Draft of Petition for Writ of Habeas Corpus by a Person in State Custody 3

    / 2"1

h"(,t

Prisonerrg Name: Maggie S. Bozeman

Prison . Number:

Place of Confinement:

THE UNITED STATES DISTRICT COURT

TEE NORTHERN DISTRTCE OF ALABA}IA

BIRUINGHA!{ DIVISION

--x
!,tAGGrE S. BOZET{AN I i

Petitioner, : Civil Action No.

against :

:

-x

IN

FOR



1.

Petition for Writ of Habeas Corpus By A

TO THE HONORABLE JUDGE OF THE DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ALABAMA, BTRMINGHAM DIVISION:

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.

The date of the judgment of conviction and sentence is
November 2, 1979.

The sentence is that Maggie S. Bozeman be imprisoned

in the penitentiary of the State of Alabama for a period

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

of defendant State Board of Pardons and parole.

The nature of the offense involved is that petitioner was

charged in a three count indictment with violating A1a.

Code S 17-23-1 (1975) in that she aIlegedly voted i11e9a11y

in Democratic Primary Run-Off Election of September 26, 1928

(hereinafter run-off ) .

Petitionerrs plea was not guilty.
Trial hras had before a jury.

Petitioner did not testify at trial.
Petitioner appealed her conviction.
The facts of petitionerrs appeal are as follows:

(a) The judgment of conviction was appealed
to the Court of Criminal Appeals of
Alabama. That court affirmed the con-
viction on March 31, 1981. 401 So.2d 167.

z.

3.

4.

5.

6.

7.

8.

9.



(b) The Court of Criminal Appeals of
Alabama denied a motion for rehearing
on the appeal on April 2I, 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 Stat,es
denied a netition for writ of certiorari
to the Court of Criminal Appeals on
November L6, 1981. 454 U.S. 1058.

10. Other than the appeals described in paragraphs 8 and 9

above, the other petitions, applications, motionsr oE

proceedings filed or maintained by petitioner with

respect to the judgment of November 2, L979 of Circuit
Court of Pickens County are described in paragraph 11

be1ow.

11.

L2. Petitioner
guaranteed

Amendments

each of the

(a) A motion for a neh, trial rras made
to the Circuit Court of Pickens
County. The motion was denied on
February 27 , 1979.

vras convicted in violation of her rights
by the First, Fifth, Sixth and Fourteenth

to the Constitution of the United States, for
reasons stated below.

I. fntroductory Facts

13. Petitioner Maggie S. Bozeman was convicted of
illegal voting because of her alleged participation in an

effort to assist elderly and illiterate voters to cast absentee

ballots in the run-off.

2-



14. On October 10, 1978, two l^,eeks after the run-off
election, the Sheriff of Pickens County, Mr. Louie Co1eman,

along with the District Attorney of the County, ME. Pep Johnston,

an investigator named Mr. Charlie Tate, and Mr. Johnstonrs

secretaryr Ms. Kitt,y Cooper, opened the county absentee balIot

box to investigate "assumed voting irregularity." Tr. 35.

They isolated thirty-nine absentee ballots out of the many

cast. What distinguished these absentee ballots from the

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

by Mr. Paul Rollins, a black notary public from Tuscaloosa.

Tr. 35.

15. Each of the 39 absentee ballots was represented to

be the vote of a different black, elderly, and infirmed resident

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

in the casting of these baLlots in violation of Ala. Code S

t7-23-L (1975).

fI. Grounds of Constitutional InvalidiU

Insufficiencv of the Evidence

15. Based on the evidence offered at trial no rational
jury could have found petitioner guilty beyond a reasonable

doubt of each of the elements of the offense charged, and

therefore petitionerts conviction violated the Due Process

Clause of the Fourteenth Amendment.

A.

3-



Facts supportinq the claim that
ion.

L7. Under Jackson v. Virginia, 443 U.S. 307 (1979),

petitioner must be .granted a writ of habeas corpus, if after

considering the evidence offered by at trial, and viewing it
in the light most favorable to the prosecution, it is con-

cluded that no rational jury could have convicted petitioner

beyond a reasonable doubt of each of the elements of the

offense charged.

