# Petition — Noell v. North Carolina > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0219%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1976 - **Citation:** 428 U.S. 902 ## Text 4 ~~] inal ; fo i ox ~ a =, c — 4 = O fs O INDEX Page Citation to Opinion BelOW cccccccccccescceccceccceoccees 1 Jurisdiction Questions Presented “ere enevneneneneueenenenne Constitutional Statement How the Federal Quest Dpelow Reasons for Cranting Le The Court S Consider Wh Out of the of Rape Und Violates the to the Cons Eke The Court S Consider Wh of Ten Ven} Expressed A T M Gc W 5 B. ry Conscientious Scruples Cc Pp Right to A The Court S Whether Pet and Statutory Provisions ions Were the Writ hould Gra ‘ther the sentence er the La Fiachth - > 4 titution hould Gra ether the remen on ttitudes 4 t lon r ted States ne Te st o Involved ....cece and Decided Raised ee ee | nt Certiorari to Imposition and Carrying of Death for the Crime 7 Of North Carolina or Fourteenth Amendment of the United States ..... 1t Certiorari to Exclusion for Cause the Grounds of Their Toward the beath Penalty s Rights Under the Sixth 1¢ to the Constitution f Exclusion Applied by Q ne Court Below Did Not Meet the inimu St onst itut i itherspoo 10 ( 908) he Exclus apital Pu etitioner hould Grant Certiorari itioner's Sixth and Fourtcenth Constitutio lated by the Prosecutor Through fx that Eviden n of the Salcula in: (a) imination ce, Never United of a andards Required by The Coastrued in Illinois, 391 U.S. on As nm Ve 10n of Veniremen with Against nishment Deprived of His Sixth Amendment Representative Jury .... to Consider Rights Guaranteed by the iments to the States Were Vio- of the Impermissibly Suggesting Prosecutioa Witness in Fact Produced and Not ted Misconduct WwW 14 18 Conclusion elt i phe Lite tt tat cre Pree IV. Subject to Cross Examination, Bolstered the Prosecution's Case; and (b) Eliciting fron the White Wife of A Black Defendant Charged with Interracial Rape the Pact that the Defendant's Child Had Been Conceived prior to Their Marriage e9020880089890600006068062080600006066086 The Court Should Grant Certiorari to Consider Whether Petitioner Was Denied the Fundanental Fairness in Criminal Prosecutions Guaranteed by the Due Process Cluuse of the Fourteenth Amendment to the Constitution of the United States When the Police Failed Adequately to Investigate the Crime for Which Petitioner Was Convicted FESCSCSSCOSCSCC CCE ESCEC HOH O44 ORO OOS The Court Should Grant Certiorari to Consider Whether the Process of Selecting Petitioner's Trial Jury in an Interracial Rape Case Denied Petitioacr's Rights Guaranteed by the Sixth and Pourtcenth Amendments to the Constitution of the United States When: (a) The Trial Court Denied Petitioner's Challenge Por Cause to a White Venireman Who Exvressed "Feelings Against Interracial Marciage" In a Case Where the Black Petitioner and his White Wife Both Testified; (b) The Trial court Denied Petitioner's Challensze For Cause to a Whito Venirenan Who States IPWas "Not Sure" whather he Would Vote to Acguit if Me Had Only a Reasonable Doubt of Petitioner's Guilt; and (c) Otherwise Eligible Black Veniremen Were Swept From the Jury Through the Inter- action of Prosecutorial Challenges For Cause On The Ground of Coascicatious Scruples Against Capital Punishment and the Prosecutor's Exercise of his Peremptory SUBST saccséasevas ii Page 33 37 41 46 : TABLE OF CASES Page Alcorta v. Texas, 355 U.S. 28 (1957) wcccccccccccccccces 39 Barber v. Page, 390 U.S. 719 (1968) ..ccccccccccccesecese 36 Ber rv. Unite : tes, 295 U.S. 7B (2935) cerecccecee 39,40 I 1 v. Holman, 394 U.S. 478 (1968) w.cccccccccee 23e2e ] v. Mar . U.S. & [R9GS) ccocccceosseseseses OF I }? 4 < A fv >) ) ‘ . ‘ ‘ . . /j “s*ee ee eee eeeneeneneenee é ) < | cA 1; I : rth ¢ , 1 U.S. B (19GB) ccccccesce eC; é . . € . y Cc a © a¢ U.S. 4 ) (1°70) 2 4 . “eee ee “ere ern enenene “ee eee eweeneeeneneeeenenenennneere 4 . , : ay ) ~~ > , C . Ls ‘ ) U.S. « (1973) ccccccsvces C ‘ ' , 67 W % , 409 PL Vil (A eee eseeereeererereeeeereeoeseeeeeeeseeeeeeeee J J - f » 408 U.S. « ios) rere me Me Pe > Cig! - I ites, we. £2: rer 5 Gil v. Maryl P > BM. GS CRPSTE 0666600460084 56868 37 mG Cts 1969) eoeerseeereeesreeeseeeeeeeeseeeeeeeeeeeereeeeeee < In re Martin, 58 Cal. 09, 24 Cal. Rptr. 833 ° ‘ 374 P.2d BOL (1962) c.cccccccccccccccccssccsesesses ID Cases (cont'd) Page In re Winship, 397 U.S. 358 (1970) wwccecceeeecececcces 44 Ivan v. City of New York, 407 U.S. 203 (1972) .....-+e-- 44 Kyle v. United States, 297 F.2d 507 (2d Cir. 1961) .... 