# Appendix — Cobin v. Castleberry

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1099

## Text

£1=21096 p FtLew @¢

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, )
)

)

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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—"

7
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Reed OF ee

. 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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*s es = poee Jae ;
Las Secuisy al eb ah

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

12

Hi:
ae

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

will rfiow rule on the motion.
ie

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

13

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.

15

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
1

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.

16

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

te

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
Pe

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

20

=>

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

21

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

22

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

23

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

24

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

25

—————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

26

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we OS = im |
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ena
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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.

27

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

28

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

29

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

30

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

31

EL

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

32

_———_—

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

33

r=
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

34

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

35

—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

36

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

37

[

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,

38

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

39

ee

-

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

40

——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

41

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:

1)

2)

3)

4)

5)

6)

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

42

Ww

be

o

+

—

the

trial

e TO
snould
rest.
ite] y
iuse
ione
ourse
es 1 x
7 :
: i ~- =
’ ; :
; aan
; °4 = - > " - aa
- ,
2s 7
rie . ame 7 —
a : oie
ie le sy
i: 7 -
oo » ,
ae 7 7
7 a
- _ peas
7 ca a s oa 7 ;
a 1 a 's= -_
r ,
a it a SA >
Pa >
7 ) : 7
i : on 7 a
a ee a
— 2
.
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4. .
? vy
! i :
7
.
Ly
ms
i
°
; ==
a

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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

48

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

49

-~a+
ita
Plier r
forced
lerel]
wnen i
mulcte

oan
bd

nd
~

+ c > |
— Va c ‘
. y y .
rf oP ab i € |
- nevonry c
"a> >> -«

efendants s

A -l- ~- + "
ArKansSsas, ln

mplaint as

c ro

>

ontalined

ct

oe"

oy

oe

ry

>

ere

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

51

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

52

»

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

53

TT

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

ao

|

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

56

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

v3

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

58

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

59

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.

60
SANRINcccn smssaceasa

7

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

61

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

62

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

OV
W

7

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

64

" |

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

65

=e

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

BY

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

69

— 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.)

(c) Plaintiffs Delavah Williams’ and
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.

70

(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

71

L

(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

72

(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

73

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’

74

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.

7?

:

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

76

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

77

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

78

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.

79

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-

81

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

82

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

83

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

84

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);
(c) to be provided reasonable medical
treatment for his injuries while in

Appendix E-11

85

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

86

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.

87

(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

88

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]

90

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
(c) the estate of Marvin Williams’ should
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

91

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.

92

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

by

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

93

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

94

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

95

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

96

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

97

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

98

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

99

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
es

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’

Q

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

A

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

A

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

2)

A

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

e

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

ee

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 %,

ae

¥

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?

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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

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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

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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 Cour

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2295%3A2. Public record. Not legal advice.