18. Petitioner was charged with violating A1a. Code S

L7-23-L (1975) because of her alleged activities in connec-

tion with the run-off. Section L7-23-L provides:

Any person who votes more than once at
any election held in this stater oE deposit,s
more than one ballot for the same office as
his vote at such election, or knowingly
attempts to vote when he is not entitled to
do sor or is guilty of any kind of illegal
or fraudulent voting, mustr oll conviction,
be imprisoned in the penitentiary for not
less than two nor more than five years, 8t
the discretion of the jury.

19. The Supreme Court of Alabama defined the elements

of S 17-23-1 over a century dgo. In Wilson v. State, 52 A1a.

299 (1875), it held that "[t]he offense denounced by the

statute . is voting more than once.o The Court, in

Gordon v. State, 52 AIa. 308 (1875), held that in order to

establish culpability under the statute "wrongful intentn on

the part of pet.itioner must be proven which, dt minimum,

requires proof that the accused acted "recklessly or care-

Iessly" in violating the statute. 52 A1a. at 309-310. But

in Wilson the Court held that the minimum showing of

4-



errongful intent must include proof of fraud if the manner in
which the state investigated the supposed multiple voting

resulted in an inspection of the contents of'the ballot box.

52 Ala. at 303. Therefore, since an inspection of the baIlot
box was made, (Tr. 35) the elements of the offense charged

against pet,itioner are that she voted more than once through

fraud.

20. Each count of the indictment averred that peti-
tioner violated S 17-23-1 by casting or depositing ballots.
But there was no evidence presented that petitioner ever

deposited or cast any ballots, absentee or regular, in the

run-off. There hras no evidence as to whether she voted at

all in the run-off. Nor was there any evidence that peti-
tioner accompanied or assisted anyone else who cast the

ballots at issue. fndeed the state failed to show who cast

the ballots. At most, p€titioner could have been convicted,

on the evidence presented, as an accomplice.

21. In order to sustain accomplice liability against

the petitioner the prosecution must first have proven that

the underlying offense, S L7-23-1, was committed. Second, it
must have proven that petitioner rendered some sort of

assistance toward the commission of the crime. Ex parte

nitter, 375 So.2d 270, 274 (A1a. 1975). Third, evidence must

have been presented that this assistance rendered by pet,itioner

was "intended and calculated to incite or encourager" through

5-



the use of fraud, those she was allegedly aiding to vote more

than once. Baker v. State, 290 So. 2d 2l4t 216 (Ala. Crim.

App. L973), cert. den., 290 So.2d 217 (A1a. 1974). Fourth,

it must have proven that pet,itioner knew those she lras

aiding were acting with the intent to defraud. Ke11er v.

State, 389 So.2d 925, 936 (A1a. Crim. App. 1975). It is

cledr that mere presence of petitioner at the'scene of the

crime" is insufficient to make her an accomplice to the

crime. Radken v. State, 293 So.2d 314, 315 (Ala. 19741i

Wilson v. State, 122 So. 617 (Ala. 1929)i Howell v. State,

339 So.2d 138, 139 (A1a. Crim. App. I976).

22. Only nine of the thirty-nine voters whose ballots
had been introduced as evidence were called to testify.
Three of those voters, Ms. Sophia Spann (Tr. L79), Ms. Lucille
Harris (Tr. 189), and Ms. Maudine Latham (Tr. 93), testified
to never having seen the absent,ee ballot introduced into
evidence as their respective vote. Ms. Anne Billups (Tr. 97-98t I

Ms. Mattie Gipson (Tr. 110), Ms. Janie Richie (Tr. L27), and

Ms. Frannie Rice (Tr.136-137r 148r 151) each remembered

voting by absentee ballot in the run-off. Mr. Nat Daucy and

Mrs. Lou Sommerville each exhibited no credible memory of the

way they had voted in the run-off.

5-



23. In its entire case, the prosecution evidence

against petitioner consisted of only three instances linking
petitioner to any activity in the run-off, and no evidence at

all was presented that petitionerts actions were either
criminally culpable or in violation of S 17-23-1, as principal

or accomplice. First, the prosecution evidence showed that

petitioner picked up "Ia]pproxinately 25 to 30 applications"

for absentee ballots from the circuit clerkrs office during

the week preceding the run-off. Tr. 18. Second, there was

evidence presented that petitioner aided Mrs. Lou Somnerville

in filling out an application for an absentee ba1lot. Tr.