35 Labat v. Bennett, 365 F.2d 698 (Sth Cir. 1966), cert. denied, 386 U.S. 99] (1967) “ee 8 © “ee eee eneeeeeeeene 29 Ladetto v. Massachusetts, 403 U.S. 947 (1971), rev'g 254 N.E.2d 415 (1969) “ese ereneeeneneneneeneneeereneeereeneeene 25 lovely v. United States, 169 F.2d 386 (4th Cir. 1948) . 36 Marion v. Beto, 434 F.2d 29 (Sth Cir. 1970) ...ceeeeee 25 Maxwell v. bishop, 398 U.S. 262 (1969) ..cccceceeees 23,28 Michelson v. United States, 335 U.S. 469 (1948) ....... 36 Miller Ve Pate, 386 U.S. 1 (1967) “eer eerreereereeerereeeee 39 Mooney v. Holohan, 294 U.S. 103 (1935) ...... TeTTrTiTT 39 Napue v. Illinois, 360 U.S. 264 SRO) cheecbeoesecet ee 39 O'Neil v. Vermont, 144 U.S. 323 (1892) w.cceececccsccves 19 People v. Schader, 80 Cal.Rptr. 1, 457 P.2d 841 (Sup. a 196°) “ene eo eweeeeene e#eeeeeneee eeee eee © © “ee © fe ff © 25 Peters v. Kiff, 407 U.S. 493 (1972) ccccccccvcccccsesess 41 Ralph v. Warden, 438 F.2d 786 (4th Cir. 1970), cert. denied, 408 i 942 (1972) oenreinvnveeeneeeseneeeeeeee®# 19 Roberts v. Russell, 392 U.S. 293 (1968) ...cccccsees ee 40 Santobello v. New York, 404 U.S. 257 (1971) ..ccceeeees 35 Segura v. Patterson, 403 U.S. 946 (1971), rev'd, 402 F.2d 246 (10th Cir. 1968) eeereevteeeeeveeeeeeeneeeeee @ 25 Smith v. Texas, 311 U.8. 128 (1940) cccccccccccsccesces 28 State v. Britt, N.C. Sup. Ct. No. 36 (May 15, 1974).... 31 State v. Robinson, 9 N.C. App. 433, 176 S.E.2d 253 (1970) enenreee *“enewrnreveeee *oenereienvereeeeeneeeneneneeneeeeee eee 34 State v. Schowgurow, 240 Md. 121, 213 A.2d 475 (1965) . 30 State v. Selman, La. Sup. Ct. No. 54376 (June 10, 1974) 21 iv Cases (cont'd) Page State v. Waddell, 282 N.C. 431, 194 S.E.2d 19 (1973) 3,5,20, 22,26,31 Swain v. AlaWama, 380 U.S. 202 (1965) ...... ecccccceses 41 Trop v. Dulles, 356 U.S. 86 (1958) ....-eeee TrTTTTTT 31 Wardius v. Oregon, 412 U.S. 470 (1973) .eceunceeceee -. 37,40 Weems v. United States, 217 U.S. 349 (1910) .......2.2-- 19 White v. Crook, 251 F. Supp. 401 (M.D. Ala. 1966) ..... 29 Williams v. Florida, 399 U.S. 78 (1970) c.cccccccccees e 29 Witherspoon v. Illinois, 391 U.S. 510 (1968) .. 15,23,24,25,¢ 27,28,30,31 Woodards v. Maxwell, 303 F. Supp. 690 (S.D. Ohio 1969) 25 18 U.S.C. § 2031 (1971) ..... ececccccsessseeeeneseeseee 21 28 U.S.C. & 1257(3) cece see ceeeeecese eeseseses TeTTriT. ] Ala. Code, tit. 14, § 395 (1958) ..... TYTTTITT TTT TT 2] A Stat. Ann 41-3403 (Supp. 1969) .cccececcesseses 21 Ga. Code Ann. § 26-2001 (1969) .....206- WTTTITTTLILL TT 21 Ga. Code Ann, § 27-2534.1 (1973) .e-cees ° eeovesere sees 2] Ky. Rev. Stat. Ann. § 435.090 (1969) ....ceeseees seuss 21 La. Code of Crim. Proc., Art. B17 (21972) cecccseceseces 21 La, Re Ve Stat. Ann. a) 14:42 (1950) “eeernenevneeeeeeeeeeeeeee 21 Md. Code Ann., Art. 27, § 461 (Repl. vol. 1967) ....... 21 Miss, Code Ann. § 2358 (Recomp. Vol. 1956) ..ccceeveceess 21 Statutes (cont'd) Vernon's Ann. Mo. Nev. Stat. §§ 200. N.C. Gen. Stat. § N.C. Gen. Stat. § N.C. Gen. Stat. § N.C. Gen. Stat. § Okla. Stat. Ann. § Page Stat. § 559.260 (1953) ..ncccnccscccs 21 363, 200.400 (1968) ..ceeeeceeecceces 21 14-21 (1958) wcccccccccesceseccess BeS,2] 14-184 wccccccccccccesesesseceeessece 34 15-187 eee eee enwnwewnwnwnenwewm enn rer ree eee ee 4 15-188 ee 4 1115 Supp. 1970) “eee eee enenenenenenenenee 21 s.C. Code Ann. § 16-72 (1962) “eee ewe ewnenenerenwnwnwnwmwnnrwewnenee 21 Tenn. Code Ann. § Tenn. Coce Ann. § Vernon's Tex. Pen. DOE 2¢6eee be techies eeeoceesceseeese 21 Oe | a errrrTTrTririrrrs 21 Code Ann., art. 1189 (1961) ...cceee 2! Va, Code Ann. S 18.1-44 (1960) *“* “ese eee eneneaeeneneeneneaenenene 21 OTIIMR AUTHORITIES Bronson, “On the Conviction Proneness and Representa- tiveness of Empirical St 42 U. COL. R the Death-Qualified Jury; An udy of Colorado Veniremen," EV « ] (1970) *“eenrnineneneeeenee eeneeeene ee © © 30 International Review on Public Opinion, Vol. il, No. 3 (1967) “ene eoevneneeneeneeeneneneeeneeeneneeneneneneeneene ee @ © 30 MAGNA CARTA, Ch. 20-22, printed in ADAMS & STEPHENS, SELECT bOCUM NTS OF ENGLISH CONSTITUTIONAL HISTORY (1926) “eseeeeeneneenenenenenenenenrerweenwn eer rrr rere ee 19 Packer, Making the Punishment Fit the Criwe, 77 HARV L. REV. (1964) eee eneevreevnweeeneneeeneeneeenenweweeewnwneenenene 20 UNITED NATIONS, DE PARIMENT OF FCONOMIC AND SOCIAL AFFAIRS, CAPITAL PUNISIIMENT (ST/SOA/SD/9~-10) (1968) “*e ee “eevee eeeweeeweeeeee eee ereeeen eee eeeeneeeee © 20 vi ' ' ' ‘ IN THE SUPREME COURT (¢ TH UNITED STATES October Term, 19% No. TOMM wry ; ] titi Ee { j . Ke . P) ( , } ‘ P . ) C ‘ ‘ / . j ‘ ! l. of death violates QUESTIONS PRESENTED Whether the imposition and carrying out of the for the crime of rape under the law of North the Eighth or Fourteenth Amendment to the Const of the United States? 