Memorandum from Gibbs to Guinier

    ,

ltaggle S. Bozemanr

VS.

Paroles

Julia P. Wilder

VElo

IN THE UNITED STATES DISTBIET @URT
rCIR TBE I4IDDLE DIS.TRI T OF ALABN'IA,

NORT}IERN DIVISION

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! CA t83-lt-57 9-N
: (habeas corPus)

Ealon M. tambert; Jack C. Lufkinl :
John T. Forter, ln thelr offlcial 3

capacities as members of the !
Nibama Board of Pardons and 3

Parolesi Ted Butlerr a Probatlon t
and Farole Officer eoployed by ther
Alabama Board of Pardons and 3

cAl83-tI-580-N
(habeas corpus)

Ealon !I. Lambert, Jack C. f.ufklnl :
John T. Porter, ln thetr official :
capacities as nembere of the
etiOama Board of Pardons and
Parolesl Ted Butlerr a Probation 3

and Parole Officer emPloYed bY the:
Alabaroa Board of Pardons and 3

Paroles 3

rararaaaaaaaaoaataaaaraaaa""orrr 3

Before Hon. fruman !1. Bobbsr Judger

at Dtontgomeryr Alabamar l{arch 27 L984.

A p p e a r a n c e s!

For AIl Plalntiffs: vanzetta Penn Durant and c' tani
Gulnier (I'IAACP Legal Def ense &

Education Fundr Inc. r Neu Yorkr NY)

For All Defendantsr Charles Graddick, Attorney General
(Jean Williams Brown and Rivard
!,telsonr Asst. Attorneys General)

(The above cases coming on jolntly for hearing at
Montgoneryl Alabamar March 2r 1984r.bef ore Eon. Trunan t'1.

uoou6, Ju&ie, the tbltor,ring Proceedings were had:)

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DUNN, KING, KILPATRICK * LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA ]6I04



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DUNN, KING, KILPATRICK a LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA ]6I04

THE @URT: The next matter is habeas petiEion of

that of Ms. Bozeman and !1s. Wilder. We are here on the motlon of

the defendants for suxomary judgnent, on a number of grounds. Ir 11

let you take them up ln any order that you want to take thesn uP,

litS. DURN{T; Your Eonor I thls ls Lanl Gulnler of r

the Legal Defense Fundr represent,lng the petitloners today.

1ts8 @URT: GIad to have your

MS. GUINIERT Your Eonorr I would llke at this tine
to introduce Ms. Bozeman; who ls present in court. Would you

standr Ms. Bozeman?

(Wonan stands up. )

![S. GUINIER: Just to attempt to clarify the

procedural posture of thls matterr w€ hare noved for sumtnary

judgnnent on two lssuesr Erasically, ln !ls. Bozemanrs case; that
is, that the e\,rldence on which the jury raa permltted to convict

the defendant was ingufflcient and that a reasonable trler of

fact could elmp1y not harre fourd the defendant guilty beyond a

reasonable doubt of each and every eleoent of the offense

charged, In addltlon, on behalf of Ms. BozemanT we are

challenglng the constitutlonality of the notice that she was

provided in the indlctnent whlch falled to give her gufficient

notice of the nature of the charge whlc[ she was belng forced to
t

defend herself against. On behalf of petltioner Wilderr w€ have

moved for summary judgment on the basis that the notice that she



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DUiT.-N, KING, KILPATRICK O< LIVINGSTON
REGISTERED PROFESSIONAL REPOR'I'ERS

908 SOUTH HULL STREET

MONTGOMERY. ALABAMA ]6104

received vras insufflclent as a matter of consitutlonal

requireoents for due Proeess.

I rouLd tlke to f lrst discuEs the issr:e of lnsufflclency

of the evldence ln the Bozoan case. Your Eonorr the petltloner

contends that a gross roiscarrlage of justice has occurE€d. She

was trled ln Pickens Courtyr Nabamar for vlolating a Etatutet

Nabama Statute 17-23-1r 6t the basls of a .thEetscount

lndletnent. Each count of tlre indlctnent charged a violation of,

the sane gtatut€. Count one charged that she deposlted tnore than

one ballot as her voter ln vlolatton of 17-23-1, count two

charged that ehe depoglted nore than one absentee ballot as her

voter ln vlolatlon of 17-23-Ii and count ttrree charged that ehe

did cast lllegal or fraudulent abeentee ballots wbich she lmew

were fraudulent.

Ncnr thie etatute whlch has baslcally been used as the

basie for counts oD€7 two and threer ls an extraordinarlly vague

statute. Prlor to the trial of the petttloners ln this ca6er it
had not been construed authoritatively by the Nabana courts f or

over one hnndred years. I{e have attemSted in our motlon for

Eurrmary judgnent and in our brlef to eet outr to the best of our

abilityr the eleonents of that statuteT given the eircunstancesr

And it ls our lnterpretaElon -- and I donrt thlnk that the State

has challenged thls lnterpretation -- that the statute basically

had t,hree elements; that ie that the petttioner voted more than

oncer that she voted more than once as her vote and that she



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DUNN, KING, KILPATRICK A< LIVINGSTON
REGISTERED PROFESSIONAL REPORI'ERS

908 SOUTH HULL STREET

IVIONTGOMERY. ALABAMA 36104

voted more than once with ttre lntent to defraud or with the

intent to do smethlng illegal. I do not bellever although I

would certainly invlte the Court to inqulre f,urth€rr that the

State ls challenging that this is a slnciflc lntent crine and

that proof of the intent of the petttloner ls neceEsary as part

of proof of alt of the elements of the case.

Noifr ue contend with regard to the flrst element -- that

ls, that she voted nore than once -- there |s absolutely no

evidence in the Record that she voted aB all, nuch less more than

once. There ls no evidence ln the Record that !1s. Bozeroan at the

September 28th t L97--- excuse me -- Septernber 26tht L978t primary

runoff voted at all. The State has not responded to the speciftc

contentiong that ue have made in their anEwer to our motlon for

surnmary judgruent. They did respond to thls Courtts order of

December 2ndt laying out what ttrey perceived to be the facts on

which the jury convicted. And the State clains that there was

evLdence that she cast ballots. I would challenge the State to

point to any part of the Record which shors that she cast any

ba1lots. The only evidence that even di.scussed t,he petltioner in

the context of the clrcult clerk's officer where such ballots

would be castf was Eestimony of Ehe clerk of the courtr who

nerely said she saw the petltloner in a car outside the clrcuit

clerkrs offlce the day before the Prlmary runoff. There was no

testirnony that the petitloner or anyone known to the petitioner

or anyone that the ptltloner should have knotrn brought any



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DUNN, KING, KILPATRICK E< LIVINGSTON
REGISTERED PROFESSIONAL REPORI'ERS

908 SOUTH HULL STREET

IVIONTGOMERY, ALABAMA ]6104

ballots into the clrcuit clerkts offLce for the purpose of

depositing theln ln the septerabet 26tht 1978r Etlllof f .

lUE @URT: Let me ask you this: Irm -- under that

slatuter what ls your understandlng, if someone did not

physically cast a ballot but went to -- butr letrs Sdyt forged it

and I am not suggesting thie is the evidence -- but forged a

ball.ot of someone and gave it to smebody e18e to caat? Is lt

your contention that -- that a defendant would have to physlcally

cast the ballot to be guilLy of that statute?

llts. GUINIER: Nor we are not contendlng that the

defendant would physicalty have to caet the ba}Iot. But there

would have to be some evldence that she knew someone elee was

going to cast that ballot.
lEE @URT: That she brought it bY?