16I, 15g .-! Third, there was evidence .presentsd-*qh*.r \.,r^-,-,1

peririoner was preisent when the .u".n.!#{"{il*";lr" notarized
** t .:(fuyfls pr.,,,,*)t) +"eJ gepe""f'2t0.1 I^ crt,t L^,

by Mr . Paul RoII ins .-/ +rtp. {- ,**0 
V, ) -, ,.lJ_"r.o_,. _,r**i ' I

I This evidence from Mrs. Sommerville was inconsistent
with the direct examinat,ion testimony of the witness, and was
presented by the State in violation of pet,itionerrs rights
under the U.S. Constitution, EE paragraph$, infra. The
evidence from Mrs. Sommerville was introduced by the prosecu-
tor reading to the jury notes, not previously shown to
defense counsel, purporting to be the transcript of an
interrogation of Mrs. Sonmerville, conducted about one year
pricir to trial without defense counsel or any other counsel
present. Mrs. Sommerville, testifying on the stand, vehemently
denied the veracity of the prosecutorts notes and denied any
involvement whatsoever by petitioner. Tr. 161-171.

x*/ There were two other mentions made of petitioner in the
evidence offered by the state but neither had to do with the
run-off. Firstr Mrs. Sophia Spann testified that petitioner
had talked with her about absentee voting when "it wasnrt
voting time." Tr. 184. Second, according to the prosecutorrs
notes of the out of court statement, petit,ioner aided Mrs.
Sommerville to fill out an absentee balIot to be cast in the
regular primary held in early September of 1978. Tr. L74.
Mrs. Sommerviller on the stand, steadfastly denied any
involvement by petitioner. Id.

7



24. Even in the light most favorable to the State, the

evidence that peEitioner picked up 25-30 balIot applications

and the prosecution notes of an interview with Lou Sommerville

suggesting petitioner assisted Ms. Sommerville in filling out

an application for an absentee ballot provide no evidence of

crimina1cu1pabi1ityonthepartofpetitioner.ffi<en
as tEte---anQ-- not contradicted h*-@imony on

@ipn -by the Sg"t"\Si" evidence at most links
petitioner to legitimate voter assistance in the application

process and in no lvay suggests that there wadany involvement
".1,"1/g[by petitioner t ctiminal or otherwise, in 'ttrqlct-epes-i t-

$4|{.\/$^ ,--,,-L- .pn::::4 i-q hiqqsr voting of'absentee ballots knowing them'to'be fraudulent.

Without question the testimony of Mr. RoIlins represents the

only evidence of even the most attentuated connection between

petitioner and the 39 ballots aI1eged1y voted in violation of

S 17-23-1. without the testimony of Mr. Rol1ins, petitioner's
conviction falls even under the no evidence rule of Thompson

v. Louisvile, 369 U.S. 199 (1960). With the testimony of Mr.

Rollins, the conviction is still suspect under Thompson and

quite plainly falIs under Jackson.

25. --+urttcr:morOr;$ view of the lack of any other

evidence against petitioner, in order to sustain her con-

viction her role in the notarizing must, standing alone,

provide sufficient evidence of each of the elements of

accomplice liability (see para. 21, above) so as to prove

8-



pet,itioner's guilt under the Jackson standard. Proof beYond

a reasonable doubt of each of these elements was required by

the Due Process Clause of the Fourteenth amenament!. In Re

winship, 397 u.s. 358 (1970).

26. The only possible theory of criminality arising

from the notarizing is that the notarizing took place outside

of the presence of the voters. It is admitted thaE the evi-

dence showed that Petitioner telephoned Mr. Rollins and left

a message prior to the run-off. Tr. 55-55. But Mr. Rollins

also gave uncontroverted testimony that after Pet'itioner

telephoned he received another telephone call, also pertaining

to bal]ots, from a second person whose name he could not

reiall. Tr. 76. There was simply no evidence offered beyond

that related above so that it is impossible to know which of

the callers arranged that the notarizing would take place out

of the presence of the voters. The state offered no evidence

on this point lying at the crux of its case.