2 p« a s Ou t cs ‘ ‘ ‘ pr t fa ; , , , of 4 hy ra ry a BS « 7, i © ‘ ‘ . ‘ Cc? sentence Carolina itution Whether the exclusion for cause of ten veniremen on of their expressed attitudes toward the death riolated petitioner's rights under the Sixth or ] t to the Constitution of the Unite State Whether petitioner's riahts: Tua? 1teed hb the Sixt enth Ame ments to the Constitution of the Unite re liolated } the cal la mi mnduct of the A ; (a) } } } si ing thro } Ff a prose tion witne th evide e, neve i? no? € ‘ t ro ¢ € mig iON, kb ls ere , Sc; a e} LLing r< the white wite t ¢ with inter al rape the fact 1 , ] é ( ci l prior to thei { ; l ‘ ; rie i the fur } 7 ‘ irne de ts : t Due Pro on F irte the <¢ itution of the ni j ‘ V« eg te) { mvs Lé te t ( ‘ } petitions Ww 9 i ed? 5. Whether the process of selecting petitioner's trial jury in an interracial rape case denied petitioner's rights guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States when: (a) the trial court denied petitioner's challenge for cause to a white venireman tho expressed “feelings against interracial marriage” in a case where the black petitioner and his white wife both testified; (b) the trial court denied petitioner's challenge for cause to a white venireman who stated he was “not sure" whether he would vote to acquit if he had only a reasonable doubt of peti- tioner's guilt: and (c) otherwise eligible black veniremen were swept from the jury through the interaction of prosecutorial challenges for cause on the ground of conscientious scruples against capital punishment and the prosecutor's exercise of his peremptory challenges? CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED l. This case involves the Eighth and Fourteenth Amendments to the Constitution of the United States. 2. This case also involves the following provisions of the General Statutes of North Carolina: § 14-21. Punishment for rape.-Every person who is convicted of ravishing and carnally knowing any female of the age of twelve years or more by force and again: her will, or who is convicted of unlawfully and carnally knowing and abusing any female child under the age of twelve years, shall suffer death: Provided, if the jury shell so recommend at the time of rendering its verdict in open court, the punishment shall be imprisonment for life in the State's prison, and the court shall so instruct the jury.J/ wea ee ee ee eee - 1/ As construed in State v. Waddel*, 282 N.C. 431, 194 S.E.2d 19 (1973). ! Ww I § 15-187. Death by administration of lethal gas. - Death by electrocution under sentencs of law is hereby abolished and death by the admin- istration of lethal gas substituted therefor. § 15-188. Manner and place of execution. - The mode of executing a death sentence must in every case be by causing the convict or felon to inhale lethal gas of sufficient quantity to cause death, and the administration of such lethal gas must be continued until such convict or felon 1: fo dead; and when any person, convict or lon shall sent i by any court of the State having compet jurisdiction to be so executed, such punishment s!} only be inflicted within a permanent death chambe) which th rintendent of the State penitentiary is hereby authorized and directed to provide withi the wall of ti North Caroll! penatentiary at Raleigh, North Carolina. The su; ntendent « th state peni } shall also cau: to be prov} in co! C ’ 1 tha irti ! ima at ¢ ed b t} Covern ! CK cil of State, the ne il appid for t} infliction of the } ) nt oO death i ordance with the requirement of tl) articl . STATEMENT This is a petition for a writ of certiorari to review the judgment of the Supreme Court of North Carolina, entered on February 25, 1974, affirming petitioner's conviction and oe —— -- death sentence. Petitioner, Tommy Noell, a black man, was sentenced to die on August 3, 1973, in the Orange County - Superior Court of North Carolina upon conviction for the rape 2/ of Miss Linda DiCenzo. ee ee ee wee Phe State's evidence against petitioner consisted largely of Miss DiCenzo's testimony. She testified that at 8:45 a.m. on May 23, 1973, she had completed the night shift and had signed out from her nursing job at North Carolina Memorial Hospital in Chapel Nill, North Carolina, and had started to drive to her home in Carrboro, North Carolina. On the Route 54 by-pass, petitioner passed her in “a small compact, light 2/ Petitioner's sentence of death was imposed under N.C. Gen. Stat. §14-21 (rape) as construed in State v. Waddell, 282 N.C. 431, 194 §.8.2d 19 (1973), The