Petition — Frey v. Anderson

R 3 a v 4 9 5 Office - Supreme Court, U.S.

FILED

NOV 2 1983

No. ALEXANDER L. STEVAS.

CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

GERALD T. FREY

Superintendent, Missouri Eastern Correctional Facility,

Petitioner,

v.

VICTOR PAUL ANDERSON

Respondent.

On Perrrion From Tue Unrren Srates Court

Or Appzats For Tue EicuTx Crmecurr

PETITION FOR A WRIT OF CERTIORARI

Assistant Attorney General

Gzorce Cox

Assistant Attorney General

of Counsel

Supreme Court Building

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys of Record

EeCLY PRESS INC. O01 5 Eighth St. Columbian, Mimorc! Dial 314/400-4108

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals for the

Eighth Circuit utilized the wrong standard of review in

concluding that respondent was not accorded due process

due to the manner used to the method used to select by-

stander jurors in New Madrid County, Missouri.

2. Whether the Eighth Cireuit’s conclusion that

§494.250.2, RSMo is, de facto, unconstitutional is correct

in that this conclusion has no precedential support.

3. What safeguards does the United States Consti-

tution require when trial courts discover that talesmen or

bystander are required to complete the venire?

IT

TABLE OF CONTENTS

Page

NE: sis/o.00.cane 0cckscdcask¥hssabesdulnnd I

ERE IORI TT Te eee 1

NS 5 SOE i vib in+s bie 6-6-00-1h0s ee Cebus San iaehheee 2

Constitutional Provisions and Statutes Cited ........... 2

GE CERO cco vtecccccevocenesevseveseeens 3

Jurisdiction of the United States District Court ........ 7

wc sas ibn oon ¥adesatcscedees chetssnleren 8

EE aay phon 6kcsvdscven dhsbetustecd ves hnaet 18

Mn adbiad chides sme vdae sive adeecnacueunee A-1l

Appendix B .....ccccccccccsccccccccccvccccvccvecs A-12

Ill

TABLE OF AUTHORITIES

Cases Cited

Bruce v. State, 169 Miss. 335, 152 So. 490 (1934) ........ 8

Casteneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272,

Ge Ti SA BOG CIGTT) ‘issieccccucs ddvcatdacsishtes 11

Clawson v. United States, 114 U.S. 477, 5 S.Ct.

Oa AO Tee: 179, (IBGB). os vin. c as dtndvadnantcceda 8

Cravens v. United States, 62 F.2d 261 (8th Cir. 1932) ...8

Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290,

53 L.Ed.2d 344 (1977), rehearimg denied, 434 U.S.

882, 98 S.Ct. 246, 54 L.Bd.2d 166 (1977) .......... 13

Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58

TAMIR IIOIOY: 55503 Susi ios asiewe anaes 11

Flemming v. Nestar, 363 U.S. 603, 80 S.Ct. 1367,

4 L.Ed.2d 1435 (1960), rehearing denied, 364

U.S. 854, 81 S.Ct. 29, 5 L.Ed.2d 77 (1961) ........ 16

Henson v. Wyrick, 634 F.2d 1080 (8th Cir. 1980),

cert, denied, 450 U.S. 958, 101 S.Ct. 1417,

ere SR sh re ry ee err 9

Holt v. Wyrick, 649 F.2d 543 (8th Cir. 1981), cert.

denied, 454 U.S. 1143, 102 S.Ct. 1002 (1982) ...... 10

Humes v. Robbins, 128 F. Supp. 586 (D.Me. 1955) ...... 8

Ippolito v. United States, 108 F.2d 668 (6th Cir. 1940) ..8

Losieau v. State, 157 Neb. 115, 58 N.W.2d 824 (1953) ...9

a Lovejou v. United States, 128 U.S. 171, 9 8.Ct. 57,

RAM, EP AAOUOD civic rccnitescseceuewensapacret 8

Parsons v. United States, 670 F.2d 164 (Ct.Cl. 1982) ....15

Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 32

PARE OS 19098) |... 2425. cacusestiapeee 9, 12

People v. Siciliano, 4 Ill. 2d 581, 123 N.E.2d 725 (1955) ...9

AND ore rel s Sibert be bd ete ap Jt Pa sane Peer” Gigerms o a

IV

St. Clair v. United States, 154 U.S. 134, 14 S.Ct.

BO BO Rs POO CACORE) oe cad ccbitersvavccececd 8

State v. Cody, 323 N.W.2d 863 (S.D. 1982) ............. 9

State v. McCambry, 225 Kan. 803, 594 P.2d 222 (1979) ...8

State v. Olek, 179 N.W.2d 320 (Minn. 1970) ............ 9

Starr v. Federal Aviation Administration, 589

CIDE CE AOPOD oa cur sddevuesedecesbuees 15

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13

A RMOD, '9 ood de o's.cn's's 00o ke eb cebes neue 12

Taylor vy. Louisiana, 419 U.S. 522, 95 S.Ct. 692,

EE OM oo oie ba «Avdike lee pwviea Cae Ode 12

Taylor v. State, 420 S.W.2d 601 (Tex. 1967) ............ 9

Thompsen v. White, 661 F.2d 103 (8th Cir. 1981),

vacated and remanded, 456 U.S. 951, 102 S.Ct.

2003 (1982), on remand, 680 F.2d 1173 (8th Cir.

1982), cert. denied, 103 S.Ct. 830 (1983) .......... 10

United States v. Kelton, 518 F.2d 531 (8th Cir. 1975),

cert. denied, 423 U.S. 1021, 96 S.Ct. 460, 46

TEED dsicn be msl cep uvennyise er see ee 11

United States v. Meyer, 113 F.2d 387 (7th Cir. 1940) ....8

Williams v. General Foods Corporation, 492 F.2d

ee SS rer er re, Ps ree 16

Constitutional Provisions and Statutes Cited

28 U.S.C. §1866(a) (repealed) .........cceseeeecccnees 8

IIS S Sve) ae < éin'din oo vs wee nnta kde can Meke 16

V

Missouri Supreme Court Rule 32.04 ..........0eeeeee 14

Missouri Supreme Court Rule 32.06 ............0e000: 14

ES ED inne s ccesc vesecviaes POPS Pe 9

I EN oy kevin 00 cob ntvecc¥ecccdcbusesecuuen 9

ST Sc si ccwca'cd chad ccaneaceaeenl 9

SG TE, EEL © RO: So.c ccicd ceca’ cocdesdee beeen 9

cee. meev. Code Bum. 42513.98 2... ccccscccvcccccscsouss 9

Other Authorities Cited

Thayer, ‘‘The Origin and Scope of the American

Doctrine of Constitutional Law,’’

7 Harvard Law Review, 129 (1893) .............. 16

29 Mo. Law Review 259 (1964) .........ccseccceccces 13

29 Mo. Law Review 305 (1964) ...........ccceesccees 13

34 Journal of Missouri Bar 111 (1978) .............. 13

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

GERALD T. FREY

Superintendent, Missouri Eastern Correctional Facility,

Petitioner,

Vv.

VICTOR PAUL ANDERSON

Respondent,

On Perrrion From Tue Unrrep Srates Court

Or Appgats For Tue Eicuts Crmovir

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The Order of the United States District Court for the

Eastern District of Missouri, denying respondent’s petition

for a writ of habeas corpus, is unreported and appears as

Appendix B of the present: petition. The Magistrate’s re-

port and recommendations upon which the District Court’s

order was founded are attached as Appendix C of this pe-

tition. The opinion and judgment of the United States Court

‘ of Appeals for the Eighth Circuit, reversing the decision of

the District Court and granting respondent’s petition for a

writ of habeas corpus is appended hereto as Appendix A.

JURISDICTION

The opinion and judgment of the United States Court

of Appeals for the Eighth Circuit, granting respondent’s

petition for a writ of habeas corpus under 28 U.S.C. §2254, ag

was filed on August 31, 1983. Pursuant to 28 U.S.C. Section

2101(c), the present petition for a writ of certiorari was

required to be filed within ninety (90) days of the entry of

this judgment. The jurisdiction of this Court is invoked

under 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS AND STATUTES

1. The Fourteenth Amendment to the United States

Constitution, in pertinent part, provides as follows:

‘*All persons born or naturalized to the United States

‘and subject to the jurisdiction thereof are citizens of

the United States and of the state wherein they reside.

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States, or shall any state deprive any person

of life, liberty or property without due process of law,

nor deny to any person within its jurisdiction the equal

protection of the laws.’’

