into the Williams case more than a

month ago on June 21, following what he termed

a “limited investigation". He added that the

case could be reopened if new evidence

surfaced which indicated a federal crime had

been committed.

While Blassingame would not elaborate,

123

the Democrat learned that the two week FBI

inquiry into Williams’ death consisted

primarily of interviewing Hackney and some

other youths who had been with Williams the

night he died. The FBI apparently never

obtained a copy of the autopsy report during

their investigation according to sources. Fox

said he had never been interviewed by police

or the FBI about his autopsy.

Also, the FBI had already wrapped up its

investigation of the Williams case on the same

day the local office was just acknowledging

receipt of Hackney’s June 3 letter to then.

In a form letter dated June 21, the Little

Rock FBI office told Hackney that his letter

about William’s death was being forwarded to

the Assistant Attorney General for Civil

Rights in Washington.

The May 6, 1960 inquest held at Conway

City Hall was under the direction of former

Faulkner County Coroner Robert A. McNutt (now

124

deceased) and then-prosecutor Hartje.

The group was impaneled within five hours

of the time Deputy Sheriff Joe Martin

reportedly discovered Williams’ lifeless body

alone in a cell. Joe Castleberry, the

Faulkner County sheriff at that time attended

the inquest. Joe Castleberry died two weeks

ago.

Raymond Kordsmeier, of Conway, a member

of the coroner’s jury, said several witnesses

testified Mullenax and Iberg had handled

Williams and Flakes "gently" when they took

them from their parked car in front of the

Sunset Cafe on Markham Street for public

drunkenness. But family members said one of

Williams’ shoes was found in the car the next

day.

Apparently no member of the inquest ever

read the autopsy report which included the

findings that no alcohol had been detected in

Williams’ blood.

125

Cecil Bell, of Conway, another member of

the jury, also said he could not recall seeing

the autopsy report. "I just don’t remember,"

he said. No transcript or records from the

inquest have been located.

Hartje said he did not believe members of

the jury ever saw the autopsy results before

drawing their conclusions about Williams’

death.

"TI don’t think it was (shown to the

inquest) but I have no way of knowing." he

said. In fact, Hartje indicated he had just

seen the autopsy report for the first time

earlier this month.

William’s death certificate, which was

signed May 19, 1960, by McNutt -- presumably

after the autopsy findings had been forwarded

to him as coroner-- stated: "This party had

been drinking and was so intoxicated they

didn’t know what happened."

Ronnie Williams, 31, of Menifee, said he

126

could not understand how the coroner put such

a notion on his brother’s death certificate

when the blood alcohol test was negative.

Other witnesses have told the Democrat

that Williams had not been drinking on the

night he died.

"I wonder if anyone but only a few people

in Conway ever saw the autopsy results," said

Williams. "We didn’t even know there was an

autopsy report anywhere until ae reporter

called last month and asked if the family

would help him obtain it."

Ronnie Williams initially asked the

McNutt Funeral Home in Conway for the autopsy

in early July. At first, he said he was told

the report had been forwarded to Hartje’s

office. But when Williams then requested the

report in writing, the funeral home located

the report in old coroner files.

The family then made the autopsy report

available to prosecutor’. Brazil at the

127

suggestion of a reporter. Brazil, the son-in-

law of former Circuit Court Judge Russell

Roberts of Conway, said he had never seen an

autopsy until that time.

McNutt also made other significant errors

on Williams’ death certificate: The date of

death is listed as May 5 when Williams died on

the morning of May 6, records show; The manner

(homicide, suicide, accident) was left blank;

the interval between the incident and

Williams’ death was listed as 12 hours, which

was never proven, and the certificate states

Appendix G-2

Williams was not a veteran when in fact, he

had served with distinction as an U. S. Army

paratrooper.

Details of Williams’ autoporous falling

incident are sketchy, derived mainly from

stories published in the May 7 and May 9

editions of the Conway newspaper.

The May 7 paper says Conway patrolman

128

Bill Langford had been summoned from the

police station to assist Mullenax and Iberg

after they had arrived at the jail with the

two black men. Langford allegedly took Flakes

up the stairs, and "meanwhile", the story said

" Iberg and Mullenax were attempting to remove

Williams from the patrol car and get him to

stand without assistance.

The officers told the story of Williams’

alleged fall from that point the paper

reported:

It was raining and the wind was blowing

and when it bécame evident Williams had come

to enough to stand up without our help, we

loosened our grip on him. He fell forward and

before we could grab him his head struck the

step on the west side of the courthouse," the

officers were quoted as testifying.

Later in the night, after Williams was

placed in the cell, Deputy Martin, the

jailkeeper (who was later elected sheriff of

129

Faulkner County) said Williams cried out that

he had to be at work in a few hours and asked

someone to call his father, who would make

bail.

