Attorney Notes 3

    Prisonerrs Name: Maggie S. Bozeman

Prison Number: 00130717

Place of Confinement: ON PAROLE FROM KILBY CORRECTIONS FACILITY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

MONTGOMERY DIVISION

!,!AGGIE S. BOZEIT{AN,

Petitioner, : Civil Action No.

- against 3

EALON M. LAITIBERT, JACK C. LUFKIN AND :
iTOHN T. PORTER IN THEIR OFFICAL
CAPACITIES AS MEII{BERS OF THE ALABAMA 3

BOARD OF PARDONS AND PAROLES, AND
TED BUTLER, A PROBATION AND PAROLE 3

OFFICER, EMPLOYED BY THE ALABAMA
BOARD OF PARDONS AND PAROLES, 3

Respondents.



Petition for Writ of Habeas Corpus Bv A
Person In State Custodv

TO THE TIONORABLE JUDGE OF THE DISTRICT COURT FOR THE
IITIDDLE DISTRICT OF ALABAMA, MONTGOMERY DIVISION:

1. The name and location of the court which entered

the judgment of conviction and sentence under attack are:

(a) The Circuit Court of Pickens County, Alabama.

(b) Carrollton, Pickens County, Alabama.

2. The date of the judgment of conviction and sentence

is November 2t 1979.

3. The sentence is that Maggie S. Bozeman be imprisoned

in the peni,tentiary of the State of Alabama for a period

of four years. She is currently on parole in the custody

of respondent members of the State Board of Pardons and Parole.

4. The nature of the offense involved is that petitioner
was charged in a three count indictment with violating Ala.

Code S 17-23-1 (1975) in that she allegedly voted illegally
in the Democratic Primary Run-Off Election of September 26,

1978 (hereinafter run-off).
5. Petitioner's plea was not guilty.
6. Trial was had before a jury.

7. Petitioner did not testify at trial.
8. Petitioner appealed her conviction.

9. The facts of petitioner's appeal are as follows:
(a) The judgment of conviction was appealed to the

Court of Criminal Appeals of A1abama. That court affirmed the

conviction on March 31, 1981. 401 So.2d L67.



(b) The Court of Criminal Appeals of Alabama denied a

motion for rehearing of the appeal on April 21, 1981. Id.

(c) The Supreme Court of Alabama denied a petition

for writ of certiorari to the Court of Criminal Appeals on July

24, 1981. 401 So.2d 171.

(d ) The Supreme Court of the United States denied a

petition for writ of certiorari to the Court of Criminal Appeals

on November 16, 1981. .454 U.S. 1058.

10. Other than the appeals described in paragraphs 8 and

9 above, the other petitions, aPPIications, motions, or proceed-

ings filed. or maintained by petitioner with respect to the

judgment of November 2, L979 of the Circuit Court of Pickens County

are described in paragraph 11 below.

11. A motion for a ne$, trial was made to the Circuit

Court of Pickens County. The motion was denied on February 27,

t979.

12. Petitioner $ras convicted in violation of her rights

guaranteed by the First, Fifth, Sixth, Fourteenth and Fifteenth

Amendments to the Constitution of the United States, and by the

Voting Rights Act, 42 U.S.C. S 1971 et seq., for each of the

reasons stated below.

I. Introductorv Facts

13. Petitioner Maggie S. Bozeman was convicted of

illegal voting because of her alleged participation in an

effort to assist elderly and illiterate black voters to cast

absentee ballots in the run-off.



14. On October 10, 1978, two weeks after the run-off
election, the sheriff of pickens county, ME. Louie coleman,

.along with the District Attorney of the county, Mr. p.M. Johnston,

an investigator named Mr. charlie Tate, and Mr. Johnston's

secretary, I{s. Kitty cooper, opened the county absentee ballot
box to investigate 'assumed voting irregularity.' Tr. 35.:/
They isolated thirty-nine absentee barrots out of the many

cast. what distinguished these absentee barlots from the

many others cast in the run-off was that they were notarized

by t'tr. Paul Rollins, a brack notary public from Tuscaloosa.