2. Section 494.250.2, RSMo 1978, reads as follows:

‘In all cases where the Board of Jury Commissioners

fails to select jurors and alternates, as required by law,

the sheriff of the county shall summon petit jurors from

the several townships in the county, according to their

respective populations, and as nearly as may be, not less

than ten days before the first day of the term of court

for which the jurors are summoned; and the sheriff

when ordered by the court demanding a jury shall ‘

summon petit jurors during the term from the by-

3

standers, after the list of alternate petit jurors has

been exhausted. No person shall be summoned as a

standing juror twice within the period of one year in

any court of record.”’

STATEMENT OF FACTS

Respondent Anderson was charged by information on

August 18, 1980, with attempted robbery in the first degree

in New Madrid County on or about May 26, 1980. Appellant

was tried by a jury in the Circnit Court of New Madrid

County on October 29, 1980, anc on that same date, the jury

returned a verdict of guilty of attempted burglary in the

first degree. Appellant was sentenced to ten years imprison-

ment. The evidence adduced at trial was as follows.

On May 26, 1980, respondent, Henrv Holloraan and Tom

Moore met in Howardville, Missouri, and agreed to rob

Mattie’s Package Store in nearby Catron (Tr. 36, 48, 51).

Three men got into Mr. Moore’s automobile, and he drove

them to the store in Catron (Tr. 36, 48). There, respondent

and Mr. Holloman got out of the car and wént into the

store (Tr. 36, 49).

Once inside, Mr. Holloman asked the proprietor, Mattie

Thompson, for one-half pint of Canadian Mist whiskey (Tr.

28, 36). Ms. Thompson asked them for some type of identifi-

cation (Tr. 28). At this time, respondent pulled a ski cap

down over his head and drew a gun (Tr. 28, 36). Ms. Thomp-

son began to scream, and respondent and Mr. Holloman

turned around and ran out the door (Tr. 28, 36-37). They

both got back into the car, and Mr. Moore drove them away

(Tr. 29, 37, 49). Ms. Thompson was unable to identify either

man who came into her store, but both were about the same

size and age as respondent (Tr. 29-30).

4

All three men were eventually arrested and confined in

the New Madrid County Jail (Tr. 49, 62-63). While confined

in jail, appellant gave a letter to his friend, Linda Owens,

with instructions that she deliver it to Mr. Holloman (Tr.

57). That letter stated as follows:

‘*Say Blood.

‘**T would just like for you to know that you didn’t

have to put the (X) in my back. But so you did. I just

wish you would have gotten some money for it. Be-

cause it was not worth wha: you got. And that was lie

to you. See they said that you wouldn’t be too far be-

hind me. And that Tom was going to be the only one

that didn’t get any time.

‘*And I’ll see you when you get there. don’t [sic]

worry I’ll look out for you when you do get there.

**T don’t hate you. I just don’t understand. You

can run but yon can’t’— There’s a mark with an ’H/

So enjoy yourself because you will be here and there

soon.

‘*Victor Paul Anderson

‘‘the man you (+)

‘*hope to see you

‘‘when ever’’ (Tr. 60).

Ms. Owens did deliver that letter and returned to appellant

a letter from Mr. Holloman (Tr. 58), which stated as fol-

lows:

‘*Hellow Blood

‘*Sitting here with your letter in had [sic]. I am

going to do my best to let you know what went down.

It [sic] like this. Tom did it. Our lawyer said that the

man wanted you and said that I had a chance to keep

myself out by putting it on you because Tom was al-

ready going to do that. Tom [sic] mother made some

5

kind of deal with Ivy to get him out. He did not have a

bondsman. Ivy got him out. I feel that had a good

chance to win. But when our lawyer call [sic] us out

and said that Tom statement and what Tom was going

to say I was finish [sic]. I don’t blame you for thinking

the way you do. But I felt I can do you more good ont

here. Man[,] I made you a promise about your child and

I am going to do my best. On your letter it seem tha,

you forgot that I am a man to [sic]. Man[,] everyday

Robert came to the job to see if I am there and by the

house every night. Tom was and Memphis friday [sic]

when robert [sic] came out to the job and all he said

was that it ok and look at me [sic]. You mae [sic] be

right about me [sic] not being fur behind you. But its

to bea! to cahnce now [sic]. So I have to go through

with it. Getting up on that stand and saying that shit

was the hard [sic] thing I doin’ in my life in I have to

do it again [sic]. I hope this letter has help [sic] you

to understand what is going on. And I am not trying to

put the cross on Tom that is how things went [sic].

“PS. If you need some-

thing[,] tell

Linda to tell me

and you got it.

And I am not try-

ing to buy some-

thing. We already

got friendship’’

(Tr. 60-61)

At trial, twenty-six veniremen had been summoned

from the list drawn up by the Board of Jury Commissioners

(Tr. 21). Of those, four were absent and four were struck

for cause. Thus, of the twenty-eight veniremen left on the

panel before challenges, eighteen had been summoned by

the Board of Jury Commissioners. The ten remaining ve-

ot. am eae en + oe ee ey ee ee ag ee

6

niremen were summoned by the sheriff under two special

venires. Respondent challenged, for cause, all the members

of the jury panel who had been summoned by the sheriff

(Ty. 19-20). This challenge was denied (Tr. 20). Respondent

then moved to quash the jury panel on the ground that an

insufficient number of veniremen had been summoned by

the Board of Jury Commissioners (Tr. 20-21). This Motion

to Quash was denied (Tr. 25).

Respondent then filed a notice of appeal to the Supreme

Court of Missouri on September 11, 1980. On appeal, re-

spondent’s sole contention was that the state trial court had

erred in failing to quash the jury panel because respondent

had thereby been deprived of his right to a petit jury se-

lected from a fair cross-section of his community. On Sep-

tember 8, 1981, the Supreme Court of Missouri affirmed

respondent’s conviction, State v. Anderson, 620 S.W.2d

378 (Mo. 1981).

Respondent then filed a petition for a writ of habeas

corpus in the United States District Court for the Eastern

District of Missouri, on September 24, 1981. Respondent

raised the jury-selection issue, along with several other

issues. Petitioner’s response was that he had failed to

exhaust state remedies on the other grounds and that the

sole exhausted ground provided no basis for relief.

On December 8, 1981, United States Magistrate David

D. Noce recommended that respondent be given an eviden-

tiary hearing on the jury-selection issue and that respon-

dent’s remaining grounds be dismissed for failure to ex-

haust state remedies. The district court accepted the

magistrate’s Report and Recommendation, and an evi-

dentiary hearing was held on April 21, 1982. At the conclu-

sion of this hearing, both parties were given leave to file

briefs. On August 9, 1982, Magistrate Noce filed his Report

and Recommendation, by which he recommended that Re-

7

spondent’s Petition for Writ of Habeas Corpus be denied

(Exhibit C). The district court entered its order adopting

the Report and Recommendation of the magistrate and

denied the petition for habeas corpus on September 3, 1982

(Exhibit B).

The district court issued a certificate of probable cause

for appeal, and respondent appealed the district court de-

cision to the United States Court of Appeals for the Eighth

Cireuit. That court reversed the decision of the district

court in Anderson v. Frey, No. 82-2208-EM, decided August

31, 1983 (Appendix A). To avoid duplication, the details

of the Eighth Circuit’s holding will be discussed in the

argument, infra.

Jurisdiction of the United States District Court

The basis for the district court’s jurisdiction in this

cause was 28 U.S.C. Section 2254.

ARGUMENT

I. BACKGROUND

It is well known that when a venire is not complete,

the trial judge may direct that the venire be completed by

the summoning if ‘‘talesmen”’ or ‘‘bystanders.’’ This is a

practice that existed at common law. State v. McCambry,

225 Kan. 803, 594 P.2d 222 (1979); Bruce v. State, 169 Miss.

335, 152 So. 490 (1934).

The early practice was to direct the sheriff to summon

the additidnal jurors, id, and this duty was codified early

in the history of this country. See Clawson v. United States,

114 U.S. 477, 5 S.Ct. 949, 29 L.Ed. 179 (1885), citing 4804

of the Revised Statutes; 415, RSMo 1845. Indeed, the prac-

tice of ordering the sheriff to summon talesmen was the

practice in the federal system until 1968. Title 28 U.S.C.

§1866(a) (repealed) read:

‘*Whenever sufficient petit jurors are not available,

the court may require the United States Marshal to

summon a sufficient number of talesmen from the

bystanders.’’