!(S. GUINIER: Rightr gt that she was part of an

effort to cast that particular ballot. There ls no evldence that

anyone she knew or ehould have kncrrn or caused -- the castlng of

that ballot.
The second element of ttre offenee is that Ehe voted

more than one ballot as her vote. There is no evldence that the

ballots that were introduced lnto evldence ln the trlal were

voted the way she wanted lhenr to be voted. Ihere is no evldence

as to how she wanted that particular prinary runoff to turn outi

andT furtbermorer there ls no evidence Ehat she had any role in

filllng out the absentee ballots that were being introduced as



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evidence.

Notrr the prosecutlon had lntroduced thirty-nlne absentee

ballots. fhey called only nlne of the thirty-nine voters to

testify. Each of the nlne voterg was elder[Y, illiterate or

senl-Ilterate and very confused about voting procedures in

general, about the Primary runoff ln partlcular andr nost

iurlnrtantr had very llntted abtLlty to recall event8 that took

place over a year ear}ler. One wltness, in factr Mf. Nat Dancyl

when guestloned about the prlrnary runoff r thought that they were

talklng about world war II. Be lndicated that he was gcared

throughout the proceedings. Ee thought that he was sonehor being

put on trlal. He eaid he was hard of hearing. The prosecutor

kept showing him dtfferent prlnted forms and asking him coul'd he

recognize theurr and he kept saylng: 'I cantt recognize anything

becauge I canrt read. You are just ehorlng me a printed form. I

dontt knotl what it sB|s.'

Notcr ttre prosecution conceeds that of the nine witnesses

that they calledr only two of those voters had anything at all to

say about tlaggie Bozesan.

tgE @URT: That was !1s. Sgnnn, and I have

forgotten the other on€o

!lS. GUINIER: That was Lou Sonnerville was the

second person. Noer at the trialr !18. ScmmervlLler who was

ninety-three years old at the tlmer said nottring about !{aggie

Bozeman or about any ballots being cast in tbe prlmary runoff,

DUNN, KING, KILPATRICK O< LIVINGSTON
RECISTERED PROFESSIONAL REPOR'I'ERS

908 SOUTH HULL STREET

MONTCOMERY, ALABAMA 36I04



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DUNN, KING, KILPATRICK O< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA 36I04

She did talk about vottng in a veL/dry election and about vottng

for Sherlff Louie ColemanT but neither of those issues or Persons

rrere on the ballot for ttre Septeraber 26tb, 1978r Prlnary runoff'

She adauantly denled throughout her trtal. testinony that she had

had any help ln casting any ballots frql liaggie Bozeman.

Durlng the coutrEe of her teetlmonyl the State asked the

judge to declare her a hostlle wltness because the State

contended thats it was surprised by her testlnonyl and the State

contended lt was eurprlsed because a year carlierr the proeecutor

had allegedly lntervlered Hg. Somervllle rlthout any attorney

preeent for MB. Smmervlller without any attorney Present for F18.

Bozeman andr. as far ag Dls. Scrnrnervllle recalledr wlthout a court

reporter present. We have no evldence that t*rts lntervieH took

placer Your Eonorr trecause se have neger geen the so-called

deposition that tbe Prosecutor clains he took. tse took it

absolutely out of line wlth all of the Procedures ln Alabama for

taking pretrial deposltlons. And the Court allored hin to use

thls pretrlal statement that re have never seen to atteoPt tor

not, only impeach his wltnegsr but then to use iE as subetantive

evldence.

TgE @tRT: We117 I doubt tf the State would argue

that he could do Ehat. Wer 11 8€€o

!lS. GUINIERI Wellr thatrs -- thatre true, Your

Eonor. The State has certalnly argued ln the Past that the

evidence produced from ttrat prlor etataoent -- that lsr that tils.



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DUNN, KING, KILPATRICK O< LIVINCSTON
RECISTERED PROFESSIONAL REPOR'I'ERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA 35I04

Bqzesoan heltrnd Ms. Sonerville wlth t-he fllling out of her

abgentee ballot -- is evldence agalnst Ms. Bozesran. That's the

only place uhere that evldence is presented ln her prlor

stateloent whlch the has rejected ln court.

lEE @URTr She -- ehe never afflrned it ln court?

US. GUINIER: Nor she did notl Your Eonor. She

never said. 'That ls vhat I said.' In factr 3h€ did just the

opposite. She 6aid, 'I never told you that.' But even if for

the purpoEe of thls notion you allon that st,atement to be used as

substanElve evldencer all lt says is that ME. Bozaan hel5nd Ms'

Sqomerville t,o f 111 out a ballot rlth !ts. Smurervillets consent.

Agalnl tlroughl the ballot that she alleged1y refers to in that

statement ls a ballot that lnvolves votlng for Sherlff Coleooanr

who ras not on the batlot ln Septenber -- ln the September 26th

runof f .

NGfr the second witness rho sald anyttting about !tS.

Boz€man was Sophie Spann. And her testlnony lras that lLaggie

Bozeman talked to her when it rasnrt votlng tineT and she also

testlfied that !{aggle Boz€$an walted on a porch whlle she went

down to vote at so6e Point in the past -- in the Prevlous two or

three years. In fact, when she was slecifically questloned about

the Democratlc prirnary runoff for 1978, the sald she didlrt knq^r

about any runoff !n 1978. fhatre at the transcrlpt at one

eighty-three of !Is. Bozernanrs trial. The only connectlon that

the State rraE able to provide between !1s. Bozeman and any voEing



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DUNN, KING, KILPATRICK E< LIVINGSTON
REGISTERED PROFESSIONAL REPORI'ERS

908 SOUTH HULL STREET

MONTCOtvIERY, ALABAMA 36104

activity ln tbe 1978 prinary runoff was evldence that she had

plcked up so6re blank appllcatlon forns for absentee ballots. The

State does not contend there is anythlng illegal rith picking up

these blank aPplicatlon fora6, and He contend that, given the fact

that !18, Bozenan is a schoolteacherr that plcklng up those forus

i,s as conslgtent with lnnocence as anythlng, |n thaE she was

using those forms to conduct voter educatlon and partlclpatlon

workshops to Ebc,r, lnople what ttrose forns neant and hou they were

uged.