Tr. 36.

15. 
. 
Each of the 39 absentee ballots was represented

to be the vote of a different bIack, elderly, and infirmed

resident of Pickens County. The state claimed that Ms. Bozeman

participated in the casting of these barlots in violation of
AIa. Code S 17-23-1 (1975).

fI. Grounds of Constitutional Invaliditv
Of Petitioner's Conviction

16. Based on the evidence offered at trialr Do rational
jury could have found that each of the elements of the offense

charged was proved beyond a reasonabre doubt. petitioner's

conviction therefore violated the Due process clause of the

Eourteenth Amendment as construed in Jackson v. Virginia, 443

u.s. 307 (1979).

!/ A11 transcript citations refer to the transcript of peti-
tionerrs tria1.

3-



(a) The elements of the offense against petitioner
are that she employed fraud to vote more than once. wilson

v. State, 52 A1a.299, 303 (1875); Wilder v. State, 40.l So.2d

151 , 160 (A1a. Crim. App. ) , cert. denied, 401 So..2d 167 (A1a.

1981), ger.!. denied, 454 U.S. 1057 (1982).

(b) The only evidence offered against petitioner was

that she: (i) picked up "[a]pproximately 2s to 30 applications"
for absentee ballots from the Circuit Clerk's office during the

week preceding the run-off, Tr. 18, (ii) was present with three

or four other women, who did not include the vot,ersr at the notar-
izing of some absentee ballots which were cast in the run-off,
Tr. 57i (iii) made a terephone call to the notary npertaining to
ballotsr' Tr. 76-77; and (iv) spoke to prosecution witness Ms.

sophia spann about absentee voting when "it wasnrt voting timer"
Tr. 184. Additionally, there was evidence presented to the jury
in violation of petitioner's constitutional rightsr €ls alleged

in para. 26, infra, that; (v) in the telephone call described in
(iii), supra, petitioner had requested the notary to notarize
the ballots, TE. 65; (vi) that petitioner aided Ms. Lou sommer-

ville, with Ms. Sommerville's consent., to fill out an applica-
tion for an absentee baIlot, Tr.. 161-1621 169i and (vii) that in
an election held prior to the run-off, p€titioner aided Ms.

Sommerville, with Ms. Sommervillefs consent, to fill out an

absentee ballot, TE. 173-174, 176-77.

(c) The prosecution contended that the evidence of
petitioner's presence at the notarlzation was sufficient
evidence of culpability under S 17-23-1 because the voters were

not before the notary. Tr. 195-97. But a reasonable trier of

-4



fact would perforce harbor a reasonable doubt as to whether that

evidence, and all of the evidence presented against petitioner,
proved that petitioner intentionally aided in an alleged effort
to vote more than once through fraud.

17. The indictment charging petitioner with violating S

17-23- 1 was for each of the reasons specified in paras. 19-21,

infra, insufficient to inform petitioner of the nature and cause

of the accusation against her, as required by the Sixth and

Fourteenth Amendments .

18. The indictment against petitioner charges that peti-

tioner

"COUNT ONE

'did vote more than once t et did deposit
more than one baIlot for the same office
as her vote, or did vote iIIegaIly or fraud-
ulentIy, in the Democratic Primary Run-
off Election of September 26, 1978,

NCOUNT TWO

"did vote more than once as an absentee
voterr oE did deposit more than one absen-
tee balIot for the same office or offices as
her vote, or did cast illegal or fraudulent
absentee bal1ots, in the Democratic Pri-
mary Run-off Election of September 26,
1978,

IiCOUNT THREE

'did cast i11egal or fradulent absentee
ballots in the Democratic Primary Run-
off Election of September 26, 1978, in
that she did deposit with the Pickens
County Circuit Clerk, absentee ballots
which were fraudulent and which she
knew to be fraudulent, against the peace
and dignity of the State of Alabama. "

