text:
    Jerry Bates LONG, Petitioner, v. Michael DUTTON, Warden, Respondent.
    Civ. A. No. 3:85-0137.
    United States District Court, M.D. Tennessee, Nashville Division.
    Feb. 12, 1985.
    Memoranda Opinions, Findings and Order on the Merits July 12, 1985.
    Joe P. Binkley and Patricia Young, Nashville, Tenn., for petitioner.
    Kymberly Lynn Ann Hattaway, Asst. Atty. Gen., Nashville, Tenn., for respondent.
   MEMORANDUM OPINION, ORDER, AND DIRECTIONS

NEESE, Senior District Judge, Sitting by Designation and Assignment.

The petitioner Mr. Jerry Bates Long applied to this Court for the federal writ of habeas corpus, claiming that he is in the custody of the respondent-warden pursuant to the judgment of March 18, 1983 of the Circuit Court of Humphreys County, Tennessee, in violation of the Constitution, Fifth Amendment, Due Process Clause; Fourteenth Amendment; § 1, Due Process Clause; and his right to a fair trial mandated by the former, United States v. Shoupe, 548 F.2d 636, 643 [7] (6th Cir.1977), reh. den. (1977); United States v. Blasco, 702 F.2d 1315, 1329 [29] (11th Cir.1983). 28 U.S.C. § 2254(a). The applicant claims he exhausted his state-remedies by presenting on direct review a part of the same questions he presents here to the Court of Criminal Appeals of Tennessee, which affirmed such judgment of convictions (but not as to punishment) on June 22, 1984 in State of Tennessee, appellee, v. Jerry Bates Long, appellant, no. 73-120-III, permis. app. den. (with concurrence in the result below only), October 1, 1984 by the S.Ct. of Tenn. 28 U.S.C. § 2254(b).

Among the applicant’s claims of deprivation of federal due process of law are his allegations (in a section of his petition designated therein as 10.D.) because of the insufficiency of the evidence of his having been armed in connection with his conviction of armed robbery, and allegations (in such a section designated therein as 10.E.) because of the insufficiency of the evidence of his having been a person who committed the respective crimes in connection with his convictions of aggravated rape, of burglary in the first-degree, and of grand larceny. He asserts that his afore-designated claims 10.D. and 10.E. were not presented on his direct appeal to the appellate courts of Tennessee “ * * * as same were not included in [his] motion for a new trial, which was heard and disposed of prior to the entry of present counsel. Said facts were referenced by [present] counsel during the appeal of this case to the State appellate courts, and it was noted as correct by the opinion of the Court of Criminal Appeals * * * tf

The latter-named Court noted inter alia “ * * * that sufficient evidence was presented to the jury to justify a rational trier of fact in finding the appellant guilty beyond a reasonable doubt of the crimes for which he was convicted. Rule 13(e), T.R.A.P.; Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 2786-2792, 61 L.Ed.2d 560 (1979), [reh. den., 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979) ]. * * * ” lb., at pg. 2. The intermediate criminal Court of Tennessee, having entertained the foregoing federal claims of the applicant on their respective merits, this Court “ * * * must also determine the merits of the applicant’s claim[s] * * * ” on his application to this Court for relief via habeas corpus. Lefkowitz v. Newsome, 420 U.S. 283, 292, n. 9, 95 S.Ct. 886, 891, n. 9, 43 L.Ed.2d 196 (1975), cited in Francis v. Henderson, 425 U. S. 536, 542, n. 5, 96 S.Ct. 1708, 1711, n. 5, 48 L.Ed.2d 149 (1976).

Such a determination of sufficiency, of course, must be made from the whole record. Cf. Holnagel v. Kropp, 426 F.2d 777, 779 [4] (6th Cir.1970) (where a determination was necessary of whether a state-prisoner had had ineffective counsel). The respondent-warden will file an answer or other pleading within 23 days herefrom. Rule 4, 28 U.S.C. fol. § 2254. The clerk will serve forthwith by certified mail copies of the petition herein and of this order and direction upon the respondent-warden and the attorney-general and reporter of Tennessee. Id.

Within that same period, the applicant, if able, hereby is directed to produce the record of his trial before the aforementioned Court; otherwise, it shall be produced by the attorney-general and reporter of Tennessee. 28 U.S.C. § 2254(e). The noticed slow movement of the mail provides good cause for the additional time allowed. 28 U.S.C. § 2243; Rule 81(a)(2), F.R.Civ.P.

MEMORANDA OPINIONS, FINDINGS, AND ORDER ON THE MERITS

The respondents conceded that the petitioner exhausted his available state-remedies as to the questions presented herein. 28 U.S.C. § 2254(b).

I.

The petitioner claims the constitutional-insufficiency of the evidence at his trial on such charges to support any of the convictions of crime for which he is held in custody by the respondent-warden. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “* * * [I]n a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt. [Footnote reference omitted.] * * * ” Ibid., 443 U.S. at 324, 99 S.Ct. at 2791-2792 [10],

“ * * * [N]o person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense. * * * ” Ibid., 443 U.S. at 316, 99 S.Ct. at 2787 [6]. That, of course, assumes a properly-instructed jury. Ibid., 443 U.S. at 317, 99 S.Ct. at 2788.

“A federal court has a duty to assess the historical facts when it is called upon to apply a constitutional standard to a conviction obtained in a state court. * * *

“ * * * [T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ * * * Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any [as in orig.] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. * * * The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the, fundamental protection of due process of law. * * * ” (Footnote references omitted.) Ibid., 443 U.S. at 318-319, 99 S.Ct. at 2788-2799[7].

Mr. Long was convicted of the crimes of (1) aggravated-rape, (2) burglary in the first-degree, (3) armed-robbery and (4) grand-larceny. The essential elements of those respective crimes are as follows:

1. The elements of rape in Tennessee “ * * * are carnal knowledge, force, and commission of the act without the consent or against the will of the victim * * *,” State v. Wilkins, 655 S.W.2d 914, 916[6] (Tenn.1983), mod’fd. on reh. (as to costs only) (1983), and aggravated-rape is an aggravated form of the offense of rape, id.

2. Burglary in the first-degree in Tennessee is the breaking and entering into a dwelling or mansion house, by night, with intent to commit a felony. State v. Bomar, 352 S.W.2d 5, 6, 209 Tenn. 166 (1961), reh. den. (1961).

3. “ * * * Robbery is the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear. * * * ” T.C.A. § 39-2-501(a). Thus, in Tennessee, “ * * * robbery is committed either by means of violence or by fear. In many robberies both violence (force) and fear are present, but only one of these elements is necessary, either being sufficient to constitute the crime.” James v. State, 385 S.W.2d 86, 88, 215 Tenn. 221 (1964), reh. den. (1964), cert. den., 381 U.S. 941, 85 S.Ct. 1777, 14 L.Ed.2d 705 (1965). Since the aforecited statute was amended so as to increase the punishment “if the robbery be accomplished by the use of a deadly weapon,” as a procedural matter, “ * * * simple robbery and armed robbery under the same statute [are treated] as being different degrees of the same crime. * * ” State v. Winsett, 399 S.W.2d 741, 743[3], 217 Tenn. 564 (1965).

4. “ * * * [T]he essential elements of larceny are trespass and feloniously taking and carrying away. There must be a trespass, a taking and an asportation. * * * ” Wright v. State, 549 S.W.2d 682, 684[3] (Tenn.1977).

The historical facts herein make plain that Mr. Wesley Bryant Martin was a person who burglarized the dwelling of Mr. and Mrs. Curte Stitt, robbed them, was an accessory to the rape of her by another, and during such trespass took and carried away their property, in Waverly, Tennessee between 11:30 o’clock, p.m., January 2, and approximately 1:00 o’clock, a.m., January 3, 1982. Other historical facts herein follow from the opinion of June 22, 1984 in State of Tennessee, appellee, v. Jerry Bates Long, appellant, no. 83-120-III in the Court of Criminal Appeals of Tennessee, permis. app. den. by S.Ct. of Tenn. (1984, with concurrence only in the result):

* * * Curte and Margaret Stitt, then age 69 and 61, respectively, were awakened at 11:30 p.m. on January 2 by two masked men. One of the men, later identified as Wesley Bryant Martin, displayed a pistol and ordered Mr. Stitt to give him all his money. He later ordered Curte to open a floor safe located in another bedroom. When Mr. Stitt was unable to open the safe without his glasses, he was “hog-tied” to a bed with electrical cord and the safe was wheeled from the house [by those intruders].
Meanwhile, in another room, Margaret Stitt had been tied to the posts of a bed with her husband’s neckties while the second intruder assisted Martin in searching the home for money and valuables. The second man then returned to the “master bedroom,” untied Mrs. Stitt, fondled her breasts, raped her vaginally, retied her to the bedposts in a spread-eagle, face-down position, and covered her head with pillows. As Martin and the second man left the Stitt home, they stole the couple’s automobile.
Excellent police work by the Weaverly Police Department resulted in the arrest of Martin in Nashville [, Tennessee] on January 4, 1982. Martin matched a description provided by Curte Stitt and items of property stolen from the Stitts were recovered in Martin’s residence.
A telephone conversation between Martin and the appellant [Mr. Long] was then recorded by the police with Martin’s permission. As a result of the conversation, a search warrant was obtained for the appellant’s [Mr. Long’s] house. During the search, collectors' coins, similar to the $20,000.00 worth of coins stored in the Stitts’ safe, were recovered. Additionally, two sledge hammers were seized from Long’s garage. A powder present on the heads of the hammers was analyzed and found to contain the same substances used as insulation in the construction of [safes such as] the stolen safe.
During the trial of Wesley Bryant Martin in October of 1982, the appellant [Mr. Long] testified for two and a half to three hours as a defense witness. After his testimony, Margaret Stitt identified Long by his voice as the second man involved in the criminal activities of January 2-3, 1982.