Martin, who hung up on-~ reporter’s

questions last week said in a face-to-face

interview this week that he had not placed

Williams in the cell because he had been out

of the jail most of the night due to a bad

storm in the area. Martin said other unnamed

officers had locked Williams in the cell.

The Old Conway newspaper accounts said

Martin had discovered Williams dead shortly

after noon that day. But Monday, Martin said

he found Williams’ body close to breakfast

time, which would have been six hours after

Williams’ arrest.

The Log Cabin Democrat reported in its

May 7 coverage of the inquest that Iberg and

Conway Police Chief C.O. Hensly (not deceased)

returned to the jail sometime in the night to

130

"check on" Williams. The story says the

officers found that bleeding from the cut on

Williams’ forehead had stopped, adding that

they also had "checked for mouth bleeding’ and

found none.

At the inquest, Flakes and Curtis Macon,

another black man incarcerated in the jail

both alluded to the mistreatment of Williams

by officers. But their remarks were dismissed

as unreliable.

Flakes also reportedly told authorities

at the inquest that he and Williams had been

drinking wine and liquor together, in direct

conflict with the university laboratory

findings. And, other witnesses who had been

with Williams hours before his death said he

had not been drinking that night. The

Democrat has been unable to contact Flakes

despite repeated attempts during the past

eight weeks.

"We have never believed that Marvin died

131

from accidently falling down on some stairs,

said Delever Williams, Marvin’s 71 year-old

father. He was a fine boy with a wife, a job

and two small children. He was no drunk, for

sure and had never been in trouble. We want

to know the truth. If someone beat our son to

death and tried to cover it up, we want him

punished.

Appendix G-3

Inmate spurs second look at jail death

Arkansas Democrat,

Monday, February 11, 1985

If there is one person most responsible

for the Marvin Williams grand jury that

impanels Tuesday in Conway, it is Charles

Larone Hackney, a middle-age white inmate

serving time for burglary at the Wrightsville

Unit of the Arkansas Department of Correction.

Sometimes shy, but always direct in

conversation, the stock, 47-year-old man from

Star City has managed for years with only one

arm.

132

Last Spring, Hackney sent a flurry of

letters to state officials in hopes of

encouraging a full scale investigation into

what he called Williams’ violent death in the

Faulkner County Jail 24 years ago.

He was in the same jail on the night

Williams died -- May 6, 1960. And Hackney has

told police, attorneys and journalists

basically the same story over the past nine

months; He saw a young black man - who he

said must have been Williams - brutally beaten

in the cell block before dawn.

Williams, a father, paratrooper and high

school honor graduate at 15 was 21 when his

body was discovered face down on a cell bunk.

The official finding of a coroner’s inquest on

May 7, 1960, was that Williams had died of a

concussion. But autopsy studies indicated he

died from respiratory failure brought on by an

unexplained skull fracture behind his left

ear.

133

He had been jailed only hours earlier on

charges of public drunkenness. The arresting

officers, Marvin Iberg and 0O.H. "Bill"

Mullenax, testified at the inquest that a

stuporous Williams had slipped from their

grasps simultaneously as they were leading him

to jail. Williams fell forward, striking his

right forehead on the concrete stairs, they

said.

The result was a_ superficial injury

described in the autopsy report as_ two

triangular-shaped bruises and a slender 1-inch

cut above the right eye.

The inquest, called by the late Faulkner

County Coroner, Robert A. McNutt and co-

directed by then Prosecuting Attorney George

Hartje, met for about five hours before ruling

out foul play by police. Apparently the

manner of Williams’ death was never resolved.

Hartje, who is now a circuit judge in

Conway, was quoted in the local newspaper two

134

days later as saying a local doctor had told

him the large bluish patch on the site of the

fracture behind Williams’ ear could have been

caused by the minor forehead injury.

Hackney, then 22, also had testified in

the inquest that he had only heard some moans

but had seen nothing in the cell block that

night. Now he says he was coerced into lying

at the inquest to protect those involved in

the alleged beating.

Williams, who left behind a small son and

an unborn daughter, was buried the following

week. The case laid forgotten until Hackney

began mailing his letters and self-styled

"sworn statements" last March.

The account he painted in those letters

remained relatively consistent through

numerous interviews in 1984, although the

story has been denied by those Hackney has

named.

The special grand jury, funded through

135

Gov. Bill Clinton’s emergency fund and under

the guidance of Yelleville Deputy Prosecuting

Attorney Gary Isabell, will be the next group

to analyze the story in coming weeks.