5-



19. The indictment was constitutionally insufficient
because it failed to provide notice of the charges submitted

to petitionerfs jury as the basis for her conviction under

S 1 7-23-1. The indictment accused petitioner of violating

S l7-23-1 by nvottingl i11egal1y" or "casttingl ilIegal ...
absentee ba11ots, " but it failed to identify either the acts

constituting the alleged illegalities or the elements of the

statutes which purportedly caused those acts to be iIIegaI.
That failure deprived petitioner of constitutionally required

notice.
(a) The trial judge instructed the jury on four

statutes, AIa. Code S 17-10-3 (1975) [miscited by the judge as

S 17-23-31, Tr. 202i AIa. Code S 17-10-6 (1975) [miscited by the
judge as S 17-10-71, Tr. 202-203i AIa. Code S l7-10-7 (1975),

Tr. 203-204; and Ala. Code S 13-5-115 (1975), Tr. 204; and on

the offense of conspiracy, Tr. 206. None of these stat,utes or

their elements was charged against petitioner in the indictment.

(b) The jury was instructed that proof that petitioner
had committed any act nnot authorized by or contrary ton

any law would constitute an "iIlegaI' act warranting petitionerrs

conviction under S 17-23-1. Tr. 201. The effect of that instruc-
tion and of the subsequent instructions on each of the statutes

listed in para. 19(a), supra, was to make each of those statutes

a separate ground for liability under S 17-23-1. The indictment

made no allegations whatsoever that petitioner had violated
those statutes or had engaged in acts which would constitute

violations of those statutes.

6-



(c) For these reasons the indictment failed to provide

notice of the offenses actually submitted to the jury as required
by the Constitution, and petitioner's resulting conviction !{as

obtained in violation of due process

20. The indictment contained conclusionary allegations of
fraudurent conduct by petitioner, but it failed to provide fair
notice as required by the Constitution in that it failed to give

sufficient notice of t'he particulars of the alleged fraud.
(a) The indictment alleged in Count I, in the alterna-

tive with other allegations, that petitioner voted fraudulently
in the run-off. ft alleged, in the alternative with other allega-
tions in Count fI, that she cast fraudulent absentee ballots in
the run-off. In Count IIf, it alleged that she deposited

fraudulent absentee barlots with the pickens county circuit
Clerkr and that she knew the ballots were fraudulent.

(b) fn order to provide constitutionally requisite
notice, the indictment was required to identify the particurars
of the alleged fraud with sufficient specificity to inform peti-
tioner fairly of the actions or transactions which constituted
the alleged fraud with which she was charged. rt did not do so,

and its failure to make those factual allegations deprived peti-
tioner of the notice demanded by the Sixth and Fourteenth Amend-

ments.

21. The indictment failed to allege accurately each of
the erements of S 1 7-23-1, and therefore failed to provide the

minimum notice required by the Constitution.

-7



(a) In this case, fraud is a necessary element of
S 17-23-1 under the rules of Alabama law set forth in para.

16(a), supra.

(b) Counts one and two of the indictment do not allege
that petitioner acted with fraudulent intent or knowledge. They

allege no mens rea of any sort.
(c) Since the verdict against petitioner was a general

verdict finding her "guilty as chargedr" Tr. 2o9t and since she

was thereupon adjudged guilty of one undifferentiated violation
of S 17-23-1, the deficient counts prejudiced petitioner and ren-
dered the indictment as a whole insufficient under the Constitution.

22. Section 17-23-1 is unconstitutional as.applied to
petitioner, since the conduct for which she was convicted, as

established by thb evidence offered at trial, eras protected by

the voting Rights Act and the First, Fourteenth, and Fifteenth
Amendments to the Constitution

(a) The evidence introduced against petitioner at
trial is set forth in para. 16(b), supra. At most the evidence

shows participation by petitioner at the periphery of an effort to
aid and encourage elderly, illiterate, and disabled blacks to vote

by absentee ba11ot. The evidence shows no intent by petitioner to
engage in criminal activity of any sort.