Ibid., op. at pp. 1-2.

Viewing that evidence in the light most favorable to the prosecution, there is no question that the crimes charged were committed, and that they were committed by Mr. Martin and another man. The state of Tennessee must have presented substantial evidence as to each element of the respective offenses from which the jury could have found Mr. Long was that “other man” and guilty as charged beyond a reasonable doubt; “ * * * ‘[substantial evidence ... is evidence affording substantial basis of fact from which the fact in issue can reasonably be inferred.’ * * * ” Brown v. Davis, 752 F.2d 1142, 1145 (6th Cir.1985).

Even pretermitting the belated earwitness-identification of Mr. Long by Mrs. Stitt arguendo, substantial evidence was found that he was connected with the crimes: all the elements of the crime of receiving the property stolen from the Stitts were proven against him by the foregoing historical facts. See Williams v. State, 390 S.W.2d 234, 237, 216 Tenn. 89 (1965), reh. den. (1965), cert. den., 382 U.S. 961, 86 S.Ct. 444, 15 L.Ed.2d 364 (1965), reh. den. 383 U.S. 963, 86 S.Ct. 1227, 16 L.Ed.2d 306 (1966), and Tackett v. State, 443 S.W.2d 450, 453[3] (Tenn.1969). Furthermore, there was substantial evidence that Mr. Martin confessed his complicity in the crimes, had some of the fruits thereof in his constructive possession, gave investigators thereof a full account of what had taken place in the dwelling of Mr. and Mrs. Stitts, and advised the police officers accurately that the remainder of the fruits of the crime were in the possession of “Jerry”. While none of the immediately foregoing placed Mr. Long at the scene of the crimes with Mr. Martin, the earwitness-testimony of Mrs. Stitt did provide substantial evidence of his presence and participation there. The identification of the voice of a person suspected of a crime as the voice of a suspected criminal is admissible evidence. Stovall v. Denno, 388 U.S. 293, 295, 87 S.Ct. 1967, 1969, 18 L.Ed.2d 1199 (1967) (where a suspect had been required pretrial by law-enforcement officials to repeat “ * * * a few words for voice identification * * * ” and, under the totality of the circumstances there, that suggestive procedure in the process of identification was found to have been justified).

The identification of a person as the committer of a crime solely on the basis of the identifier’s opinion, that the voice of a suspect is the same voice as that of the person who committed the crime, is fraught with the possibility of misidentification, and this weakens its strength as proof of culpability. Palmer v. Peyton, 359 F.2d 199, 201 (4th Cir.1966) (“this is especially so when the identifier is presented with no alternative choices”). As soon as Mr. Martin was apprehended by the police and advised them of Mr. Long’s connection with the crimes committed, Mr. Long was the only other person who became and remained a suspect as his accomplice; thus, this is not a situation wherein Mrs. Stitt chose between alternative voices she heard in confrontations after the commission of the crimes — it was Mr. Long or no other specific person so far as concerned Mrs. Stitt.

In determining the substantiality of Mrs. Stitt’s testimony in this regard, this Court is guided by the same test as enunicated in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382 [13], 34 L.Ed.2d 401 (1972) (relating to eyewitness-identification) with consideration given to the lineup-factors set forth in Moore v. Illinois, 434 U.S. 220, 225, 226, n. 2, 98 S.Ct. 458, 463, n. 2, 54 L.Ed.2d 424 (1977), although Mr. Long was not subjected per se to an identification-process through a lineup.

Opportunity and degree of attention

Mrs. Stitt testified that the intruder of shorter stature in her home at the pertinent time, other than Mr. Martin, was believed by her, from the manner of his speech, to be a white man, and that this person made the following statements to her or within her hearing:

“ ‘Get-up, get-up, do you understand? do you understand?’ ”
“The shorter man said, ‘Don’t you dare touch the light switch.’ ”
“[The white man] asked me if I could ‘open the safe.’ * * * [H]e said, ‘Do you mean that you have a safe in your home and you cannot open it?’ ”
(After they went to the middle bedroom), “ * * * the white man * * * told me to ‘shut-up and lay-down on the bed.’ sis * * >)
(While fondling her breasts), “ * * * he asked me * * * ‘how old my husband and I’ were * * *. [H]e said, ‘do you still have sex?’, and then he asked me if I had ‘any diamond rings.’ * * * ”
“He did say I was ‘still nice looking.’
(As to her diamond wedding-band), “ * * * he said ‘that’s not what we’re after.’ * * * ”
(When Mrs. Stitt offered her rapist the keys to and the “run” unhindered of her dress-shop as an alternative), “ * * * he said ‘that’s not' what we want.’ * * * ”
(After Mr. Martin had thrown her husband’s ties on the bed and departed the room): “ * * * He told me to ‘turn-over on my stomach and put my hands behind my back’ * * * and to ‘spread my legs apart.’ * * * [H]e told me to ‘get on my back’ * * *. He asked me to ‘take off’ my ‘panties and pull’ my ‘gown up.’ * * He got on me, and he kept saying ‘Tell me it’s good; tell me it’s good; tell me it’s good.’ * * * ”
(After the sexual-intercourse): “ * * * He * * * told me to ‘turn back on my stomach, put my hands behind my back,’ and he would ‘be listening for a car horn’ and, when he heard it, that he would ‘leave’ and for me ‘not to try to get loose or * * * call the police before the next morning.’ * * *”

Mrs. Stitt, when asked “how much” she had listened to her rapist’s voice, testified: “I listened to every word he said.” She testified she would never “forget what he said”; never “forget his voice”; had listened to what he said “acutely”; that she had no “trouble listening to his voice” and “heard him”; that she was listening carefully: “Because I was going to do exactly what he told me to do, because they threatened — if we didn’t do exactly”; and that she had no “trouble hearing what that [white] man was saying” to her.

On cross-examination, she testified that, despite her assailant’s wearing of a ski-mask the entire time of her contact with him, “I could understand what he was saying — .” She said when she confronted him at the trial of Mr. Martin, she knew in advance that Jerry Bates Long was then charged as her assailant.

This Court hereby FINDS that the opportunity of Mrs. Stitt, at the time of the commission in early January, 1982 of the crimes against her and her husband to hear the voice of the shorter of their two assailants, was ample to have enabled her to recognize that voice anytime thereafter, in the context of “opportunity”, and that her degree of attention thereto was almost complete. That she was unable to estimate the length of time that her rapist copulated with her and could not identify the facial features, etc. of her assailant after such close proximity does not preclude such a finding:

Justice Blackmun spoke to this latter consideration in the context of an eyewitness-identification where the victim of a crime, after having seen a photograph of her attacker in a large array, identified him tentatively as her rapist at a preliminary-hearing conducted 7 days after the commission of the crime, after she had been told by a police officer that she was going to view a suspect and should identify him if she could. That rape occurred at midday (as opposed to the nighttime rape here) within a period of only 10 to 15 seconds. He observed inter alia:

* * * 10 or 15 seconds of observation of the face of a rapist at midday by his female victim by no means is insufficient to leave an accurate and indelible impression on the victim. One need only to observe another person’s face for 10 seconds by the clock to know this. To the resisting [or unwilling] woman, the 10 to 15 seconds would seem endless. No female victim of a rape, given that period of daylight observation, will ever believe otherwise * * *

Moore v. Illinois, supra, 343 U.S. at 234-235, 98 S.Ct. at 468.

Pretrial and trial confrontations

Mrs. Stitt, as a witness for the prosecution, confronted Mr. Long at his preliminary-hearing on April 1, 1982. She heard the petitioner speak thereat; but, at the conclusion of the hearing, the hearing judge found judicially “ * * * a situation where the victim [Mrs. Stitt] cannot identify the defendant [petitioner, here] Long * * * »

Notwithstanding Mrs. Stitt’s inability to identify Mr. Long by his voice or otherwise as her rapist some 90 days after the rape occurred, on May 11, 1982 she and her husband sued Mr. Long as well as Mr. Martin for compensatory and punitive damages for her rape. It is patent that, to succeed against him therein, the plaintiff would be required to establish that it was Mr. Long who was her rapist.

Having committed themselves to this course of action by civil-litigation, it is inferable reasonably that there may have been a decisive and actual change in Mrs. Stitt’s cognitive and recall mental processes psychologically, so that she became more subjective, partial and biased in the way she remembered the voice of the person who was responsible directly for the terrible mistreatment of her. Cf. People v. Anderson, 205 N.W.2d 461, (appendix, 494), 389 Mich. 155 (1973). This inference could have been drawn without suggestion that the certainty of Mrs. Stitt, to the effect that Mr. Long “was the man” who raped her when she had been uncertain six weeks beforehand, represented a conscious and intentional readjustment of her memory; rather, the possibility existed of an actual change in her recall, id.

Additionally, there had been accounts in the newspapers in Waverly that Mr. Long had been convicted previously of armed-robbery; that charges of violation of the narcotics laws were then pending against him; and that, after the stealing of the Stitts’ family-automobile, Mr. Long had disposed of a vehicle in a river near Nashville. All these factors could have been in Mrs. Stitt’s mind when she appeared as a rebuttal witness for the prosecution in the trial of Mr. Martin in mid-October, 1982; thereat, after having heard him testify at length, she identified Mr. Long positively solely by his voice as her rapist.

