Dan Witcher v. C. C. Peyton, Superintendent of the Virginia State Penitentiary

Appellant, WITCHER, Dan the Vir PEYTON, Superintendent of

C. C. Penitentiary, Appellee. ginia State

No. 12025. Appeals Court

United States Circuit. Fourth

Argued March 1968. Jan.

Decided Danville, Harvey, Va., Ruth L. and S. Tucker, Richmond, (Hill,

W. Va. Tucker Marsh, Va., Williams, & L. Richmond, J. Va., Greenberg Danville, Jack and James Nabrit, III, City, M. York New brief), appellant. Pollard, Atty. P. Overton Asst. Gen. Virginia (Robert Atty. Button, Y. Virginia III, Harp, and Reno S. Gen. Atty.

Asst. Gen.

brief), appellee. CRAVEN, Before Circuit BRYAN MacKENZIE,

Judges, District Judge. exception desig- Judge: without followed

CRAVEN, Circuit summoning order nation “Col.” The January con 1963 Dan Witcher In grand jury which indicted the defendant in the Circuit Court victed one men, named seven ignated of whom des- Virginia, Pittsylvania County, in on an Logan (Col.) (Dan “David Riv- attempted rape charging and dictment District).” er years term of to a was sentenced having day, the sentence also one petit jury lists, compiled by The five jury.1 imposed by the After unsuccess appointed by commissioners the cir corpus fully applying relief for habeas judge, exception cuit also without con federal in state courts in tained the “Col.” when Ne sought in court, relief Witcher district groes were chosen. The 1962-63 Peyton, court, where, Witcher v. in list, jurors from which the defendant’s (4th 1967), Cir. we held F.2d selected, consisted of a total of pleadings facie that his stated a persons eight roughly of which exclusion of of unlawful members case percent, Negroes.3 the course of petit jury grand his from race during the six terms of court held the dismissal service. We reversed year, no more than three petition and remanded to the district his pool ever drawn from peti instructions to afford court with facias, desig writ of venire and all were prove opportunity to his claim. tioner nated as on writ which sum denied, again hearing, Upon a relief was persons moned them. Of the 35 drawn being opinion court the district only for the defendant’s trial three were purposeful dis “no deliberate were also labeled “Col.” crimination has been established in None of the three in named the writ petitioner’s at served on the convicted again on trial.” The is before us case sentenced the defendant. appeal from this decision. Pittsylvania County Judge The Circuit The are that uncontested facts compiling grand testified that total adult jury pool selecting grand ju- and in 8,604, roughly 31,439, one- rors to be summoned no racial discrimi- quarter, Of the non-white. but, rather, practiced, nation was January juries impaneled from 1957 choosing he was motivated a desire to through September 1962, ten at least “people find Iwho think are * * * white, and were all none of other 27 grand jurors men Negro. The included more than one good grand jurors who would be above names of the chosen each average intelligence.” judge The compiled by lists practice testified that it was his to select county judge each circuit and on of the potential grand jurors among per- from writs venire facias issued him were sons he was “I familiar with: don’t want power impose 1. In sen- ployed compiling the 1962-63 felony all tences misdemeanor jury list, probability the mathematical jury. oases resides Va.Code Ann. including only percent eight this list non (1960). 