Petitioner's Motion for Summary Judgment

    IN

FOR

TEE

TEE

UNTTED S&ATE$.DISTRICT COURT

I,TIDDLE' DISTRLqT . OE AI,ABAI{.4
U-; u .i i. ti 

_

I{ONTGOI.IERY DIVISION

MAGGIE S. BOZEMAN,

Fetitioner,

- against -
EA.LON It{. LAI{BERT, .TACK C' LUFKfN A}ID

JOEN T. PORTER IN TEEIR OFFICAL
CAPACTTIES AS T{EUBERS OF TEE AI"ABAMA

BOARD OF PARDONS AND PAROLES, AND

TED BUTLER, A PROBATION Al{D PAROTE

OFFICER, EUPLOYED BY TEE AI,ABAI{A
BOARD OF PARDONS AI{D PAROLES '

: Civil Action No. 83-E-579-N

Respondents.

TO TEE SAID EONORABLE COURT:

NOW COIIES MAGGIE S. BOZEMAN, petitioner' by and through

her attorneys and, Pursuanc to Rule 56 of the Federal Rules

of civil Procedure, resPectfully moves this court to enter

sunmary judgrnent for petitioner on the constitutional claims

raised by paragraphs 16, 17-21, 24 and 25 of her petition

for writ, of habeas corpus, on the ground that t,here is no

genuine issue as to any material fact concerning said con-

stitutional claims and the petitioner is entitled to judg-

ment on said constitutional claims as a matter of law.



I.

This motion is based exclusiveLy uPon the clains raised in

paragraphs 16, 17-21, 24 and 25 of Petit,ionerrs habeas corPus Peti-

tion. For the courtrs convenience, those ParagraPhs are rePro-

duced below:
.ls.Basedontheevidenceofferedat,t,rialrDo

rational':uri-coora r,"tr" found. that each of the elements of
the offeni. ittarged was proved beyond a reasonable doubt'
piiiti""ir;"-iJnii.rion Lherefore-violated the Due Process
clause of the Fourteenth Aruendment as construed in Jackson
v. Virqrinia, 443 U.S' 307 ( 1979) '

petitioner
State,
401

(1982).

(a) lhe eleruents of the offense against
are that she enployed fraud to vote more than once'
wilson v. Srata; si ara. 299, 303 (1875), WildeE v.
ffi.ii iffie o (A1a. crim' APP. ) r 9919. -d"?i99,So.2d '167 (Ala. 198i), @. deniea, 454 u'S' 1057

(b) The only evidence offered against petitioner
was that sher ii, picied uP 'talPproximately-2s t9.39.
lppriliri;;;; i"i '.lsentee uair6ti from the-Circuit C1erk's
office during the week preceding the run-offl Tr..18; (ii)
;;;-;;";."t ii*, three 6r four other women' who dio not
incl-uae the voiers, at the notarizing of some absentee
ballots which r"r" cast in t,he run-off, TE.57i (iii) made

a telephone call to the notary npertaining to ballotPf" Tr'
ia:i1;-;A (iv) spoke to prosiculion witness Ms' sophia
ip.rrrr' .O"ot 

' aOsenlee votii:g when " it wasn I t voting Eine, '
Tr.IS4.Additiona}ly,therewasevidencePresented.!ot'he
JriV in violation of ietitfoner's constitutional rightsr ds
alleged in pari.--26, infra, that, (v) in the telephone call
described in (iii),'sGEl petitioner-had requested t!:
notary to notaiiri'tEiEfif6tsT TE. 65i 1vi) that petitsioner
aided lls. Lou Sommerville, with lrls. Sommervillers consent'
to fill out an application for an absentee baIlot, Tr.
l1l-le2, 169; 

-"rrt'i;ii) that in an election held prior to
the run-offr petitioter aided Ms' Sommerville' with lls'
Sornmervilleis-consent, to fill out an absentee ballot' Tr'
173-174, 176-77.