Mrs. Stitt reiterated that positive identification in the trial of Mr. Long in the following March, 1983, as follows:

Q. “Miss Margaret, based on hearing that voice [of her rapist] that night [of the crime], do you remember that voice?”
A. “Yes; I’ll never forget that voice.”
Q. “Did you hear that same voice in the trial of Wesley Bryant Martin in October of 1982?”
A. “Yes, I did.”
Q. “And, whose voice was that?”
A. “Jerry Bates Long’s.”
Q. “Any question in your mind about that?”
A. “No.”
Q. “Is he the man who raped you?”
A. “He is the man; he is the man.”
On cross-examination, Mrs. Stitt undertook to explain for the jury the reason she had just before made a positive identification of the voice of Mr. Long as that of her rapist when she had failed so to do at her first confrontation with him at his preliminary-hearing, as follows: you didn’t identify him at the preliminary hearing?”
Q. “When you testified at the preliminary hearing [for Mr. Long], why is it
A. “I didn’t hear him nearly as long at the preliminary hearing as I did at the trial [of Mr. Martin]; at the trial I did — I heard him longer at the trial.”
Q. “You heard his voice in April, and you testified in April and said you couldn’t identify it: there was nothing about him you could identify, is that correct?”
A. “Yes.”

This Court hereby FINDS that Mrs. Stitt did not identify Mr. Long in her initial confrontation with him at his preliminary-hearing some 60 days after having heard the voice (which she, herself, described as “unforgettable”) of her assailant, but that she did identify him positively as her assailant at the trial of Mr. Long after having heard him speak at greater length at the earlier trial of Mr. Martin.

The time-lag

Nine and one-half months elapsed in 1982 between the time (early January) of the commission of the crimes for which Mr. Long is now detained in custody and the time (mid-October) of Mrs. Stitt’s first identification of his voice as the voice of her rapist. A lapse of time of that length is a “ * * * serious negative factor in most cases * * *,” Neil v. Biggers, supra, 409 U.S. at 201, 93 S.Ct. at 383 [14] (where a lapse of time of seven months between a rape and a confrontation between the victim and her alleged rapist included factors rendering “no substantial likelihood of misidentification” extant); this Court hereby FINDS the lapse of time here is such a serious negative factor.

The highest courts of Tennessee, considering the same historical facts as this Court now considers, determined that the evidence was sufficient under the federal Constitution to support the conviction of Mr. Long on all the charges for which he is in custody. 28 U.S.C. § 2254(d). The intermediate criminal appellate Court of Tennessee stated: “In this instance [sic] case, we conclude that there was, in addition to the voice identification, sufficient other circumstantial evidence presented which unerringly point[s] to Long as the white male intruder in the Stitt[s’] home. There was direct testimony that the white intruder raped Mrs. Stitts [Stitt].” State of Tennessee, appellee, v. Jerry Bates Long, appellant, supra, op. at p. 4.

“ * * * A judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is of course entitled to deference by the federal courts, as is any judgment affirming a criminal conviction. * * ” Jackson v. Virginia, supra, 443 U.S. at 223, 99 S.Ct. at 2791. “ * * * To overcome the presumption of correctness [of the factual findings of the state Court], the petitioner must establish by convincing evidence that the factual determination in the state court was erroneous. And the jury’s resolution of questions of credibility * * * is entitled to ‘special deference.’ Patton v. Yount, 467 U.S. 1025, -, 104 S.Ct. 2885, 2892, 81 L.Ed.2d 847 (1984).” Brown v. Davis, supra, 752 F.2d at 1147 [3, 4].

As delineated with care, this Court has considered some of the conflicting inferences permissible reasonably anent the earwitness-testimony of Mrs. Stitt; however, “ * * * a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution. * * * ” Jackson v. Virginia, supra, 443 U.S. at 326, 99 S.Ct. at 2793.

Conclusion as to the sufficiency issue

The evidence against Mr. Long was sufficient constitutionally to have supported reasonably a finding beyond a reasonable doubt by a rational trier of facts that Mr. Long was guilty as charged herein under the law of Tennessee.

II.

Herein, further facts found historically are, as follows:

* * * During the direct examination of Assistant [Police] Chief W.E. Frazier, after identifying exhibit number 37, [the assistant district attorney] General Cook asked the witness to explain to the jury why these photographs, exhibits 34, 35, 36 and 37, were made. Chief Frazier explained that co-defendant Martin “was cooperating in the investigation and told them____” At this point defense counsel objected. In the presence of the jury, General Cook responded “... they were indicted as codefendants; they’re accomplices to one another ... and as Your Honor pointed out it is an admission, a confession, and we’re able to tie up and will tie up with that confession____” The objection was renewed and the jury sent out. A motion was made for a mistrial.

Following a jury-out hearing the trial court ruled “Defendant Long [the petitioner] had not had an opportunity to personally confront through counsel the declarant Wesley Bryant Martin, and I think it would be violative of Bruton to allow this statement into evidence.”

Additional discussion took place and the trial court supplemented its ruling by remarking: “We can just back up prior to the admission of the gas station [exhibit] and start over again from that point. We simply will not refer to Exhibits 34 through 37 without leave of the Court.”

The jury returned to the courtroom and was instructed as follows:

Members of the jury, you heard some reference to pictures of an abandoned gas station and an alleged statement made by Mr. Martin. The Court has ruled that the proper foundation has not been laid for that evidence, in other words the wrong time to go into it; and if they want to go into it they’ll have to bring in some other evidence, so that will be excluded from your consideration at this time. [Emphases by the present writer]. If you want to know what happened outside your presence, after the case is over if you’ll come up and ask me I’ll be glad to tell you.

We are not cited in either [party’s] brief to a second hearing or a subsequent ruling by the trial court specifically dealing with a “confession” of the severed co-defendant. In Mr. Wallace’s [defense-counsel’s] cross-examination of Assistant Chief Frazier an exploration was made into why in less than twenty-four hours after the crime the officers did not attempt to take fingerprints from Martin’s automobile or seek safe [a stolen item] residue from the vehicle’s carpet or on his clothing. On redirect by [the district attorney] General Atkins, Chief Frazier answered that there had been no conversation about fingerprinting Martin’s vehicle because he had told the officer “virtually everything that we wanted to know and what was involved.” The Assistant [sic] District Attorney pressed on with the following:

Q. Had he told you who was involved in this burglary?

A. He had gave [sic] a first name.

Q. All right. Had he told you where you could find the rest of the property?

A. Not in a detailed description. He told us who had it. But not actually where it was.

Q. So based upon what he told you, you obtained a search warrant?

A. Yes.

Q. And you found the property like he said you would?

A. Yes.

MR. WALLACE: Your Honor, I object to that line of questioning. Mr. Atkins knows better than that.

THE COURT: I believe you opened the door for it. I’ll allow it.

Q. (Atkins) So Wesley Bryant Martin had told you all this stuff about who was involved and where you could find the property. [Emphases supplied by this writer.]

A. Yes. He was cooperative.
Q. So there wasn’t any use then in going back and searching his car because he had told you everything.
A. Yes, he had.
Q. And based upon what he told you, you went and searched Defendant Long’s house?
A. Yes.

State of Tennessee, appellee, v. Jerry Bates Long, appellant, supra, op. at pp. 5-7, inclusive.

After having proclaimed in the presence of the jury that the petitioner and Mr. Martin stood “indicted as codefendants; they’re accomplices to one another ... and as Your Honor [the trial judge, himself\ pointed out, it [Mr. Martin’s statement] is an admission, a confession ” and that the prosecution “will tie up [the pertinent exhibit] with that confession,” and after the trial judge had indicated to the jury that the only evidentiary difficulty with the testimony concerning Mr. Martin’s confession was that it was “the wrong time to go into it, and if they want to go into it they’ll have to bring in some other evidence,” the prosecuting-attorney told the jury:

And they [the defense] got to the point where they were told “I didn’t look at Martin’s car because he had confessed and told me what happened and gave me the stolen property that he had and told me Jerry Bates Long had the rest of it.”
There ain’t no question about that. Wesley [Martin] told on Jerry. Wesley told on Jerry [Long].

Ibid., op. at p. 8.

The petitioner objected to this argument, particularizing that Mr. Martin had not testified at this trial (and, consequently, was not subject to confrontation through cross-examination and otherwise) and that there was no evidence of the text of a confession by Mr. Martin. The trial judge responded with the somewhat startling instruction that, if the jurors recalled “a confession” in the evidence they would “consider it and that the presiding judge was of the opinion that “the matter was in the record and was testified to,” although it was for the jury to decide whether the opinion of the judge was wrong and if the jurors did not recall in the evidence “a confession,” they would reject this testimony. Id.

In the light of the uncorrected statement of Mr. Frazier, the jury could have understood from this that the presiding judge would, not only not correct the prosecutor’s remarks to the jury, but that it was his own opinion that Mr. Long’s accomplice had “confessed,” implying strongly that the remarks of the prosecuting attorney were correct. Cf. Caldwell v. Mississippi, — U.S. -, -, 105 S.Ct. 2633, 2645, 86 L.Ed.2d 231 (1985). Furthermore, this case was one in which the prosecuting attorney’s remarks prejudiced a specific right of the petitioner: his right to confront witnesses against him, “ * * * ‘as to amount to a denial of that right.’ * * * ” Cf. Ibid., — U.S. at -, 105 S.Ct. at 2645 (slip op. at p. 18).