18.1-9, 19.1-291, §§ 19.1-292 Similarly, white .0000098. had 2. The district neither found facts random method been used in the selection juries separate Pittsylvania County, nor of law. made conclusions Sain, probability single grand jury Townsend aof including 9 L.Ed.2d record one non-white .28. entirely apparently Finkelstein, Application is not he clear of Statistical simply implication, adopted, Theory Jury at Decision Discrimina findings Cases, (1966), tion of the state conclusions Harv.L.Rev. court, partly upon turn, which in rest Cf. Whitus v. stipulations. n. 17 L.Ed.2d 599 analysis suggests had a Statistical random been em method of selection group represents a cross-section just ran- put somebody at there community. And cross-section Jury W. H. Wil- Commissioners dom.” community includes with George T. son, III, Cocke, Gordon N. varying degrees training and intelli Hardy J. Farthing, and Herbert M. L. gence varying and with economic and so substance, Hutcherson, testified positions. Constitution, cial Under our jury did compiling lists in the jury representa is not to be made practice not racial intelligent, tive of the most the most guided by find desire the best to a wealthy successful, nor or most of They that qualified people. testified also intelligent, wealthy, the least primarily from made selections were a the least successful. It is democratic per- among to them known individuals representative quali institution, of all Wilson, III, sonally. that testified W. H. people.” fied of classes you “because he did select at random not get qualified those who not to serve Although face, innocuous its jury duty.” that Wilson also testified judge jury purpose of both commis- “you according color, people to in list the only to include “the sioners best to that order not discriminate put people” their to disinclination race, (Negro) I so that is what did.” inevitably on at random meant weight- heavily that venires would be performing duties, their people ed favor of white jury the instruc commissioners followed qualified Negroes. It the inclusion of judge. approach tions His of state surprise anyone not that an all- theirs, became as indicated the testi guided jury by commission a white white high mony recited a hereinabove. Such high judge unlikely would be to find as a ly subjective approach selective is at war Negro community proportion to by idea trial with the that among qualified” as found white “best American States means trial simple people. truth human It is a of composed of a fair “cross-section usually find “best” we nature that community.” See, g., Allen, e. Brown v. including, image, people un- our own 344 U.S. 97 L.Ed. 73 S.Ct. fortunately, pigmentation. But own our (1953); Texas, Smith 311 U.S. danger simply subjective. not As is 128, 130, 85 L.Ed. 84 society matter, practical that in a (1940); Bennett, Labat v. 365 F.2d socially, segregated, largely at least still (5th State, 1966); 719-720 Cir. Allen v. people obviously do true that white it is Ga.App. 56, 62, 137 S.E.2d acquaintance generally have the wide not (1964); Koritz, State v. 227 N.C. among among Negroes have that (1947); S.E.2d also, see Com people. either failure of white A other Jury ment, Challenges, Capital Punish fully judge to the commissioners Bennett; ment, and Labat v. A Recon eligi- acquaint all those themselves with ciliation, 1968 Duke L.J. 283. Mr. Jus effectively duty just ble can Murphy tice stated what has become the would racial discrimination result principle” Fay “cross-section v. New invidious selec- deliberate conscious and York, 261, 299-300, meaning Indeed, within tion. 1613, 1633, Clause, (1947) (Mur L.Ed. failure such a Equal Protection phy, J., equated dissenting): deliberate with has is a con “[T]here Tex- Hill v. purposeful discrimination. right stitutional to a drawn from a interesting Although to of constitutional note Con- not serviee. Congress gress dimension, States has in the the action United Jury undergirds individual Selection notion and Service Act protection “key system to full abandoned the man” favor receive does key a trial random selection. so-called is entitled which he system wanting cross- fair man' found consists unless Congress community. tendency its 28 U.S.C. because of inherent section of only people to call No. 90-274. the “best” Pub.L. § influencing 400, 404, may