North Carolina Legislature enacted a statute, &.B. 157, Chap. 1201, 1973 Sess. (2nd Session, 1974) on April 8, 1974 which imposes the death penalty for certain rapes, but this statute was enacted subsequent to the decision of the North Carolina Supreme Court in petitioner's case and provides that it is applicable to offenses committed after its ratification. Under the new law, the crime for which petitioner was convicted would not appear to qualify as the capital offense of “first degree rape,” since no “deadly weapon" was used and since the victim was over the age of twelve and did not sustain "serious bodily injury." Sec. 3 of S.B. 157, supra, amending N.C. Gen, Stat. §14-21. green with a stripe on the side and [a] . . . green vinyl [top]. R. 32. Petitioner pulled into her apartment complex, the Royal Park Apartments, and stopped along the driveway curb. Miss DiCenzo passed him, viewing him for "2-3 seconds," R. 36. She parked and climbed the stairs to her third floor apartment; as she was unlocking the door, at 9:05 a.m., she saw petitioner's car slowly passing below and, “for no longer than three seconds,” R. 36, observed petitioner looking up at her. A few minutes after she had entered her apartment, she heard a knock at the door and said, “come in." R. 32. She testificd: "[Petitioner] came in and said he was selling vacuum cleaners. [He was wearing "light green Slacks and a sort of burgundy top, with stripes in it." R. 34). I told him I did not want one and that he should talk to my roommate who was away at work and wovld return about 6:00 p.m. [Petit i onea}’/ turned to go but locked the doo when he got to it. He turned around and walked towards me and said, ‘Miss, 1'm going to fuck you' and I thought it was all a joke. I said ‘You must be kidding,' but he grabbed my shouider and said, ‘We're going to fuck right now or I'm going to kill you.'" R. 32. —- ---- + - -— ae i eee 3f In North Carolina, the certified appellate record does not consist of a direct transcript of what was said in the trial court, but rather a “narrated" account which transforms question- and-answer dialogue into monologue. See Bumper v. North Carolina, 39) U.S. 543, 546, n. 8 (1968). 4/ On cross examination, Miss DiCenzo stated: "When the attacker came to my door I didn't make a mental note that he was the same person driving the automobile in the lot. When I thought about it later, the face of the man I saw and the face of the man in my apartment, I thought it was the same. I'll say I know it was the same man. I don't know what the man in the car was wearing." R. 37. DiCenzo testified that petitioner pulled her onto the wed his hand over her mouth; t! I screamed, repeating he would kill her unless she i , succecaca ré pl ied —_ Ou won ' ro policeman t he then pulled her into the bedroom and ordered to a.m. him 5/ #he had been raped, and he observed that t generally orderly, but that the bedroom wa Officer Horne discovered a wrist watch wit a on the floor of the apartment's dining are could not identify and which she did not t the attack. The watch was introduced as e The police arrested petitioner at app May 23, 1973, at his brother's trailer in Carolina, pursuant to a warrant for his ar 6/ Dic=nzo chaz ig@ him with rape. Petitione “constitutional rights,” R. 463; his hands behind h back; and he was transported to Station, a} tL cight mile away. At the §S 5/ Two wit testified that on th mo Mi: DiC © had g n t] nm account of her test y in court: Officer Horne, R. Czrolina } rial } pital « geney room R. 42-44. 6/ The record dc n reveal the circu the polic to arrest petitioner. Carrboro Detecti John Blackwood testified that he Dicenzo twice on iy 23, 1973, and that “a [ se M i} cC 7 it ic fat thi Carri ro Pol transpired ther a warrant for petitione out. R. 45. °e @ « he apartment was . Ss “disarranged.” Ibid. h a broken band lying a which Miss DiCenzo hink there before vas vidence. roximately 5:30 p.m., Chatham County, North rest siqned by Miss r was advised of his were handcuffed the Carrboro Pol ice +--+ 4 + Ce ee tation, he was ag rning of the att Re the rape simila to 40-4?; North nur: Mary Ford, stances which caused Polace Department interviewed Mi: a result of that ice Station], and wha 's arrest was worn | | 4 : , : advised of his "rights," R. 47, and asserted that he didn't think he needed a lawyer, but he “wanted to know what was going on." Ibid. Upon being told he was charged with rape, "he said he didn't know anything about it." Ibid. He stated that he ! owned a watch, but that he had lost it "a couple of weeks befora" V/ ibid., and that he