(b) All the Prosecution proved was minor participation
by petitioner in activities protected under the United States

Constitution. The nFirst Amendment freedom to gather in
association for the purpose of advancing shared beliefs
protected by the E'ourteenth Amendment from infringement

ls
by any

107 ,State.r Democratic Party of U.S. v. Wisconsin, 450 U.S.

-8



121 ('1981). Additionally, the right to

political right, because preservative of

v. Hopkinsr'1 18 U.S. 356, 370 ( 1885).

vote is "a fundamental

all rights. " Yick Wo

(c) Furthermore, the Voting Rights Act, 42 U.S.C.

S 1971, et seq., provides a right to illiterate and disabled

persons to have the assistance of a person of their choice in

voting, and thus protects those who give such assistance. 42

U.S.C. S 1973aa-6.

23. The vague and overbroad terms of S 17-23-1 are

unconstitutional for failure to meet the strict standards of

statutory specificity required of laws that potentially overreach

federally protected activity.
(a) On its face, section 17-23-1 penalizes "any kind

of illegai or fraudulent votingr" and thus permits the incorpora-

tion of any provision of Alabama law which a prosecutor can

remotely connect to voting activities. The statute contains

no clear mens rea element.

(b) For these reasons S 17-23-1 fails to provide fair

notice of the nature of the forbidden conduct. Because of the

absence of a meaningful description of the proscribed conduct,

S 17-23-1 fails to provide discernible policy guidelines for 1aw

enforcement officials to follow in enforcing the statute, and

encourages arbitrary and discriminatory enforcement of the sort

forbidden by e.9., Smith v. Goguen, 415 U.S. 566t 574-575

-9



(1974) and

2t 1983).

t iabil ity

17-23-1 is

Kolender v. Lawson, 51 U.S.L.W. 4532, 4534 (U.S., May

Furthermore, conviction on the basis of strict

is permitted by the language of S 17-23-1. Section

therefore unconstitutionally vague

(c) Since S 17-23-1 reaches constitutionally protected

conduct, such as that described in para. 22 supra, it is required

by the doctrine of , .4_, Dunn v. Blumstein, 405 U.S. 330 (1972),

to be drawn precisely to achieve legitimate state objectives

while avoiding interference with constitutionally protected

activities. Section 17-23-1 is not so drawn. On its face,

S 1 7-23-1 permits conviction for failure to observe the provi-

sions of any law which can be connected to voting activities

regardless of whether the accused was acting in good faith.

Moreoverr ds applied to petitioner, S 17-23-1 permitted convic-

tion based on the federally protected activity described in

para. 22 ElpEg. Therefore, S 17-23-1 is unconstitutiondlly
overbroad within the principles of , S_:-fu-, Gooding v. wilson, 405

u.s. 518 (1972).

(d) Section 17-23-1 had never been judicially

construed in any reported opinion prior to petitioner's appeal,

and even its predecessor statute had not been reviewed in any

reported opinion since 1888. The 19th century Alabama Supreme

Court cases construing the statute, .4-, Wilson v. State, 52 A1a.

299 (1875), and Gordon v. State, 52 AIa. 308 (1875), leave

considerable residual uncertainty as to various elements and

applications of the statute, and leave the statute with the

potential to reach federally protected conduct. Any judicial

10



limitations imposed on the broad terms of the statute were dis-
regarded by the trial judge and the prosecution in petitionerrs
case, and were not folrowed by the Alabama court of criminal
Appears when it upheld petitionerrs conviction. rnoperative

limiting constructions cannot be permitted to save a statute.
Regardless of the constructions of the statute by the Alabama

Supreme Court, S 17-23-1 is therefore unconstitutionally
vague and overbroad.