IBE @URT: Wellr ev€D lf ittd have been for

assisting aonebody voting ln that electlonr ttrere wouldnrt have

been anything lllegal about tbat, would there?

lls. GITINIER: Nor it wOuld notr Your llonor. And ln

fact, the state has provlded to t}1e court an oplnlon of the

Attorney General that Eays assistance to voters is permitted and

aBsistance to more than one voter ls pernltted.

So the State is lefEr thereforer with ttre testimony of

the notary that lile. Boaeman waa phyatcally present when the

ballots in question were notarlzed and that the voters were not

present. There ie no testimonyr howeverr Your Bonor, that Fls.

Bozeman had arranged the conference specifically so that the

voters uould not be present. There le no testimony that l{s'

Bozersan imgnrtuned or |n any way caused the notary to notarize

those ballots involuntarlly. There is no evidence that l'ls.

Bozernan was anything more than physically Present in the notaryrsr



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DUNN, KING, KILPATRICK E< LIVINGSTON
RECISTERED PROFESSIONAL REPOR1'ERS

908 SOUTH HULL STREET

MONTGOMERY. ALABAMA ]5I04

office when he notarized some ballots. There rrere four other

people also in hls offlce at tlre time. The notary does not

ldentify !ls. Bozenan ae laklng any actlve role in the

notarization. There le no evldence that she mlsrePresented to

the notary thaE, these were the slgnatures of voters or that she

said she knew theee particrrlar voters. There i6 absolutely no

evldence that she was anything ercept in hls office.

Ncffr thig ls the key, then, to the StaEer e case against

Ms. Bozemanr and in fact it is the Statet s contentlon that the

fact that those ballots were notarized outglde of the presence of

the voterr !n and of itselfr transforned those ballots into

fraudulent ballots andr ln and of ltselfr makes !{s. Bozenan

gullty of the crlne that the statute prohlblts in Sectlon

17-23-1. And I would ]lke to read to the Court a brief Pagsage

f,rm the argrument that the prosecutor made at trlal. This is at

page one nlnety-six of the transcript. The Prosecutor said --
and thls was in resPonse to the defense notion to exclude the

evidence at the cloee of the Stater s case because lt was

ineufflcient and because it did not establish the elesaents of the

offense. And the prosecutor said: 'Theyr lncluding the

defendantr brought tlose ballots there. Theyr lncludlng the

defendant, partlcipated in the act that, resulted in these ballots

being notarized fraudulently. t Those same ballots vrere cast in

that election. '&ll of them were not properLy notarlzedr and in

that sense they lrere fraudulent. llhether or not the intent of



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DUirr-N, KING, KILPATRICK a< LIVINGSTON

RECISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA 36I04

the voter to vote for anyone; in ny judgment, is beside the

point. I do not see it nakes any difference uho the voter

intended to vote for. The questlon ls rrhether ttrat ballot that

was cast in thls electlon was fraudulent.' And then the

prosecutor goes on: 'And the act of the defendant ln

particiPatlng in the presentatlon of theee ballots to hin to be

notarized was fraud.'
As farr theref ore, as Our notlon for Eumlnary judgiment

on the basls of insufflclency of the evidence, Your Eonorr u€

belleve that there are no naterlal lseues of fact and that there

are -- there was no evldence of all of the eg8entlal el@ents of

the crire. And, indeedr !!re Stater in lEs response to our moElon

for surnnary Judgmentr has not contestd in any way our

presentation of the evldence as belng ln the light noet favorable

to the prosecutLon. In fact, they donrt contest our presentatlon

of the evldence. They donr t contest our clalm. Even in the

pleadlng that they subnltEed ln response to this Courtrs order of

December 2ndr they argue that there rae sufflcient evidence to

convict on count two. Tlrey dontt argue that there was sufflcient

evidence to convlct on countg one and three. And we contend that

they are virtually conceeding that we should prevall on thls

notion slnce the petitloner was convicted guilty as charged in an

extra general verdlctr where there was no indlcatlon on the basis

of whlch count the jurY convicted.

In addition to the insufficiency of ttre Erridence claim



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DUNN, KING, KILPATRICK & LIVINGSTON
REGISTERED PROFESSIONAL REPOR'I'ERS

908 SOUTH HULL STREET

MONTCOMERY, ALABAMA ]6I01

that we have argued on behalf of petitloner Bozemanl we have also

argued on behalf of petltloners Bqzeoan and Wllder that the

notice that they were provlded wa8 inadequate and

unconstitutlonal. The rlght to notlcer Your Bonorr ls an

essential element -- aB I an sure the Court is altare -- of due

process. And the notlce conponent of due Process referB to the

charger erDd lt requires that the charge set forth the allegatlons

wlth eufflclent partlcularlty so ttrat the defendant nay be

pregnred to defend hereelfl lt requireE that the charge come

prlor to ttre trlal Eo that the defendant can be pre;nred to

defend herselfi and lt requlres that the notlce be reflected by

the Record. And thls Bean8 that lt uuet be lncortrnrated ln sme

vray in the Record. And |n this caBe, t}e only fornal notice tbat

the defendant recelved was Ln the lndlctnent. And this is

lnportantr Dot only eo that the dcfendant ls able to defend

herself for ttris Particular charge, but to protect her frqn

double jeopardy ln the event the State nould decide to retry her

on Eorne other ballots and especially since thte particular

tndicturent failed to identify Etre number of ballots she

suplrcsedly cast, the names of the voters ln -- oR -- the names of

the voters whoae ballots were auptrnsedly cast. w€ contend that

there yras absolutely no uay she would be Protected ln the event

that the State rould atternpt to try her again'

Ncnr the indictment in this caser 4S construed by the

Nabana courL of crimlnal Appealsl EayB that count one made the



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DUNN, KING, KILPATRICK O< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY. ALABAMA ]6I04

appellant aware that Ehe did l}legally or fraudulently vote by

voting nore than once, by depoetttng ruore than one ballot aE her

vote in the Denocratlc prlmary runoff. W€ contend that notice

conglstent rith due Process was not glven in count one because

there ls no allegatlon that she had the slnciflc intent neceesary

to qonmlt thls crLme. In addltlonl re contend that notlce

consistent nlth due procegs was not given ln count one because

there was not sufflcient fastual elaboratlon to enable the

defendant to defend herself. there raa no state$ent as to what

she dld that nade thoee ballote -- that nade her vote ilIegal or

fraudulent excegt that she voted aore than once. But, againr lt

doesntt say hotr nany tlneg ehe voted or in whose DAut€I

In count twor the A.Iabama Court of Crinlnal Appeals says

that tlre appellant was lnforued that ehe did cast lllega} or

fraudulent abeentee ballota by votlng nore than one absentee

ballot or by depostting Bore than onc absentee ballot as her

vote. Again we contend that there waa no notice consristent wiEh

due processr parttcularly ln vter of, ttre Staters theory of the

case; that it uas the notarlzation of thoee ballots tbat nade the

ballots fraudulent absentee ballots' fhere lras no notice ln

court two of the acta that ttre defendant allegedly -- aLlegedly

cornroitted that transformed those abaentee ballots from normal and

legal ballots to illegal and fraudulent ballots.