(c) The prosecution cont,ended t,hat the evidence
of petitioner's prisence at the notarization was sufficient
eviience of cutpiUitity under S 17-23-1 because the voters
were not before the nolary. Tr. 195-97. But a reasonable

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trier of fact would perforce harbor a reasonable doubt
as to whether that, eiidencer 6Dd all of the evidence
pi"=.ni.a against petitioner, proved -that petitioner
intentionally aidei 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.
\g-Zl, 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 indictnent against petitioner charges that
petit ioner:

'COT'NT ONE

ndid vote nore than oncer oE did deposit
nore than one balIot for the sErme office
as her vote, or did vote illegally or fraud-
ulently, in the Democratic Prinary Run-
off ElEction of SePtember 25, 19781

icouNT lwo

ndid vote more than once as an absentee
voter r ot did depoEit more than one absen-
tee ballot for tle same office or off,ices ag
her vote, or did cast illegaI or fraudulent
absentee balIots, in the Democratic Pri-
mary Run-off Election of SePtember 26,
1978,

'COUNT TEREE

'did cast illegal or fraudulent absentee
ballots in t'he 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' n

19. The indictment was constitutionally insufficient
because it failed to provide notice of the charges submitted
E"-p.iitio.rii's jury is the basis for her conviction unoer
i-f?-Z:-1. The iiaiitnent accused petitioner of violating
s tz-zr-1 by ivottingl i11egal1y" or."castlingl i11ega1
lbsentee ballotsrn Out it, failed to identify eit,her the acts

""niiitoting 
the alleged illegalities or the elements of the

statutes which purportedly caused those acts to be il]egal'
That failure dei:riled petitioner of constitutionally required
notice.

3-



(a) The trial judge instruclg9-!!e jury
on four stitutes, A1a. code S 17-10-3 (1975)
imiicitea by the judge as S 17-23-31, Tr. 202i Ala'
Code S 17-10-5 (1975) [miscited by th9 igag" as-!
17-10-7) 7 TE. 202-203i Ala- Code S 17-10-7 (1975),
Tr. 203-204i and Ala. Code S 13-5-115 (1975), Tr'
2O4i and on the offense of conspiracy, TE' 206'
llone of these statutes or their elements was
charged against petit,ioner in the indictment'

(b) The jury was instructed that proof
that petitioner hai committed any act nnot author-
ized 6y ... or ... contrary ton any 1aw would
constilute an "il1egal" aEt warranting petitioner's
conviction under S i7-23-1- Tr. 201. fhe effect
of that instruction and of the subsequent instruc-
tions on each'of the statutes listed in para'
lg(a) I supfdr was to make each of those stat,utes
a separlffiround for liability under S 17-23-'l'
The indictnint urade no allegations whatsoever that,
petitioner had violated those statutes or had
En.lageO in acts which would constitute violations
of those statutes.

(c) For these reaions the indictment
f ailed to provide notice of the offenses actua'lIy
submitted to the jury as require<i by the Constitu-
tionr and Petitioner's resulting conviction was
obtained in violation of oue process.

20. The indictment contained conclusionary
allegations of fraudulent conduct by petitioner,
but it failed to provide fair notice as requileo !Y
the constitution in that it failed to give sufficient
notice of the particulars of the alleged fraud'

(a) The indictrnent alleged in Count I,
in the alternative with other allegations, that
petitioner voted fraudulently.il th9 run-off' It'-attegea, in the alternative with other al1ega-
tioni in Count II, that she cast fraudulent absentee
ballots in the run-off. In Count III, it alleged
that she deposited fraudulent absentee ballots with
the pickens county circuit clerk, and that she knew
the ballot,s were fraudulent.

(b) In order to provide constitutionally
requisite notice, the indictrnent was required to
id6ntify the particulars of the allegeo fraud wit,h
sufficilnt splcificity to inform petitioner fairly
of the act,ions or transactions which constituted
the alleged fraud with which she was charged. - Itdid not do sor and its failure t,o make those factual
allegations deprived petitioner of the notice de-
manded by the Sixtn and Fourteenth Amendments.

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21. The indictment failed to a11ege accurately
each of the efeinincs of S 17-23-'l , and therefore
failed to provide the minimum notice required by
the Constitution.