28. The evidence also showed that Petitioner was

present at the notarizing along with three or four other

women. Tr. 57. But Mr. Rollins denied that petitioner

personally requested him to notarize the ba]lots. Tr. 59,

50, 62, 64. AlI the state iould elicit from Mr. Rollins rrras

that petitioner was present at the notarizlng and that she

and the other women hrere there ntogether." Tr. 50-51 , 62,

64, 71. No evidence $ras presented to contradict Mr. Rollins'

9-



unequivocal and responsive answers denying actual involvement
by pet,itioner in activities related to the notarizirng or
professing lack of memory.

29. fn sum, the evidence offered by the state can

provide only nconjecture and suspicionr" United States v.

Fitzharris, 633 F.2d 416 | 423 ( 5r,h cir. 1980) ( applying Jackson)

as to whether petitioner aided in causing the notari zLng to
take place outside of the presence of the voters, and as such

the evidence is insufficient under Jackson. see Fitzharris,
supra.

,/
30. However, {g"n if it is assumed arguendo that theY

staters evidence $ras sufficient to convince a reasonable jury
beyond a reasonable doubt that petitioner aided in causing

the notarization to occur out of the presence of the voters,
such proof sti11 fails to provide sufficient ".rid"n"" under

Jackson of the mental culpability required for accomplice

liability under S 17-23-1. Applicable here is the require-
ment of Jackson that the habeas court "draw reasonable inferences

from basic facts to urtimate facts.' 443 u.s. at 319. Therefore,

the relevant question is whether from the fact, assumed herein,
that petitioner aided in causing the notarizing to take place

outside of the presence of the voters, it can be reasonably

inferred that petitioner nas acting with intent to aid in
what she knew to be an effort to deprive others of their
votes through fraud. The eleventh circuit held recently that

10



the process of inferring ultimate facts from evidentiary
facts reaches a degree of attenuation which falls short of

the Jackson rule "at least when the undisputed facts give

equal support to inconsistent inferences." Cosby v. Jones,

682 F.2d 1373, 1383n.21 (11th Cir. 1982), Thus, the question

is whether the 'undisputed fact' - assumed for this paragraph

that petitioner played a supporting role in causing the

notarizing to take place outside of the presence of the voters

makes it more like1y than not that she $ras acting with the

calculated intent to aid others to commit fraud for the purpose

of voting more than once. It is submitted that a reasonable

trier of fact would perforce harbor at least a single reasonable

doubt as to whether that fundisputed fact' proved petitionerrs

culpability.
B. Insuffiency of the Indictment

31. The indictment brought against petitioner was

insufficient to inform petitioner of the nature and cause of

the accusation against her, as required under al" Sixth and

Fourteenth Amendments

Facts supporting the claim
that the inldictment failed
to provide constitutionalll

32. The

to measure up

notice:

indictment failed in at least three respects

to the standard of constitutionally required

i ) It failed to state all of the
established elements of liability
under S 17-23-1.

1'r



ii ) It -failed to. allese -facts sufficient tornxorm petrttoner-ot the nature of the
accusation against her.

iii) It failed to charge certain offenses
distinct from S 17-23-I which were
charged to the jury as elements of St7-23-1.

33. rt is a long established rule that every element

of the offense charged must be accurately set forth in the

indictment. see, e.9., Russell v. united. states, 369 u.s.
749, 763-764 (1962). Russell affirmed that this rure is one

of a number of nbasic principles of fundamental fairnessr"
(359 u.s. at 755-766), pertaining to the indictnent which

find constitutional enbodiment'in the Notice clause of the

sixth Amendment. rd., at 761. That the indictment fairly
inform the accused of what she must be prepared to meet is
rthe first essential criterion by which the suffiency of an

indictrnent is to be tested.n rd., at 764 And the "inclusion
of the essential elements of an offense in an indictment tisl
. . . the bare mininum of information necessary to meet"

the sixth Amendment Notice clause. united states v. outler,
559 F.2d 1305,1310 (5th cir. unit B 1gg1), cert. den.r 1o2

s.cr. 1453 (1992).

34. There are two essential elements to S 17-23-I,
(see para. 19, above). First, the accused must have voted

more than once. second, the accused must have done sor in a

case like petitioner's where inspection of the contents of
the ballot box was had, through fraud.

12



35. The intent element the requirement of fraud

was omitted from both count one and count two of the indictment.

Both counts are therefore fatally defective under the Sixth

Amendment. Petitioner was convicted of all three counts in
the indictment.