Hackney told reporters last July he was

in the Faulkner County Jail for grand larceny

on May 6, 1960. Wind and rain gusting through

a broken windowpane awakened him in a bull pen

cell at 2:00 a.m. He recalls the time because

he said he looked at his wristwatch.

He said he heard noises near the stairway

that led up to the fourth floor cell block.

Moving toward the center of the cell, Hackney

said he looked in that direction and saw two

men in civilian clothes carrying a listless

black man between them.

Hackney said one man asked the other

where the prisoner had been found. The other

responded he had been sleeping in a truck with

his feet sticking out the window.

They dropped him to the floor and began

136

striking the prisoner "more than 10 times"

with what looked like blackjacks, Hackney

said.

Hackney also told reporters one of the

attackers was Joe Castleberry, the former

sheriff, who died last July. He said he could

not identify the other officer by name, except

that he was one of Castleberry’s deputies who

spent a lot of time in the jail.

Mullenax and Iberg, the arresting

Appendix H-1

officers who had placed Williams in the cell

about 1:00 @a@.R., according to reports,

routinely wore police uniforms while on duty.

Last fall, Hackney said he did not recognize a

photograph of Iberg. Mullenax and former

Police Chief C. O. Hensley (now deceased) in

their uniforms.

Joe Martin, Castleberry’s deputy jailer

at that time testified at the inquest that he

discussed work with Williams in the cell block

137

about 1:15 a.m. At that time, Martin said

Williams appeared uninjured except for the

forehead wound and was talking about bailing

out before 7 a.m. to be at his job.

Martin testified he had agreed to awaken

Williams by 7 a.m. but did not fulfill that

promise after looking into the cell about 7

a.m. and finding Williams asleep and looking

in again around 9 a.m. Martin said he found

Williams dead about noon that day.

Iberg also testified he had agreed to

awaken Williams by 7 a.m. but did not fulfill

that promise after looking into the cell about

7 a.m. and finding Williams asleep and looking

in again around 9 a.m. Martin said he found

Williams dead about noon that day.

Iberg also testified at the inquest that

he came back twice with Hensley that night to

check on Williams. Iberg said Williams was

sleeping and appeared all right both times.

Hackney said that after the beating, the

138

_ a v%

: ok 4 1p s=e=~e eet Sh . " a %,

two men dragged the prisoner out of his sight

into a nearby cell with a solid door where

Hackney could hear additional blows.

Afterward, he said he heard one man tell the

other to clean up the mess.

Hackney said he returned to his bunk and

fell asleep. He awoke about 8 a.m. to a lot

of commotion in the cell block. A slender man

in a suit, who Hackney said identified himself

later as the prosecutor, was asking if anyone

had seen anything that night. Hackney said he

volunteered that he had.

"The fact that I’m what the world would call

an habitual offender doesn’t mean I’m an

habitual liar. If I choose to tell the truth,

I ought to be allowed to tell the truth. I

wasn’t allowed to tell what I saw."

139

Later that morning, he said he was taken

from the cell block to an office where the

sheriff and the man in the suit threatened him

into lying at the inquest. When the time came

to testify, he said he lied to protect

himself.

Last September, Williams’ family filed a

federal civil rights suit in the death. They

have alleged that Castleberry, Hartje, Martin,

Iberg, Mullenax and the city and county were

all culpable in one way or another for the

death and lack of care given Williams in the

Sail. The suit also charges that the death

was concealed.

The defendants have all denied those

allegations.

Is Hackney lying about what he saw on May

6, 1960? Some say yes. But others wonder

what could prompt someone convicted in 1971 of

shooting a black man to insistently write

authorities and others offering himself as a

140

= ae

cers - : ¢

o_o ~ *

, = , a a

tats 2 ae = —* aa ee SS! F rf

witness to the beating of another black man he

never knew.

Hackney has strongly denied accusations

that he is lying, or trying to work a deal for

shorter prison time. Last year, he offered to

take a polygraph test of those he has

identified will join him. So far, there have

been no such tests.

In fact, his prison psychological profile

test shows Hackney, who has five convictions

on his record, is not prone to- strong

exaggeration.

He says he is motivated primarily by his

conscience; the vision of what he saw that

night rattling around in his brain for 24

years and the knowledge that no one ever

answered for the death.

"The fact that I’m what the world would

call an habitual offender doesn’t mean that

I’m an habitual liar," he said. "If I choose

to tell the truth, I ought to be allowed to

141

tell the truth. I wasn’t allowed to tell what

I saw."

Hackney said his letters last spring were

prompted by a conversation with another inmate

on March 10, 1984, who told him for the first

time that Williams’ death had been passed off

as an accidental fall on the stairs. Hackney

said he had never known that before and he

knew it was not what he had seen.