Mr. Martin, having told the investigator “what had happened” and having named “Jerry” as his accomplice, it is clear that the prosecuting-attorney was contending that the jury should infer from those facts the further fact that Mr. Martin’s confession proved that Mr. Long had participated in the crimes at the Stitts’ home. Cf. United States v. Wright, 489 F.2d 1181, 1187[9] (D.C.Cir.1973). Mr. Frazier’s testimony concerning his interview with Mr. Martin, therefore, was hearsay; and, because Mr. Martin was not available for cross-examination and to otherwise confront Mr. Long, “ * * * Confrontation Clause concerns * * [were] * * * inplicated. * * * ” Tennessee v. Street, — U.S. at -, -, 105 S.Ct. 2078, 2082, 85 L.Ed.2d 425 (1985) (where “the trial judge twice informed the jury” that the confession of a separately-tried codefendant “was admitted ‘not for the purpose of proving the truthfulness of his statement, but for the purpose of rebuttal only’ ”).

The petitioner claims these and other multiple instances of prosecutorial-misconduct in addressing, or speaking in the presence of, the jury, in the aggregate, deprived him of a fair trial, so that he is detained by the respondent-warden pursuant to a final judgment of a state Court in violation of his federal right to due process of law, Constitution, Fifth and Fourteenth Amendments, Due Process Clauses. The trial Court found that the conduct of the prosecuting attorneys herein was “ ‘intemperate but I don’t think it was prejudicial error,’ ” State of Tennessee, appellee, v. Jerry Bates Long, appellant, supra, op. at p. 9; whereas, the intermediate appellate Court of Tennessee found that the jury was “improperly influenced by the prosecutorial misconduct of repeatedly injecting into the minds of the jurors, and judge, that Martin had told all — confessed,” ibid., op. at p. 7, but confined its prejudicial effect to the sentencing-proceedings in Mr. Long’s trial.

The federal-question for this Court is whether there was an absence in Mr. Long’s trial of the observation of that fundamental fairness essential to the very concept of justice which “ * * * fatally infected the trial, * * * ” Lisenba v. People of the State of California, 314 U.S. 219, 236, 62 S.Ct. 280, 290[19], 86 L.Ed. 166 (1941), cited and quoted-from in Donnelly v. Christoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974); “ * * * the acts complained of must [have] be[en] of such quality as necessarily prevented a fair trial, * * * ” ibid., 314 U.S. at 236, 62 S.Ct. at 290[19].

“ * * * On habeas corpus review, the standard to be applied to [an] allegation of prosecutorial misconduct is whether the petitioner was deprived of a fundamentally fair trial. * * * ” Stumbo v. Seabold, 704 F.2d 910, 911[2] (6th Cir.1983). In applying that standard, this Court is to consider four factors: “ * * * ‘the degree to which the remarks complained of ha[d] a tendency to mislead the jury and to prejudice the accused; whether they were isolated or extensive; whether they were deliberately or accidently placed before the jury; and the strength of the competent proofs introduced to establish the guilty of the accused.’ * * * ” Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. en banc 1982), quoting United States v. Leon, 534 F.2d 667, 679 [14] (6th Cir.1976); accord: Webster v. Rees, 729 F.2d 1078, 1080 (6th Cir.1984); Hearn v. Mintez, 708 F.2d 1072, 1077 (6th Cir.1983). Each of these factors is to be considered in every case. Id.

Tendency to mislead the jury and prejudice the accused

The jury was misled by such remarks to them and in their presence and could have understood that the trial judge in Mr. Long’s trial had denominated what Mr. Frazier said Mr. Martin had said as the latter’s confession; that in fact Mr. Martin had confessed; that all he had said in that confession was true; that Mr. Long was the accomplice of Mr. Martin who had admitted he committed the crimes charged; that, in connection with his confession, Mr. Martin had stated truthfully that “Jerry” was involved in the burglary of the Stitts’ dwelling with him; and that the remainder of the loot taken therefrom by him and another was in the possession of Mr. Long. As found historically, supra, this prejudiced Mr. Long in his trial.

Extensiveness of the remarks at issue

Other historical findings herein are: “In addition to the remarks about the ‘confession’ we have given consideration to each of the forty-five other allegations of prosecutorial misconduct during the State’s [attorneys’] closing arguments. The Attorney General [of Tennessee] correctly points out that contemporaneous objection is missing in all but approximately twelve instances, therefore, thirty-four are subject to the rule of waiver [under the procedural law of Tennessee]. Anglin v. State, 553 S.W.2d 616, 622 (1977). * * * Many of the comments to which appellant [petitioner] directs us are, while error, isolated statements and misstatements made during a hotly contested trial. * * * ” State of Tennessee, appellee, v. Jerry Bates Long, appellant, supra, op. at p. 9.

This Court FINDS that the prejudicial remarks of the prosecuting attorneys herein were extensive.

The deliberateness in the placing of the remarks before the jury

The historical facts found, supra, concerning “the prosecutorial misconduct of repeatedly injecting into the minds of the jurors, and judge, that Martin had told all — confessed”, and the extensiveness of those and other remarks which were similarly improper and prejudicial, prompts this Court to FIND that they were placed deliberately before the jury, as opposed to having been rendered as the result of accidental misspeaking.

The strength of the competent proofs introduced to establish the guilt of Mr. Long

As delineated in great detail in part I of this opinion, the only substantial evidence, properly admitted against Mr. Long at his trial, was the earwitness-testimony of Mrs. Stitt and the physical evidence taken constitutionally from his home. On her own, without prompting from law-enforcement authorities, Mrs. Stitt, after the crimes were committed, in her second confrontation with Mr. Long identified him as “the man” who was with Mr. Martin during the commission of the crimes charged in her home %-of-a-year after she was unable to identify him during her first confrontation with him.

Thus, Mrs. Stitt did not compare the voice of Mr. Long with the voice of anyone else. The late Circuit Judge Sobeloff said in this context:

* * * Where the identification is by voice alone, the absence of some comparison involves grave danger of prejudice to the suspect, for as one noted commentator has pointed out:
“[E]ven in ordinary circumstances we must be cautious and accept only with reserve what a witness pretends to have heard. All the more must it be so if there are special difficulties in the way— if, for example, the voice comes from a great distance, if it is shrill, muffled, or presents any other peculiarity. The same is true if the person whose voice has been heard is of a different nationality from the listener, if he speaks another dialect, or is better or less educated.” Criminal Investigation, Jackson ed. (5th ed. 1962), at 41-42.

Palmer v. Peyton, supra, 359 F.2d at 201-202 (where there was no lineup arranged for voice-comparison by the prosecuting witness in a rape).

Historically herein also, the “other man” who committed the crimes against Mr. and Mrs. Stitt wore a ski-mask throughout his tenure there; it is patent that Mr. Long wore no ski-mask while testifying in Mr. Martin’s trial when Mrs. Stitt changed her original opinion concerning his identification by voice. It is inferred reasonably (in the absence of proof) that Mr. Long’s voice would not have sounded exactly the same as it did to Mrs. Stitt at the Martin trial had he been wearing then a ski-mask.

Earwitness-identification, the same as eyewitness-identification, presents a substantial likelihood of irreparable misidentification: “Usually [as was true here] the witness must testify about an encounter with a total stranger under circumstances of emergency or stress. The witness’ recollection of the stranger can be distorted easily by the circumstances * * * [just as it may be distorted by] later actions of the police. * * * ” Manson v. Brathwaite, 432 U.S. 98, 112, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 849 (1977).

This is a troubling area of proof; there are “ * * * few more difficult subjects with which the administration of justice has to deal than identification. * * * ‘The carelessness or superficiality of observers, the rarity of powers of graphic descriptions, and the different force with which peculiarities of form or color or expression strike different persons, make recognition or identification one of the least reliable acts testified to even by actual witnesses who have seen the parties in question.’ * * *.

“We are painfully aware of miscarriages of justice caused by wrongful identification. Those experienced in criminal trial work or familiar with the administration of justice understand that one of the great problems of proof is posed by eyewitness [and earwitness] identification * * *. In his analysis of the unreliability of eyewitness identification, Judge Brazelon, dissenting in United States v. Butler, 636 F.2d 727 (D.C.Cir.1980), cert. denied, 451 U.S. 1019, 101 S.Ct. 3010, 69 L.Ed.2d 392 (1981), observed that:

Id. at 732. * * * ” Brown v. Davis, supra, 752 F.2d at 1145-1146. This is equally true, if not more so, of earwitness-identification.

Under the charges in the indictments against Mr. Long herein, the physical evidence discovered in his constructive possession assumed relevance to those charges only after Mrs. Stitt’s earwitness-identification of him placed him in her home at the pertinent time. Absent her revised opinion, the only crime of Mr. Long having substantial support in the evidence would have been his receipt and concealment of stolen property — a crime with which he was not charged herein.

From all which, this Court must, and does, FIND that the competent proofs introduced to establish the guilt of Mr. Long were not strong — certainly the proof of his guilt was not overwhelming. “ * * * The Sixth Circuit [federal Court of Appeals] has stated, specifically with regard to prosecutorial misconduct in closing argument, that error may be harmless only if the proof against the defendant is ‘overwhelming.’ See, United States v. Bowen, 500 F.2d 41, 42 (6th Cir. [1974], cert. denied 419 U.S. 1003 [, 95 S.Ct. 322, 42 L.Ed.2d 278] (1974); Berryman v. Colbert, 538 F.2d 1247 (6th Cir.1976), U.S. appeal pending. * * * ” Whiteside v. Bordenkircher, 435 F.Supp. 68, 71-72[6] (D.C.Ky.1977).