had been driving his mother's 1971 Maverick — compact earlier that day, which was "[t]wo-tone green, black top, with a black stripe on it." R. 48. Detective Blackwood also testified that as petitioner was being examined, at approx- imately "5:30 or 6:00" p.m., R. 39, at least eight hours after the rape of Miss DiCenzo, he observed “a visible impression of what was left by an expandable watch band" on petitioner's left wrist. R. 52. The police did not attempt to photograph this imprersion, and they did not attempt to compare the impression on petitioner's wrist to the expansion band of the watch they found in Miss DiCenzo's apartment. R. 57. Petitioner denicd being at the Royal Park Apartments that day, and stated that he had driven the Maverick to Durham for a 9:00 a.m. job inter- view at Bronson's Tire Company. The police did not telephone or interview any witnesses who could have corroborated 7/ This car is referred to as a "61 Maverick" by Detective Blackwood at the evidentiary hearing, R. 48, but he describes it as a “1971 Maverick" on direct examination. R. 52. This same discrepancy occurs in the transcript. Cf. Transcript, State of North Carolina v. Tommy Noell, Orange County Superior Court, No. 73-Cr-4142 (August 2, 1973) at p. 192, with id., at 200. Petitioner's mother, the owner of the car, testified that it was a 1971 model. R. 65. 8/ petitioner's alibi until sone time later. Detective Blackwood testified that he did not secure a warrant to seize a red shirt with blue horizontal stripes which he saw hanging on a clothesline near petitioner's trailer, ibid., and that he did not check the Ssneeventin of the prosecuting witness or petitioner's outer garments, underclothes, fingernails or other body parts for evidence. R. 52, 53. The police did not secure a warrent ond search the 1971 Maverick petitioner had been driving on Mav 23, although they saw this car parked near petitioner's trailer. R. 53. Petition testified that on the morning of May 273, 1973, he left his home at 7:30 a.m., Grove his mother to work at Memorial Hospital, delivered three children to a nursery school, repaired a flat tire on the car, and then drove to Durham, North Cerolina, twelve miles from Chapel Hill, for a 9:00 a.m. job interview at the Bronson Tire Company. At about 9:15 a.m., he had an interview with one Bill Austin there, and then pro- ceeded back to his trailer in Chatham County, arriving at approximately 9:45 a.m. Petitioner stated that the job inter- view had been set the previous afternoon, May 22, by @ man named Locke at the Snelling and Snelling Employment Servic« in Chapel Hill. On cross examination, the State introduced an appointment card written by this agency for an interview at 8/ See pp. 37- 40, infra. Bronson's for petitioner at 9:00 a.m., May 22. Mr. Bill Austin, the manager of Bronson's testified that he had seen petitioner for a job interview between 9:00 a.m. and 10:00 a.m., but that he could not remember whether this meeting had occurred on May 22 or May 23. R. 67, 68. Petitioner also stated that he had worn maroon pants and a pinkish-red shirt on both May 22 and May 23 because all of his other clothes were packed. He admitted having worked as a vacuum cleaner salesman in October, 1972. Petitioner's mother, Mrs. Loulabelle Noell, testified that he had droppel her off at her job in Chapel Hill at 7:50 a.n., May 23, and that he had been wearing maroon pants and a flowered shirt. A witness testified that petitioner had brought three children to the Chapel Hill Cooperative Child Care Center on May 23, sometime after 7:30 a.m, Petitioner's wife, Barbara Noell, testified that petitioner had helped her move into a new trailer all morning May 22. She also stated that he left home at about 7:30 a.m., May 23, and had returned about 9:30, and that he was wearing a pair of burgundy slacks and a purple, yellow, and white shirt on both May 22 and May 23. Petitioner returned to the stand to testify that he recalled visiting the Snelling and Snelling Employment Service in the early morning of May 22 as well as in the afternoon. Mr. Roy Locke then testified for the State in rebuttal that he was an employment counselor at Snelling and Snelling and that he had seen petitioner who was wearing a “red tank shirt,” R. 74, at » ihe 8:00 a.m., May 22. He said that on the previous day, May 21, he had set up an interview for petitioner at 9:00 a.m., May 22, at Bronson's Tire Company, This witness testified that he made no change in the interview time, but that he did not know when the petitioner went for the interview. During the selection of the