Last August, the Arkansas State Police

interviewed Hackney and his version meshed

with what he had already told reporters in

July and later told others.

But the Arkansas Democrat learned late

last week from a state police document that

Hackney may have told Cummins inmate Jim James

in the fall of 1983 that he had seen three

officers, not two, beating Williams in the

cell block. One of those three, James said

was in uniform.

142

7 : _ a a

(_— = ay ss a ee me owe oF 4 —————————— a ted — - as 7

I"I was just a witness, and I would have given

anything if I had not been there that night."

James also told police that Hackney had

told him that someone returned with a

flashlight to Williams’ cell block in the

night and that Martin had discovered Williams

dead before daylight.

James also told the state police he gave

Hackney the name of the Faulkner County

prosecuting attorney during their 1983

conversation. Besides those discrepancies,

other portions off the story Hackney allegedly

told James paralleled what Hackney explained

to others in 1984.

Hackney said the result of his

allegations have caused him more anxiety than

he expected. He has even expressed fear for

his safety in prison.

"I was just a witness," he wrote to

Williams’ parents last August, and I would

143

have given anything if I had not been there

that night."

Appendix H-2

THE COURT: She will be one of the first

18 but she will be the eighteenth unless

someone else comes behind her.

MR. HENRY: Who will --

THE COURT: Ms. Viola Sebastian that’s

just coming in here now.

Ms. Sebastian, just please take a seat.

We have asked you to come in because during

this recess we have had to excuse a couple of

other jurors so we have called you and another

gentlemen to replace them.

Have you been listening to the statements

and the questions of the Court?

MS. SEBASTIAN: Yes, I have.

THE COURT: Would you have answered yes

or felt called upon to say anything in

connection with my previous statements or

questions?

144

PEreEerEeee

MS. SEBASTIAN: No, I wouldn’t.

THE COURT: You don’t know any of the

parties or have any relationship to any of the

parties to the lawsuit?

MS. SEBASTIAN: No, I wouldn’t.

THE COURT: Where do you live?

MS. SEBASTIAN: Here in Little Rock.

THE COURT: And you have never lived in

Faulkner County?

MS. SEBASTIAN: No.

THE COURT: Have you ever served on a

jury or in any other case?

Appendix I-2

MS. SEBASTIAN: No, I haven’t.

THE COURT: And you have never been

involved in a lawsuit before yourself?

MS. SEBASTIAN: No.

THE COURT: Do you recall having read or

heard anything about this case or seen any

television or radio program?

MS. SEBASTIAN: I seen it on TV once.

145

: Fa pestewat, souadle - Z

THE COURT: And have you formed any

opinion about the case or any of the issues in

the case?

MS. SEBASTIAN: No, I haven’t.

THE COURT: Can you put aside whatever

you may have heard about the case before and

try this case solely on the lawful evidence

that is brought before you in the courtroom

during the trial?

MS. SEBASTIAN: Yes.

THE COURT: Do you know of any reason why

you couldn’t serve as a fair and impartial

juror in the trial of this case?

MS. SEBASTIAN: No.

THE COURT: All right. Mr. Hall?

MR. HALL: No questions, Your Honor.

MR. ADKISSON: No questions.

MR. HENRY: No questions, Your Honor.

THE COURT: Thank you so much. You can

just go back

Appendix I-2

146

of your mind and base your decision solely

upon the lawful evidence that is’ brought

before you here in the courtroom?

MR. FOUNTAIN: Yes sir.

THE COURT: You may inquire, Mr. Hall

MR. HALL: No questions.

MR. HENRY: No questions.

MR. ADKISSON: I have a couple. You

mentioned that you were at UCA in graduate

school?

MR. FOUNTAIN: Yes, sir.

MR. ADKISSON: That was from ‘80 to ’82?

MR. FOUNTAIN: Yes, sir.

MR. ADKISSON: What did you study?

MR. FOUNTAIN: Psychology.

MR. ADKISSON: You are now employed

where?

MR. FOUNTAIN: I am not employed right

now. I am waiting for a position right now at

Tuskegee Institute in Alabama.

THE COURT: You have been in education?

147

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MR. FOUNTAIN: Yes sir, I was a teaching

professor at several universities.

MR. ADKISSON: Thank you.

THE COURT: If you will just go back. We

are running through the list and as soon as we

finish I will come into the courtroom and we

will complete the jury selection process.

(Jurors leaves chambers.)

Appendix J-1

THE COURT: Call Dottie Gill.

(Juror enters chambers. )

THE COURT: Ms. Gill, if you will just

sit down for a moment. Thank you for coming

in. We just wanted to bring you in here to

talk more frankly and informally and also

whatever you said would not be heard by the

other jurors.