And ln count threer tjre Nabama Court of criminal

Appeals sald that the appellant was notified that she did cast



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DUNN, KING, KILPATRICK C< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA 35I04

tllegal or fraudulent absentee ballots by depoeiting with the

Plckens County clrcuit clerk absentee ballots whlch lrere

fraudulent and that she knew to be fraudulent. Count three is

the only count in that three-count indictrnent that allegee t'he

necessary eleoent of tlre offenge of apecific intentr of the

fraudulent intent to vote more than once or to vote more than one

ba110t -- excuse me -- to vote more than one ballot ag her vote

or to vote illegaIly ln sme other way.

Not r Ehere were several gronnds under wbich the

petlttoner could have been convlctedr for whlch tltis lndlctment

provided no notice. In tbe Judgers charge to the jury, one of

the grounds on which the jury could have convlcted ts tf the jury

found that any one of ttrose abgent,ee voters not been physically

prevented frm going to the ;nL1s. There is no notlce of that

partieular ground in the indictnen!. fhere was algo a charge to

the jury that the ballots in question nust be notarl'zed. There

is no notlce of that ground ln this particular lndictment. lhe

jury was charged that ttre notary nuet strear that the voters

personally appeared before hin. There ls no notice of that

ground in this indlctment.

Andr finallyr there rras a charge of, perjorYr for whlch

there is absolutely no notice in this indlcturent.

InfactrYourHonorlgiventheStatelstheoryofthe
case -- that isr that the improPriety in havlng the ballols

notarlzed outside of ttre presence of ttre voter was Prirna facle



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DUr.r-N, KING, KILPATRICK e< LIVINCSTON

REGISTERED PROFESSIONAL REPOR'I'ERS

908 SOUTH HULL STREET

MONTGOMERY. ALABAMA 35104

proof of the offense and transformed thoge ballots into

frauduLent ball.ots ls underscored by the trial judgets stateoent

ln the wilder caser drd I quote -- thls !s f,rm the t,ranscript at

three thirteen - 
iThe State chargea that, the defendant witneesed

or had knowledge that, a notary public falsely notarlzed or

attested to the authentlcity of the ballots by attestlng the

persons were bef,ore hln and Eo forth ae provlded ln the

affidavit. It tlle ballot was falsely attested to' ttren such a

ballot would be lllegall and any Pereon rho prttclpated ln a

scheure to east that ballot rlth knorledge of that fact would

cornmlt the acts prohiblted by Section 17-3-1t - it ehould be

L7-23-l. 'of the Alabaua Code of 1975.'

we contendr Your Hqror, ln addltlon, ttrat glven the

fact that tbie case involved fraudl it uas even Eore critical

that the indlctnent glve the sgnclflc factual allegatlons that

the State was contending vrere the -- that -- the specific factual

allegatlons that describe the acts that the State uas contending

vrere fraudulent or descrlbe the facte the State was cont,ending

made those ballots fraudulent. And we are contendtng t,hat this

requlrement |e not only a requirauent of Pederal coneitutional

lawr but 1t is conslstent wlth ttre requlreuoents of Alabarna law.

And I would refer ttre Court to a caae that iE cited ln Ehe

Alabama Court of Crlmlnal Appeals declsloD -- that lsr Gayden v.

State -- ln which there was a multl-count indlctnent, a general

ver--- general verdict I and becauee two of the counts failed to



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give notlcer the entire convictlon fell. In that case, the Court

ruled on the factuaL sufficiency of an indlctnent whlch Eracked

the language of the statuta but failedr ln the Courtrs vlewt to

glve enough factual elaboration of the acts which constltuted the

crlne charged. The Court found that, the lndictnent had, in factr

charged a crine but lt had not gl,ven enough notlce of the acts

which constituted that crtne, And even nore iutrnrtant about thls

case ls that the Nabana Courts lndlcated that tf there sere a

queetlon of forgeryl ttren it nould be even nore lnlrcrtant to have

detalledr factual allegations neceseary. That was a caae --
Gayden v. State was a case involving narcotics.

lEE @URT: I remember tlrat case. That was here ln

MontgomerY,

ItlS. GUINIERT the Gayden Court, Your Honorr

enphaslzes the imtrrcrtance of the due process guaranties and

guotes extenslvely froro Federal consltutlonal las On the

requiraaent of notice. And the Court states that the ruanifest

purpose of the due Procees Provielons ol€7 quotey rto secure the

citlzen agalnst the arbitrary action of those ln authority.'

we think it ls especlalJ.y lmportant for thls court to

consider those guarantles when reviewing the clains of these

petltionere becauge both of these petitioners believe that they

were prosecuted arbitrarily for thelr lnJ.ltical activity that

involved exerclsing the right of citizens to votee ererclslng the

rlght to assoclate wtth others for ttre advancement of shared

DUNN, KING, KILPATRICK O< LIVINGSTON
RECISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA 36104



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DUNN, KING, KILPATRICK O< LIVINGSTON
REGISTERED PROFESSIONAL REPOR'I'ERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA 36I04

bellefsr exercising the right to assist other voters ln

particiPatlng ln the political process. And because this

particular statute and lndictment and convlctlon reached uhat nay

be perfectly innocent constltutlonally-Protected activlty, we

thlnk that the Court should even more carefully scrutinr.ze the

clains tbat the petltionera are maklng.