35. the failure of count one and count two to state

the intent element of Ehe offense caused the indictment as a

whole to be insufficient under the Notice Clause. The

indictment charges the same offense that petitioner violated

S 17-23-1 by her voting activities in the run-off -in each of

its three counts. By doing sor the indictment presented

Petitioner with three alternative statements of the offense

charged against her, with conviction under any one of th'e

three sufficient to subject her to the full penalties of S.

l7-23-L. Therefore count three, even though.it states the

intent element of S 17-23-1, cannot correct the inaccurate

and insufficient notice caused by the first two counts.

Count three notwithstanding, the indictment read as. a whole

informed petitioner that she could be convicted under

S 17-23-1 without any showing of mental culpability. The

crucial intent element of S 17-23-1 lras not accurately

alleged and caused the indictment as a whole to fail to

impart the minimum notice required by the constitution.

13



37. An indictment, in order to provide constitutionally
sufficient notice, must do even more than state the elements

of the offense. rt must "identify the subject under inquiry.,'
Russell v. United States, 369 U.S. 749, 7G6 (l.gGZ) . It must

or facts,inform "the defendant . . . of which transaction,
give rise to the alleged offense." u.s. v. outler I Gs9 F.2d

1305,1310, n.5. (5th Cir. Unit B 1981), cert. den., :.}z
s.ct. 1453 (1982). This rule assumes crucial importance.

"where the definition of an offense,
whether it, be at common law or by
statute, 'includes generic terms
[. fn such a case], it is not suffi-
cient that the indictment shal1 charge
the offense in the same general terms
as in the definition; but it must state
the species it must descend to theparticulars. I n

qnlted States v. Cruikshank, 92 U.S. 542, 558 (1875).

The Cruikshank rule was included in Russel1 as one of
the "basic principles of fundamental fairnessr', (3G9 U.S. at

765-766), to which indictments must adhere. The very hording

in Russell rested on this rule and on the necessity of the

indictment to give notice as t,o those factual allegaions
which 1ie at the 'core of criminalityr" (Id., at 764), of the

particular statute.
38. Petitioner was charged in the disjunctive in each

count of the indictment with 'i1lega1' or rfraudulentr voting.
That illegaI is such a "generic term" is plain, and supreme

14



Court precedent unmistakably supports that conclusion.

Keck v. united states, L72 U.S. 434, 437 (1899). Fraud

has also been consistently been treated as such. The courts

require that an indictment charging fraud set forth the

Lransaction alleged to have been fraudulent and inform the

accused of what rePresentations are alleged to have been

used to carry out the fraud. see, €.9.2 united st?tes v.

clark, 546 F.2d 1130 (5t,h Cir. L977), United states v.

Nance , 144 U.S. App. D.C. 477, 533 F.2d 699 11976); United

states v. curtis, 506 F.2d 985 (Ioth Cir. L9741.

39. The only facts alleged in the indictment filed

against petitioner were that petitioner had voted or de-

posited ballotsr PosSibly absentee ballots, Elt the run-off'

These allegations are grossly insufficient to have identi-

fied the alleged criminal transactions sufficiently so

that petitioner could know with reasonable certainty the

nature of t,he accursation against her. surely, Lf the

staters sole evidence had been that petitioner deposited

several absentee ballots wit!,h the circuit clerk's off ice

on the day of the run-off the state's case would have

been insufficient to go to the jury. In order to make

any case against petitioner under S 17-23-I the state v'as

required to sift through the activities of the women

involved in the effort to aid elderly blacks to vote by

absentee ba]lot during the weeks prior to the run-off,
15



and scrutinize the activities of petitioner during those

weeks as well, in search of evidence of fraud or i1lega1-

ity. lt Only by finding fraud occurring prior to the

depositing of the ba1lots, and only by tying petitionbr
to such a finding as a principal or accomplice, could the

state have succeeded in proving that the depositing of
the baIlot,s, that was alleged in the indictment, hras the

consumation of a crime under S 17-23-1.

