February 3, 1975. Rehearing and Rehearing En Banc Denied April 2, 1975.
Howard A. Mandell, Charles S. Conley, Montgomery, Ala., for petitioner-appellant.
William J. Baxley, Atty. Gen., David W. Clark, Asst. Atty. Gen., Montgomery, Ala., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Alabama.
Before BELL, AINSWORTH and RONEY, Circuit Judges.
Drewey Aaron, a black man, was convicted in 1960 in an Alabama state court for the forcible rape of a white woman. His petition for a writ of habeas corpus herein alleges that he was charged and convicted by grand and petit juries which were unconstitutionally selected, and that he was denied a public trial. District Judge Frank Johnson denied Aaron's application, finding that the failure to assert these issues in the state trial proceedings was a deliberate bypass of state remedies which precluded raising such issues by way of collateral attack. We affirm the denial of the writ for basically the same reasons set forth in Judge Johnson's well-reasoned opinion appended hereto. However, we add some additional comments on each issue.
I. Waiver of right to challenge the composition of grand and petit juries.
In the deposition of Aaron's trial attorney, Solomon S. Seay, he stated that he knew that Alabama law at the time required a challenge to the composition of the jury roll, and that he recognized that failure to enter such a challenge constituted a waiver of that right. Moreover, he stated that the possibility of making such a challenge was discussed with his co-counsel, J. L. Chestnut, Jr., before a decision not to contest the jury composition was made. Seay Deposition at 14-15. While this would seem to be an "intentional relinquishment or abandonment of a known right or privilege" in the classic sense, Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), appellant contends that no genuine waiver of the right to challenge the jury composition occurred. This assertion is based on a series of cases from this circuit which have found exceptional circumstances justifying failure to challenge jury composition where challenges of racial discrimination in jury selection might engender hostility to the defendants or create community hostility toward white attorneys such as would jeopardize their professional standing. See United States ex rel. Goldsby v. Harpole, 5 Cir., 1959, 263 F.2d 71, 82, cert. denied, 361 U.S. 850, 80 S.Ct. 109, 4 L.Ed.2d 89; Whitus v. Balkcom, 5 Cir., 1964, 333 F.2d 496, 498-499, cert. denied, 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343; Winters v. Cook, 5 Cir., 1973, 489 F.2d 174 (en banc); Wells v. Wainwright, 5 Cir., 1973, 488 F.2d 522, 525. District Judge Johnson, however, specifically found that Aaron's attorneys were not faced with a "grisly choice" that would trigger application of the Whitus exception to the deliberate bypass rule. In support of that conclusion, we add the following:
1. The dictum in Goldsby that white attorneys in the Deep South often sacrificed their black clients' rights to be tried by a constitutionally selected jury out of fear of community opprobrium or social ostracism has been discredited by the en banc decision in Winters. See 489 F.2d at 178-179. But the assumption, even if viable, would have no validity in this case as Aaron's retained attorneys were black, and not likely to be scorned in their community for doing all possible to insure a fair trial for a fellow black.
2. Attorney Seay stated one of the reasons the jury selection procedure was not challenged was because the Circuit Judges in Montgomery County were members of the county's Jury Supervisors, and he was unwilling to call the integrity of the judges into question by asserting racial discrimination on the part of those entrusted with drawing up the jury rolls. But the state trial judge, Eugene W. Carter, Jr., specifically asked Seay, prior to Aaron's first trial, whether he intended to challenge the jury. Judge Carter stated he did so because he recognized that he would be obligated to recuse himself from the case should such a challenge be entered, because of his membership on the jury board. See 155 So.2d at 335. We note that a challenge to the composition of the jury in Montgomery County was timely entered in Reeves v. State, 264 Ala. 476, 88 So.2d 561 (1956), cert. granted, 352 U.S. 965, 77 S.Ct. 373, 1 L.Ed.2d 321, cert. dismissed, 355 U.S. 368, 78 S.Ct. 363, 2 L.Ed.2d 352 (1958), also a case involving rape of a white woman by a black, and Judge Eugene Carter — the trial judge in Aaron's case — did in fact recuse himself. Thus, we do not find these allegations of suspected judicial hostility well taken.
3. While Seay did state that one of the important factors which induced him not to enter a challenge to the jury was a fear of engendering community hostility that would only create the danger of his client's being tried by an antagonistic jury, he also stated, "I thought I had a shot at the case," i. e., that the defendant might be acquitted. Seay Deposition at 16. Thus, tactical considerations were a part of the decision not to challenge the jury selection procedures.