(a) In this case, fraud-is a-necessary
eLenent of S 17-23-1 under the rules of Alabana
law set forth in Para. 16(a), supra'

(b) . Counts one and two of the indictment
do not aliege ah;a petit,ioner acted with fraudulent
intent or fnowl"age. They a11ege no mens rea of
any sort.

(c) Since the verdict against petit'ioner
was a generai verdict finding her "guilly "=
"titg"6r" 

tr. 2og, and Eince she was thereupon
;er;i;;d guiitv-of' o19 undifferengiated violat'ion
;i's-i1-zs-l, -Lire deficient counts Prejudiced
p.tftiot"t "tta 

ienaerea the indictment as a whole
insufficient under the Constitution'

24. ff any of the constructions of S 17-23-1 '
mentioned in paras- 15(a) and 23(d), sYPEa' were
valid and operiiio. at the time of petitionerrs
i;i;lr-it" itstructions to the jury impermissibly
broadened the statute so as to creat'e ex-post
i;aa; liabiliry in violarion of rhe Due Process 

riffi"'i;-;i;-'F""iti""tr, Amendnent as construed in
;;;i;-".-ciiv or coruPoi?, ?71,!:s:-11L11?!ll:ffit""irffiury also inpermissiblY
Oioaaenea S 13-5-115 causing, under the same

piincipf es, a seParat,e violation of the Due

Process C1ause.

(a) The jury instructions permitted
various statutes to-be-incorporated into s'17-23-1,
;;-e;;;tio"a in para. 19(a) iupra'- -rhev.furtherpermitted a conviction for nilIega}" vot'rng
iiino"t any showing of mental culpabillty' as
a"""iio.a in p.i..-19(b), SUPEETT ang thg: allowed
letitioner to- be convicted-o;- strict liability
Lasis for any transgressron of any of the incorPor-
ated statut,es. If S 17-23-1 was subject-to limiting
constructions at t[e time of petit'ioner's trial'
il;;;-j;;t insiructions abroslted.the constructions
retroaitiiely in violat,ion of Bouie'

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(b) Section 13-5-115 penalizes the
naking of a sworn statement requireo.. under the
election laws nfalsely and corruptly" -- i'9" with
criminalintent.Thetrialcourtinstructed
thejurythatpetit,ionercouldbeliableunderS
13-5:1l5for.!a1se1yandincorrect1v|]making
riquired statement. By substituting'incorrectlyn
for "corruptly," the instructions removed the
intent efeien-t from S 13-5-115 and thus lropermissibly
-ipandea the reactr oi the statut,e in violation of
Bouie.

25. Both S 17-23-1 and S 13-5-1'15 were
presented to the the jury as strict liability
offenses. Tr. 2O1, 264.- Therefore, aS applied to
Petitioner, those statuteE denied her due Process,
Especiafly inasmuch as they Eouched.on rights
piltected-by the Constitutlon. Petitioner'E
lonviction itands in violation of the Fourteenth
Amendment. r

II.

The only facts material to this motion are contained

in the certified transcriPt of the trial proceedings, sub-

mitted on september 21, 1983 by respondent as Exhibit 'I.'

Accordingfy, there can be no dispute as to any of the fact,s

relevant to this motlon.

WEEREFORE, PREIT{ISES CONSIDERED, Petitioner Prays that

this Court grant sunmary Judgment uPon the pleadings and

uncontroverted evidence before the Courtr grant the petition

for a writ, of habeas corPus and discharge petitioner from the

unconstitutional restraints of her conviction and the conditions

of parole imposed uPon herr and grant such other relief as may

be appropriate.

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Dateds January 18r 1984

Of Counsel:

Anthony G. Ansterdam
N.Y.U. School of Law
40 Washington Square
Room 327
New York, New York
1212) 598-2638

Siegfried KnoPf
Suite 5050

539 Martha Street
MontgomerY, Alabama 36108
262-7337

JACK GREET{BERG
IANI GUINIER

99 Eudson Streetr 16th Floor
New York, New York 10013
(2121 219-1900

Attorneys f,or Petitioner

South

10012

555 California Street
San Francisco, California 94104