40. Thus the 'core of criminality" (Russe1l, supra,

369 U.S. at 794) in the state's case under S 17-23-1 could

not be outlined by resort to the words of the statute but

was dependent upon alleged fraudulent activity occurring

in the weeks prior to the run-off. Under Russell, the

state was therefore required to @r'r
(Rnss@-S= atr 764) r u-der S 1J-r3-1- tlndeg

- to illiminate that core by

"descendIing1 to the paticularsr" (fd.r dt 765), and identify-
ing the facts and transactions which made what would have

otherwise been the lawful depositing of absentee ballots an

alleged felony. Since the indictment failed to Sor pet,itioner

It As it $ras, the state failed completely in that effort.
The staters case depended on a jury speculating that the cast-
ing of the absentee ballots by someone other than petitioner
constituted consumation of a criminal scheme in which peti-
tioner participated without necessarily knowing or intending
that a crime take place. See para. 30, supra. The staters
evidence did not eiren show that petitionE-hEd cast any
baIlots. See para. 20, supra.

16



rras forced to guess at her peril among the many activities
she might have participated in during the weeks before the

run-off as to which would be seized on by the state as the

basis for proving her culpability under S 17-23-1. Since the

indictment alleged that criminal liability could be established

on strict liability grounds her guess was made all the more

difficult and perilous, and the absence of pertinent factual

allegation was made all the more critical. See Van Liew v.

United States, 321 F.2d 664, 674 (5th Cir. 1963). The

indictmentrs lack of factual averements caused it, to fail to
provide the quantum of notice reguired by the constitution.

41. It is clear that each and every statute which is
to be used by the state as a possible partial or total basis

for criminal liability must be alleged in'the indictment.

First, each such statute is an element of the offense against

the accused. Second, it is assuredly a necessary factual
averement if sufficient notice is to be given. Goodloe v.

Parratt,605 F.2d 104I,1045-1045 (8th Cir.1979). Third, it
is axiomatic that n[c]onviction upon a charge not made would

be a sheer denial of due process." De Jonge v. Oregon,299

u.s. 353, 362 (1937).

42. Petitioner was subjected to a denial of constitu-
tionally required notice and due process by virtue of charges

levied against her for the first time in the trial judge's

instructions to the jury.

17



43. The jury was first instructed to the effect that
liability under s 17-23-1 could be sustained if petitioner
had committed 'an act that is not authorized by law or is
contrary to 1aw." Tr. 20L. That hras the definition of

"ilIega1" given to the jury, and the instructions permitted

any such niIIegal" act committed by petitioner in connection

with her voting activities in the run-off to sustain a

liability under S 17-2311. Id.
44. The trial judge then instructed the jury on three

statutes, A1a. Code. S 17-10-6 (1975), which was miscited by

the judge as S 17-10-7, (Tr. 202-203), AIa. Code S 17-10-7

(L975), (Tr. 203-2041, and Ala. Code S 13-5-115 (1975), (Tr.

204), and on the offense of conspiracy (Tr. 2061, each of
which was charged against petitioner for the first time in
the instructions.

45. The instructions as to S 17-10-5 and S 17-10-7

stated to the jury that the law required that the voter be

present before the notary to swear to a statement prescribed

in S 17-10-7, and that the law also required that the notary

know the identity of the voter only through contact with the

voter. Tr. 203-204. The effect of the trial judgets instruc-
tion rdas to charge the jury that the fact that the notari zing

Eook place out of the presence of the voters was "contrary to
1aw" and thus wou1d, standing alone, sustain liability under

S 17-23-1. Since the prosecution had attempted to fix

't8



complicity on petitioner for causing Eh9 notarizing to have

taken place outside of the presence of the voters, this $ras

plainly a new charge made against her.

45. The jury was then instructed that Ala. Code

S 13-5-115 (1975) provided that the making of a false and

incorrec, ! sworn st,atement or affidavit in connection with

actions taken under the election laws would constitute perjury

and be illegaI. Tr. 204. Since the prosecution had attempted

to fix complicity on petitioner for making alleged1y.false and

incorrect sworn statements at the notarizing, this vras plainly
a new eharge levied against her.

4'7. lhe jury was then instructed on the offense of

conspiracy (Tr. 206). As there hras insufficient evidence

that petit,ioner was guilty as principal or accomplice under

S 17-23-1, the addition of the conspiracy charge was plainly
a decisive addition to the prosecutor's cse. Since it was

a new charge against petitioner it denied her fair notice

and due process

48. It is certainly the most egregious notice defi-
ciency possible in an indictment for it to fail to include

any of the elements of a statute used by the state as a possi-

A This was a misstatement. Section 13-5i115 in fact
requires that the false statement be made "corruptly.' No
such word connoting a requirement of criminal intent was
included in the judgers explanation of the statute. The
judge falsely defined S 13-5-115 as a strict liability
offense.