You were one of those who mentioned that

you had heard or read or seen something about

the case in the newspaper, television or

something. Can you tell us about that? What

148

you have heard or read?

MS. GILL: Just that charges were brought

up to the officials or however many there was.

You know, it’s been a couple of years.

THE COURT: Is there anything in what you

saw or heard or read that would in any way

bias or prejudice you for or against any of

these parties?

MS. GILL: No.

THE COURT: And could you put anything

that you previously heard or read about the

case out of your mind and decide the case

solely upon the lawful evidence that is

brought before you in the courtroom during the

course of the trial?

MS. GILL: Yes.

THE COURT: Mr. Hall, do you have any

questions?

MR. HALL: No questions.

MR. ADKISSON: No questions

Appendix J-2

149

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—-_- O-—_ ~~.

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

RICKY WILLIAMS, ET AL

PLAINTIFFS

vs. No. LR-C-84-791

FAULKNER COUNTY, ARKANSAS, ET AL

DEFENDANTS

DEFENDANTS’ BRIEF IN SUPPORT OF

REPLY TO PLAINTIFFS’ MOTION FOR NEW TRIAL

Counsel for defendants exercised their

preemptory challenges in the selection of the

jury for the trial of this case, striking a

young black male, James A. Fountain 11, a

young black woman, Veola Sebastian and a young

white woman, Lisa Roderick. Plaintiffs moved

for a mistrial since the only two blacks

selected from the larger jury panel were

stricken, resulting in an all white jury.

Following a hearing in chambers, at which

counsel for defendants volunteered their

reasons for striking Sebastian and Fountain,

the Court denied their motion, and should now

150

—_ : ee en

i ee oe Se -

ui a ee eS a eS eS ss eee ee

deny plaintiff’s present motion for the same

reasons.

Plaintiffs apparently rely upon the

ruling in Batson v_ Kentucky, 476 U.S. 79

(1986), followed in this circuit by United

States _v. Wilson, 816 F. 2d 421 (8th Cir.

1987) and United States v. Wilson, _F. 2d __

(8th Cir. No. 87-2280, decided August 5, 1988)

as the basis for their motion.

Appendix K-1

Yet there are numerous distinguishing features

between those cases and this one which should

prevent application of the same dictates. The

most obvious is that Batson and Wilson involve

criminal cases, wherein the government is

prosecuting individuals, thereby resulting in

state action, while this case involves a civil

rights action with no state action. As the

Court in Batson pointed out, "the ultimate

issue is whether the State has discriminated

in selecting the defendants’ venire."

151

be J tal boa ane

(Emphasis supplied.) In Batson, in footnote

12, Justice Powell clearly indicated that the

Court expressed "no views on whether the

Constitution imposed any limit on the exercise

of peremptory challenges by defense counsel."

Plaintiffs cite no controlling case that does

extend the Batson limitation accordingly, for

the simple reason that there are _ none.

Therefore, we contend that Batson does not

apply to case, and that defense counsel has

every right to exercise their preemptory

challenges for whatever reason they may have,

in line with the _ historical reasoning

underlying the peremptory challenge system.

Nevertheless, without the benefit of

study of Batson in the hearing in chambers

following plaintiffs’ motion for a mistrial,

defense counsel offered to give the Court

their reasons for striking Fountain and

Sebastian, and those reasons, as the Court

found earlier, passed the neutrality standard

152

dictated by the Supreme Court in Batson.

Appendix K-2

Plaintiffs make no mention of the reasons

offered for striking Fountain, presumably

because they are clearly nonracial, and

supported by the information developed in the

voir dire process. Fountain, the record will

show, held a masters in psychology, was a

college professor and a minister, yet was

unemployed. He had sued his former employer

and was the divorced father of five children.

These characteristics create a picture of

instability, undesirable in a juror.

Veola Sebastian was an unmarried mother

of two, and a factory worker by occupation.

At the time she was called, the voir dire was

being conducted on an individual basis in

chambers, allowing a more relaxed and personal

examination. Ms. Sebastian’s responses to

questions from the Court and the attorneys

were mostly monosyllabic in nature. She gave

153

a distinct appearance of having a low

intelligence level, reflected by her lack of

responsiveness. Plaintiffs concede the

nonracial character of defense counsel’s

reasoning, but complain in their motion that

"the same could be said of anyone because it

is so subjective." Developing an opinion

about one’s intelligence is unquestionably a

subjective undertaking, but intellect is also

an unquestionably legitimate factor to

consider, particularly for a case expected to

extend several days and produce the testimony

of a forensic pathologist and a neurosurgeon.