jury at petitioner's trial, the State examined the veniremen extensively regarding their atti- tudes toward capital punishment. Over petitioner's objection, ten veniremen were excluded for cause on account of their death a / scruples. The trial court denied petitioner's challenge for cause to a white venireman who stated that she had feelings “against" interracial marriage which “probably could" affect her consideration of the testimony in the case, R. 19, and to a white venirenan who said he was “not sure" he could vote to acquit if he had a reasonable dovbt shout petitioner's quilt unless that doubt was “strony enough," R. 24. Petitioner was forced to use peremptory challenges to excuse these venire men, and by the end of voir dire hod exhausted all of his peremptories, Six of the forty-seven veniremen examined for the selection of i 10/ petiticner's jury were black; three were excluded by the State for cause on account of their acguaintance with petitioner, iL’ one was excluded for cause on account of his scruples against capital punishment, and the remaining two were excluded peremptorily by the State, 9/ Veniremen Waqner, R. 19-20; Rogers, R. 21; Tony, R. 22; Miller, R. 22; Snipes, R. 23-24: Dennis, R. 23-24; Beaver, R. 27- 28; Whitted, R. 29-30; Pennell, R. 30-31; Parsell, R. 31. 10/7 Veniremen Henry Alston, R. 15-16; Katherine Alston, R. 17- 18; Stone, R. 16-17. 11/7 Venireman Whitted, R. 29-30. 127 Veniremen Daye, R. 18; McAdoo, R. 26-27. - ]z =- Cs EE es The State presented testimony from North Carolina Memorial Hospital emergency room nurse Mary Ford that Miss DiCenzo had been given a “rape examination" on the morning of May 23 and that various other tests had been conducted; but the results of the examination and tests were not introduced. R.%42-44., Petitioner's wife testified in support of his alibi, and stated that she married petitioner on March 17, 1973. R. 68. On cross examination, she testificd, in response to a question by the Solicitor, that her child was due on September 30. R. 72. At the conclusion of the evidence, the trial judge charged the jury that it could either find petitioner not guilty or guilty of rape as charged. The jury returned a verdict of guilty, and the court thereupon sentenced petitioner to die. On February 25, 1974, the Supreme Court of North Carolina, with three Justices dissenting in regard to the death penalty, affirmed petitioner's conviction and death sentence. On March 4, 1974, Chief Justice William A. Bobbitt of the North Carolina Supreme Court stayed execution of the judgment in order to aklow a petition for writ of certiorari to be filed in this Court. On May 16, 1974, Mr. Chief Justice Burger granted an extension of time until July 6, 1974 in which to file a petition for certioreri. @ i3 « HOW THF FEDERAL QUESTIONS WERE RAISED AND DECIDED BELOW I. Petitioner's Grouping of Exceptions and Assignments of Error (R. 120-126) in the Record on Appeal in the North Carolina Supreme Court assiqned as error the death sentence in this cape on the ground that; The defendant's rights under the Fifth, Sixth, Eighth and Fourteenth Amendments of *‘e Constitution of the United Staces and wder Article I, Section 27 of the Consti- tution of North Carolina were violated: 1. By the imposition of the death penalty sentence upon defendant, which penalty for rape is crvel and unusual punishment within the meaning of the said constitutional provisions. Assignment of Error XXIV, R. 126. In his brief in the North Carolina Supreme Court, petitioner contended that, "The Death Sentence Inposed Upon Appellant Is Legally Unauthorized and Constitutes Crue] and Unusual Punishwent Prohibited by the Eighth and Fourteenth Amendments to the Constitution of the United States." Brief of Appellant at 65-141. The Court rejected this contention: “The death sentence was, therefore, not only proper but was the only one that the court below could impose." 202 S,E.2d at 669-670 (App. A at 20a-21a). Il. Petitioner objected to the exclusion for cause of veniremen on the basis of their conscientious scruples against capital punishment on the basis that it denied him a “representative jury" R. 22, and he excepted to the challenge of each of the ten veniremen who were excluded for cause on these grounds. Exceptions 7, 9% 10, 11, 12 (an exception to the exclusion of two veniremen), 16, 17, 18, 1%. Petitioner assigned these exclusions as error on the following grounds: The defendant's rights as protected by the Sixth and Fourteenth Amendments to the Con- stitution of the United States, and parti- cularly his rights to due process and the equal protection of the laws as quaranteed thereunder, were violated by the exclusion of jurors who opposed capital punishment in that: 1. Defendant's rights to due process and equal protection of the laws as protected under the Fourteenth Amendment to the United States Constitution were violated when potential jurors with scruples against capi fe) punishment were excused for cause in violation of the principles stated in WITHERSPOON v ILLINOIS. 