19



b1e basis for liability on the part of the accused. The

result is nothing less than a wholesale depri.vation of

constitutionally required notice. See, e.9., Watson v.

Jingo, 558 F.2d 330, 339 (5th Cir. L977). Such a wholesale

deprivation was unquestionably visited uPon Petitioner by the

instructions given t,o the jury, and the failure of the

indictment to conform in any $ray to the proof at trial.

C. Tria1 Courtrs fnstructions on the Elements of Culpabilitv

49. The instructions to the jury on liabilit,y under S

L7-23-L and S 13-5-115 broadened the reach of those statutes

to a degree that represented an unforeseeable and retroactive

judicial expansion of the reach of those statutes in viola-

tion of the Due Process Clause of the Fourteenth Amendment.

AIso, the fact that both statutes were defined as strict

liability offenses denied petitioner due process irrespective

of the fact of expansion.

Facts supportrng-lhe claim that the jury

50. fn the case of Bouie v. City of Columbiar 3TS U.S.

347 (1963), the Court, aPPling the requirement of due process

that a statute give fair warning of the acts forbidden by it,

to hold that an unforseeable expansion of a criminal statute

by a court in instructing the jury as to the law denied the

defendant due process of law. Id.r at 354-355. Such an

unconstitutional expansion occurred in the present case.

20



51. The actions prohibited by S 17-23-I had been

clearly deliniated as voting more than once. It had also

been long established that some sort of wrongful intent had

to be shown in order to convict under. S 17-23-I. (See para.

19, above) The instructions broadened S 17-23-1 to reach any

action 'not authorized by Iaw or . o . contrary to the 1aw.,

Tr. 20I. Under this new standard the failure Eo meet the

reguirements of any 1aw while in the course of voting activi-
ties is sufficient grounds for criminal liability under S

J.7-23-L, even if the accused was acting in good faith. Two

non-penal statutes (SS 17-10-6, 17-10-7) and a penal statute
(S 13-5-115) vrere also charged against petitioner, (See

paras. 44-46, above), under this new theiory of culpability.
52. Section 13-5-115 was also impermissibly expanded.

The statute as written requires that the accused act 'corruptly'
(i.e. with criminal intent) before liability can attack. The

instructions defined S 13-5-1r5 as a strict liability offense.
Tr. 204.

53. Both S 17-23-1 and S 13-5-115 were presented to

the jury as strict liability offenses. Therefore, as applied

in the instructions they denied petitioner due process irrespective
of the impermissible expansion of their reach.

D. Violation of Petitionerrs First Amendment Richts

54. The only conduct by petitioner proved beyond a

reasonable doubt by the StaEets evidence amounted to behavior

21



protected under the First Amendment to the constitution, and

therefore her conviction violated both the First and Fourteenth

Amendments.

F.acts supporti{rg c}3im that stetg ProYed
otected behavior

on the Part of Petitioner.
55. Petitioner's participation in an organization

working to bring out the black vote among the elderly in

Pickens County is clearly a political activity protected

under the constitution. The "First Amendment freedom to

gather in association for the purpose of advancing shared

beliefs is protected by the Fourteenth Amendment from infringe-

ment by any State." gemocratic Party of U.S. v. lYisconsin,

450 U.S. l.O7, l2l. (1981). The state proved nothing more than

such political activity.by petitionerr dlld cannot deprive

petitionei of her liberty based on such proof'

55.Allowingtheprosecutiontoreadtothejury
notes purporting to be transcripts of statements taken

by the district attorney during out of court interroga-

tions, and the using of such staLements aS substantive

evidence against petitioner, violated the Gonfrontation'

GIuu". of the Sixth Amendment and the Due Process Clause

of Ehe Fourteenth Amendment.

Ei Out of Court Statements Against Petitioner

22



57.

Facts su rti the claim that admission o!
r

Pg.
At several times during trial o,&&Ltennr, the

prosecution resorted to various purported out of court state-

ments for the purpose of introducing proof against petitioner.