24. If any of the constructions of S 17-23-1, mentioned in
'paras. 15(a) and 23(d) | supra, rdere valid and operative at the time

of petitionerrs triaI, the instructions to the jury impermissibly

broadened the statute so as to create ex post facto liability in
violation of the Due Process Clause of the Fourteenth Amendment

as construed in Bouie v. citv of columbia , 37g u.s. 347 ( 1953).

The instructions to the jury also impermissibly broadened S

13-5-1 15 causing, under the same principres, a separate violation
of the Due Process Clause.

(a) The jury instructions permitted various statutes
to be incorporated into S'17-23-1, as described in para. l9(a)
supra. They further permitted a conviction for "i11egal" voting
without any showing of mental culpabilityr €ls described in para.
'19(b), supra, and thus allowed petitioner to be convicted on a

strict liability basis for any transgression of any of the

incorporated statutes. If S 17-23-1 was subject to limiting
constructions at the time of petitionerrs triaI, these jury
instructions abrogated the constructions retroactively in
violation of Bouie.

11



(b) Section 13-5-115 penalizes the making of a sworn

statement required under the election laws "false1y and corruptly"

-- i.e., with criminal intent. The trial court instructed'the
jury that petitioner could be liable under S 13-5-115 for "falsely
and incorrectly" making a required statement. By substituting

'incorrectly" for "corruptlyr" the instructions removed the

intent element from S 13-5-115 and thus impermissibly expanded

the reach of the statute in violation of Bouie.

25. Both S 17-23-l and S 13-5-115 were presented to the

the jury as strict liability offenses. Tr. 201 | 204. Therefore,

as applieh to petitioner, those statutes denied her due process,

especially. inasmuch as they touched on rights protected by the

Constitution. Petitionerrs conviction stands in violation of
the Fourteenth Amendment.

26. The prosecution was permitted to impeach its own wit-
nesses by reading to the jury notes purporting to be transcripts
of statements taken by the district attorney during out-of-court
interrogations, and to use such statements as substantive evidence

against petitioner, in violation of her rights under the Confron-

tation Clause of the Sixth Amendment and the Due Process Clause

of the Fourteenth Amendment.

(a) The evidence described in subparts (v), (vi) and

(vii) of para. 16(b), supra, was introduced through the purported

transcripts of out-of-court interrogations. Additionally, the

out-of-court statements were introduced by the prosecution in an

attempt to change the testimony of Ms. Janie Richey, T8.128-129,

and Ms. Fronnie B. Rice, Tr. 143-44, 147-148. Both of these

12



witnesses, testifying in person, remembered receiving and voting
an absentee ballot in connection with the run-off, TE. 126-127,

130-131 (Richey); Tr. 136-137, 144-14s (Rice). The prosecurion

attempted to show through the out-of-court statements that both

these prosecution witnesses had previousry told him that they

did not receive an absentee barrot for the run-off. rn no way,

however, was any connection made, either through the witnesses r

testimonyr oE through the out-of-court statements, between

petitioner and the voting activities of either of these witnesses.

Tr. 126t 131 (Richey); Tr. 150 (Rice). The use of these out-of-
court statements as substantive evidence violated settled
Alabama law. Seer -U.., Randolph v. Stater 34B So.2d 858 (AIa.

Crim. App.), cert. denied, 348 So.2d 857 (1977).

(b) Because of the paucity of evidence against peti-
tionerr and the broadness of S 17-23-1 as construed in the instruc-
tions, TE. 201-204, these out-of-court statements were crucial to
the prosecution and devastating to petitionerr and constituted a

denial of her rights under the Confrontation Clause and the Due

Process Clause.

27. The decision to prosecute petitioner was motivated by

her race and her political activities, and therefore her conviction
was obtained in violation of the Equal Protection Clause of the

Fourteenth Amendment, and of the First and Fifteenth Amendments

and the Supremacy Clause.