Petitioner has found no cases holding that this statute was

either constitutional or unconstitutional, but generally, the

selection of talesmen under the federal statute and its

predecessors was upheld, St. Clair v. United States, 154

U.S. 134, 14 S.Ct. 1002, 38 L.Ed. 936 (1894); Lovejoy v.

United States, 128 U.S. 171, 9 8.Ct. 57, 32 L.Ed 389 (1888) ;

United States v. Meyer, 113 F.2d 387 (7th Cir. 1940) ; Crav-

ens v. United States, 62 F.2d 261 (8th Cir. 1932), as were

occasional challenges to similar state statutes, Humes v.

Robbins, 128 F. Supp. 586 (D.Me. 1955). However, in cases

where the United States Marshal did not follow the statute,

the case would be reversed. Ippolito v. United States, 108

9

F.2d 668 (6th Cir. 1940) (United States Marshal called his

relatives to fill the venire).

State statutes rékarding the summoning of talesmen

were substantially similar to the former federal practice

and were also generally upheld against challenge, either for

failure to comply with the statute, Losieau vy. State, 157

Neb. 115, 58 N.W.2d 824 (1953); People v. Siciliano, 4 Tl.

2d 581, 123 N.E.2d 725 (1955); Taylor v. State, 420 S.W.2d

601 (Tex. 1967); State v. Olek, 179 N.W.2d 320 (Minn.

1970), or on dne process grounds, State v. McCambry, su-

pra; State v. Cody, 323 N.W.2d 863 (S.D. 1982).

Respondent would note that while although there is

some movement away from the traditional method of sum-

moning talesmen (see 18 U.S.C. 61866), the traditional

method is still in place in several jurisdictions, Cal. Code

C.P. $227, Ill. Rev. Stat. 478-12, Kan. Stat. §43-167, N.J.

Rev. Stat. 2A: 74-10, and Ohio Rev. Code Ann. 2313.38.

IT. PRIOR CASES IN THIS AREA

In Henson v. Wyrick, 634 F.2d 1080 (8th Cir. 1980),

cert, denied, 450 U.S. 958, 101 S.Ct. 1417, 67 L.Ed.2d 383

(1981), the Court of Appeals held that when a sheriff whose

department investigated the crime also selected only his

acquaintances as the talesmen, there was a rebuttable re-

sumption of prejudice. The court noted a series of state

cases and one federal case that required a showing of preju-

dice, 634 i".2d at 1083-1084, but chose to ignore those cases

and, instead, relied upon the authority of Peters v. Kiff,

407 U.S. 493, 92 S.Ct. 2163, 32 L.Ed.2d 83 (1972), in order

to create this presumption. The Court of Appeals did not

mention that the opinion quoted from did not command a

majority of this court’ In sum, Henson established an ir-

1The Court of Appeals mentioned other cases that have used “the

probabiliy of prejudice” to vacate convictions. These will be discussed

infra.

10

rebuttable presumption of prejudice that does not require

any affirmative evidence of prejudice by a defendant or

that would allow evidence of no prejudice to be produced

by the state.

In Holt v. Wyrick, 649 F.2d 543 (8th Cir. 1981), cert.

denied, 454 U.S. 1143, 102 S.Ct. 1002 (1982), the prisoner

failed in his challenge because he had established neither

of the factors set out in Henson. The Court of Appeals con-

sidered these two factors to be ‘‘equally important.’’ 649

F.2d at 546. The next case considering this issue was

Thompson v. White, 661 F.2d 103 (8th Cir. 1981), vacated

and remanded, 456 U.S. 951, 102 S.Ct. 2003 (1282), on re-

mand, 680 F.2d 1173 (8th Cir. 1982), cert. denied, 103 S.Ct.

830 (1983). Thompson was reversed based on the authority

of Henson, The reasons given were that the sheriff might

be biased in selecting the jurors and that the sheriff had

selected the entire panel, 661 F.2d at 107.

In the instant case, the sheriff was the supervisor of

the deputy sheriff who investigated the crime. The by-

stander jurors were obtained by five deputies and one city

marshal. The investigating deputy was not one of these five

and was not called as a witness by the state at trial, al-

though he was called by the defendant. The Court of Ap-

peals vacated the conviction, although the case was ‘‘a

close one on the facts’’ (Appendix A).

The Court of Appeals held that the central concern in

Henson is the unfairness that arises when an interested of-

ficial selects the bystander jurors. The court also strength-

ened a presumption first suggested in Henson, which is

that a law enforcement official, while selecting these by-

stander jurors, will not act properly, but will tend to select

pro-conviction veniremen. In fact, despite the express hold-

ing in Holt that there is no fundamental unfairness when a

law enforcement official who was uninvolved in the investi-

ll

gation selects the talesmen, the court held that the unin-

volved city marshal was sufficiently interested. Indeed, the

result of this unwarranted extension of Henson is that the

Missouri statute regarding the selection of bystander jurors

is de facto unconstitutional.

ANALYSIS

A.

Respondent submits that the irrebuttable presumption

of error standard adopted by the Eighth Circuit is flawed,

along with that court’s irrebuttable resumption of preju-

dice. The Court of Appeals has erred in adopting these

standards of review because there is no authority for these

tests in the decisions of this Court, and they stand in con-

travention to analogous cases, such as Casteneda v. Par-

tida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977);

Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d

579 (1979) ; and United States v. Kelton, 518 F.2d 531 (8th

Cir. 1975), cert. denied, 423 U.S. 1021, 96 S.Ct. 460, 46

L.Ed.2d 394 (1976). The preceding cases have yielded a

test under which the state may respond with positive evi-

dence should the challenging party make a prima facie case

and require a showing of affirmative prejudice. The Court

of Appeals has also failed to consider the practical safe-

guards available to a defendant concerned about jury preju-

dice under Missouri law, including unrestricted voir dire

of potential jurors and free change of venue in countries

where the population is under 75,000. The end result is that

the Eighth Cirenit has declared §494.250.2, RSMo 1978, to

be de facto unconstitutional.

Respondent will first arguc that the Court of Appeals

erred in establishing an irrebuttable presumption of con-

stitutional error, a standard first enunciated in Henson v.

Wyrick, supra, and applied in the instant case. Respondent

believes that the Eighth Circuit has, in developing the

4

“ Tet Tite oe.

:

+s

.

12

Henson standard, ignored cases analogous to this case and

similar cases. The Court of Appeals has also dispensed

with, by omission, the presumption that a public official

will perform his duties in compiiance with the law.

This Court has, in past vears, considered several cases

where either grand or petit juries were challenged under

theories where groups were being omitted from service. In

none of those cases did the court utilize a irrebuttable pre-

sumption of constitutional error; rather, if the party chal-

lenging the system could make a prima facie case regarding

the exclusion of a group, then the state would be afforded

an opportunity to offer positive evidence that the omis-

sions were justified or occurred as the result of a nonbiased

selection process. Swain v. Alabama, 380 U.S. 202, 85 S.Ct.

824, 13 L.Ed.2d 759 (1965); Taylor v. Louisiana, 419 U.S.

522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) ; Casteneda v. Par-

tida, supra; Duren vy. Missouri, supra.

The Eighth Circuit standard in Henson and in the case

at bar held that if the challenging party could make a

prima facie case, constitutional error was presumed, with

the effect that the State of Missouri could not, despite

Swain and Taylor, etc., offer evidence that the method used

to select bystanders was justifiable. Thus, petitioner sub-

mits that the Court of Appeals has erred in the basic de-

termination of whether constitutional error exists in a

given case.

Even more egregious is the Court of Appeals’ pre-

sumption of prejudice. In Henson, the Court held:

‘When the potential prejudice is as great as it was

here a showing of actual prejudice to the defendant is

not necessary in order to warrant a new trial.’’ 634

F.2d at 1085,

The court cited it in a footnote to Peters v. Kiff, 407 U.S.

493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972), as support for this

13

holding. The opinion and footnote do not mention that the

material quoted from Peters commanded only three mem-

bers of this Court. Also briefly discussed was Taylor v.

Louisiana, 419 U.S. 466, 85 S.Ct. 546, 13 L.Fid.2d 424 (1965),

where the Court vacated a conviction based on the possibil-

ity that the bailiff witness had impermissible contact with

jurors. Taylor is easily distinguished from both Henson and

the case at bar, as will be demonstrated below.