Two of the only three connections made during the entire trial

bet,ween petitioner and the effort to aid elderly blacks in
*

voting absentee were made through such statements'-2/ The

connections rcl asserted between petitioner and Ms' Sommer-

ville (see para. 23, supra) were introduced through the use of

the purported staEements. Tr. 151-157. In the testimony of

1,1r. Rollins, the prosecutor read from the notes to assert

that Mr. Rollins had statedr out of court, that petitioner

had telephoned him requesting that the ballots be notarized.

Tr. 65-55. Throughout direct examination Mr. Rollins could

not remember whether petitioner had calIed him although he

remembered receiving two telephone calls from two different

people pertaining to the notari zLng of the ba11ots. Tr. 57 ,

64, 55-65. On cross-examination, Mr. Rollins remembered that

the first call he received vras from petitioner, and the second

from a different person, but he still did not remember whether

petitioner had requested that he notarize the ballots. Tr.75-77'

t/ The statements were also admitted on two occasions to
attempts to show that two of the voters called to the Stand
had blen deprived of their absenteen voteT although each had

testified to having voted absentee. (Tr. I43-148, Ms' Ricei
Ti. 128, Ms. ii"i"V.l ihe out of court statements were in-
conclusive and failed to show that they had not voted by
absentee ballot.

23



58. These statemetns hrere utterly lacking all "indicia
of reliability." @ v. Roberts, 448 U.S. 55, 66 (1980).

Neither petitioner nor any counsel of petitioner rdas present

at any of the interrogations. fn fact these is reason to

doubt the statementsr authenticity as it, was testified by

Mrs. Sommerville that there hras no stenographer present when

the questioning took p1ace. The then 93 year-o1d Mrs.

Sommerville remembered clearly that she was alone wtih the

District Attorney as he interrogated her (Tr. 157-158), a

point the District Attorney did not dispute. There can be

no doubt that such a confrontation was intimidating to the

elderly t omen, and quite possibly to Mr. Rollins as well

since his own actions as a notary r^,ere being called into
question and this factor further degrades the reliability of

the statements. Also, the prosecution in using such state-
ments, and the trial judge in allowing them in, were dis-
regarding settled Alabama law. See, €.9.; Randolph v.

State, 348 So.2d 858 (A1a. Crim. App.), cert. denied, 348

So.2d 867 (19771 .

59. Mr. Rollins' lack of memorvfto the substance

of the telephone call/ made him unavailable for full and

effective cross-examination. United States v. Amaya, 533

F.2d 188, 191 (5th Cir. 1976). That fact combined with the

stat,ementsr lack of reliability cause their admission to

violate the Confrontation Clause. See, Ohio v. Roberts, 448

u.s. 55, v56 (1980) .

24



50. Under the erroneous interpretation given to S

l.7-23-l by both the jury instructions (see paras . 43-4'l I

supra), and the prosecution (Tr. 195-196), petitioner's
mere participation in the notari zing \{as sufficient to
sustain liability under S 17-23-1. Thus the out of
court statement of Mr. Rorlins rras crucial to the prose-

cution and devastating to the defense. without it, Mr.

Rollins' testimony proved only petitioner's presence at
the notarizing, and a prior telephone call where it was

not known if Mr. Rollins I notary services were requested

or discussed. with the other evidence against petitioner,
even under the prosecutionts erroneous theory of liability,
being so slight, the effect of the statement attributed
to Mr. Rollins, combined with the other out of court
statements admitted, could have persuaded the jury to
convict. The importance of these statements to the prose-
cution, together with their egregious unreliability,
casused their use against petitioner to be violative of
due process irrespective of the violation of the confron-
tation clause. see californiq v. Green, 3gg u.s. l4g, lgg-
189 (Harlan, J., concurring); United States v. Shoupe,

548 F.2d 636, 542-644 (6th Cir. 1977)i United Srares v.

9rrice, 599 E'.2d 113 (6rh Cir. 1979).

,tr



WHEREFORE, Petitioner prays that the court:

1) f ssue a lfrit of Habeas Corpus to havepetitioner brought before it to the end that she
may be discharged from her unconstitutional
restraint;

2') Conduct a hearing at which argument and
proof may be offered concerning the allegations ofthis petition;

3) Permit petitioner, who is indigent, to
proceed without payment of costs or fees;

4) Grant such other relief as may be appro-
priate.

Respectfully submitted,

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