2. Defendant's riqhts under the Sixth and Fourteenth Amendments to the United Staten Constitution to a fair, impartial and representative jury were violated by the exclusion of those prospective jurors with scruples against the imposition of capital punishment; 3. Equal protection of the laws as gueranteed by the Fousteenth Amendment to Lin United Slaies Constitution wend by Article 1, Section 19 of the North Carolina Constitution was deniea when that class comprised of those with scruples against cupital punishment was prevented from sitting as jury members in this case. 4. Defendant's constitutional rights as protected by the Sixth and Fourteenth Amendments to the United States Constitution were denied in that barring those with scruples agqainct capital punislment prevented defendant's trial by a jury from the district in which the crime was committed. Assignment of Error IV, R. 121-122. Petitioner's brief pre- sented these contentions. Brief of Appellant at 25-27. The Court rejected these arguments: “Under Witherspoon, ... we hold that these . . . jurors were properly excluded for cause." 202 S.E.2d at 761 (App. A at 12a). III. Petitioner's Grouping of Exceptions and Pn aaron of Error in the Record on Appeal in the North Carolina Supreme Court assiqned as error the Solicitor's suggesting through examination of a prosecution witness that evidence, never in fact produced ' . ' ’ ' ° = ' 5 oe % . . - court's ref il to « ] for caus¢ i wnite venireman who , - stated he \ not sur whethe, e would vot to acquit f . , , e he } } a reas ible doubt of pet ioner's guilt + rr ‘ f — , T t »>2\ . , ( , ry . R. 12 - et +i 0NeY a | 5 cl : > ate "; ty ’ ; ery sé 1? nw ’ ’ f i ? ’ . . ‘ ‘ ‘ , ; ‘ 4 y | ‘ } . : ‘ , . fy ’ ’ : , 4 Ss > , } 4 ’ F : , 7 j F ' : , , 7 ’ ; PI , ° 7 . , . : . — : 7 . . D. - at } ia, LZ | ° I. THE Wil SEN THE OR OF In order t repetitious mat the Writ" secti Court of North (O.T. 1973, fi] the issues set (A) (C) RFASONS FOR GRANTING THE WRIT | ee ee ee eee - ee - -- —-—- COURT SHOULD GRANT CERTIORARI TO CONSIDER THER TIE IMPOSITION AND CARRYING OUT OF THE TENCE OF DEATH FOR THE CRIME OF RAPE UNDER LAW OF NORTH CAROLINA VIOLATES THE EIGHTH POURTLENTN AMENDMENT TO THE CONSTITUTION Tiki UNITED STATIS. © avoid burdening the Court with lengthy and ter, petitioner adopts the "Reasons for Granting m of the Petition for Certiorari to the Supro Carolina, Dillard v. North Carolina, No. 73- cd June ll, 1974), at pp. 11-5) and each of forth there: Whether the decision of the North Carolina Supreme Court reinstating the death penalty in that State following Furman v. Georgia, 408 U.S. 238 (1972), is an impermissible evasion of the Furman holding; Whether such a reinstatement of the death penalty by judicial decision violates the Eighth and rourteeath Amendment commands of lawfulness in crimina) punishments; Whether the perpetuation of arbitrary sentencing discretion in North Carolina's administration of the death penalty following Furman violates the constitutional rule of that case; e 16 (D) Whether the death penalty is so inconsistent with contemporary standards of decency as to violate the Eighth and Fourteenth Amendments. The remaining Eighth Amendment issue presented by this case is whether the death penalty is an excessive, disproportionate and aberrational punishment for the crime of rape when that crime results in no considerable bodily injury. The question is one on which a conflict apparently exists between the North Carolina Suprei Court and the cognizant federal Court of Appeals. See Ralph ov. Wa n, 438 P.2d 786, 793 (4th Cir. 1970) cert. denied 408 U.S. 942 (1972). Restraints upon excessive punishment run deep in the Anglo- 3/ 13, American tradition, and their cxpression in the Eighth Amend- ment waS a principal ground of decision in Weems v. United States, 217 U.S. 349 (1910). Although the punishment involved in Weems was peculiar and outlandish in nature, cond mnation of it rests expressly upon the oppressiveness of that punishment for the crime of falsifying public records, and its consequent lack of “adaptation of punishment to the degree of crime." 