We thlnk tbat ttrtE scrutlny lg nccesEary conslderlng the

origln of ttrts partlcular slatulc whlch the State used to lndlct

the two petltiotl€Ego Tlrls partlcular statut6r as I have

nentioned beforer trad not been construed ln o/er a hundred years

prior to t5elr convr.ction. Ttrls lnrticular statute was passed ln

1875 by the Redeerner Leglslatuf,€. Andr qr January 9thr 1875r the

I,tobile Reglster reported, ln descrlbing thls statut€r quoter ilt

ls undoubtedly the purpoee of, the Nabama teglslature to enact an

election law which w111 prevcnt hereafter ttre great frauds uhlch

have been colnnltted uith the negro vote. And on ltarch 3rdr 1875t

shortly after ttre Bill ras Pa68ed, a Democratlc Leglslature

defended it in the l{ontgoaery Mvertiser ln the following terms;

quote: .It is an egtabllshed f,act that a white Ean cannot easlly

vote more than once at one electlon. They do not all look alike

andr in nany cases for t|e lnst ten yearsT courts not of their

osn selectlon were only too glad tO trunP up such charges.' ltro

days later, the Dal}y Advertlser reported, and I quote:

'Governor Eouston has approved tbe new electlon law for the

State. Goodbye to negro repeaEing and packing of negroes, around



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DUNN, KING, KILPATRICK 6( LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY. ALABAMA ]6104

the courthouse on election daY. t

Glven the factl Your Eonorr that that statute wae passed

under the nost susplcioue of circunstancea and had not been

construed |n a hundred yearsr crd glven the fact that when lt was

construedr ttre Alabana Court,s have ruled that the statute

prohibited voting more than one vote as the defendantrs voteT

with the intent to defraud. We contend that Eere1y tracking the

language of the statute ls especially Prejudiclal becauee of the

unexpected constructlon of tbe statute whlch the prosecutor and

the Judge gave to the statute and gave to the charges in the

lndlctnent. Because the statut,e is vaguer because it hadntt been

construed in so long7 the jury was pernltted to lncorPorate

vlolatlons of four other statutee that had not been charged in

the indictment, in violationr Your Eonor t of ttre due process

rights of the Petitioner.
THE @URT ; Thank You r loa t m.

![R. MELSON s ![ay lt please the Courtr my nane is

Rivard Melson, appearlng on behalf of the respondents' I think I

would like to respond to petitionersr argunents in reverse orderr

the first being the sufflciency of the lndictnent,

It appears that the petltlonerg vlew Pederal habeas

corpus as some sort of trnral.le1 appellate route rather than the

extraordinary wrlt that it i6. By thaty I mean it appears t,hat

at the trial of these cases, they had availabl.e to them various

objections under Alabarna procedural lawe vhlch ttrey failed to



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DUNN, KING, KILPATRICK E< LIVINGSTON
REGISTERED PROFESSIONAL REPOR]'ERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA 35104

ut,ilize or decided not to utillzer under which they could have

ralsed various errors that theyrre notl asg€ltingr roainly the

arguments about erroneous jury lnstructlona. sit baclc at trialr

nade no mentisr of theor aDd then they come to Federal court

under habeae corpua and they seetB to harre the view that there ls

Eome sort of plain error rule they can uae !n Federal habeasr

which they can bytrnss the stat,e procedural lal{ and assert grounds

that ttrey could harre raised in State Courtl and if they could

have denonstrated they had nerltorious clalns that these jury

instructlons or ttre indictment or whatever vlolated Federal

consitutional lawl the Alabama Courte would have enforced those

consitutional rlghts. Nevertheless, they Just harre bylnssed the

State courts on these lsgues.

And we think that any argrument they make about

instructing the jury as belng erroneou

rHE @UREI Wellr you mean Ehey by5nssed the state

courts in that they didnrt ralse lt at the trial?

!1R. !,IELSOBI: Rlght. L thlnk under l{ainurlght v'

SykesT thetr fallure to conply with ttre Nabama

THE @URT: I just want to be sure I r:nderstand

the apPellate --what, you mean. they have ralsed these polnts in

Alabasra apSnllate courtr have they not?

!lR. MELSONT Nor sir. They couldntt ralse thera in

the Alabama aPPellate court because they didntt raLse them at

tr iaI .



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DUNN, KING, KILPATRICK S{ LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA ]6104

THE COURT! All right.
t'!R. MELSONs Under Nabama procedural 1aw7 they had

on anytlting that they say waE wrong with the jury chargel they

had to objectr assign speclflc grounds --
IEE @URT8 What I mean le rre donrt have a fall,ure

to exhaust reroediee question? You are not saying that.

!{R. MELSON: We have a walnwright v. sykea prob}em.

TgE @URTr Al'L rlgbt.
!{R. MELSON: Pailure tO reserve in a state trlal

court Ehe contenporaneoua objectlon rule'

lItE @URTt I understand. I r:nderetand.

t{R. MELSoN: They cannot ralse lt in Federal habeas

corpus. ADd ltr s clear -- t[e Alabana procedural lau ls clear

hor these issues can be ralsedr and they di&lrt do |t.

So I thlnk so far as sufflciency of the lndlctnent, Ehey

are left wlth ttre factal sufficiency of ttre indlctuentr not

anything that they are saying thatr glven this indlctnent, it was

error to lnstruct a jury as to certain thlngs; thereforer since

the indlctment wouldntt suplnrt the jury instructionsr theae lrere

erroneous in the jury lnstructlons. But they didnrt obJect at

trlal. They just let it go. so I donr t ttrlnk they are entitled

to raise it ln a Federal habeas corPus, under tlainwright v'

sykea. Ihen lf -- theyr re left ntth just the eufflclency of Ehe

lndlcturent as lt reads under ttre case of -- U.S. Suprane Court

case of Knewel v' Egan; which we cite; and under ttre case of



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DUn.N, KING, KILPATRICK O< LIVINGSTON

REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA 36I04

Branch v. Esteller which ls a fif$t Circult caEe ln 1980 I or

Johnson v. Esteller a Fifttr Clrcuit case in 1983 r which says that

under Federal habeae corpuar relief ls not due to be granted

unless the indlctment le so lneff,ectlve the convicting Court had

no iurisdl.ction. And ttrg clear ttrat ttre Circutt Court ln

Alabama had jurisdictlon under these lndictrnents to try these

pople on what they sere charged wlth dolng.

So I think that under thoge cases and glven the fact

they dldntt object to whaE the jury wa8 inEtructed at trlalr that

they cannot prevall on a clain tiat thls indictrnent ls -- that

they cant t prevail on a claln ttrese indlctnents sere not'

sufflclent in a Federal habeae corPus Proceeding.

Then I rOuld lilre to proceed to the argunents made

about the lnsufflclency of the evldence as to Mg. Bozeoran. At

first, lt oughts to be noted that the trlal court lnstructed the

jury on a conepiracy theory ln thls case. Thatre rrhaE, lt was

submitted to the jury ofir I thlnk that ttre erridence !s clear

that in this case the prosecution proved Chat .Iulia Wilder dld tn

fact cast fraudulent ballotsr motre Ehan one bal.lotr ae her vote

in this electlon and that tlE. Bqzeaan uds, in factT 6l coo8ptrator

ln that, Reading the evldence as a whole and vlewing tt -- the

testinony the Bost -- viering the testimony in the light nost

favorable to the Stater I thlnk itt s unquestioned that this

defendant Snrticipated in a scbeme to cast fraudulent votes or

more than one vote ln this particular election charged ln thls



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DUNN, KING, KILPATRICK O< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA ]6104

indlctnent. And under Alabama statutory lau and case law at the

tiner defendanta rrho are conspiratcs or acconplices or alders

and abettorE are charged as -- and tried as prlnclgnls. So I

think that a reading of the transcriSt and of ttre Court of

Crlnlnal Appeals oplnion in this case nakes it cLear that she tdaE

properJ.y convicted as a consPirator under this indlctment.