The chief distinguishing factor between this case and

Taylor is the array of procedural protections that a party

is accorded under Missouri law to ensure an impartial jury.

First, a party who suspects prejudice has a full and vir-

tually unfettered opportunity to voir dire the potential

jurors. Voir dire in Missouri is still conducted by the at-

torneys, and the defendant has the opportunity to ferret

out any biases that may exist. See 29 Mo. Law Review 259,

305 (1964) ; 34 J.Mo.Bar. 111 (1978). In fact, the questions

that would be asked by a defendant in this situation are

the same questions that would normally be asked on voir

dire: Does the venireman know the sheriff or any of the

witnesses? Is the venireman disposed to convict? Can the

venireman consider the evidence, forgetting any prior no-

tions or opinions? The entire purpose behind voir dire is

to expose any bias or prejudice in order to guarantee the

right to a fair trial by impartial jurors, and if a juror can’

lay aside his prejudices or opinions and render a verdict

based on only the evidence, the Constitution is satisfied.

Dobbert y. Flordia, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Eid.2d

344 (1977), rehearing denied, 454 U.S. 882, 98 S.Ct. 246, 54

L.Ed.2d 166 (1977).

The opinion of the Court of Appeals in Henson stated

that the voir dire procedure would not be effective in dis-

covering prejudice in these cases. 634 F.2d at 1085. Not only

is this statement unsupported, but should be rejected as an

attack upon the entire system in which we select juries in

Ne

14

the United States. Petitioner would remind this Court that

respondent received a full opportunity to voir dire this

jury panel; respondent has not identified any juror who,

arguably, should have been removed for cause due to bias.

Respondent’s opportunity to identify and locate bias or

prejudice was greater than he would have been afforded

in the federal courts, and petitioner argues rejection of

the Court of Appeals’ premise that voir dire is ineffective

to discover prejudice in potential jurors.

Further, a defendant has other safeguards should he

become concerned about the possibility of prejudice. Mis-

souri law allows a defendant an automatic change of venue,

on request, from any county with a population of 75,000

or fewer inhabitants, Rule 32.03, or on a showing of preju-

dice, Rule 32.04. A change of judge is also automatic, Rule

32.06. In sum, there is a panoply of means by which a de-

fendant can avoid or identify prejudice in a jury panel.

These means were unavailable to prevent the prejudice in

Taylor, and therefore these cases are distinguishable. Had

the Eighth Circuit been able to isolate any instance of pre-

judice from the record, petitioner would have no ground

for this petition; however, being unable to identify any

actual prejudice in the record, the Court of Appeals was

forced, again, to adopt the irrebuttable presumption of

prejudice as enunciated in Henson.

In creating this irrebuttable presumption in Henson

and in continuing to apply it in this case,? the Court of

Appeals has demonstrated the existence of a double stan-

dard. In United Siates v. Kelton, supra, the Eighth Cireuit

reiterated their rejection of the ‘‘per se theory of implied

bias,’’ in favor of a requirement that actual prejudice be

2The lack of basis for the Eighth Circuit’s presumption is made clear

by the court’s own admission that neither the sheriff nor his deputies

engaged in any illegal conduct.

15

demonstrated. 518 F.2d at 533. Kelton was e challenge to

a conviction under 28 U.S.C. $2255, the post-conviction

relief statute for federal convictions. Yet, when consider-

ing a challenge to a state conviction under 28 U.S.C. §2254,

the Eighth Circuit has adopted a theory of implied preju-

dice (the irrebuttable presumption of prejudice) that it

declines to use in reviewing federal convictions. It goes

without saying that such a double standard is in direct

opposition to the principle of state and federal comity.

Petitioner is aware of no case or statute that permits a

federal court to employ one standard in review of a federal

conviction, while exercising a more stringent standard in

review of a state conviction. In all the errors of omission

and commission made by the Eighth Circuit in dealing with

the Missouri talesmen cases, the establishment of this don-

ble standard is most striking.

The establishment of the irrebuttable presumption of

prejudice by the court also ignores a fundamental principle

of judicial analysis—that a public official will perform his

duties in accordance with the law, and the burden to prove

otherwise by irrefragable proof is on the complainant.

Starr v. Federal Aviation Administration, 589 F.2d 307

(7th Cir. 1978); Parsons v. United States, 670 F.2d 164

(Ct.C1. 1982). There has been no suggestion in the case at

bar that the sheriff or his deputies did anything but per-

form their duties in accordance with the law, both statutory

and constitutional. Indeed, the Court of Appeals concedes

as much. The failure by the Court of Appeals to consider

this presumption, in what respondent believes is a neces-

sary determination of piejudice in the selection of tales-

men, is yet another error in the Eighth Circuit’s analysis

of the Missouri talesmen cases.

The result of this line of cases, extending from Hen-

son, to the instant case is to declare the Missouri statute

to be, de facto, unconstitutional. Is doing so, the Court of

16

Appeals has avoided a fundamental principle of constitu-

tional law—-that a state statute is presumptively constitu-

tional. Thayer, ‘‘The Origin and Scope of the Amevican

Doctrine of Constitutional Law,’’ 7 Harvard Law Review

129 (1893) ; Flemming v. Nestar, 363 U.S. 603, 80 S.Ct. 1367,

4 L.Ed.2d 1435 (1960), rehearing denied, 364 U.S. 854, 81

S.Ct. 29, 5 L.Ed.2d 77 (1961). Williams v. General Foods

Corporation, 492 F.2d 399 (7th Cir. 1974). The Court of

Appeals should have openly stated that they believe the

Missouri statute unconstitutional (and, by extension, the

statutes of the several states with similar provisions) or

specified in what instances the statute might be constitu-

tionally applied. Although this is not in itself sufficient

reason to grant certiorari, this does point out the flawed

manner in which the Eighth Circnit has con-sidered this

line of cases.

Although this statute is capable of misuse, as was the

former federal statute, see Ippolito v. United States, supra,

the Eighth Cireuit’s blanke: presumption of prejudice has

rendered the Missouri statute virtually unusable. For rea-

sons mentioned below, even repeal of §494.250, RSMo 1978,

and replacement by the state with the presumably valid

federal scheme, 28 U.S.C. §1866, would not prevent great

harm to Missouri jurisprudence or to the interests of a

majority of the states. This de facto declaration of uncon-

stitutionality is unnecessary and could be avoided if the

challenging party had to come forth with evidence that

there was actual prejudice caused by the allegedly uncon-

stitutional practice. Then, only those persons truly wronged

by the method of selection would be given relief, while those

persons unable to isolate or identify any prejudice would

not receive relief that is unwarranted and undeserved. The

double standard created by the Eighth Circuit is not only

hostile to the notion of state-federal comity but has led to

the ultimate conclusion that the Missouri method for se-

;

be

f

17

lection of talesmen—the system of several other states and

the former system utilized by both the federal system and

numerous state courts—is, de facto, unconstitutional.

B.

Tie final item to be addressed is the effect of the Mis-

souri talesmen cases on petitioner and other jurisdictions.

If the irrebuttable presumption relied upon by the Court

of Appeals (which would include that court’s double stan-

dard of review) is allowed to stand, then an untold number

of convictions believed valid until recent date will be chal-

lenged not only in Missouri, but, conceivably, in any juris-

diction that is inearcerating persons convicted by a jury

containing talesmen selected under the common-law method,

including the federal system. As the prisoner would not

have to demonstrate any prejudice to receive relief, the

vast majority of prisoners would be entitled to federal

habeas corpus relief, and due to the passage of time, many

of these persons could not be retried.

Secondly, petitioner argues that should Missouri adopt

the method of selection of talesmen advocated by the Eighth

Cirenit and codified in federal statute, that adoption would

serve to make little difference in practical terms. Each of

the Missouri talesmen cases have come from rural coun-

ties. Obviously, summoning jurors is much more difficult

in a rural county than in an urban area, because there is a

smaller pool of potential veniremen. It is likely that many

of the supposedly ‘‘pro-conviction’’ jurors who know or

are known by the local sheriff will be called, regardless of

the method of selection (assuming that the state had been

selecting ‘‘pro-conviction’’ jurors). Although the federal

system may theoretically reduce the possibility of consti-

tutional abuse, the State of Missouri ought to be allowed

to use a system derived at common law, utilized for scores

of years in this nation, and accepted until recently as an

approved method of supplementing venires.

18

CONCLUSION

In view of the foregoing, the petitioners respectfully

submit thct this petition for a writ of certiorari should be

granted.