(a) The vague and overbroad nature of S 17-23-1 invites
selective and discriminatory enforcement, as described in para.

23(b), supra.

13



(b) Petitioner's prosecution was (i) selective in
that others similarry situated have not been proceeded against,
(ii) discriminatory in that she was singled out for prosecution

because of her racer dDd (iii) recriminatory in that she was

singled out for the further reason that she had engaged in
federally protected political activities within Pickens County.

Because the prosecution was motivated by race it denied peti-
tioner her rights to due process and the equal protection of the

1aws. Because the prosecution was recriminatory it violated
those constitutional and federal statutory rights whose exercise

it punished, as enumerated in para. 22 supra.

(c) Section 17-23-1 was dormant at the time of peti-
tionerts piosecution. It had not even been cited in a reported

opinion since its predecessor statute was referred to in Gandy

v. State, 86 Ala. 20 (1888). On information and belief, there

is no record of a single prosecution under S 17-23-1 in Pickens

County previous to the prosecutions of petitioner and Ms. JuIia
Wilder, both based upon the same events in '1978. Petitionerf s

prosecution was therefore invidiously selective.
(d) Petitioner was singled out for prosecution because

of her race, and because of the race of those she was aI1egedIy

aiding to vote by absentee baIIot.
(e) Petitioner was, before her conviction, a politic-

aIly active black resident of Pickens County. She has been

president of the Pickens County chapter of the N.A.A.C.P.

Petitioner is an educator by profession, and she has been a

vocal critic of the administration of Pickens County schools

and a long-time activist on behalf of integration and equal

14



opportunity in education. She has also been active as a

watchdog and critic of Pickens County government and the

A1lceville municipal government in their treatment of blacks.

Petitloner was singled out for prosecution under S 17-23-1 not

only because of her minor participation in an effort to aid

elderly blacks to vote but also because of her vigilant partici-
pation in other political activities within Pickens County.

WHEREFORE, p€titioner prays that the Court:

( 1 ) Order the respondents to answer this petition and to

show cause why petitioner should not be discharged from her

unconstitutional restraint ;

(2) Order the respondents to furnish a complete transcript
of Petitionerrs trial before Alabama Circuit Judge Clatus Junkin,

including a transcript of the prosecutorrs closing argument,

and to furnish all exhibits, depositions and notes of pre-trial

interviews with witnesses;

(3) Conduct a hearing at which argument and proof may be

offered concerning the allegations of t,his petition;
(4) Permit petitioner, who is indigent, to proceed

without payment of costs or fees;

(5) After fuIl hearing, discharge petitioner from her un-

constitutional restraint; and

(6) Grant such other relief as may be appropriate.

Respectf ul1y submitted,

VANZETTA PENN DURANT
539 Martha Street
Montgomery, Alabama 35108
262-7337

15



JACK GREENBERG
I,ANI GUTNIER
JAMES S. LIEBMAN
SIEGF'RIED KNOPF

10 Colunbus Circle
Suite 2030
New York, New York 10019
(212) s85-8397

Attorney for Petitioner
Of counsel:

ANTHONY G. AMSTERDAM
New York University School of Law
40 l{ashington Square South, Room 327
New YorkrNew York 10012
(212) s98-2538

16



VERIFICATION

State of Alabana )
) SS:

Couaty of Moatgonery)

Maggle S. Bozeuan, belag flrst duly sworo upon oath

according to 1aw, deposes aad says that ehe has read the

foregol.ag petltlotr, and that she knows the cotrteats thereof

to be true except as to suth BatEers whLch are stated upou

lnformatloa aad be1lef, aad such matters she ver1ly belleves

Eo be true, aod that she 'o-elleves she is entitled to the

reLlef soug.ht therel.n.

Sworn to aad Subscrlbed before me

thls _ day of _, 1983.

Notary Publlc

Maggle S. Bozeman

lr)