TBE @URTI But slnclf ically -- I have read the

Court of Appeale oplnlon. But egnclftca}ly what -- what do you

contend ls the erridence as to lrlg. BOzenan that She nas a

conspirator -- consPirator j.n castlng 11legal ballotE?

UR. MELSODT: Okay. Wellr she and Julla Wilder went

to the notary public wlth tlre absentee ballotsr and she knew that

none of Etre persons who had signed those baLlots uere present

when they were notarized. The notary testlfted that he told thera

that thoee ballots couldnrt be legaIIy notarlzed unless those

persons Here present, algor ttrat she had telePhoned the notary

and partlcipated |n setting up the meetlng to notarize the

ballots. One of the persons whose name apSnared on a ballot had

been talked to by llts. Spannl or !1s. Boz€nan had talked to ![s.

Strnnn about voting absentee. And !ls. SSnnn testifled she told

her she voted at ttre polls, yet when they went and notarized

these ballotsr lhere was !ls. Strrannt E name on one of these

ballotsr when ln factT ll8. Sgnnn went to the Polls and vofed.

And this ballot Ehat, they had there was cast'

And there was also testlnony that Ehe went to the



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DUI.N, KING, KILPATRICK A< LIVINGSTON

REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTCOMERY, ALABAMA ]6104

courthouse with Julia Wilder the day that she carrled all these

thirty-five or forty f,raudulent ballots up Ehere and deposlted

thero in the clerkrs of f lce. So it,rs clrcurnstantlal evidencer of

which the juryT I thlnkr could reasonably conclude that, she knew

what was going on and $as a party to it; she was a consplrator.

And I think under ilackson v. Virginla ttrat there was plenty of

evidence [here to suPport a conviction under a conspiracY theory

that she Snrticipated in a schesre Eo east these -- or wlth Julia

Wllder t,o cast more than one vote and cast fraudulent voteB in

thls e}ectlon. I donrt think there is any question about lt.

lEE @URTr Okay. You say the -- under the

indictnentsr as theyr re drafted --
&lR. UELSOI{: She was indicted as, a princilal oD --

it was subnitted to the jury on a consplracy theory. And under

Alabarna lawr and I thlnk under Federal lawr bothr that -- wellr I

know under Alabama law that thatrs -- thatts ProPer; that, the old

comgon law stuff about the acconpllcea and aiders and abettors

and co-conspirators has been abollshed by statute lal, since. ADd

thatr s still the law in Alabamar that theyt re indicted by the

principal.
tHE @URT: Okay. L thlnk I thtnk under Federal

Iaw you can be convicted as an aider and abeEtor even though you

are charged only as a princlpal. And that, is your contention

herer that she could have been convicted as an aider or abettor

under the lndictnents ln this case?



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MR. !iELSON8 Yesr sirr ttrat -- in factr thatrs wbat

the Judge charged the jury oltr on a conspiracy. Thatre nhat lt

was submltted to the jurf orlo

THE COt RTI All rlghtr sir Anythlng further?

MS. GUINIER: Yesr Your Eonor. I would llke to

deal wlg1r the last polnt that the reapondents have ralsed firstr

and then I uould like to address thelr clain that we have

intentionally bypassed the StaEe procedural rsnedies.

Flrst of a1lr the state is contendlng that she was

convLcted as a co-conspirator, but she was not charged with

conspiracy. If the State is contending that she was convicted as

an alder or abettorr that is different. She was not charged wlth

partlciSntlng in a ssheme aE a co-consPiraEor; and there Ytas no

evldence, in additionr that Ehe dld partlcipate in any scheme or

that she aided and abetted anyone nlth any epecific lntent to

commlt a criroe or to see that that crime was conmitted.

E'urthermorer tlre State clains that smewhere in the Record there

is evidence that she went doun wlth lls. Wllder t,o casts those

absentee ballots. I repeat that the only place in the Record

where there ls any dlscusston of castlng batlots in -- that the

defendant or lils. Wilder went down to the circuit clerkts officer

occurs at Snges twenty and lwenty-one of Ms. Bozernanrg

transcript. And tshat ls the testinony of the clerk ln the

circuit clerk in the clrcuit clerkrs office. And I would just

tike to read to the Court what that witness said: Question, rYou

DUNN, KING, KILPATRICK O< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTCOMERY, ALABAMA 36I04

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DUNN, KING, KILPATRICK E< LIVINGSTON
RECISTERED PROFESSIONAL REPORT'ERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA 36I04

say you saw the defendant on Septenber ttre 25th. fhat ls

Monday?t Answerr rYesr sir.t QuestiOnT iBefore the election on

Tuesday?r Answerr 'Ye81 sir.r QuestlOn, rAnd she was in an

automoblle?r Anewerl 'Iesl slr.t tDld you seei -- guestion,

'rDld you see her ln the conpany of a wotoan named Ju1ia Wilder?t

Answer, rYeBT sir.' 'ObjectiOnr tf YOur Eonor, please. I object

to leadlng the ultness. The Court: Suetained.' Questlon, tAll

right. Was ehe wlth anybody? Was Mrg. Bozeotan with anybody when

you saw her on that date?r Angwer, rshe was -- she rraa in the

car and t{rg. Wllder ras ln the office.' Questlonr 'A1I r19ht"

Def ense attorney: 'ObJ€ctlon. l,totlon to strlke. Not resPonsive

to the quegtlon. The Courtr Sustalned. The jury w111 disregard

the answ€f.t the angwer tlrat had been given that the jury wag

instructed to disregard HosT 'She ras ln the car and !lrs. Wllder

t as !n the office. t QuestlOn; "Wae anygne else in the car wlth

&{S. Bozeman rrhen you Saw hef ?' AnSwer, "No, Eir. r QUeStlOn,

'Did she cone -- did ijtrs. BOzenanr herselfr cone into your

offlce?tr Defense attorneyl iObjectiolrr repetitious. Ee has

asked it three Eimes.' AnSwer, 'NO, slr.n In OtheE wordg, the

gU€stlonr 'Did lits. Bozslan herself come into ygur office?'

Answer, rNor sLr.r Questtonr rshe dld not co6ei !s that yogr

testimony? She did not come lnto your office?' Answer, 'No,

slr, ahe di&rrt cone |n that day.r Question, .lDid shet berself,

bring any ballots to you?" Answer, 'On Ehat day?' Questlon, rOn

that day or any day. Did she bring you any envelopes containing



absentee ballots?' fuid then there ls colloquy between the

attorD€lso Answer, 'I donrt remember.i

Ihat ls the extent of the errld€rcer There is no

evl,dencep €v€o !n the answer ttrat ttre jury lraa lnstructed not to

conglderl that !ts. Wllder any ballots ln her hand nhen she wa8 ln

the clrcult clerkrs offlcei but that anawer saa strlcken. So

tbere is no evldence anywhere ln the Record that ehe or anyone

tbat she knew cast any ballota ln that prinary runoff.