Respectfully submitted,

JoHN ASHCROFT

Attorney General

Kristie Green

Assistant Atterney General

Grorce Cox

Assistant Attorney General

of Counsel

Supreme Court Building

Post Office Box 899

Jefferson City, Missouri 65102

(314) 751-3321

Attorneys of Record

LP) 34

* ’

.

vw Fe

eA Reta by

ve

A-1

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Victor Paul Anderson, ;

Appellant,

v.

Gerard Frey, Superintendent of 4 No. 82-2208

Missouri Eastern Correctional

Center, Court fer the

Appellee. : District of Missouri

Submitted: February 17, 1983

Filed: August 31, 1983

Before HEANEY, McMILLIAN and ARNOLD, Circuit

Judges.

McMILLIAN, Circuit Judge.

Victor Paul Anderson appeals from a fiaal judgment

entered in the District Court for the Eastern District of

Missouri denying his petition for wr'’ of habeas corpus.

For reversal appellant argues the district court erred in

finding that the method of selecting supplemental prospec-

tive jurors or ‘‘bystander’’ jurors used in his trial did not

violate due process. For the reasons discussed below, we

reverse the judgment of the district court and remand with

directions.

° ‘

oS eee

A-2

Procedural History

Appellant was found guilty by a jury of attempted

armed robbery in the Cireuit Court for New Madrid Coun-

ty, Missouri, in October 1980. Appellant was sentenced to

ten years imprisonment. Appellant appealed his conviction

to the Missouri Supreme Court alleging that the county

sheriff unconstitutionally participated in the selection of

the jury panel pursuant to Mo. Rev. Stat. §494.250(2)

(1978). The Missouri Supreme Court rejected this con-

stitutional attack and affirmed his conviction. State v.

Anderson, 620 S.W.2d 378 (Mo. 1981).

In September 1981 appeilant filed this petition for writ

of habeas corpus raising four grounds for relief: (1) the

state improperly called a witness who was not listed as a

prosecution witness, (2) the jury was unconstitutionally

selected, (3) appellant was unlawfully arrested and did not

receive a full and fair hearing, and (4) two state witnesses

committed perjury at the trial. The district court referred

the petition to a magistrate pursuant to 28 U.S.C. §636(b).

The magistrate found that appellant had failed to exhaust

available state remedies with respect to every ground ex-

cept the jury selection ground? and recommended an evi-

‘Pursuant to Mo. Rev. Stat. § 494.250(1) (1978), the Clerk of the

Board of Jury Commissioners prepares a list of prospective jurors by

lecting names at random from voter registration lists. If, after the list

prospective jurors is exhausted by absences or excuses for cause,

number of remaining prospective jurors is less than 24, the sheriff

order of the court “shall summon petit jurors during the

bystanders.” Id. §494.250(2); see State v. Alexander, 620 S.W.2d 380,

884 (Mo. 1981) (banc).

*Appellant may raise the other grounds for relief in state post-con-

viction relief proceedings. Appellant exhausted available state remedies

with respect to the jury selection ground by raising that issue before the

Missouri Supreme Court. All that we require is that a state be given one

full and fair opportunity to decide a question. E.g., Eaton v. Wyrick, 528

F.2d 477, 480 (8th Cir. 1975).

A-3

dentiary hearing on that ground in light of Henson v.

W yrick, 634 F.2d 1080 (8th Cir. 1980) (filed Nov. 12, 1980),

cert. denied, 450 U.S. 958 (1981), a case decided after the

trial in the present case in which this court disapproved of

the same method of bystander juror selection. Anderson vy.

Frey, No, 81-1187-C(2) (E.D. Mo. Dec. 8, 1981).

Following the Supreme Court’s disapproval of mixed

petitions for writ of habeas corpus in Rose v. Lundy, 455

U.S. 509 (1982), appellant elected to waive his three un-

exhausted grounds and to proceed on the jury selection

ground only. Following an evidentiary hearing, the magis-

trate found that the method used to select bystander jurors

in the present case did not violate due process and distin-

guished the present case from Henson on three grounds:

the sheriff did not personally select any of the bystander

jurors but delegated that responsibility to deputy sheriffs

and city marshals, the sheriff placed some limitations on

the exercise of discretion by the deputy sheriffs and no

sheriff’s department personnel testified on behalf of the

prosecution. Anderson vy. Frey, No. 81-1187-C(2) (E.D.

Mo. Aug. 9, 1982). The district court accepted the report

and recommendation of the magistrate and denied the pe-

tition for writ of habeas corpus. This appeal followed.

Background Facts

Appellant’s trial was held in October 1980 in New

Madrid County, Missouri. New Madrid County is a rural

and relatively sparsely populated county in southeast Mis-

souri. In 1980 the county sheriff’s department consisted of

a sheriff, for full-time deputies and several city marshals

who served as part-time deputies. 1 ue sheriff is an elected

official. The sheriff’s department’s duties include law en-

forcement, criminal investigation, subpoenaing prospeciive

jurors and witnesses, and delivering civil summonses. The

sheriff also serves as the bailiff during criminal trials and

is in charge of or supervises the selection of bystander

A-4

jurors upon order of the county circuit court pursuant to

Mo. Rev. Stat. §494.250(2). At the evidentiary hearing the

sheriff testified that in 1980 in order to select bystander

jurors he would contact the deputy sheriffs and city mar-

shals by radio and direct them to select a certain number

of persons for jury service. The sheriff would give the

deputy sheriffs and city marshals general guidelines (i.e.,

sex and race) in order to produce a mixed panel of by-

stander jurors representative of the county. The deputy

sheriffs and city marshals testified that they selected by-

stander jurors within these general guidelines. They tried

to select ‘‘upstanding citizens’’ who were county residents

and ‘‘available’’ for jury service on the basis of their per-

sonal knowledge of the particular individual. The sheriff

testified that he would veto a particular bystander juror if

the individual was a close friend or for some other good

reason unqualified.

Of the twenty-six prospective jurors summoned by the

Clerk of the New Madrid County Board of Jury Commis-

sioners for appellant’s trial, four were absent and four were

removed for cause. The state trial court directed the sheriff

to summon a total of thirteen bystander jurors to complete

the jury panel. The sheriff contacted five deputy sheriffs

and one city marshal, who was not an employee of the

sheriff’s department, and asked them to find the necessary

bystander jurors. The selections were made on short no-

tice; the supplemental venire orders were issued on October

27 and 28 and the trial was scheduled to begin October 29.

The sheriff was slightly acquainted with all thirteen by-

stander jurors but did not know any of them well. On the

first day of trial one of the bystander jurors was removed

for cause and two were absent. Appellant challenged the

ten bystander jurors for cause and then moved to quash

the jury panel on the grounds that the jury commissioners

had improperly failed to summon a sufficient number of

A-5

prospective jurors and the necessary bystander jurors had

been selected by the sheriff. The state trial court denied

both motions. Three of the bystander jurors served on ap-

pellant’s jury.

The New Madrid County sheriff’s department con-

ducted the investigation of the attempted armed robbery

for which appellant was convicted. The sheriff testified

that he did not personally conduct the investigation but

that he was the supervisor of the deputy sheriff who was

primarily responsible for the investigation. The investi-

gating deputy sheriff was not involved in the selection of

the bystander jurors. The sheriff served as the bailiff dur-

ing appellant’s trial but did not testify at the trial. The

investigating deputy sheriff was called as a witness by the

defense* and testified about his investigation and about

written and oral statements made by one of the persons

involved in the attempted armed robbery which tended to

incriminate appellant.

Discussion

The issue in the present case is whether the sheriff’s

involvement in the selection of bystander jurors deprived

appellant of due process.

This court has been concerned with the opportunity

for abuse presented when the sheriff or another ‘‘key man’’

exercises discretion in selecting bystander jurors to com-

plete jury panels. See Ross v. Wyrick, 581 F.2d 172, 174-75

(8th Cir. 1978) (unconstitutional underrepresentation of

blacks on master jury list was not cured by sheriff’s per-

sonal selection of blacks as bystander jurors) ; cf. Cravens

v. United States, 62 F.2d 261, 271 (8th Cir.) (selection of

*Appellant represented himself at his trial. He did so against the

advice of his defense attorney. The defense attorney conducted the voir

dire proceedings and assisted appellant throughout the rest of the trial.