Appendix K-3

Moreover, in the course of the hearing in

chambers, defense counsel eventually offered

to reinstate Ms. Sebastian to the jury in an

attempt to avoid an appealable issue, but

counsel for plaintiffs rejected the offer.

In Batson, the prosecutor struck four

blacks, and the trial court refused to require

154

the prosecution to offer any explanation for

those strikes. The Supreme Court reversed and

remanded the case for a determination as to

whether the state’s reasons were sufficiently

neutral as to race. In Wilson, the government

struck all six black veniremen, and at the

Batson hearing, the prosecutors offered

reasons for those strikes which the Eighth

Circuit found to be pretextual in nature, and

effectively based upon race. Assuming for

purposes of argument that Batson does apply to

this case, the fact that two of the three

jurors stricken by defense counsel were black

does not create the same strong presumption of

racial discrimination as the four and six

strikes used in Batson and Wilson,

respectively. In any event, the reasons

volunteered by defense counsel for its strikes

were legitimate, as opposed to "pretextual",

and neutral as to race. Plaintiffs would be

entitled to a new trial only had the Court

155

_ a

determined, first, that Batson dictated a

neutral explanation, and, second, the

explanation given was inadeguate to rebut the

presumption of racial prejudice.

Appendix K-4

Without ruling on the first issue, the Court

already found the explanations to be

sufficient to rebut any such presumption.

Accordingly, the motion for the new trial or

hearing sought by plaintiffs should be denied.

Respectfully submitted,

CLARK & ADKISSON

801 Parkway, P.O. Box 1390

Conway, AR 72032

(501) 329-5662

and

HENRY & HENRY

P.O. Box 1107

Conway, AR 72032

(501) 329-5623

William C. Adkisson

Appendix K-5

156

THIS IS THE LAST OF INFORMATION THAT WAS

AVAILABLE ON THE JURORS AT THE TIME OF THE

TRIAL: LR-C-84-791 WILLIAMS V. FAULKNER

COUNTY JULY 10, 1988

BARNHILL, CARLOTTA S. - LONOKE: Age 56; no

farther information available

BRANTON, BETSY S. - LITTLE ROCK: Age 59;

Divorced, 4 children; secretary for Methodist

church; Ark. res. life

CAMERON, SANDRA D. - LITTLE ROCK: Age 28;

Divorced, no children: sales for office

systems company; Ark. res. 25 years

COVINGTON, CLINTON HAYWARD - SEARCY: Age 66;

Married, no children; retired brick mason;

wife, homemaker; Ark. res. 65 hears

157

CRIMMINS, JAMES J. - CONWAY: Age 39; married,

3 children; field service engineer; wife,

homemaker; Ark res. 3 years

DE BOARD, DOY L. - CONWAY: Age 37; Married, 2

children; aircraft mechanic foreman; wife,

homemaker; Ark. res. life

ELLIS, TOMMY J. - CENTER RIDGE: Age 49;

Married, 2 children: papermill operator;

wife, homemaker; Ark. res. 46 years

FLETCHER, DOROTHY A. - LITTLE ROCK: Age 56;

Married, 3 children; retired teacher; husband,

teacher; Ark. res. 48 years

FOUNTAIN, JAMES A., II - LITTLE ROCK: Age 39;

Divorced, 5 children; minister/college

professor; Ark. res. life

FREYALDENHOVEN, CARL J. - LITTLE ROCK: Age

42; Separated, no children; educator; wife,

cashier for government agency; Ark. res. life

GEORGE, SHERRY W. - NORTH LITTLE ROCK: Age

28; Married, 1 child; warehouse supervisor for

department store; husband, computer

programmer; Ark. res. 7 years

GILL, DOROTHY R. - LITTLE ROCK: Age 39;

Married, 2 children; secretary/bookkeeper for

engineering company; husband, real estate

sales; Ark. res. life

HAWKS, JOHN H., JR. - CONWAY: Age 53;

married, 4 children; real estate sales; wife,

homemaker; Ark. res. 23 years

HOLLINGSWORTH, CATHY - RUSSELLVILLE: Age 31;

married, no children; elementary school

teacher; husband, college football

159

HUSEAS, SUZEANNE M. - GREENBRIER: Age 30;

Divorced, 1 child; aide for human development

center; Ark. res. 9 years

JONES, CHARLES L. - MORRILTON: Age 35;

married, 2 children; top presser for factory;

wife, piich hitter; Ark. res. 34 years

Appendix L-1

KOCOUREK, LEE H. - DEVALLS BLUFF: Age 62;

married, 2 children; retired farmer; wife,

homemaker: Ark. res. life

MCGOWEN, NANCY J. - NORTH LITTLE ROCK: Age

37; widowed, 1 child; bank teller; Ark. res. 7

years

MONTGOMERY, GARY K. - NORTH LITTLE ROCK: Age

33; married, 1 child; accountant; wife,

librarian; Ark. res. life

160

NORRIS, GLENDA J. - CABOT: Age 38; married, 2

children; high school teacher; husband,

maintenance mechanic for federal agency; Ark.