4. While appellant would portray his attorney as being disinclined to challenge the jury composition out of fear either that his future career would be jeopardized or that his client would be prejudiced, two factors (in addition to those discussed by Judge Johnson) prompt us to conclude otherwise. First, in 1961, only a year after Aaron's second trial, attorney Seay did in fact challenge the composition of the jury in a case involving a black client. See 155 So.2d at 336. Second, as appellant's present attorney stated to the court below, Mr. Seay "has for the past decade successfully litigated numerous controversial civil rights cases." Under these circumstances, we accept and affirm Judge Johnson's determination that Aaron's attorneys were not in fact presented with a "grisly" or Hobson's choice which precluded them from knowingly and intelligently waiving the client's right to challenge the jury selection procedures in Montgomery County, Alabama.
II. Waiver of right to a public trial.
Prior to the start of the second trial, the trial court, acting pursuant to Article VI, Section 169, Alabama Constitution of 1901, ruled that certain persons be excluded from the trial. The prosecutrix' relatives, the defendant's relatives, all those necessary to the conduct of the trial, other attorneys, defendant's clergyman and the press were allowed in the courtroom; other members of the public were barred. Despite the exclusions, Aaron's attorney stated: "I would say there were quite a few people there. . . . I would say that three-fourths of the courtroom was full." Seay Deposition at 23. Aaron's attorneys did not challenge this action, as an objection to a similar order entered prior to the start of the first trial was addressed and dismissed by the Alabama Supreme Court. Nonetheless, Judge Johnson held that failure to object to the court's action prior to the second trial constituted a waiver of Aaron's right to a public trial.
Section 169 provided:
In all prosecutions for rape and assault with intent to ravish, the court may, in its discretion, exclude from the courtroom all persons, except such as may be necessary to the conduct of the trial.
The provision was repealed in 1973.
Although it is clear that a person's right to a public trial can be waived, see Singer v. United States, 380 U.S. 24, 35, 85 S.Ct. 783, 790, 13 L.Ed.2d 630 (1965), we are reluctant to conclude that the failure to make an objection already overruled by the state's highest court and thus clearly futile constituted an actual waiver of Aaron's right to a public trial. Rather, we conclude on the merits of that contention that Aaron was not in fact denied a public trial.
Courts have differed over the propriety of excluding certain persons from criminal trials. Compare Tanksley v. United States, 9 Cir., 1944, 145 F.2d 58, 10 Alaska 443, with Harris v. Stephens, 8 Cir., 1966, 361 F.2d 888, 891, cert. denied, 386 U.S. 964, 87 S.Ct. 1040, 18 L.Ed.2d 113 (1967), and United States v. Geise, 9 Cir., 1958, 262 F.2d 151, cert. denied, 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80 (1959) (latter cases holding it proper to close courtrooms to certain spectators in rape trials). As we have previously noted, "The constitutional right to a public trial is not a limitless imperative." Lacaze v. United States, 5 Cir., 1968, 391 F.2d 516, 521. The fact that some members of the public were barred from the courtroom does not necessarily mean that a denial of a public trial has occurred; the "decision must turn on the particular circumstances of the case, and not upon a question-begging because abstract and absolute right to a `public trial.'" Levine v. United States, 362 U.S. 610, 616-617, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989 (1960). See also 6 Wigmore on Evidence § 1835, at 338 (3d ed. 1940).
In this case, some members of the public were admitted; the courtroom was at least three-fourths full; the transcript of the trial became public record. Particularly important is the fact that the news media were admitted. The published reports of the trial were lengthy and complete. The defendant's relatives and clergyman were present to provide moral support and comfort to the accused. In sum, we find none of the secrecy of the proceedings which are condemned by the Sixth Amendment and In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948); see also, as an example of proceedings incompatible with the demand for public trial, Caudill v. Peyton, 4 Cir., 1966, 368 F.2d 563 (trial conducted in judge's chambers). We conclude that the denial of one's right to a public trial is not at issue where "[t]here was no in camera or secret trial. [The trial] was held in a public courtroom with attorneys, court reporters, court attendants and at least some outsiders present." United States ex rel. Bruno v. Herold, 2 Cir., 1969, 408 F.2d 125, 127, cert. denied, 397 U.S. 957, 90 S.Ct. 947, 25 L.Ed.2d 141 (1970). "Certainly under modern conditions, when friends of the accused, the representatives of the press, and those necessary to the proper conduct of the trial are present, the defendant receives every safeguard insured by a trial open to the general public." Note, 45 Mich.L.Rev. 474, 479 (1937).