A-6

bystander jurors by ‘‘interested’’ marshal under repealed

federal statute), cert. denied, 289 U.S. 733 (1933). This

court has reviewed the sheriff’s selection of prospective

jurors in three recent cases, Henson v. Wyrick, 634 F.2d

1080, Holt v. Wyrick, 649 F.2d 543 (8th Cir. 1981), cert.

denied, 454 U.S. 1143 (1982), and Thompson v. White, 661

F.2d 103 (8th Cir. 1981), vacated and remanded, 456 U.S.

941, on remand, 680 F.2d 1173 (1982) (per curiam), cert.

denied, 103 S. Ct. 830 (1983).

In Henson v. Wyrick the record showed that the sheriff

hand-picked his acquaintances to serve as bystander jur-

ors.* 634 F.2d at 1081-82. The sheriff was not personally

involved in the investigation of the crime at issue in the

case, but the sheriff’s subordinates were responsible for

the investigation and the arrest of the defendant and testi-

fied at trial. 7d. The court held that the sheviff’s selection

of his acquaintances as the bystander jurors in order to

complete the jury panel violated the defendant’s due pro-

cess rights. Id. at 1084. The court stated that although

neither the fact that some jurors were acquaintances of the

sheriff nor the fact that the state court allowed the sheriff

some discretion in the selection of bystander jurors would

in itself invalidate the conviction, id., there was a consider-

able, and unacceptable, risk that the sheriff would select

‘The sheriff in Henson v. Wyrick, 634 F.2d 1080, 1081 (8th Cir.

1980), cert. denied, 450 U.S. 958 (1982), testified that

lying on the phone book by calling

available. Other times the sheriff would select standby jurors from

local banks or businesses. The sheriff generally knew all the people

he called. He made a conscious effort to select “solid citizens” and

persons whom jury service would not inconvenience, e.g., retired

persons or, in the winter, farmers.

A-7

bystander jurors sympathetic to the prosecution. Jd. at

1085. In addition there was the possibility that the jurors

would associate the credibility of the sheriff with that of

the deputy sheriff who was a prosecution witness. Id. The

court recognized that defense counsel has the opportunity

to show bias on voir dire and thus protect the defendant

from the potentially prejudicial bystander jurors selected

by the sheriff but rejected voir dire as an adequate remedy.

Id. ‘‘The subtleties involved in identifying [prospective]

jurors’ sympathies and predicting their evaluation of depu-

ties’ prospective testimony are often too intangible to iden-

tify during voir dire.’’ 7d. Moreover, the availability of voir

dire does not really address the defendant’s complaint that

the method used to select bystander jurors was itself funda-

mentally unfair. Cf. Glasser v. United States, 315 U.S. 60,

85-86 (1942) (dangers in selection of prospective jurors).

. The court concluded that under the circumstances a show-

ing of actual bias was not necessary and granted the de

fendant a new trial. 634 F.2d at 1085 & n.5, citing Peters v.

Kiff, 407 U.S. 493, 502-04 (1972).°

5Tllegal and unconstitutional jury selection procedures cast doubt on

the integrity of the whole judicial process. They create the appear-

ance of bias in the decision of individual cases, and they increase the

risk of actual bias as well.

It is in the nature of the practices here challenged that proof

of actual harm, or lack of harm, is virtually impossible to adduce.

For there is no way to determine what jury would have been se-

lected under a constitutionally valid system, or how that jury would

have decided the case. Consequently, it is necessary to decide on

principle which side shall suffer the consequences of unavoidable

uncertainty. In light of the great potential for harm latent in an

unconstitutional jury-selection system, and the strong interest of the

criminal defendant in avoiding that harm, any doubt should be re-

solved in favor of giving the opportunity for challenging the jury to

too many defendants, rather than giving it to too few.

Peters v. Kiff, 407 U.S. 493, 502-04 (1972) (citations and footnote omit-

ted) (standing question).

A-8

The facts were slightly different in Holt v. Wyrick.

In Holt the defendant’s trial had been removed to the

neighboring county on a change of venue. For that reason,

the sheriff who selected the bystander jurors for the de-

fendant’s jury panel was not associaied with the sheriff’s

office that conducted the investigation of the crime with

which the defendant was charged. 649 F.2d at 546. The court

held that ‘‘ ‘[s]ince the sheriff and his deputies were not

involved in [the investigation of] this case prior to trial,

there was no question of the sheriff acting out of loyalty to

deputies or on the basis of special knowledge of the facts

of the case.’ ’’ Id., citing State v. Holt, 592 S.W.2d 759, 768

(Mo. 1980). ‘‘ Equally important’’ to the court was the fact

that the defendant presented no evidence that the sheriff

had selected only his acquaintances to serve as bystander

jurors. 649 F.2d at 546.

In Thompson v. White the sheriff personally selected

the entire jury panel pursuant to an order of the state trial

court,® not just the bystander jurors. Although the sheriff

did not investigate the crime, the sheriff knew that the de-

fandant was charged with fatally shooting a local law en-

forcement officer. The court concluded that under these

circumstances ‘‘[t]he sympathy that the sheriff would feel

for a fellow officer and his family would provide ‘great po-

tential for the sheriff to hand-pick jurors sympathetic to

the prosecution.’ ’’ 661 F.2d at 107, citing Henson v. Wy-

rick, 634 F.2d at 1084. The court concluded that the case was

much closer to Henson than to Holt and vacated the de-

fendant’s conviction.

*The defendant was first tried in state court in 1961, but that con-

viction was reversed and the case remanded for a new trial following

post-conviction relief motions. The defendant was again tried and con-

victed in 1966. The defendant challenged the jury selection in his 1966

trial in his petition for writ of habeas corpus in federal district court.

A-9

The present case is a close one on the facts. The sheriff

was not personally involved in either the criminal investi-

gation or, unlike Henson, the actual selection of the by-

stander jurors. However, unlike Holt, the criminal investi-

gation and the actual selection of the bystander jurors

were handled by the same sheriff’s employees under his

supervision. Under these circumstances we think the pres-

ent case is much closer to Henson.

The central concern in the Henson case was the fnnda-

mental unfairness of an interested official’s selecting the

bystander jurors. 634 F.2d at 1082, citing Cravens v. United

States, 62 F.2d at 271. The Henson court characterized the

sheriff as an interested official because of the sheriff’s

institutional role and professional involvement in law en-

forcement, not because of any personal motives. 634 F.2d

at 1084; see State v. Alexander, 620 S.W.2d at 386 (Bard-

gett, J., concurring) (‘‘The sheriff is the chief law enforce-

ment official in the county and in my opinion can never be

regarded as totally unbiased regarding a criminal prose-

cution, regardless of what agency did the investigation.

Sheriffs want prosecutions to be successful... .’’). Where

the underlying crime involves a law enforcement officer,

as in Thompson, the sheriff’s institutional interest in the

prosecution and conviction of the defendant is exacerbated.

Where the investigation did not involve a fellow law en-

forcement officer and was conducted by a different law en-

forcement agency, as in Holt, the sheriff’s institutional

interest is arguably attenuated. 649 F.2d at 546.

We are not persuaded that the sheriff has significantly

reduced his institutional interest by delegating the actual

selection of the bystander jurors to his subordinates. The

sheriff is their immediate superior and can veto any of their

selections. Mureover, the deputies are employees of the

sheriff’s department and thus share the sheriff’s institu-

A-10

tionai and professional interest in successful prosecutions.

One of the city marshals was not an employee of the

sheriff’s department but has a similar institutional interest

in law enforcement. The fact that the sheriff may have

limited the exercise of discretion by the selecting officials

by specifying neutral and objective selection criteria, such

as residency and availability, does not address the consti-

tutional defect at issue: the selection of bystander jurors

by an interested official or his or her subordinates or pro-

fessional associates. It is the participation of an interested

official in the juror selection process that ‘» fundamentally

unfair. As noted in Henson, neither the exercise of some

discretion nor the fact that some bystander jurors, or even

all the bystander jurors, are acquainted with the sheriff

will invalidate the conviction. 634 F.2d at 1084. We are con-

cerned with the integrity and fairness of the method’ used

to select the bystander jurors.

We are aware that the pressure of time and the small

population in rural areas may make the selection of by-

stander jurors by the sheriff the more expedient method.

However, we belicve that fundamental fairness requires a

different method of bystander juror selection. The Henson

court suggested random selection from a master jury list

or the appointment of a special bailiff. Id. at 1085. There

was some indication during oral argument that the problem

of the selection of bystander jurors has been circumy: uted

by the summoning of more prospective jurors, thus reducing

the likelihood that bystander jurors would be required in

any particular case.