It is the resulting conclusion of this Court that the prosecutorial-misconduct herein rendered Mr. Long’s trial fundamentally unfair. Accordingly, the writ of habeas corpus will issue, directing the respondent-warden or his successor(s) to release the petitioner Mr. Jerry Bates Long forthwith from custody under his convictions of March 18, 1983 in the Circuit Court of Humphreys County, Tennessee unless the state of Tennessee has begun a retrial within 90 days herefrom. Peyton v. Rowe, 391 U.S. 54, 66-67, 88 S.Ct. 1549, 1556[8], 20 L.Ed.2d 426 (1968); Irvin v. Dowd, 366 U.S. 717, 728-729, 81 S.Ct. 1639, 1646 [13, 14], 6 L.Ed.2d 751 (1961).

      . Such Court sat after a change of venue in Ashland City, Cheatham County, Tennessee.

      . "No person shall * * * be deprived of * * * liberty * * * without due process of law * * Constitution, Fifth Amendment, supra.

      . " * * * No State shall * * * enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of * * * liberty * * * without due process of law * * *.” Constitution, Fourteenth Amendment, § 1, supra.

      . The Court of Criminal Appeals of Tennessee found: "No evidence showed the appellant [applicant, here] himself was in possession of a firearm at the time of breaking and entering. See T.C.A. § 39-3 401(c)." lb., op., fn. 6, at page 11.

      . Counsel herein will confer regarding such production.

       In co-defendant Martin’s earlier severed trial Long’s attorney was correctly not permitted to confront Martin on behalf of Long.

      "In his study on eyewitness identification, Wall notes ‘It is upon this issue that there is the greatest danger of a miscarriage of justice.’ P.Wall, Eyewitness Identification in Criminal Cases, 187 (Charles C. Thomas 1965).
      “ ‘[M]any experts have concluded that convictions based solely on “one eyewitness” identification represent “conceivably the greatest single threat to the achievement of our ideal that no innocent men shall be punished.’

       Nor further action appears to have been taken thereon.


source: Caselaw Access Project

author: PECKHAM, Chief Judge.

license: Public Domain

text:
    CITY & COUNTY OF SAN FRANCISCO, et al., Plaintiffs, v. SAN FRANCISCO POLICE OFFICERS ASSOCIATION, et al., Defendants.
    No. C-84-4045 RFP.
    United States District Court, N.D. California.
    March 14, 1985.

      Michael C. Killelea, Deputy City Atty., San Francisco, Cal., for City & County of San Francisco.
    Lois Salisbury, James R. Wheaton, Public Advocates, Inc., San Francisco, Cal., for intervenors, Officers for Justice.
    Joel Nomkin, Gerald George, Dept. of Justice, Washington, D.C., for U.S., amicus curiae.
    Ralph B. Saltsman, Soloman, Saltsman & Hart, Marina Del Rey, Cal., for defendants.
   MEMORANDUM

PECKHAM, Chief Judge.

INTRODUCTION

On February 28, 1985, this court heard oral argument on the issue of whether the Supremacy Clause, and the provisions of the Consent Decree and Title VII, authorized the Civil Service Commission (CSC) to violate Civil Service rule 5.07, when faced with the adverse impact resulting from the promotional examinations. The court granted partial summary judgment on this issue in favor of the City and County of San Francisco (the City) and the CSC. The court in this Memorandum sets forth the reasons for its order granting partial summary judgment.

The facts pertaining to the issue discussed below were set forth in detail in the court’s Memorandum and Order of December 31, 1984, which held that the removal of this case was proper and preliminarily enjoined the City from using the revised weighting system for the Q/50 and Q/35 examinations. Therefore, the court does not find it necessary to restate the facts in this Memorandum.

LEGAL ANALYSIS

Civil Service rule 5.07 prohibits the CSC from reconsidering matters previously decided by it more than 30 days after notice of the decision of the original vote. The POA, therefore, claims that the CSC did not have the power to change the weights in the manner in which it did — by a reconsideration vote taken on an issue which had been decided and closed eight months earlier. The POA contends that, if the September 12 weights were invalid, the CSC should have explicitly passed an exception rule to cover this one matter or promulgated a new rule covering examinations which are given to effectuate federal Consent Decrees.

In Smith v. City and County of San Francisco, 11 Cal.App.3d 606, 89 Cal.Rptr. 878 (1st Dist.1970), a licensed vocational nurse appealed her discharge from her position to the CSC. The Commission affirmed the discharge. In affirming the trial court’s decision denying her petition for a writ of mandate to compel the Commission to reopen her appeal, the court of appeal stated that “[b]y its order, the jurisdiction of the commission over the matter ceased, and it may not of its own volition reopen the matter.” Id. at 610, 89 Cal. Rptr. at 879.

The POA maintains that Smith bars the CSC from reopening or revoting a matter of its own volition. Therefore, once the CSC’s September 12, 1983 vote became final, the CSC lost jurisdiction over the weighting of the exam components.

The City formulates the issues in the case somewhat differently. According to it, the central issues are whether the Q/50 and Q/35 examinations were valid under federal law and whether the parties were obligated to assure compliance with the promotional goals of the Consent Decree. The City easily distinguishes Smith because conflicting provisions of federal law and state law were not involved in that case. The City’s decision to reweight the exams was a result of the perceived violation of the commands of Title VII and the Consent Decree. This perceived violation invokes the Supremacy Clause.

The Supremacy Clause provides that “[t]his Constitution and the Laws of the United States which shall be made in Pursuance thereof ... shall be the Supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Constitution, Art. VI, cl. 2. Thus, a state law which conflicts with federal law or “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress” is void under the Supremacy Clause. Lawrence County v. Lead-Deadwood School District, — U.S. -, 105 S.Ct. 695, 698 (1985).

In United States v. City of Chicago, 549 F.2d 415, 438 (7th Cir.), cert. denied 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977), the court recognized that the application of Illinois Municipal Code provisions had to be suspended under the Supremacy Clause to the extent that the provisions violated the command of Title VII. The Seventh Circuit then warned the district court that, despite the conflict of state law with federal civil rights legislation, the district court did not have an unbridled license to replace the state’s method for selecting police officers with its own. “When a state statute is assailed because of alleged conflict with a federal law, the same considerations of forbearance, the same regard for the lawmaking power of States, should guide the judicial judgment as when this Court is asked to declare a statute unconstitutional outright.” Id., quoting Farmers Union v. WDAY, Inc., 360 U.S. 525, 546, 79 S.Ct. 1302, 1314, 3 L.Ed.2d 1407 (1959) (Frankfurter, J. dissenting).

The court in Sarabia v. Toledo Police Patrolman’s Ass’n, 601 F.2d 914, 918 (6th Cir.1979), was faced with a civil service rule that conflicted with the stated goal of a consent decree. The goal of the decree was to attract sufficient numbers of minority applicants to the Toledo police force so that within five years the ratio of minorities within the force would reasonably reflect the ratio of each minority group to the total population of the city. The Division of Police had traditionally followed a “rule of three” which required the civil service commission to certify the names of the three candidates standing highest on the eligibility list for each position to be filled. The appointments were then made from the group of three. The district court suspended the rule of three and directed the city defendants to certify for appointment the names of all black applicants who had passed the last examination, without regard to their positions on the eligibility list. The district court stated that the only effect of its order was to suspend the civil service rule to the extent it impeded the operation of the consent decree. The Sixth Circuit, in affirming, construed the order as merely expanding the eligibility list. The additional eligible applicants did not replace or “bump” an otherwise eligible white applicant. Id. at 919.

Pursuant to the Supremacy Clause, it appears that this court also could have suspended application of civil service rule 5.07 to the extent it impeded the operation of the Consent Decree. The Consent Decree states that:

[t]he city shall ... make no further use of tests or other selection qualifications, standards or procedures for hiring or promotion within the San Francisco Police Department ... which have a disproportionately adverse impact against minorities or females, unless and until such standards have been shown to be valid, pursuant to the Uniform Guidelines on Employee Selection Procedures, 43 Fed. Reg. 38290, August 25, 1978, or any superseding federal guidelines.

Consent Decree at 114. The Consent Decree specifically forbids the City from using the tests or other selection qualifications which demonstrated adverse impact “unless and until” they have been shown to be valid. The City believed that the examinations as weighted were invalid. Therefore, if it continued to use them, it would be in direct violation of the Consent Decree.

' Both City of Chicago and Sarabia concerned the authority of the district court to suspend the application of state or local law. In the case at hand, the City itself, when faced with the conflict between state law and the goals of the Consent Decree, voluntarily suspended the application of civil service rule 5.07. The courts generally favor voluntary compliance on the part of an employer faced with a prima facie showing of adverse impact as the “preferred means” of eliminating employment discrimination. Alexander v. Gardner-Denver Co., 415 U.S. 36, 44, 94 S.Ct. 1011, 1017-18, 39 L.Ed.2d 147 (1974); Bushey v. New York State Civil Service Commission, 733 F.2d 220, 228 (2d Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 803, 83 L.Ed.2d 795 (January 8, 1985). The court must explore whether the City had the right to violate a civil service rule in taking steps to eliminate voluntarily the adverse impact resulting from the Q/50 and Q/35 examinations.

That issue was summarily dealt with by the Second Circuit in Kirkland v. New York State Dep’t of Correctional Services, 711 F.2d 1117 (2d Cir.1983), cert. denied, 465 U.S. 1005, 104 S.Ct. 997, 79 L.Ed.2d 230 (1984). In Kirkland, minority Corrections Sergeants in the New York State Department of Correctional Services brought a class action alleging that promotional examinations’ resulting eligibility lists were racially discriminatory in violation of Title VII. The district court approved the parties’ settlement, and the intervenors challenged the district court’s order of approval. The intervenors contended that the proposed settlement violated both the New York Constitution and the state civil service law by departing from the principle that promotions in the state civil service were to be made by competitive examination. See 552 F.Supp. 667, 675 (S.D.N.Y. 1982). The Second Circuit refused to even consider these objections, stating that “[bjecause state law must yield to federal law in Title VII cases (citations omitted), we need not consider whether the settlement agreement violates state law.” 711 F.2d at 1132 n. 18.

