ARKANSAS' DEATH QUALIFIED JURIES - ILLEGAL VOTER BIAS - Government - http://maxpages.com/darkevilworld/Death_Qualified_Juries_Part

ILLEGAL VOTER BIAS

It is my opinion that had any of the courts around the country, or in Arkansas, ever been compelled to factor this element of "voter bias" into challenges to death qualification of jurors, and into challenges to limiting jurors to voter-registered people, the outcomes of those rulings would undoubtedly have been different - especially if BOTH the issue of death qualification and voter-registration were raised concurrently in a capital murder prosecution, and where both the greatly increased body of evidence of "conviction proneness" and the elimination of a "distinct group" of the population could also be shown concurrently, and where the inherent VOTER BIAS of most of the juries in this state would be put in issue as qualifying both death qualification and voter-registration. So, although when viewed independently "death qualified" juries are currently still considered constitutional; and juror pools limited to registered voters are still constitutional - it becomes an entirely different ball game when challenge is also made to the fact that those jurors likely elected both the prosecutor and the judge trying the case before them. A staggering number of serious constitutional issues are then injected to the case that are not present if either death-qualification or voter-registration limited issues are raised exclusively or independently.

In late 1979, an Arkansas prisoner named Griggs again asserted in state and then federal court that "death qualified" juries were unconstitutional because they were conviction prone, thereby denying him a trial by a fair and impartial jury; and that limiting jurors to voter registered persons was unconstitutional because it had eliminated a "distinctive group" of the population in the trial district, thereby depriving him of a trial by a fair cross section of his peers.

Griggs' actual case presented some serious and clear factual bases for making these claims, so the federal court was persuaded that both issues should be reconsidered.

In 1982, another fellow prisoner of mine, named Aria McCree, who today remains a worker at the Cummins Unit Chapel likewise raised a challenge to the voter-registration and death qualified nature of his jury. His case, McCree v. Housewright, 689 F.2d 797 1982), was then consolidated with Griggs' case - and they jointly proceeded forward until, in 1985, a sharply divided 8th Circuit Court of Appeals ruled that the defendants' right had indeed been violated as there was convincing evidence that death qualified juries are conviction prone. Griggs v Mabry, 569 F. Supp. 1273 (1983); aff'd, Griggs v. Mabry, 758 F.2d 226 (1985) (en banc).

However, before that decision had actually come, I had recognized the anomalous and highly implicating fact that Arkansas voters-and-jurors-to-be also elected judges and prosecutors to office. To me, what common sense indicated, would ultimately also be proven to be the case: that rural Arkansas jurors often have an inherent "voter bias" in favor of the court and state, and this makes them conviction prone not only in capital cases, but in all cases - simply because the adversarial process is skewed in favor of people toward whom the jurors have an innate bias, and who at law have the constitutional burden of proof or the duty to remain neutral.

In fact, I had discovered another element "loading the dice" still further against defendant in trial where the judge, the prosecutor, the police testifying for the state, and the jurors were all "home boys." I learned that many local prosecutors also actually"poll" or interview select jurors after the trial is over, in order to learn which of them manifested signs of being reluctant to have accepted the state's version of the case without question during deliberations. So, over time, local prosecutors had "the dirt" on the most of the jurors in their trial districts that were likely to critically evaluate the evidence and fully hold the state to its burden of proof. This would then allow the prosecutors to eliminate truly conscientious jurors from the next jury through peremptory strikes. Indeed, often pro-state and pro-prosecution (i.e. conviction biased)citizens voluntarily report "liberal bleeding heart jurors" to the prosecutor - and willingly give a blow-by-blow of how certain jurors acted in the deliberation room. The smaller the town or more sparsely populated the trial district, the greater the likelihood of the prosecutor intimately knowing such "tendencies" or biases in potential jurors.

After I was convinced that my discoveries regarding "voter bias" were correct and should seriously impact the historical rulings both as to death qualification and voter-registration, I informed Ardia of what I had learned and urged him to immediately convey the research to his attorneys. I was not able to fully support the legal position with as much authority as I would have liked because the prison's law library was woefully deficient, and the rules and regulations of the ADC otherwise obstructed my access to legal resources. However, since the issue was novel in ways and was simply the product of common sense and reasoning, the authorities to which I did cite were ample.

Ardia was reluctant to convey the information to his attorneys, because he realized that if the theory proved correct, his case might get remanded for full development of the issues, and that could translate to another two to several years of confinement for him before an ultimate decision would be reached. Also, his attorneys has persuaded him that they would likely win in the federal district court, and the 8th Circuit Court of Appeals - mainly because research has amassed such a convincing body of evidence demonstrating "conviction proneness" of death qualified jurors.