Accordingly, the judgment of the district e urt is re-

—

7Our holding that the method of bystander juror selection used

the present case is fundamentally unfair does not represent any negative

evaluation of the sheriff's conduct or that of his deputies in selecting

bystander jurors.

=

A-11

versed. The district court is directed to grant the writ of

habeas corpus and vacate the conviction. The state author-

ities should be directed to release appellant unless appel-

lant is granted a new trial within a reasonable period of

time as determined by the district court.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT

A-12

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

VICTOR PAUL ANDERSON, K

Petitioner,

bi No.

GERARD FREY, Superintendent, f 81-1187 © (2)

Missouri Eastern Correctional

Center,

Respondent. )

ORDER

Upon consideration of the record, the Magistrate’s re-

port and recommendation, and petitioner’s objections there-

to,

IT IS HEREBY ORDERED that the report and recom-

mendation of the Honorable David D. Noce, United States -

Magistrate, be and is accepted.

IT IS FURTHER ORDERED that petitioner’s petition

for a writ of habeas corpus be and is denied and that this

ease be and is dismissed.

John P. Nagle

UNITED STATES DISTRICT JUDGE

Dated: September 3, 1982

A-13

APPENDIX C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

VICTOR PAUL ANDERSON,

Petitioner,

Vv

7 No.

GERALD FREY, Superintendent, f{ 81-1187 ©(2)

Missouri Eastern Correctional

Center,

Respondent. |

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE

The petition of Victor Paul Auderson for a writ of

habeas corpus under 28 U.S.C, §2254 was referred to the

undersigned United States Magistrate for review and a

recommended disposition. 28 U.S.C. §636(b).

Petitioner Anderson’s original petition presented four

separate grounds for habeas relief. The undersigned, in

the original report and recommendation in this action, de-

termined that petitioner had exhausted available state court

remedies as required by §2254(b) and (c) on only one

ground: The jury was unconstitutionally selected and em-

paneled by New Madrid County Sheriff Walter Ivy who

was an ‘‘interested’’ party. Subsequently, petitioner chose

to delete the three unexhausted grounds and proceed on the

one exhausted ground as required by the recent Supreme

Court decision, Rose v. Landy, ___. U.8. —__, 102 8.0.

a

A-14

1198 (1982). An evidentiary hearing was held in this action

on April 21, 1982 in Cape Girardeau, Missouri. Petitioner

was not present, but was represented by counsel. Petition-

er’s counsel presented testimony from Ivy, James Pickard,

Deputy Sheriff of New Madrid County, and Louis Alfred

Scott, City Marshal of Risco, Missouri.

FINDINGS OF FACT

1. Walter Ivy has been Sheriff of New Madrid Coun-

ty, Missouri, since 1976. (Tr. 4). New Madrid County has

14,000 registered voters and Ivy would recognize 65-70%

of those persons. (Jd., 26). Ivy has been a resident of the

county since 1940, and has been involved in county law en-

forcement since 1960. (/d., 30-31).

2. The Sheriff’s department employs four full-time

deputies, and also employs some city marshals throughout

the county as part-time deputies. (Jd., 4.) The Sheriff’s

duties include subpoenaing jurors an’ witnesses acting as

bailiff during criminal trials, and delivering civil summons.

(Td., 4.)

8. Ivy also has the special duty of procuring jurors

for special panels for criminal trials. (Jd., 5.) This process

of securing such jurors begins when he receives a special

venire facias order from the circuit court to empanel a

certain number of jurors. (/d.) The Sheriff’s normal pol-

icy as of October 1980 was to utilize an informal selection

process designed to produce a mixed panel, one containing

blacks and women as well as persons residing throughout

the entire county. The other selection criteria are that the

jurors must be: (a) county residents (id., 8); (b) available,

for jury duty (id., 31) ; (c) not prejudiced (id., 15) ; and (d)

‘*npstanding’’ citizens (id. 25). The two most significant

criteria were residency and availability. (Id., 31.) The

Sheriff would contact certain of the deputies or city mar-

A-15

shals by radio and direct each to select a certain number of

persons (sometimes directing the person to select a number

of blacks or women) leaving it to the deputy sheriff or city

marshal to select the specific persons. The deputies de-

termine whether a potential juror is a county resident based

upon their personal knowledge of the individual. (/d., 8.)

Sheriff Ivy gives his deputies no specific instructions as

to the method of selection but once they have obtained

people who satisfy the above criteria, they are to call Sheriff

Ivy and provide him with the names, (/d., 13.) The Sheriff

might veto a ‘articular juror selected by his deputies, if he

believed the individual is a close personal friend of his, or

was unqualified for some other good reason. (Id., 32-33.)

The deputies would not tell prospective jurors the name of

the defendant in the particular case, but normally they

would be aware themselves who the defendant was. (/d., 9.)

4. The New Madrid County Sheriff’s Department ar-

rested petitioner and investigated the attempted robbery

charge for which he was eventually convicted. The investi-

gation was conducted by Deputy Sheriff Ronnie Patterson

and Sheriff Ivy was not involved, except as Patterson’s

supervisor. (Jd., 22-23.) Sheriff Ivy served as bailiff at

petitioner’s trial, which involved opening and closing court

and overseeing the jurors. (/d., 21-22.) Ivy was initially

listed as a witness for the state, but did not testify. Deputy

Patterson testified at trial on behalf of petitioner. (Resp.

Exh. A, 65-71.)

5. At petitioner’s trial held in October 1980, twenty-

six veniremen were summoned from a list drawn up by

the New Madrid County Board of Jury Commissioners

(Resp.Exh. A, 21). Of those, four were absent and four

were stricken for cause. (Resp.Exh. E.) Cousequently, the

Cireuit Court prepared two special venires and delivered

them to Sheriff Ivy on October 27 and 28, 1980. (Resp. Exh.

F and G.) These venires directed Sheriff Ivy to summon «a

A-16

total of thirteen additional persons to complete the jury

panel. These venires did not show the style of the case, only

the case number, but Sheriff Ivy knew who the defendant

was. (/d., 10-11.)

6. To execute the venires Ivy contacted five of his

deputies to secure jurors. He also contacted Louis Scott,

who is not one of his deputies, but who serves as City Mar-

shal of Risco, Missouri, in New Madrid County. (/d., 31.)

Ed Martin, a part-time deputy and the Marshal of Lilbourn,

Missouri, secured three jurors: Howard Tillman, a white

male from Conran, Missouri, Owen Riley, a white male

from Lilbourn, Missouri, and Sam Riley, a black male from

Lilbourn. (/d., 20-21; 26-29.) Joe Moore, a part-time deputy

and the Marshal of Portageville, Missouri, also secured

three jurors: George Young, a black male, Ed Moody, a

white male, and Abbie Coffee, a black female. (/d., 19-20;

27-29.) All three of these individuals were from Pr :tage-

ville. Part-time Deputy Bud Ross, who is also the Marshal

of Morehouse, Missouri, secured two individuals, Bonita

J. Schuchart and Johnny Ward. (/d., 28.) Robert Young,

a full-time deputy and a resident of Howardville, selected

one individual, M.B. Young, a black male from Howard-

ville. (Id., 28.) James Pickard, a full-time deputy residing

in Gideon selected two individuals: Donna Nettles and Cleo

Patillo, both of Gideon. (/d., 16-17.) Louis Alfred Scott,

the city marshal in Risco, Missouri, who is not an emp!oyee

of the Sheriff’s department, selected_t:vo individuals: Ray-

mond Mays, and Virgil Penrod, both of Riseo. (Id., 50-53.)

Sheriff Ivy did not veto any of these selections. (Id., 34.)

Thus, of the thirteen persons selected for the jury pool by

the Sheriff’s deputies three were females. The record shows

the race of only seven of the thirteen individuals; four of

these individuals were black.

7. Sheriff Ivy had a very casual acquaintance with

eight of the special jurors. He was only slightly better ac-

A-17

quainted with the other five: Tillman, Nettles, Mays, Moo-

dy, and Penrod. (Id., 33.) He was not closely acquainted

with any of the special jurors. (Id.)

