Wilder v. Lambert Petition

    a

"COUNT ONE

ndid vote more than once t ot did deposit
more than one ballot for the same office
as her voter oE did vote illegally or fraud-
ulently, in the Democratic Primary Run-
off Election of September 26, 1978,

''COUNT TWO

"did vote more than once as an absentee
voter t ot did deposit more than one absen-
tee ballot for the same office or offices as
her voter oE did cast iIlegaI or fraudulent
absentee ballots, in the Democratic pri-
mary Run-off Election of September 26,
1978,

.ICOUNT THREE

"did cast i1lega1 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. "

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

to petitionerrs jury as the basis for her conviction under

S 1 7-23-1 . The indictment accused petitioner of violating
S 17-23-1 by rvotlingl i11egaIly" or 'castIing] i11ega1 ...
absentee ballotsrn 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 illegal.
That failure deprived petitioner of constitutionally required

notice.

(a) The trial judge instructed the jury on four

-9



statutes, AIa. code s 17-10-3 (1975) lmiscited by the judge as

S 17-23-31, Tr. 308-309; AIa. Code S t7-10-G (1975) [miscited
by the judge as S 17-10-71, Tt. 309-310; AIa. Code S 17-10-7

(1975) , Tr. 310-31 t; and Ala. Code S 13-5-1 15' ( 1975), Tr. 31 1.

None of these statutes or their elements was charged against
petitioner in the indictment.

(b) The jury was instructed that proof that petitioner
had committed any act 'inot authorized by ... or ... contrary to,
any 1aw would constitute an "illegal" act warranting petitionerrs
conviction under S 17-23-1. Tr. 308. 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 dach 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 w6uld constitute
violations of those statutes.

(c) For these reasons the indictment failed to provide

notice of the offenses actually submitted to the jury as required
by the constitution, and petitionerts resulting conviction was

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 the particurars of the alleged fraud.
(a) The indictment alleged in Count lt in the alterna-

tive with other allegations, that petitioner voted fraudulently

10



in the run-off. It alleged, in the alternative with other allega-
tions in Count II, that she cast fraudulent absentee ballots in
the run-off. In Count IfI, it alleged that she deposited

fraudulent absentee ballots with the Pickens County Circuit
Clerk, and that she knew the ballots were fraudulent.

(b) In order to provide constitutionally requisite
notice, the indictment was required to identify the particulars
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. It did not do sor

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 a1lege accurately each of

the elements of S 1 7-23-1, and therefore failed to provide the

minimum notice required by the Constitution.
(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),.W..
(b) Counts one and two of the indictment do not allege

intent or knowledge. Theythat petitioner acted with fraudulent

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

verdict finding her "guilty as charged in the indictmentr' Tr.

316, and since she rras thereupon adjudged guilty of one undiffer-
entiated violation of S 17-23-1, the deficient counts prejudiced

1t



Petitioner and rendered the indictment as a whole insufficient
under the Constitution

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

established by the evidence offered at trial, was prdtected by

the voting Rights Act and the First, Fourteenth, and Fifteenth
Amendments to the Constltution.

(a) The evidence introduced against petitioner at

trial is set forth in para. 16(b), supra. The evidence shows

participation by petitioner in an effort to aid and encourage

erderly, illiterate, and disabled bracks to vote by absentee

ballot. The evidence shows no intent by petitioner to engage

in criminal activity of any sort.
(b) All the prosecution proved was participation

by petitioner in activities protected under the United States

constitution. The rFirst Amendment freedom to gather in
association for the purpose of advancing shared beriefs is
protected by the Fourteenth Amendment from infringenent by any

state.r Democratic party of u.s. v. wisconsint 4so u.s. 1o7l

121 ( 1981 ). Additionally, the right to vote is 'a fundamental

poriticar right, because preservative of alr rights." yick wo

v. Hopkins, 1 l8 U.S. 356, 370 ( 1886).

(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
votingr dnd thus protects t,hose who give such assistance. 42

U.S.C. S 1973aa-5.

12



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 nany kind

of ilIegal or fraudulent votingr" and t,hus permits the incorpora-

tion of any provision of Alabama Iaw which a prosecutor can

remotely connect t'o voting activities. The statute contains

no clear mens rea element.

(b) For these reasons S t7-23-1 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 law

enforcement officials to follow in enforcing the statuter and

encourages arbitrary and discriminatory enforcement of the sort
forbidden by €.9.r Smith v. coguen, 415 U.S. 566, 574-575

(1974') | and Kolender v. Lawson, 51 U.S.L.W. 4532, 4534 (U.S.,

May 2, 1983). Furthermore, conviction on the basis of strict r

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

17-23-'l is therefore unconstitutionally vague.

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

conduct, such as that described in para. 22 E1lpE, it is required

by the doctrine of, e.9., Dunn v. Blumstein, 405 U.S. 330, 343

(1972) to be drawn precisely to achieve legitimate state objec-
tives while avoiding interference with constitutionally protected

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

13



17-23-1 permits conviction for failure to observe the provisions

of any law which can be connected to voting activities regardless

of whether the accused was acting in good faith. Moreover, as

applied to petitioner, S 17-23-1 permitted conviction based on

the f ederally protected activity described in para. 22 -1uprg.

Therefore, S l7-23-1 is unconstitutionally overbroad within the

principles of , .1g--, Gooding v. Wilson, 405 U.S. 518 (1972) .

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

construed in any reported opinion prior to petitionerrs 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, €.9. r Wilson v. State, 52 AIa.