N6rr rlth regard to the Statef s cont,entlon that

Walnwrlght v. Slzkes o1-rates ag a bar to tbe Courtr E

consideratlon of our clafuu on the notlce, the constit,utionality

of the notice given to the two lntltioners' nunber or€; the state

clalns that the Alabana contaporaneous objectlon rule precludee

revlew. We do not conCeder Your Honorr that there were no

contemtrrcraneous objectlons to the jury lnstructions. In factr ln

Ms. I{ilderrs case, tlre defense attorney objected to the perjury

chargel to the definltlon of illegal as a basis for lncorporatlng

other statutesi to the }aws relatlng to fraudulent notary seals,

which is beyond the purvlew of thisl and also objected that the

charge dld not include a complete statement of the law as to the

knogledge and intent as lt relates to thls trnrticular defendant.

But the fact of the roatter is, Your Estorr w€rre not

challenging the jury ingtructions ln thls particular claim. We

are not asklng the Court to reachr on our motion for sumnary

judgment, Ehe issue whether the trlal court properly or

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DUN,'., KING, KILPATRICK A< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA ]6104



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DUT".N, KING, KILPATRICK E< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA ]6I04

improperly instructed the joIYr had there been apPropriate notlce

of the charges on uhlch the trlal court instructed the jollo l{e

are not challenging the legal sufflciency of the Jury

lnstructlon8o Bad the lndictrnent properly charged the four

statuLes whlch the trlal judge charged the jury on and had Che

indlctnent properly charged the neceesary factual elaboratlon on

those four st,atutes as !fel} aE the necessary eletBents of those

Statute6r i9 rrell as the necessary e]€nents of the one statute

that rras chargedr then our claln of consltutional notlce would

have been satisfied. Ttrere utay stll1 have been other grounds on

which to challenge this convictionr but the ground of

consltutlonal notice would have been satisfled.

what we are saylng Is ln llght of the judgers charge and

in llght of the Prosecutorrs theory of the caae; DoIl€ of the

lnssible bases for convictlon were Presented and included and

elaborated on in the only notLce that t[is -- t]rat these

petitioners recelved of ttre crlmes for whlch they were belng made

t,o defend thernselvesr and that is |n the indictrnent.

ilust as we dlscuEEed the Courtrs charger w€ coul.d bave

easily discussed the prosecutiont g stateoents that trere made in

front of the july, that were nade to the Courtr that showed that

the proeecutorte theory of tbis case wag not ttre -- ttre criure for

which the defendant8 were glven notlce. The prosecutorrs theory

of this case was that they had been involved in havlng ballots

improperly notarlzedl and that parttcular act transformed those



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DUNN. KING, KILPATRICK E< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA 36I04

ballots sufflclent for the pur;nse of these stat--- this Etatute.

That is not what the indlctnent charged. In factr the prosecutor

picks out one statement in the indlct6ent, and that is the

stateaent regarding lLlegal votingi and he then elaborates on

that to come up rith thle theory regardlng fraudulent and illegal

notarization. We claln that tt is absolutely unfair for the

lndictnent ln thls ease not to speclfy prlor to trial just what

thls notrel constructlon and lncorporatlon would be.

81na1ly we rould llke to lnint out with regard just to

thls Walnsrlght v. Sylces clain that lack of notlce ln an

indlctment tn Atabarna cannot be walvedi and we have clted lnallYr

many cases to that effect ln our motion for sulamary judgment. In

Alabamar the requirenent of notlce ls so fundamental that failure

to include a single elenent of a elngle offense would be

gufficient to overturn a verdlctr €v€o without contemporaneous

objectlons. lrtoreorrer, in this particular case, I think as Your

Bonor uas polntlng outr tJtere were objections at e'very stage of

ttre proceedlngs to the lack of notice in the indictment. fuid, in

factr in the Nabama Court of CrininaL Appeals opinionT they

characterized the aplnllantr s clalm as a challenge to the

indictment in that it failed - and I quote -- 'to inforn her of

the nature and cause of the accueations agalnst her'" That is in

the Alabana Court, of Crirninal Appeals opinion. That was a basis

on which the appellants had challenged their convict,ion. fhey

had chaLlenged ln the trial court. They had filed a special plea



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DUNN, KING, KILPATRICK E< LIVINGSTON
REGISTERED PROFESSIONAL REPORI'ERS

908 SOUTH HULL STREET

ivIONTGOMERY, ALABAMA 16104

challenging the notice ln the indicUnent and they have at e'very

opportunity challenged the fallure of thls indictment to give

then notlce drrd tor ![uotel rl.nform ttren of the nature and cause

of the accusatlons agalnst them. r

TEE COURT: I have not read the trlal judgere

charge. Are you saying that he didnft suggest that they could

flnd as some evldence of lllegaltty the fact that the ballots

were lmproperly notarized but that thatl in and of itselfr
congt,ituted a vlolatlon of ttre statute?

!tS. GUINIERI I am saylng thatr Your llonor. ADdr

in fact --
lBE @URT: A11 rlght'
!lS. GUINIER: - the asPect of the charge Ehat I --
ItsE @URT: AIl rlght.
IilS. GUINIER: -- read f rom Ms. Wilderts caser which

I belleve 1g clted at Page three thirteen of her transcrtEt, says

just that.
lBE COURT: WeIl, If d llke to have the State

respond to ttrat. I dont t noean to interrupt louo

llS. GUINIER: Oh.

THE @URTI But I knon that ordinarily the State

lrould be finishedr but I would like to have them comment on that'

&lS. GUINIERI One Polnt, Your Bonor' that the State

has made Ehat I would like to resPond to is that they claim wer re

challenging the sufficlency of the indictrnent and thaE thatr s not



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DU,I"N, KING, KILPATRICK A< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTCOMERY, ALABAMA 35104