res. life

RAMER, ELOISE G. - LITTLE ROCK: Age 64;

Married, 3 children; retired secretary for

grocery chain; husband, retired food sales;

Ark. res. 16 years

RODERICK, LISA G. - JACKSONVILLE: Age 24;

married, no children; sales for publishing

company; husband, USAF; Ark. res. 10 years

ROSE, JOHN W. - MAUMELLE: Age 51; married, 2

children; manager of marketing for life and

casualty company; wife, teacher; Ark. res.

life

161

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ROSE, TAMMY T. - BELLEVILLE; Age 25; married,

no children; elementary school teacher;

husband, social worker; Ark. res. life

SEBASTIAN, VEOLA - LITTLE ROCK; Age 36;

Single, 2 children; factory worker; Ark. res.

life

TURBYFILL, VIVIAN L. - BENTON: Age 47;

fingerprint examiner; Ark. res 26 years.

WADE, MARY JO - GREENBRIER: Age 46; Married,

3 children; homemaker; husband, self employed

consultant; Ark. res. 40 years

Appendix L-2

162

UNITED STATES DISTRICT COURT

Eastern District of Arkansas

Date: 7/20/88 Judge: G. Thomas Eisle

Case No. LR-C-84-791

Parties: WILEIAMS et al V.

FAULKNER COUNTY, AR et al

JURY PANEL

a Glenda Norris

ae Vivian Turbyfill

3 Dorothy Fletcher

4. Lisa Roderick

er Nancy McGowen

6. Eloise Ramer

163

un Carl Freyaldenhoven

8. Carlotta Barnhill

9. Doy Deboard

10. James Crimmins

11. John Rose

12. Charles Jones

13. Sherry George

14. Suzanne Hanseas

15. Tammy Rose

16. Cathy Hollingsworth

17. James Fountain

18. Dottie Gill

19. John Hawks

20. Lee Kocouder

21. Tommy Ellis

22. Sandra Cameron

23. Viola Sebastian

ALTERNATE JURY PANEL

i. Mary Wade

Betsy Branton

-P Clinton Covington

4. Gary Montgomery

Appendix M-]

still the No. 18 is going to be left out.

THE COURT: But then you still have one

black that’s gone. If you void both of them

you would have one black on the jury.

MR. HENRY: Yes sir. I don’t mind

stating to the Court why I elected to strike

these two.

THE COURT: It was your choice. Why

don’t you state and see what the basis is.

MR. HENRY: With regard to Mr. --

MR. ADKISSON: Fountain.

MR. HENRY: -- Fountain, he is, as I

understand a unemployed. He Ls in

psychology. He sued his employer.

THE COURT: Sued his employer?

MR. HENRY: Yes. I did not feel he would

make a good juror. To use the word loosely,

squirley. I would have struck him black or

white. I did not think he would make a good

juror because of his background and the way he

answered questions. He impressed me as not

166

PN eT Nn Se

being a good juror.

As to Mrs. Sebastian, Your Honor, this is

a very complicated case. It’s going to be

technical medical testimony. All sorts of

legal principles. I do not feel that she had

the intelligence, to be truthful, from her

appearance and from her -- the way she

answered questions, to be able to fathom all

of it and be a good juror. And I’m not saying

it’s because she’s black, Your Honor. I

honestly do not feel that lady would be able

to keep up with the testimony that comes into

this case.

Appendix N-1

I thought she was the least qualified of all

of the members of the panel to serve ona jury

as complicated as this is.

THE COURT: Well, I do feel it’s kind of

like the McDonnell Douglas thing when you

articulate a reasonable ground for your

actions other than race, I think you may have

167

climbed the hill. I am very disappointed that

in the history of this, which is essentially

one of the racial discrimination, at least

there is a premise of it in there somewhere,

that we are going to end up with a jury that’s

all white. But I do think you have

articulated reasons that would justify your

choice in the exercise of your peremptory

challenges. It doesn’t make much, and I do

see in what you say that a lawyer could make

that judgment on the basis of what we have

seen in the voir dire and that would be

adequate.

I think the reasonable remedy ultimately

is to do away with peremptory challenges. I

think they should be. In the death

qualification cases that I dealt with the

whole peremptory challenge thing can distort

the impartiality. It can introduce

discrimination in a very hidden way. But

that’s a larger problem that the courts are

168

going to have to deal with.