as, 316 motives such tendencies S.Ct. 86 L.Ed. 1559 be of best must not us blind to dangers allowing any encroachment purpose Achievement stated right. whatsoever on this essential judge and the commissioners Steps innocently by one taken get only qualified people” the “best impairment lead the irretrieveable not aided the existence of ob- substantial liberties.” Glasser v. United jective might standard that have been 457, 472, States, 315 readily applied. giv- direction 86 L.Ed. 680 legislature en regard is that he from the select citizens do reach and need not We county “persons years age of each given situ now decide whether fact intelligence upwards, honesty, “key system jury ation such a man” good demeanor and suitable all re- may foreign selection itself be so * * spects grand jurors by jury basic idea of un trial to be qualities judge. These are hard to See, Comment, Jury constitutional. applied by jury standards commis- Challenges, Capital Punishment, La and were, according sioners to the oath sub- Reconciliation, A 1968 bat v. Bennett: by them, scribed no more definite: “We 283, enough Duke L.J. 299-303. It is persons will none select whom we be- presently protestations hold that the good repute intelligence lieve to be judge jury both and commissioners that honesty.” and Standards such as these they intentionally purpose did and guidance afford but little consci- fully discriminate is not the end of the judge jury entious commissioner. necessary matter. It is not to a success may It is not unnatural that each be left upon jury proce ful attack selection feeling discharged with the that he has petitioner dure that obtain admission duty subjectively his he when select- has jury from the commissioners ed the “best folks” known to him. discriminated, have v. Swain jurors “must al Selection Alabama, 202, 227, 824, 380 U.S. 85 S.Ct. ways prop accord with the fact that (1965). L.Ed.2d 759 functioning jury and, system, er presents practic case both indeed, democracy requires itself, our constituting es condemned as unlawful jury ‘body truly representa that the be a exclusion from service Whitus v. community,’ organ tive of the and not Georgia, 385 U.S. S.Ct. any special group or class. If that re (1967). Substantially L.Ed.2d 599 dis quirement observed, the officials proportionate representation de charged choosing jurors with federal grand fendant’s race existed on both the may exercise some discretion to the end jury which indicted him and on the ve jurors competent be called. nire from which his trial was select But must not allow the desire for Disproportionate representation ed. recurrent, systematic competent jurors lead them into selec relatively uni comport tions which do not with the con degree. form in The limitation cept as a cross-section of the Negroes permitted number of to serve community. Tendencies, no matter how grand jury on the to one meant slight, jurors by toward the selection of always true bill could be returned with process method other than a out the Negro.5 affirmative of a vote representative will insure trial Similarly, Negro representation group undermining processes on the weak ening petit jury jury trial, greater the institution of venire was never than sturdily should be resisted. That that which peremp- could removed * * * 5. “A shall consist of finding must concur making less than five nor more than seven presentment.” an indictment persons.” Ann. Va.Code § 19.1-150 Va.Code Ann. § 19.1-157. * * * “At four of a (1967); Georgia, of both Jones v. U.S. challenge.6 tory petit (1967); ve 19 L.Ed.2d 25 Cole- Alabama, v. man 2, U.S. 88 S.Ct. nire, opportunity “the Georgia, (1967); L.Ed.2d Bostick v. v. present.” Whitus Carolina, 643, 647, L.Ed. South 552, 87 S.Ct. (1967); 18 L.Ed.2d 223 Whitus v. In both instances 2d 599 supra. Georgia, actually chosen What said were persons summoned segregated Georgia, supra, v. Whitus 385 U.S. at on a maintained records from applicable: included, the 87 S.Ct. at “The basis — where explanation grand State offered for the appeared no dis- “Col.” parity percentage between the of Ne- the lists from lists and on groes digest on the tax and those were summoned. veniremen venires, although digest must have Similarly Avery large (1953), included the names of numbers 97 L.Ed. ‘upright intelligent’ Negroes jurors prospective the names of statutory qualification required.” placed yellow That printed tickets gen- the venires were selected from the jury box, of white names while digests eral than printed tickets. rather tax on white consequence. is a difference if no “Even that: The Court stated yellow drawn tickets were white juries recognition “In the selection of discrimina without from tion, box given elig- must be to the fact that those opportunity resort was available ible for service are to be in found proc stages selection to it at other every society. Jury compe- stratum of 562, And S.Ct. at 893. Id. at ess.” 73 tence is an rather than a individual of no direct evidence it matters not that group or class matter. That fact lies at jury selec purposeful discrimination very jury system. heart of the To by brought the defendant forth tion was disregard open it the door to class prima proof facie established a —his distinctions and discriminations which it be limitation and thus of racial case are abhorrent to the democratic ideals upon demon the state to incumbent came by jury.” Am.Jur., Jury of trial § by caused limitation that the strate at 84-85. pro equal practice a not forbidden may This does not mean