reviewable on habeas corpus. That partlcular doctrlner that you

cannot challenge the sufflclency of the indistnentr lefets to a

challenge to tbe lndictruen! as a technical pleading. 8or

example, if we were challenglng tbe indictnent as being

nultlpltcltousr tlrat could not be reviewed on habeas corPus. But

I wouLd ask the State to clte to ne any case that says that a

cballenge to the lndlctnent for fallure to Provlde consltutional

notice ls not Progfnost,tcal on babeas corPus. In fact, a case

rhich ttre State clted ln lts anarrer to our notlor -- that isr the

case of Cramer v. Fahner -- ltts a Seventh Circult case -- sayg

exactly tlre optrrcslte of rhat the State has contended regarding

the approprlatenees of revler on habeas corPus of the -- of the

type of challenge that we are naking. And the Court tlrerc sayst

iPetitlonerr 
- tbis ls ln resPect to a petltioner -- thls nas a

State petitioner who ras trylng to challenge the sufficlency of

an IlLinoie lndlctn€nto And the Court there saldt tEven tf the

Illinols Court were wrong in naklng the dlstinctlon between a

tnrjury lndlctgenti - wblch, !n lll|nolsr must se! out the

operative words - 'and a sollcitatlon lndlctment' - rhlch in

Illlnois did not -- the Court Baysr 'lt is not our role on habeas

corpus to set aslde the Courtfs lnt,erPretatlon of lts own lan.r

That was where ttre petltioneE Has -- was challenging the State

Courtrs interpretation of uhat rrag necegsary as an -- a matter of

State law. But the Court goes on to says tFor Petitionerts

attack to be succesefulr he must go beyond nerely provlng that



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DUn-N, KING, KILPATRICK O< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA 36104

the alleged trial error has vlolated IlLlnolst old law and

procedural rules andr I enphasLze -- 'show that the errors

rose to the consltutlonal leveLr elther by naklng hts trial so

furdamentally unfalr as to deny him due Process or by abrtdglng a

speclfic consitutlonal guaranty such as the right to notice of

ttre chargeE against hlnl whlch ls vlolated by a

constltutlonally-vague lndlctnent." That is exactLy uhat we are

challenging here. And habeas review ls perfectly aPPropriate to

challenge the consitutlonal -- the constitutionality of an

lndlctrnent where it falls to provlde adequate notlce. Thank you.

lEE @URTI Thank You.

&,!R. HELSON: Your Eqror, lf I tslderstood the

Courtt s reguest about that you wlshed the SEate to respond to rras

d1d the trial court charge tbe jury that sqre vlolatlon of one of

those -- any one of those four Etatut,es, ln and of itselfr would

be a vlolation of the statute tlrey were charged under?

THE @URT: Wellr did the Court charge that a

fraudulent or fal,se notary would be a vlolation of the statute?

li!,R. I'{ELSONT Nor sirr Your Eonor. They are

absolutely lncorrect about rrhat the Court -- that tttls -- [ts.

Wilderf s case rrent to the Jury orir In factr I have quoted it

here in ury brief in response to their brief for urotion for

surlmary judgment; and the State subnltted it to the jury on two

theoriesr and theytre exactly whatre charged in the indlctment.

Thefirstorl€HosrtheCourtsatd:'TheStatechargesherethat'



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the defendant voted more than oncer Urat she received ballots

deslgnated for registered voterse tlrat sbe marked through or had

these ballots narked the way she wanted them to be marked and

they were eventually cast and counted ag lawful voteg. The

charge !s that ttre defendant voted the ballots and not the

absentee voters in whoee name they were deslgnated and that thls

amounted to her havlng voted motre than oDC€.' Thatrs the first

theory. The second one isl rThe State contends that the

defendant particlpated ln a - the scheme to secure absentee

ballots and to tllega1ly or fraudulentsly cast those ballots. It

is the Stater s contentlon that on aooe of ttre absentee ballots

that came lnto Julla Wllderts lrcssessionr she marked the ball'ots

or had kncnledge that the ballots uere trarked by someone other

than the reglstered voter and without that voterrs knowledge or

consent, that she slgned or caused to be signed or had knorledge

t,hat t5e ballots rrere signed by soneone other ttran the registered

voter rithout that votert s knqrledge or consent. Such a ballot

would be illegal to cast a ballot or partlclpate in the Bcheme to

cast that ballot with kncrledge of theee facts, and that would

fa1l withln the acts prohiblted by section 17-23-1." Thatrs what

the case rras subnitt,ed to the jury on and thatrs what the court

had to have -- sald they had to have Proof beyond a reasonable

doubtr whateverr and thatrs exactly what uas charged in the

indictnent. And thelr arguments about, they -- it was submitted

to the jury on these ottrer four statutes -- that any technical

DUNN, KING, KILPATRICK C< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA ]5104



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DUNN, KING, KILPATRICK E< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY. ALABAMA ]6I04

violation of thernr that ttre Judge sald that they could convlct

under thls statute ls absolutely lncorrect becauee the -- that --

what Irve just read ls what the case was submitted to the jury

one And wlthout proof beyond a reasonable doubt of werythlng

the Judge charged Ehere, the jury wasnrt authorlzed to convict.

The iludge was Just instructlng theo as !o how a ballot may be

fraudulent, that isr lt was lnProPerly notarlzed and the Snrson

who carrled tt up there knew and that sort of thing' Be wasnrt

telling then that, Iookr tf they cast a ballot - carried a

ballot up that was tnproperly notarizedr that theyr re

autonatlcally 9ui1ty under t[at statute. Thatr s abso]utely

lncor r ect,.

TBE COURT: A11 rlght. IrIl read the charge then.

MR. MEtS$l: AJ,l rlghtr sir.
ItsE @URT: I understand it --
!IR. !{ELSOBI: I thintt they al} need to be read a8 a

whole and all the evidence 100ked at as a whole.

lHE @URT: All rlght.

!tR. UELSON: Thank You.

IEE @URTr Thank f ottr

Mfi. GUINIERI Your Honorr I would juet ask that you

look at 5nge three thlrteen of the Judgers charge in the wllder

caser whlch comes after what the State has read to you. And in

that Snrticular asPect of ttre charger which !s the final charge

on the crines or statutes that were being charged against hert



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the State said the -- exeuse me -- the judge says: rlf the

ballot was falsely attested tor then such a ballot would be

illegal and any per8on who trnrticlSnted in a 8chetse to cast that

baIlot with knouledge of tlrat fact would connit the acts

prohlbited by Sectlon 17 -23-l of the Alabama Code of 19' - of --

thls nust be a tYPo -- 'of I875.r

TEE COURT: Thank you. Thank you. Court wtl'I be

1n recegS.

tti*tt t*tt**t**ttitt*tt***t

IN TBE UNITED STATESI DISTRI T @URT
FOR THE I,IIDDLE DISTRICT 08 ALABAI'TA
NORTEERN DIVISION

Ir Jenny Dunnr Substltute Court Re;nrter of the United States

Dlstrict court for the l{Iddle Dlstrict of alabaraar do hereby

certlfy that t[e foregoing 34 lnges contain a true and correct

transcript of proceedlngs had before t}re said court held in the

City of Dlontgomeryr Alabama, in the uatter thereln stated'

In testlmony whereof I herer:nto set my hand on thls the 20th day

of Juner 1984.

Jenny Dunnz
Substitute Court RePorter

DUNN, KING, KILPATRICK O< LIVINGSTON
REGISTERED PROFESSIONAL REPORTERS

908 SOUTH HULL STREET

MONTGOMERY, ALABAMA 36104