But given the peremptory challenge

system, I think you have met the test and I am

going to overrule the motion for a mistrial,

expressing my concern.

Appendix N-2

And I may be wrong, but I guess the Court of

Appeals will feel that this does apply to

civil cases. But it is not nearly as

egregious as the Clark case and it is a

circumstance -- one you pointed out here -- if

you had exercised one challenge against any

white juror in the first 18, the black juror,

No. 18, who happened to be No. 18, was not

going to make it to the jury anyway; so that

combination with the explanations that you

have given here -- by the way, the lady was

the eighteenth, was she not?

MR. HENRY: Yes, sir, she was.

THE COURT: -- that combination with the

explanations you give here do satisfy the

169

Court that you have met the Batson criteria.

And, as I say, you also have here private

litigants who are the parties, as well as the

county and their rights involved just as well

as the plaintiffs’ individual rights and their

rights to use their challenges, and they have

used their challenges, I assume, without any

inquiry of the Court. But I don’t like it.

I’m unhappy. It’s goiny to leave a cloud over

this case.

Well, depending on what happens, I guess

some will way, "Well, now, it was a white

jury," and that could be another basis for not

having to have the public acceptability that

it should have, I’m afraid.

MR. HENRY: May I talk to Mr. Adkisson

just a moment?

Appendix N-3

THE COURT: Yes.

(Mr. Henry and Mrs. Adkisson leave chambers

for private conference.)

170

MR. ADKISSON: Your Honor, could I have

about four or five minutes to talk to my

clients?

THE COURT: You may.

(Brief recess.)

THE COURT: Are we ready to proceed?

MR. HENRY: Yes, Your Honor.

MR. ADKISSON: Yes.

THE COURT: What is the situation, folks?

MR. HENRY: Is Mr. Hall insisting that

both of the blacks be reinstated to the panel

or just one?

MR. HALL: Well, if the peremptory

challenges were used against all white

persons, both would have ended up on the jury.

So as you said, if you had only exercised two,

for instance, not three, then Mrs. Sebastian

would go off anyway. This would be our point:

it would be a way of covering up a motive ina

case where it really existed. You could

exercise and say, "I know the last person is

171

not going to get on here anyway." I have

manipulated my challenges saying I don’t like

that last juror and I know they are going to

strike this person up here and just calculate

it this last one is not going to get on

anyway.

THE COURT: That would have taken pretty

devious thinking. apparently he is going to

object to the whole thing. Do you have

anything to say?

Appendix O-1

MR. HENRY: As I told you, in my

reasoning under any circumstances I would have

struck Mr. Fountain as a witness.

THE COURT: As a juror.

MR. HENRY: Excuse me, as a juror. And

we have talked to our clients. They are

willing to let another strike be made and to

let Mr. Sebastian serve on the jury if that

will remove the constitutional issue. I think

had we struck only one and left one of the

172

blacks on, that would have left no basis for

your challenge.

THE COURT: Well, I have already ruled

there is no basis just on the explanation you

have made, but , like I say, I would feel

better. But now we have the mechanical

aspects of doing it. You do it now and it

looks bad.

MR. HENRY: I agree.

THE COURT: Maybe all parties want to

agree to a mistrial and I hate to think of it.

This case has been here since 1984.

MR. HENRY: The position my clients find

themselves in they dun’t have the money for

another appeal or another mistrial.

THE COURT: Well, I think what I am going

to do, Mr. Henry -- I appreciate what you have

said in the statement and I don’t gather that

Mr. Hall wants to agree to that, do you --

Appendix 0-2

that is, in effect you knock off the twelfth

juror and replace that twelfth juror with Mrs.

Sebastian.

MR. HALL: I am concerned how it would

appear to the other jurors, too, at this point

because they would realize -- they would have

to realize by then something was up.

THE COURT: I may be wrong, but I am

going to hold the defendants are within their

rights -- although, as I say, I don’t like the

result -- that they are within their rights in

view of the explanation made and they have

evidenced, you know, a fairly good faith

approach to this sensitive problem.

In any event, you have a record. I am

going to overrule your motion for a mistrial

and we will go forward.

Everybody ready? I am going to excuse

the jurors and let them go, and then I am

going to give them the preliminary

instructions and then you have the stipulation

and then we will give to them the transcripts

174

and maybe let them go home for the evening.

MR. ADKISSON: Delay opening statements?

THE COURT: No. How long do you think

the opening statements are going to take? I

would like to get those before the jury.

MR. FAUGHT: Mine will take 20 to 30

minutes, Your Honor.

THE COURT: I think we can get opening

statements in and give them that stuff and let

them go.

Appendix O-3

175

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.