that State fourteenth amend tection clause of not in the future establish that such Alabama, U.S. v. ment. Coleman disparity the result of discrimina (1967). L.Ed.2d S.Ct. true, could, It tion. if show that ex racial no less than “Racial limitation divergence race number of ve juries is an of in the formation clusion niremen is due equal protection to the difference num evil condemned Texas, ber, county, persons v. within the Akins of clause.” of each qualified L.Ed. 1692 race jurors who are S.Ct. dissenting); J., (1945) Goins —that (Murphy, the ratio of two races in the 1968). (5th Allgood, county population Cir. total 391 F.2d is not indicative qualified of the ratio there of white and intentional the denials of hold that We Negro persons. adoption The later of a responsi- by the officials discrimination comprehensive gathering method of for ble drawing of prospective the names of County the defendant’s to rebut fail petit jurors Georgia, would prima also be rele facie Sims v. case. proof. 634 vant 19 L.Ed.2d felony four, every of remaining be accused “In there shall case summoned, persons twelve shall selected from constitute for persons, twenty panel trial of aforesaid, of accused.” Va.Code Ann. panel exception, § from which 19.1-207 free from strike four the Commonwealth present Second, prima At the sources of the that a case of facie eligible for names of service discrimination was made manifest provide jury pool are too limited to opposite the indication “COL” names fairly representative commensurate chosen for service. county the number of each race These claims asserted both jurors. to act as grand jury is the petit jury, the State point sole on which decision our rests. which in the indictment functioned explanation The of the state Petitioner conviction of at- Witcher county jury the five commissioners must tempted rape and for he was objectively, is, be considered with thirty-five years. sentenced to imputation any personal out intent sketchy very would in- evidence judged exclusively to discriminate but on dicate total 25% they employed the methods and the ac Pittsylvania County, Virginia, explanation tual results. The does not member- suffice facts of this case to meet ship indicted showing the state’s burden of that, even (one Witcher on a 15% unintentionally, unconstitutional dis seven). theOn venire of practiced. crimination was not Sims v. 33 at trial Witcher’s criminal at- rape, tempted 8(4% were L.Ed.2d 634 argued (three). disparity It is that the The conclusion we reach is limited now Negroes serving between the number of county. facts in this case juries suspect when reflected is not intended declaration Negro population the total invalidity composition ju- makes out a facie case ries elsewhere in other circumstances. selection of these juries. agree I do that this is true. corpus sought by writ habeas petitioner granted Virginia, by In not at- statutes here district court and conviction his set aside. invalid, qualifications ex- tacked as require Nevertheless its order should not emptions for service petitioner the to released from the be juries (Code been established. of have custody respondent, of unless Virginia seq.; of et Section 8-174 or state fails declines to reindict him 19.1-150). 19.1-148; Percentages, days receipt within 90 from the date of therefore, race, serving, to be those respondent the order evidence, prima even facie must valid as court, or district fails or declines there- against relate to the be measured retry to after him with reasonable qualifying service under number for promptness. against valid and not statutes population. total to evidence as Judge MacKENZIE, (dissent- qualified jurors, or District number of White Negro Pittsylvania ing) County, has not : presented to been this Court. agree to that I unable Witcher’s am allegations support of his is the number of the or habeas What White Negro County proved. population corpus who have been writ age? years and under over 21 by petitioner. are made Two claims Negro is the female What White prima, First, jurors population only evidence of that can serve as who facie agree? many to be found discrimination was if have How disparity Virginia percentile in the ratio of residents of State of for jurors jurors year Pittsylvania County White when measured for and of to Negro popu- many, to total White six months ? How White County, Negro, standard of lation in meet minimum relates, competence (which certainly at in 1963. Negroes required all be literacy), that could not least, Stat- as challenges peremptory exempt many under the eliminated ute ? How support. exemptions finds no constitutional In 1963 forth in set more Virginia normal in a criminal venire ? Statute twenty and the number of was petitioner, in example, for counsel For eight. challenges peremptory No- average argument, that asserts oral panel authority I find that the Negroes. where do Pittsylvania County in adult nine should have included grade education. a fourth 1963 had disagree- alarming Assuming Pittsylvania County, inas true, average that it follows to be able many Virginia communities, the other Negro popu- portion of the a considerable Negroes practice persisted designating grade edu- a fourth than had less lation on the as “COL”. rolls all. perforce, at no education cation grand jury In the instant case requisite such, Education, by Judge Langhorne Jones, was chosen Virginia Statutes service but for Virginia (Code Statute 175) (8-174, juror qualifications 19.1-148) required, judgment, in his very