The Second Circuit again emphasized Title VII’s preference for voluntary compliance in Bushey v. New York State Civil Service Commission, 733 F.2d 220 (2d Cir. 1984), cert. denied, — U.S. -, 105 S.Ct. 803, 83 L.Ed.2d 795 (1985). There, the court held that a showing of a prima facie case of employment discrimination through a statistical demonstration of disproportionate racial impact constitutes a sufficiently serious claim of discrimination to serve as a predicate for employer-initiated voluntary race-conscious remedies. The dispute in Bushey centered on promotional examinations for the position of Correction Captain in New York’s Correctional Services. After administering the test, the Civil Service tabulated each candidates’ right and wrong answers to arrive at the candidates’ raw scores. The tabulation results indicated that the passing rate of minority candidates was approximately fifty percent lower than the passing rate of nonminority candidates. Under the 80 percent rule, the State determined that the Captains’ exam had an adverse racial impact. The State then adjusted both the minority and nonminority candidates’ scores by converting them to separate frequency distributions and then equating or normalizing them with the respective means. The effect was to increase to fifty percent the percentage of minorities who passed the test. In practical terms, the adjustment added eight minority candidates to the eligibility list without removing any of the 119 nonminorities from the list.

By acting to eliminate the perceived adverse impact of the examination on minorities, the State anticipatorily sought to avoid litigation it assumed minority candidates would bring. The nonminorities, however, brought suit, contending that the State’s adjustment of candidates’ raw scores involved “reverse discrimination” in violation of Title VII. The nonminorities challenged the adjustment of test scores which occured without a prior judicial finding that the test was not valid.

The Second Circuit, in reversing the trial court, held that a prima facie showing of adverse impact in a selection process creates a sufficiently serious claim of discrimination so as to permit an employer to take voluntary remedial measures to eliminate that impact. Id. at 228. The court further held that a judicial determination that the prima facie case was not rebuttable through job-related explanations is neither required nor appropriate. Id. at 226.

The court reasoned that Title VII’s preference for voluntary compliance would be seriously undermined if an employer were required to postpone settling a Title VII testing case pending a judicial determination of the test’s validity. Id. at 227.

The Second Circuit’s decisions make clear that there is a strong preference for voluntary compliance as the means of eliminating employment discrimination. Civil service rule 5.07 stood as an obstacle to the accomplishment of the objectives of Title VII. This court certainly had the right to order the CSC to reconsider its initial vote. Given the preference for voluntarily compliance with Title VII, the City also had the right to suspend temporarily the application of Civil Service rule 5.07 when it was faced with supposedly-invalid promotional examinations demonstrating adverse impact. Thus, under the Supremacy Clause, the civil service rule had to give way to the extent it impeded operation of the Consent Decree.

The court therefore granted partial summary judgment in favor of the City and County of San Francisco and the Civil Service Commission.


text:
    SAN FRANCISCO POLICE OFFICERS ASSOCIATION, et al., Plaintiffs, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants.
    No. C-84-4045 RFP.
    United States District Court, N.D. California,
    June 10, 1985.
    Ralph B. Saltsman, Soloman, Saltsman & Hart, Marina Del Rey, Cal., for plaintiffs.
    Michael C. Killelea, Deputy City Atty., James R. Wheaton, Lois Salisbury, Public Advocates, Inc., San Francisco, Cal., for defendants.
    Joel Nomkin, Dept. of Justice, Washington, D.C., for U.S. (amicus curiae).
   MEMORANDUM OF DECISION

PECKHAM, Chief Judge.

INTRODUCTION

During 1983, the City and County of San Francisco (the City), under the auspices of its Consent Decree Unit, administered the selection procedures for Q/35 Assistant Inspector and Q/50 Sergeant. Those procedures, which are the subject of this litigation, included a written multiple choice examination, a written communications examination and a structured oral examination. On September 12, 1983, the Civil Service Commission (CSC) established cut-off scores for the multiple choice examinations and set the weights for all three components of the selection process. On February 7, 1984, the City provided the parties to the Consent Decree with the results in rank order, by race and sex, of the Q/35 and Q/50 selection procedures. Using the weights set by the CSC, the results demonstrated severe adverse impact for minorities in both ranks, and slight adverse impact for women on the Q/35 Assistant Inspector exam.

Because of the adverse impact, the United States and Officers For Justice filed objections under the Consent Decree to the City’s use of the results of the Q/35 and Q/50 selection procedures. Extensive negotiations ensued. As a result of these negotiations, the City Attorney recommended to the CSC that it modify its proposed use of the Q/35 and Q/50 selection process. The Commission then ordered a revised weighing system which substantially eliminated the adverse impact of the selection process. After the CSC’s decision, the Consent Decree plaintiffs and the City entered into an agreement withdrawing the plaintiffs’ objections to the Q/35 and Q/50 selection process.

On June 7, 1984, the Police Officers Association (POA) and three named plaintiffs filed a complaint in the Superior Court of California which challenged the Civil Service Commission’s (CSC) decision to reweigh the Q/35 and Q/50 selection procedures. The defendants, the City and County of San Francisco and the Civil Service Commission, removed the action to federal court under the authority of the Civil Rights Removal Statute. The court denied plaintiffs’ motion to remand on December 31, 1984. On that date, the court granted the POA’s motion for preliminary injunction, enjoining the City from utilizing the reconsidered weights for the Q/50 and Q/35 examinations until the lawsuit is resolved.

On February 28, 1985, the court granted partial summary judgment in favor of the City and the CSC. The court recognized that the Supremacy Clause and the provisions of the Consent Decree and Title VII authorized the CSC to disregard Civil Service rule 5.07, when faced with the adverse impact resulting from the promotional examinations. After the February 28, 1985 order, the court still has before it the issue of whether the plan chosen by the City was a permissible affirmative action plan within the meaning of United Steelworkers of America v. Weber, 443 U.S. 193, 208, 99 S.Ct. 2721, 2730, 61 L.Ed.2d 480 (1979).

Based on the extensive briefing on all aspects of the ramifications of the City’s decision to reweigh the examinations and a hearing on the issue of whether the exams as reweighed unnecessarily trammeled the rights of the examinees, the court now holds that the plan adopted by the Civil Service Commission to remedy the adverse impact resulting from the promotional examinations was a permissible affirmative action plan under Weber. The court therefore dissolves its preliminary injunction previously issued in this case and orders the City to begin making promotions for the ranks of Assistant Inspector and Sergeant from the eligibility lists derived from the reweighed examinations.

STATEMENT OF FACTS

A. Consent Decree

On March 30, 1979, this court approved a Consent Decree which was entered into as a settlement of a dispute among plaintiffs, Officers For Justice (OFJ) and the United States, defendants, the City and County of San Francisco and the Civil Service Commission, and intervenor, the POA, as to appropriate and valid procedures for the hiring and promotion of police officers for the City and County of San Francisco. The Consent Decree provides for specific, definable and good faith efforts to be made by defendants to achieve certain goals for employment of women and minorities within specified periods of time.

The Consent Decree imposed numerous obligations on the City with respect to the selection of candidates for entry and pro-motive positions in the San Francisco Police Department (SFPD). Among other things, the Decree prohibited the use of selection procedures which have an adverse impact against minorities and females, unless such procedures have been shown to be valid pursuant to the Uniform Guidelines on Employee Selection Procedures, 28 C.F.R. 50.14. Consent Decree at ¶ 4. With respect to the selection of Q/50 Sergeants and Q/35 Assistant Inspectors, the Decree set an annual objective of selecting minorities and females to those positions in proportion to their representation in the qualified applicant pool. Id. at ¶ 10(a)(3).

B. The Selection Process

To discharge its obligations under the Decree, the City established a Consent Decree Unit charged with, inter alia, the development and administration of examinations. During 1983, the Consent Decree Unit administered the selection procedures for Q/35 Assistant Inspector and Q/50 Sergeant. Those procedures included a written multiple choice examination, a written communications examination, and a structured oral examination. Each component was designed specifically to measure different dimensions found in the job-analysis to be essential for successful performance as a Sergeant/Assistant Inspector. The multiple choice component was considered the best method for measuring technical knowledge and problem solving. The writing test was designed to test candidates’ written communication skills, and the oral test measured oral communication skill, supervisorial skills and interpersonal ability. Each examination component was given at different times during 1983.

On September 12, 1983, after the multiple choice examination had been administered but before administering the two other components, the Civil Service Commission (CSC) established cut-off scores for the multiple choice examinations and set the weights for all three components of the selection process. The cut-off scores for the multiple choice examinations were fixed at 55 percent for the Q/35 and 50 percent for the Q/50. The weights set for the Q/35 procedures were:

Multiple choice examination 45%
Written communication examination 29%
Oral Examination 26%

The weights set for the Q/50 procedures were:

Multiple choice examination 41%
Written communication examination 29%
Oral examination 30%

On February 7, 1984, the City provided the parties to the Consent Decree with the results in rank order, by race and sex, of the Q/35 and Q/50 selection procedures. Using the weights set by the CSC, the top 75 places on the Q/35 eligibility list would have included six (8.0 percent) minorities and four (5.3 percent) females, out of a pool of 26 percent minorities and 10 percent females. The top 125 places on the Q/50 eligibility list would have included thirteen (10.4 percent) minorities and twelve (9.6 percent) females, out of the same pool of minorities and women as in the Q/35. These percentages represent severe adverse impact for minorities in both ranks, and a slight adverse impact for women on the Q/35 Assistant Inspector exam. Women were not affected adversely for Q/50 Sergeant.