8. James Pickard has been a deputy sheriff in New

Madrid Connty since 1977 (id., 37). He works out of the

courthouse in Gideon, Missouri, a town of approximately

1,200 people. (Jd., 38.) When Pickard is asked to select

special jurors, he normally selects persons whom he knows

will not be too inconvenienced by serving on a jury, and

who are county residents. (/d., 39.) He normally informs

his selections by telephoning them and asking them if they

can serve on the jury. (Zd.) Pickard was contacted by

Sheriff Ivy and directed to obtain two jurors for petition-

er’s jury pool. He contacted Donna Nettles and Cleo Pa-

tillo by telephone and they agreed to serve as jurors. (Id.,

42-43.) Pickard is acquainted with almost everybody in the

town of Gideon. (/d., 44.)

9. Louis Alfred Scott is the City Marshal in Risco,

Missouri, which is located seventeen miles from New Mad-

rid. (Td., 45.) He has served in that capacity for approxi-

mately fifteen years, and is not an employee of the Sheriff’s

department. When asked to pick bystander jurors he would

normally pick individuals he knew to be ‘‘pretty good cit-

izens.’’ (Id., 47.) Scott was asked to select two individuals

for petitioner’s trial. He located Virgil Penrod at a service

station, and asked him to serve as a juror (Id., 50-51). He

drove to Raymond Mays’ house in Risco and asked him to

be a juror. (7d., 52.) Scott never knew whether particular

people would be available to serve as jurors until he asked

them. (Id., 48.)

10. Of the thirteen individuals summoned by the Sher-

iff’s deputies, one was excused for cause, M. B. Young, and

two were absent on the day of trial, George Young and

Sam Riley. (Resp.Exh. E.) Consequently, of the twenty-

A-18

eight veniremen who appeared for trial, eighteen had been

summoned by the Board of Jury Commissioners and ten

had been summoned by the Sheriff pursuant to the venire

facias orders. (Resp.Exh. A, 21-22; Resp.Exh. E.) Peti-

tioner challenged for cause the ten special jurors who had

been summoned pursuant to the special venires on the

ground that these jurors ‘‘were not selected by the jury

commissioners but were selected by the Sheriff.’’ (Resp.

Exh. A, 19-20.) This challenge was denied by the trial court.

(Id., 20.) Petitioner then moved to quash the jury panel on

the ground that an insufficient number of veniremen had

been summoned by the Board of Jury Commissioners. (Id.,

20-21.) This motion was also denied. Three of the ten per-

sons summoned by the Sheriff eventually served on peti-

tioner’s jury: Nettles, Patillo, and Penrod. (Id., 25-26;

Resp.Exh. E.)

CONCLUSIONS OF LAW

The case which is determinative of petitioner’s un-

constitutional jury selection is Henson v. Wyrick, 634 F.2d

1080 (8th Cir. 1980), cert. denied, 450 U.S. 958 (1981). Hen-

son’s conviction was reversed because of a defective se-

lection process for bystander jurors under §494.250(2)

RSMo, 1969. The Butler County, Missouri, sheriff who .

1That statute provides, in pertinent part:

A-19

selected the jurors for Henson’s trial admitted that he

handpicked all the bystander jurors from among his ac-

quaintances:

In an evidentiary proceeding before the magistrate,

the Sheriff testified that to select bystander jurors he

would go through the phone book or a list prepared

by his office and, knowing the people in the county,

select ‘‘regular citizens fand] high standard people

to be jurors. The Sheriff admitted that he would some-

times select jurors without relying on the phone book

by calling people he thought would be available. Other

times the Sheriff would select bystander jurors from

local banks or businesses. The Sheriff generally knew

all the people he called. He made a conscience effort

to select ‘‘solid citizens’’ and persons whom jury serv-

ice would not inconvenience, e.g., retired persons or,

in the winter, farmers. The Sheriff’s office deputy

who aided in the selection of bystander jurors, stated:

‘We would serve no one that we didn’t think would be

reliable, dependable person to be a good juror.’’

The Sheriff testified that he was not personally in-

volved in the investigation of the crime for which

Henson was convicted. The deputy sheriff who was pri-

marily responsible for the investigation of the defend-

ant’s crime testified that he was not involved in se-

lecting jurors or bystander jurors, serving subpoenaes

on jurors, or compiling a list of bystander jurors. The

Sheriff selected fourteen of his acquaintances to com-

plete the venire panel for Henson’s trial. Seven of the

twelve petit jurors came from the Sheriff’s hand-

* picked list.

Id., at 1081. The Court concluded that the constitutional

defect in Henson’s jury was that the Sheriff had hand-

picked his acquaintances to complete the venire panel. /d.,

A-20

1084. It was further noted that although a trial court could

allow some discretion in the selection of jurors, the Sheriff

could not exercise his discretion to insure that only his ac-

quaintances would fill venire panel vacancies. Id. In reach-

ing its final conclusion the Court in Henson quoted the

United States Supreme Court’s description of the potential

dangers of a discretionary juror selection process such as

that allowed by 6494.250(2) :

and, its [the duty of selecting jurors] exercise must

always accord with the fact that the proper functioning

of the jury system, and, indeed, our democracy itself,

requires that the jury be a ‘‘body truly representative

of the community,’’ and not the organ of any special

group or class. If that requirement is observed, the

officials charged with choosing federal jurors may

exercise some discretion to the end that competent

jurors may be called. But they must not allow the de-

sire for competent jurors to lead them into selections

which do not comport with the concept of the jury as

a cross-section of the community. (Emphasis added.)

Id., at 1043, quoting Glasser v. United States, 315 U.S. 60,

85-86 (1942). Most recently the Supreme Court has affirmed

that its primary concern is that jury selection processes

will produce jury pools which reflect a fair cross-section of

the community. See Duren v. Missouri, 439 U.S. 357, 358-

59 (1979) ; Taylor v. Louisiana, 419 U.S. 522 (1975).

The instant case is distinguishable from Henson, and

the process employed to select petitioner Thompson’s ve-

nire jury panel was not constitutionally offensive.

First, Sheriff Ivy actually played a very passive role

in the selection process. Rather than doing any of the se-

lection himself he delegated it entirely to his deputies and

to one city marshal. It is clear that the Sheriff’s deputies

handpicked the bystander jurors from among their ac-

A-21

quaintances, but this was done as an expeditious method

to facilitate the two primary criteria for bystander jurors:

‘ (1) residency, and (2) availability.2 As the testimony at

the evidentiary hearing indicated, because of the small size

of New Madrid County, even a totally random selection

process would have likely resulted in a jury panel com-

prised almost entirely of acquaintances of the Sheriff and

his various deputies.

Another factor distinguishing this case from Henson

is that Sheriff Ivy placed some limitations on the discre-

tion of his subordinates in selecting bystander jurors. Sher-

iff Ivy’s selection procedure was calculated to obtain citi-

zens constituting a geographical, racial, and gender-based

cross-section of New Madrid County. He gave specific in-

structions to various deputies to select only persons of a

particular race or sex. In fact, of the thirteen bystanders

chosen by the Sheriff’s department, four were black and

three were female. Moreover, the selection process was

delegated among six individuals covering different por-

tions of the county to insure a geographical cross-section of

New Madrid County residents.

Finally, unlike the circumstances in Henson, no one

from the Sheriff’s department testified for the prosecution

at petitioner Anderson’s trial. In fact, Ronnie Patterson,

the deputy who investigated the crime, testified for the

defense. (Resp.Exh. A, 65-71.) Consequently, the potential

for the jury to associate the credibility of the Sheriff’s De-

A-22

partment with a prosecution witness was not a factor in the

instant case.

It is the conclusion of the undersigned that the selec-

tion process employed in this case was not tainted by the

same flaws found in Henson. Although Sheriff Ivy clearly

employed some discretion in selecting jurors to complete

the panel, he did not utilize his discretion to insure that all

the bystander jurors were selected from among his own

acquaintances. Furthermore, the process utilized was cal-

culated to obtain a group representative of the community

and constituting a fair cross-section of that community.

Under these circumstances, it cannot be said that peti-

tioner’s Sixth and Fourteenth Amendment rights have

been violated. Consequently, petitioner’s claim of uncon-

stitutional jury selection is without merit.

RECOMMENDATION

For the reasons set out above, it is the recommendation

of the undersigned United States Magistrate that the pe-

tition of Victor Paul Anderson for a federal writ of habeas

corpus be dismissed. The parties are advised that they have

ten days within which to file written objections to this

Report and Recommendation.

Respectfully submitted,

David D. Noce

UNITED STATES MAGISTRATE

Dated this 9th day of August, 1982.