299 (1875), and Gordon v. State, 52 Ala. 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

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 followed by the Alabama Court of Criminal

Appeals when it upheld petitioner's conviction. Inoperative

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-l mentioned in
paras. 16(a) and 23(d), g!lg, were valid and operative at the time

14



of petitionerrs trial, 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, 378 U.S. 347 ( 1953).

The instructions to the jury also impermissibly broadened

S 13-5-115 causing, under the same principles, a separate

violation of the Due Process C1ause.

(a) The jury instructions permitted various statutes

to be incorporated into S 17-23-1, as described in para. 19(a)

EgpIg. They further permitted a conviction for "iIIegaI" voting

without any showing of mental culpability, as described in para.

19(b)r -SEe, and thus allowed peEitioner 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 trial, these jury

instructions abrogated the constructions retroactively in

violation of Bouie.

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

statement required under the election laws "false1y and corruptlyn

-- 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
nincorrectly" 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 17-23-1 and S 13-5-115 were presented to

15



the jury as strict liability offenses. Tr. 308, 3,l1. Therefore,

as applied 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 prosecution used notes from purported out-of-
court interrogations of prosecution witnesses Ms. Bessie

Billups, Tr. 159, and Ms. Fronnie Rice, TE. lG6, to impeach their
testimony at triaI. The prosecution made no showing that it
was surprised by the testimony of these two witnesses, so as to
establish any legitimate ground for impeaching themr yet the

notes of their extra-judicial statements were allowed in as substan-

tive evidence, in violation of Alabama law, see, e.g., Randolph

v. State, 348 So.2d 858 (Ala. Crim. App.), qelt. denied, 348

S.2d 867 (1977). In the out-of-court statement of !{s. Billups,
she purportedly denied that she had ever seen the absentee ballot
voted in her name. This contradicted Ms. Billups' in-person

testimony. The statement of Ms. Rice was also used to get her to

16



state that she had never received an absentee baIlot, thus

contradicting her previous testimony. Additionally, the prose-

cution relied for substantive evidence on purported out-of-court
statements and 'cross-examination" of prosecution witness Mr.

Paul Rollins, Tr. 300-301, and thus again disregarded settled
Alabama Iaw.

(b) Because of the paucity of evidence against peti-
tioner, and the broadness of S 17-23-1 as construed in the instruc-
tions, Tt.'308-31 l, these out-of-court statements were crucial to
t,he prosecution and devastating to petitioner, and constituted a

denial of her rights under the Confrontation Clause and the Due

Process CI:iuse

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 enforcementr ds described in para.

23 (b), supra.

(b) Petitioner's prosecution was (i) selective in that
others similarly situated have not been proceeded against, (ii) dis-
criminatory in that she was singled out for prosecution becduse

of her race, and (iii) recriminatory in that she was singled

out for the further reason that she had engaged in federally
protected poritical activities within pickens county. Because

the prosecution was motivated by race it denied petitioner her

17



rights to due process and the equal protection of the laws.

Because the prosecution was recriminatory it violated those

constitutional and federal statutory rights whose exercise it
punishedr ds enumerated in para. 22, supra.

(c) Section 17-23-1 was dormant at the time of peti-

tioner's prosecution. It had not even been cited in a reported

opinion since its predecessor statute was referred to in Gandy

v. State, 85 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 prosecution of petitioner. . Petitionerrs
prosecution was therefore invidiously selective.

(d) Petitioner was singled out for prosecution because

she is black, and because those she was aiding t,o vote by

absentee ballot are also black

(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 Southern Christian
Leadership Conference. Petitioner was a1so, at the time of her

conviction, the President of the Pickens County Voters League,

and a recognized leader in an effort to bring out the black

vote in Pickens County. On information and belief, although

Pickens County is over 40t blackr oo black has ever won a

county-wide election. fn addition to the reasons set forth in
para. 27(d), supra, petitioner was singled out for prosecution

under 517-23-1 because of her leadership role in the effort to

increase the political influence of blacks living in Pickens

County.

18



WHEREFORE, pet,itioner 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 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 this petition;
(4) Permit petitioner, who is indigent, to proceed

without payment of costs or fees i .

(5) After ful1 hearing, discharge petitioner from her un-

constitutional restraint; and

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

19



Respectfully suhmitted,

VANZETTA PENN DURANT
539 Martha Street
Montgomery, Alabama 36108
262-7337

JACK GREENBERG
LANI GUINIER
JAMES S. LTEBIT{AN
SIEGTRIED KNOPF

l0 Columbus Circle
suite 2030
New York, New York 10019
(212) s86-8397

Attorney for Petltioner

Of counsel:

ANTHONY G. AMSTERDAM
New York University School of Law
40 Washington Square South, Room 327
New YorkrNew York 10012

(212) s98-2538

20



VERIFICATION

Stste of Alabama )
) SS:

Couaty of Moutgonery)

Ju1la P. Wtlder, belng first duly sworr upotr oath

aecordiag to law, deposes and Eays that she has read the

foregolag petlt,1otr, aad that she koows the coateD,ts thereof

to be true except as to such uatt,ers whLch are gtated upoa

laformatlon aod belief, and such rn&ttera she verlly belleves

to be true, and that she belleves ehe Ls eutltled to the

reLlef "oogia thereLu.

Ju1ls P. Wllder

BESworn to and

thls _ day

Subecrlbed before

of _, 1983.

Notary Publle