C. Objections to the selection process

Because of the adverse impact, the United States and Officers For Justice filed objections under the Consent Decree to the City's use of the results of the Q/35 and Q/50 selection procedures. This court subsequently scheduled a hearing date of June 20, 1984 for consideration of the objections.

Based on discovery conducted after the filing of their objections, the Consent Decree plaintiffs contended that neither the Q/35 nor the Q/50 selection procedures were valid, if used in the manner intended by the City. The primary basis for this contention was the performance of incumbent Inspectors and Sergeants who pretested the Q/35 and Q/50 multiple choice examinations. The Chief of Police and his subordinates had selected these incumbents to pretest the exam because of their superi- or performance in the police department. Yet, they performed so poorly on the pretest that they would have had no reasonable chance of appointment from the Q/35 and Q/50 rosters.

The court appointed Dr. Joel Lefkowitz, an expert industrial psychologist, to review the selection process. Dr. Lefkowitz reported that insufficient attention was paid to the issue of adverse impact, especially with regard to the use of the multiple choice test and that alternatives which may have minimized such impact were not explored.

D. The decision to reweigh

The evidence uncovered during discovery and the findings of Dr. Lefkowitz prompted extensive settlement negotiations between the Consent Decree plaintiffs and the City. As a result of these negotiations, the City Attorney recommended to the CSC, in a public session held on May 29, 1984, that it modify its proposed use of the Q/35 and Q/50 selection process. In particular, he recommended that the Commission use the structured oral examination for ranking purposes and the writing skills and multiple choice exams as pass/fail devices.

In making his recommendation, the City Attorney advised the CSC of the “catastrophic” impact of the selection process on •minorities. He explained that this result could not be squared with the Consent Decree, both because the selection process was not “completely valid,” and because a “reasonable” alternative weighing system was available which would alleviate the adverse impact. Failure to accept this alternative, he said, would demonstrate lack of “good faith” in facilitating the objectives of the Decree and potentially result in the judicial “set aside” of the entire selection process. He further stressed that reweighing was the only way to settle the plaintiffs’ objections short of litigation. See generally CSC Transcript (May 29, 1984).

On June 4, 1984, the CSC adopted the City Attorney’s recommendation. The Commission ordered a revised weighing system which substantially eliminated the adverse impact of the selection process. Under the revised system, the cut-off scores of 50 percent for the Q/50 and 55 percent for the Q/35 for the multiple choice examination remained the same. A cut-off score was added for the written examination and set at 60 percent. The oral component of the exam was made the sole ranking device. The top 45 appointments from the revised Q/35 eligibility list will include ten (22.2 percent) minorities and five (11.11 percent) females, and the 75 persons appointed from the revised Q/50 eligibility list will include eighteen (24 percent) minorities and eleven (14.6 percent) females.

After the CSC’s decision, the Consent Decree plaintiffs and the City entered into an agreement withdrawing the plaintiffs’ objections to the Q/35 and Q/50 selection process. This court entered a Stipulation and Order on June 6, 1984 under which it retained jurisdiction “over all issues related to the weighting of the components of the Q/35 and Q/50 selection procedures, the duration of eligibility lists established as a result of those procedures, and the number of persons to be appointed to the Q/35 and Q/50 ranks.”

DISCUSSION

The Ninth Circuit in Johnson v. Transportation Agency, 748 F.2d 1308, 1311 (9th Cir.1984), extracted four criteria from United Steelworkers of America v. Weber, 443 U.S. 193, 208, 99 S.Ct. 2721, 2730, 61 L.Ed.2d 480 (1979), to aid in determining whether an affirmative action plan is permissible. A plan is permissible if (1) it is designed to break down old patterns of racial segregation and hierarchy; (2) it does not create an absolute bar to the advancement of white employees; (3) it is a temporary measure, “not intended to maintain racial balance, but simply to eliminate a manifest racial imbalance”; and (4) it does not unnecessarily trammel the interests of white employees. Johnson, 748 F.2d at 1311, citing, Weber, 443 U.S. at 208, 99 S.Ct. at 2730.

The court will discuss each of these factors to demonstrate that the plan chosen to remedy the adverse impact of the promotional exams meets these criteria.

1. Designed to break old patterns

There is no doubt that the exams were reweighed because of their adverse impact. The decision to reweigh the exams, which results in more minorities being appointed, was designed to meet the requirements of the Consent Decree. This court approved the Consent Decree only after finding that the selection procedures administered by the City for positions within the Police Department had unlawfully discriminated against minorities. See Officers For Justice v. Civil Service Commission, 371 F.Supp. 1328 (N.D.Cal.1973). In particular, with respect to the position of sergeant, the court found in 1973 that the City’s “prior discriminatory practices had virtually excluded minorities from the rank of sergeant.” Officers For Justice v. Civil Service Commission, 14 EPD 117458 at 4715 (N.D.Cal.1977). In the eleven years since this finding was made, the total number of minority sergeants in the Department has increased by only one.

Quite obviously, the decision to reweigh was made in order to break down old patterns of racial segregation and hierarchy in the San Francisco Police Department.

2. Create an absolute bar

The plaintiff in Johnson argued that the selection of a woman for the position which he was seeking served as a complete bar to his selection for the position. The Ninth Circuit rejected “this narrow view.” 748 F.2d at 1314. The court stated that unless it was “shown a distinct pattern of exclusion of non-minority candidates from such position, [it] cannot conclude that a single employment decision serves as a bar____” Id. Certainly, the reweighing of the exams did not create an absolute bar to the advancement of white employees. Any white employee who passed the multiple choice and written components and scored sufficiently high on the oral component of the exam would be entitled to placement on the eligibility list.

The Supreme Court approved the affirmative action plan in Weber, noting that “half of those trained in the program will be white.” 443 U.S. at 208, 99 S.Ct. at 2730. Here, white officers do even better than in Weber under the revised weights. Not only will 78 percent of the appointments go to white officers, but whites will be appointed at a rate disproportionately high to their representation in the pool of examinees.

Under the facts of this case, there is simply no basis for maintaining that the reweighing “create[s] an absolute bar to the advancement of white employees.”

3. Temporary measure

In Johnson, the court found that the plan was temporary because “[i]mplicit in the plan is the intent to stop taking sex into account once the long-range percentage goals are attained.” 748 F.2d at 1313. Likewise, with the instant plan, neither sex nor race will be taken into account once the City administers an exam that does not result in adverse impact. The reweighing plan is limited to removing imbalance in a single set of examinations. New examinations with their own weights will be used for future promotions. Moreover, the adverse impact resulting from a promotional exam presumably will not require remedial action once the long-range percentage goals of the Consent Decree are reached.

4. Rights unnecessarily trammeled

The Ninth Circuit in Johnson summarily-concluded that “[ujnless we are shown a distinct pattern of exclusion of non-minority candidates from such positions, we cannot concluded that a single employment decision serves as a bar or unnecessarily trammels the interests of other employees. The record contains no evidence of such a pattern in this case.” 748 F.2d at 1314.

The opposite result was reached by the district court in Hammon v. Barry, 606 F.Supp. 1082 (D.D.C.1985). There, the court found that the plan sought to deprive white firefighters of a legitimate and longstanding expectation of an equal opportunity to advance into the supervisory ranks, an opportunity they had earned by serving the requisite minimum of five years in the department and scoring well on the promotional examination. According to the court, “the fact of past discrimination alone is not enough to deprive innocent whites of their legitimate expectation of advancement.” It concluded that because the plan made race a mandatory consideration over merit, it unnecessarily trammeled the interests of white firefighters.

Both of these cases are distinguishable from the case at hand. Neither race nor sex was considered before merit under the reweighing plan. In fact, neither race nor sex was overtly taken into account in making up the new eligibility lists. Nonminorities were not deprived of a legitimate expectation of advancement. Instead, minorities and nonminorities alike were advanced in a manner that had not been originally contemplated. The real issue is whether the City could “change the rules after the game had started” without trammeling the rights of the examinees.

The City claims that since being on an eligible list affords no right to an appointment, the candidates have no right which is being trammeled. Similarly, in Kirkland v. N.Y. State Dept. of Correctional Services, 711 F.2d 1117, 1134 (2d Cir.1983), the Second Circuit found that under New York state law a person on an eligibility list does not possess “any mandated right to appointment or any other legally protectible interest.”

The Second Circuit, however, further stated that “[t]he only relevant state right intervenors possess is the right to challenge the settlement on the grounds that the manner in which it provides for appointments is unlawful, arbitrary, and capricious or constitutes an abuse of discretion ... This right intervenors exercised in the district court.” Kirkland, 711 F.2d at 1134. The Kirkland court cited two New York state cases for this proposition. In Adelman v. Bahou, 85 A.D.2d 862, 446 N.Y.S.2d 500 (1981), petitioners sought upward reclassifications of their positions without examination. The court stated that it could not overturn a commission’s determination unless it was without a rational basis. And, in Burke v. Sugarman, 35 N.Y.2d 39 (1974), the Court of Appeals held that persons who pass an examination and are on an eligible list have standing to challenge unlawful appointments or designations to positions for which the list has been established.