minimum, must, construed be respects”. in all Since the “suitable statistic, literacy. require which This judge himself assembled list of system, not the indict the school names from system, further limit here to serves he chosen and since com- chose final group from the may thereof, desig- position fact chosen. be appeared nation “COL” name inquiry prima proper to raise Logan, any prima David fails raise my reflect case, judgment, is to facie presumption of facie for chosen the number perceive. hardly I ar- can could the number service Judge gued trying to Jones was eligible qualified and service Judge influence testified himself. Jones Negro in- not the total number of no discrimination was intended and County. question habitants that, contrary, by the hand evidence on not answered employed to that discrimination indicate pure percentile on a practiced circuit and that was persons his fails, approach facie even as a both races matter, statutory qualifica- because list and were selected service. popu- attacked—rule out total tions—not Negroes So, too, the the on names responsive arithmetical item. as lation a designated jury “COL” master roll were any- authority I find no credible And prepared after on the venire list where, statutory otherwise, support to or drawing designated “COL”. the were grand petitioner’s the the contention that peculiar But the use of “COL” jury composed to make should be as so not facts this case do raise necessary at the affirmative vote of presumption Unlike of discrimination. Negro to return indictment. an least Carolina, Bostick v. South Virginia (19.1-157) requires Statute (1967); 87 S.Ct. 18 L.Ed.2d agree. grand jury to of a four members 439, Whitus S.C. 145 S.E.2d requisite petitioner’s at meet To U.S. 87 S.Ct. Negro one affirmative on least vote placed (1967), the names 17 L.Ed.2d Witcher, mem- four indict to jury roll the Commissioners grand jury which man bers of seven County, were to have had be him would indicted constitutionally con from not taken Negro a would race. Such (in segregated Bostick demned list — Negro. “registered elector male from 55% were taken severely lists”, petit limited Likewise, argument which that the seg racially listings from proportion thereon and jury panel not did have such Whitus, lists; registration (1967), regated L.Ed.2d 599 Georgia statute, jury list, by taken from was the attack is digest list”). grand racially segregated requiring “tax statute digest case, however, petit the selection tax list from a the instant In list, illegal had al- the federal courts not from an was tainted designation ready purpose “COL” added as be- was condemned for such Commissioners, segregated ing racially own from their list. involved, knowledge not Bostick v. South This like case is affirmatively to of caution an abundance Carolina, Judge followed Jones’ had that show (1967), 22, 145 S.C. 18 L.Ed.2d that discrimination admonition lists where S.E.2d designa They practiced. added the to be registra segregated racially from drawn Negro names were that tion to indicate tion lists. fur The evidence the roll. indeed on Texas, it every is Hill v. from the Nor taken name ther (1942), immediately 86 L.Ed. listed box was locked years before for at sixteen list unless to where on the intended venire no Clerk, defendant was indicted knowledge had the selectee designation on Dallas to serve ever called “COL” had Even if the died. jury. County, might presumption Texas under some raise a circumstances, presumption is over such figures pre- short, percentage explanations case under the come Negroes the ratio of to sented show 90-274, Indeed, Law made. Public have been worked service listed “Jury and Service Selection known Pittsyl- population of the total 1869(h) suggests 1968”, Act of § taking County, into ac- without vania form, jury qualification used to be many qualifications count federally promul conjunction with this Stat- demanded a valid State service request, gated legislation, attacked, statute here and which ute not * * * poten require, of a race citizenry, materially White limits sought juror. information tial jurors. Negro, eligible Such showing particular for the reason of therefore, percentages, are of no fact, jury is, non-dis “at random” Moreover, has State facie value. criminatory provide to the statistics proof in the uncontra- met its burden prove point. race in Thus where Judge testimony Jones dicted considered is not formation or “COL” pre- lists were Commissioners jury proce discriminatory under law, proper according pared from the United dures in force in courts of thereon, no sources, listed States, in a it should not be condemned practiced intended or where, jury procedure court state made “COL” explanation here, same reasonable objectively no discrim- show effort its value is at hand. included ination. panel not like the first case of This case is He was con- with Witcher. involved Balkcom, Whitus v. crime, that con- a heinous victed 803, which, remand, L.Ed.2d appellate subjected to has been viction found of Mitchell 45% upset and procedure. Negro, of the males 42% offering upon released Witcher Negro, and no over 21 were per- expressed in improper arithmetic as had ever served inappropriate centages upon calculated juries. case is not the second inputs. Whitus v.

Case Details

Case Name: Dan Witcher v. C. C. Peyton, Superintendent of the Virginia State Penitentiary

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jan 10, 1969

Citation: 405 F.2d 725

Docket Number: 12025

Court Abbreviation: 4th Cir.