After several conversations, and after pointing out that it might make the difference between life and death for most of the men on death row in Arkansas, as well maintain the continued unconstitutional conviction of a few hundred men who had been convicted by conviction-prone juries, he did agree to ask his attorneys to raise the issues. I also pointed out all the reasons why I felt the case would ultimately lose if the "voter bias" issues were not also raised, and that this meant that his fear of perhaps remaining confined longer while the new issues were factually developed if the case was remanded for that purpose, would ultimately be traded against maybe having to serve the remainder of his life if the United States Supreme Court did overrule the lower courts who might rule in his favor.

McCree contacted his attorneys and gave them the synopsis of the issues I had prepared. However, I neither heard from them, and it appears that they did persuade McCree not to press asking them to raise the new issues because they felt sure they would win "all the way." My further appeals were to no avail.

I personally felt that the United States Supreme Court would overrule the lower courts if they did in fact rule in favor of Griggs/McCree because that court had established a clear track record of "resisting" the assignment of judicially "convincing" weight to this kind of research upon which to shape national judicial policy. I felt that despite the overwhelming scientific evidence demonstrating that death qualified jurors were in fact conviction prone, the High Court would nevertheless rule that death qualifying jurors was not unconstitutional, because the evidence would be deemed as not "compelling" or "persuasive" enough to make that demonstration, and that the public's (state's)Interest in eliminating jurors who opposed capital punishment outweighed the evidence of conviction proneness.

The High Court was also not about to overturn the convictions of well over 1,000 capital murderers on death rows all around the country by that time, nor jeopardize or complicate future prosecutions in which a juror who was not permitted to be "death qualified" (and who privately oppose capital punishment) might "hang" juries that otherwise would sentence the defendants to death.

Most important of all, since the central issue to death qualification of jurors was conviction proneness, several thousand more convictions would have been placed in jeopardy all around the country - cases in which the jurors were death qualified, but then did not impose a death sentence. A convincing argument could have been made to the effect that because those jurors had NOT imposed a capital sentence, and because the jury was conviction prone in the first place, the jurors obviously had some "problem" with the evidence in the case and gave the defendant the benefit of the doubt at least in terms of the penalty. If the dice had not been loaded to create a conviction prone jury, however, another and more fair jury might well have acquitted outright.

Also, the Supreme Court had likewise established a clear track record that it would not make controversial or apple cart overturning rulings if a MAJORITY of the states were doing what would be overruled. In this case, virtually all states were death qualifying jurors, although only a handful still limited voter eligibility exclusively to voter registration.

The prime example of the Court's reluctance to make rulings that unsettle a majority of the states - no matter how right it would be to do it - to me was made crystal clear by the fact that in the late 1950s and early 60s, the Supreme Court unequivocally ruled that defendants who could not afford to hire an attorney were not entitled to one at state expense, and that denying counsel to indigent defendants did not violate the Constitution. (In part because the 6th Amendment was said not to apply to the several states, only to federal jurisdictions). At the time these ruling were made, two third of the states provided no counsel to indigents, while about one third of the states did, voluntarily, provide attorneys to those who had no money to hire one. The U.S. Supreme Court was simply NOT going to make a ruling that would jeopardize tens of thousands of convictions in 35 or so states, in favor of implementing what 15 or so other states were doing voluntarily (and what was right!). However, over a brief TWO YEAR period, the American Bar Association, Lawyers' guilds, Professors of Law at major universities, and civic groups of every description were so outraged by this self-evidently wrong decision that many states immediately also began to provide counsel to indigent defendants. In fact, the ratio of those that did to those that did not almost exactly flip-flopped 35 to 15.

Ah, and now the Supreme Court would rule in favors of what was right and just - simply because only 15 states would be adversely effected now! So, the case of Gideon v. Wainwright, 372 U.S. 335 (1963) was decided, requiring representation by counsel in all criminal trials, including those of indigents. All convictions obtained without counsel to that date were declared unconstitutional as well, and several thousand illegally convicted defendants were released from prison - mostly in southern states.

To me, this right to an attorney flip-flop of the highest court in the land was the writing on the wall for the overruling of Ardia McCree's case as well.

Although McCree's belated raising of the issues that his jury was also conviction prone due to "voter bias" (and the several attendant issues) may in part have been in procedural difficulty had he tried to raise it to the 8th Circuit Court of Appeals or the United States Supreme Court at such a late date, given the gravity and national importance of the new issues being visited for the first time by the highest court, a remand for further development of the new grounds was likely, particularly since some of them satisfied the "novelty" qualifier in the procedural bar contexts. Also, the federal standard for the 8th Circuit regarding successive petitions or procedural bar questionswas one of "deliberate bypass", Fay v. Noia 372 U.S. 391 (1963). McCree could never have been found to have deliberately bypassed the issue that no other attorneys in the country had perceived.

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