California recognizes a similar right. In Fuchs v. Los Angeles County Civil Service Com’n, 34 Cal.App.3d 709, 715, 110 Cal.Rptr. 311 (1973), the court stated that “[b]oth the petitioner and the public have an interest in ensuring that the best selection procedures are used in determining the advancement of public employees to positions of increased responsibility and authority.” Fuchs had filed his action attempting to cancel the list of eligible candidates for the position of head deputy district attorney and to void any appointment to that position made from the list of eligible candidates. He claimed that parts of the examination weighed factors not relevant to a determination of qualifications for head district attorney. He further contended that his oral interview was not conducted fairly. The court found that there was no indication that the Commission or the director of personnel acted arbitrarily or unfairly, within the established framework, to deprive the petitioner of his promotional opportunity. Id. at 716, 110 Cal. Rptr. 311 (emphasis added).

In Almassy v. L.A. County Civil Service Com., 34 Cal.2d 387, 210 P.2d 503 (1949), the petitioner sought a writ of mandate to compel the Los Angeles County Civil Service Commission to annul two promotional civil service examinations and their corresponding eligiblity lists. The California Supreme Court recognized that the civil service commission has been given broad discretionary powers in determining the subjects of examination and the qualifications which are to be measured. The court stated that “[jjudicial interference under such circumstances is unjustified except on a showing of arbitrary, fraudulent, or capricious conduct, or a clear abuse of discretion.” 34 Cal.2d at 396, 210 P.2d 503. No such showing was made in the case.

These two cases make clear that California recognizes the right of an examinee to challenge the promotional examinations if the Civil Service Commission has acted arbitrarily, capriciously, or unfairly in depriving the examinees of their promotional opportunities. If the exams as reweighed were not capable of fully measuring the qualifications needed to be an assistant inspector or a sergeant, then the Commission acted arbitrarily when it decided to use the oral component as the sole ranking device. If the Commission acted arbitrarily, capriciously, or unfairly in deciding to use the oral component of the exam as the sole ranking device, then a fortiori the rights of the examinees have been unnecessarily trammeled.

The court therefore set a hearing to determine if the CSC’s decision to reweigh the examinations was arbitrary and capricious. The testimony received during the hearing establishes that the decision of the CSC was neither arbitrary nor capricious, nor was it an abuse of discretion.

As a preliminary matter, the displacement of candidates from the eligibility lists does not constitute arbitrary action. Once this court recognized that the City had the right to take some action to remedy voluntarily the adverse impact stemming from the originally-weighted examinations, it became clear that the original eligibility lists could not be used. Thus, no matter what remedy the City chose, the rankings on the eligibility lists would change. By reweighing the examinations, the City salvaged the examinations and saved considerable time that would have been lost if new examinations had been constructed. Although displacement in great numbers occurred, displacement may have been considerably less than what would have resulted from new examinations.

At the hearing, the court heard testimony from four witnesses: two “raters” of the oral component, Professor Andrew L. Comrey, a professor of psychology at the University of California, Los Angeles, and Raymond Wong, the Consent Decree Coordinator. The testimony from the witnesses established the following facts.

First, although the examinations were reweighed, all three components of the examinations were maintained. Cut-off scores originally set for the multiple choice component, the section which tested technical knowledge, remained the same. Those candidates for sergeant and assistant inspector who did not receive minimum scores of 50 and 55 percent, respectively, were not permitted to take the other two examinations. The cut-off scores were set approximately five points above the level of minimum competency. Twenty-five (25) Q/50 applicants and 23 Q/35 applicants were screened out because of their failure to “pass” the multiple choice examination.

Second, the writing skills component, which was designed to test a candidate’s ability to communicate effectively in writing, also was established as a screening device. A standard score of 60 was set for the writing skills examination which resulted in 130 candidates for the Q/50 and 160 candidates for the Q/35 being eliminated from consideration.

Finally, the oral component was established as the sole ranking device. The oral examination consisted of a structured oral interview in two parts: (1) a ten minute presentation on a topic area reflecting the department’s operating procedures and policies; and (2) one to three scenarios followed by questions from the raters. The ten-minute presentation focused on one of eight topics drawn from the SFPD’s general orders and measured a candidate’s oral communication and supervisorial skills. A five-minute question period followed the presentation. The scenarios, developed by subject matter experts, were designed to simulate situations which might be encountered typically by a sergeant or assistant inspector in his/her day-to-day work. The scenarios measured interpersonal skills.

Following the reading of the scenario, the raters asked the candidates pre-designated, probing questions and were not permitted to ask follow-up questions. Both Lieutenant Ornelias and Captain Washington, two of the raters during the oral component, complained about the tightly-structured format of the oral interview. They indicated that they had follow-up questions that they would have liked to ask the candidates. However, Professor Comrey, the POA’s own expert witness, testified that the structured interview was more objective and enhanced the reliability of the examination.

Thus, although the oral component originally was not intended to be the only ranking device, the evidence demonstrates that the oral component is capable of performing this purpose. Much more was tested via the oral interview than speaking ability. As mentioned, the oral component fairly measured supervisorial skills, oral communication skills and interpersonal skills. These were three of the five dimensions or skills and abilities identified by the job analysis as important in the successful performance of the job as both Assistant Inspector and Sergeant. The other two dimensions for the position of Q/50 and Q/35 were technical knowledge, which was tested through the multiple choice examination, and writing skills, which obviously was tested during the written examination.

After hearing all of the testimony and reading all of the evidence, this court believes that the promotional examination process was carefully designed and administered. The City met its dual goals of insuring a credible selection process and erasing the adverse impact resulting from the originally-weighed examinations. The court concludes that the CSC did not act unfairly, capriciously, nor arbitrarily in reweighing the examinations, especially since (1) the multiple choice cut-off score was set above the level of minimum competency; (2) a cut-off score was established for the writing skills component, thereby weeding out those candidates who could not communicate effectively in writing; and (3) the structured oral examination seemed to be a full, fair and credible manner of judging the three dimensions designed to be tested by the oral component.

The court, by its holding, in no way suggests that the selection process was the “best” manner the City could have used to promote candidates to the ranks of assistant inspector and sergeant. Rather, in reviewing the actions of the City and the CSC, the court merely approves the defendants’ actions under an arbitrary and capricious standard. Therefore, the court finds that the rights of the examinees were not unnecessarily trammeled in the reweighing of the examinations.

Pursuant to Fed.R.Civ.P. 52(a), this Memorandum of Decision shall represent the court’s findings of fact and conclusions of law.

CONCLUSION

The court holds that the reweighing plan adopted by the Civil Service Commission to remedy the adverse impact resulting from the promotional examinations was a permissible affirmative action plan under Weber. The court therefore dissolves its preliminary injunction previously issued in this case and orders the City to begin making promotions for the ranks of assistant inspector and sergeant from the eligibility lists derived from the reweighed examinations.

Let judgment be entered accordingly.

      . Civil Service rule 5.07 prohibits the CSC from reconsidering matters previously decided by it more than 30 days after notice of the decision of the original vote. Here, the reconsideration vote was taken eight months after the issue had been decided and closed. Under the Supremacy Clause, the civil service rule gave way to the extent it impeded the operation of the Consent Decree.

      . It is imprecise to imply that the rules were changed after the examinations were given. First, the candidates took the multiple choice examination before any weights had been assigned to the various components. Second, job announcements for both the Q/50 and Q/35 noted that "[t]he Consent Decree Division reserves the right to revise the examination plan in order to meet the requirements of applicable law and the Consent Decree.” The Consent Decree Division merely asserted its reserved right.

      . This was the only factual issue before the court. The POA originally had included a state claim alleging that the examinations, as reweighed, were not job-related. During oral argument on the motion for partial summary judgment, the court asked Mr. Saltsman, counsel for POA: "Do you have a pendant claim that you are wanting to prosecute on the issue of job validity?” Answer: "No, Your Honor.” (R.T. February 28, 1985.) The POA therefore has withdrawn the issue of whether the examinations, as reweighed, were job-related.

      . The court has reviewed the transcripts of the hearings before the Civil Service Commission and has found that most, if not all, of the evidence received during the court’s hearing also was before the CSC.

      . Lieutenant Gabriel Ornelias and Captain Edward Washington of the Los Angeles Police Department testified in court. In addition, the court received into evidence the deposition testimony of Captain Patrick Devlin of the New York Police Department.

      . The POA contends that the multiple choice component should have been accorded greater weight in the selection process. In this regard, the court notes that the multiple choice examination tested knowledge of the codes that the candidates had been enforcing for the past three years. Perhaps then, it is unsurprising that the great majority of candidates exceeded the level of minimum competency.

      . Three candidates who were on the original eligibility list did not make the revised list because they failed the written communications test.

      . Each interview board consisted of three raters who were not members of the San Francisco Police Department. The raters were specifically chosen from other jurisdictions in order to eliminate favoratism and bias from the selection process.

      . The entire oral examination was highly structured. The raters were told precisely which dimensions were being measured and the method by which a candidate would exhibit that dimension. The Consent Decree Examination Unit developed a "Rater’s Report Form” which defined the dimensions for each classification, explained the scoring scale, and provided a framework upon which the raters could base their judgment as to whether a response was unsatisfactory, satisfactory, or good, relative to the specific dimension that was being measured. The raters were given these forms and encouraged to use them. Moreover, an eight-hour orientation and training program for the oral raters increased the chances that the raters would be consistent and accurate in their grading of the candidates.

      . Professor Comrey also testified that, if the oral interview were to be used as the sole ranking device, at least 70 percent of the applicants should be eliminated on the basis of the first two components. The court does not accept his opinion for three reasons. First, as a general matter, Professor Comrey's expertise was in psychological testing and not employment testing. Second, and more specifically, he had never seen the data underlying the job analysis, had never read the scenarios, had not seen the tests and had not read the instructions to the raters.
      Finally, although he stated that an oral interview is unreliable and lacking in validity, some of the specific reasons he gave to support his statement were not applicable to this particular oral examination.