217 U.S. at 365. Sec also O'Neil v. Vermont, 144 U.S. 323, 337, 14/ 339-340 (1892) (Justice Field dissenting); Hart v. Coiner, 483 13/ Magna Carta contains three chapters requiring that amerce- ments be proportioned to the measure of magnitude of offenses. MAGNA CARTA, ch. 20-22 (1215), printed in ADAMS & STEPHENS, SELLCT DOCUMENTS OF ENGLISH CONSTITUTIONAL HISTORY (1926)42,45. 14/ Justices Harlan and Brewer agreed with Justice Field that O'Neil's long jail sentence was excessive “in view of the character of the offences committed," 217 U.S. at 366, 371,which were liquor law violations. ‘The majority of the Court declined to reach the merits of the question because it was not properly presented and because the Eighth Amendment was not then viewed as a restraint upon the States. 217 U.S. at 331-332. o 19 « This and } SC 1 S ] ] . LOY enti) i] ( ciliGi, Jia cr t \ the | r? , J) i J ‘er 1] toda 1 J i 15/ UNI CAPJ survey “natior and col< Cig 1973) . cert. denied, 139 (4th eve ‘ R21 (1974) constitutional requirement of adaptation is not me it de not command a commensurability of crime that neither legislaturesn courts, nor the f } Le ‘ é ufficiently informed to calibrate. . ' nt Pit } Cri » @7 HARV. L. 1078-3080 (1964), However, wuld ignore th ‘ ‘ cr] ! , ie tem to deny tha t } ] thei ousr is endemic to it; is cont , the Eighth A ent's prohibition of ] ’ ) | } 5 one resty IcltjiIOoO1 } ; oO 1 Stat to |} cn | al tly in affi ng maxi i i¢ ‘ | CY ° c } for rape as that ponalt t« } hoy \ ¢ i ) ’ . W Bs Ae } ‘ 19 2° . 19 (] J, SG), Liid “ { i re left Luisa Ya) . For th t 3 that such a pun . rit i) thy fal = t ré 2 Rap l every rors off e, but it is punished by « th in r out } ts United Stat : Taiwan, 4an , 15/ 1 th bli of South Africa. Prior to th NAT (ENT CONOMIC AND SOCIAL AFTALi dj ( ° iJ ii Ol A | fauNi Ne dithe & , { 10) (] } +, OD. 40, 46. Thi s ba u } pol ré ived from governments oO! P . ” . ; . ; ’ | ited itions] corr pondent in 109 countris . ] ls it 4-5. e 20 @& Ee THE COURT SHOULD GRANT CERTIORARI TO CONSIDER WHETHER THE EXCLUSION FOR | CAUSE OF TEN VENIREMEN ON THE GROUNDS OF THEIR EXPRESSED ATTITUDES TOWARD THE DEATH! PENALTY VIOLATED PETITIONER'S RIGHTS UNDER THE STXTH AND FOURTEENT?! AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES, The record below presents important issues concerning the constitutionality of excluding persons who oppose capital punishment from service on trial juries in capital cases tried under a purportedly “mandatory” death-sentencing procedure. Notwithstanding Witherspoon v. TWinois, 391 U.S. 510 (1968), the Supreme Court of north Carolina here upheld the exclusion of ten veniremen on the ground that “each of these prospective jurors, before heering any of the evidence, had elready made up his mind that he would not return a verdict in this rape case pursuant to which the defendant might lawfully he executed, whatever the evi- donce might be." 202 S.E.2d at 761 (App. A at 12a). That holding presents issucs of general significance, which should be determined by this Court. A. The Test Exclusion Applied by The Court Below Did Not Meet the Minimum Standards " Reguired by The Constitution As Construcd in Witherspoon v. Tllinois, 391 U.S. 510 . A number of guestions concerning the applicability of Witherspoon are presented by this case, for that decision held that "[i}t the yoir dire testimony in a given case indicates that veniremen were excluded on any broader basis than [that outlined in Witherspoon) ... , the death sentence cannot be carried out.” 391 U.S. at 522 n. 21 (emphasis added). See also Maywe)l v. Bishop, 398 U.S. 262, 266 (1969); Bovliden v. Holman, 394 U.S. 478, 482 (1968) . First, the exclusion of venireman Rogers was in flat violation of the Witherspoon requirement that a venireman may not ‘ be excluded for “voic[ing] genera] objections to the death penalty or express[ing] conscientious or religious scruples against its " infliction. Witherspoon v. Illinois, supra, at 522. This venire- —_— — man was excluded on the basis of the following examination: SOLICTTOR: And Mrs. Rogers, let me ask you the sar question, that I have been asking. it ] impossible for you to bring in a = —. _ verdict requ) t hi ImMpo tion ) t} deat} penalty, wu: t circumstances, no tte: even though ti State pro to you th aeten- Gant's quilt } reaso le doubt? again, your r in mind, please. Would it } 1? sible to ing 1) + verdict that re qu) 1 th i ition o t} death penalty, no matter what the State showed you, by way of th evidence? JURO : T think so. MR. PII : We challenge her for cause. COURT: ‘J challenge 3} ustained, MR. EPTING: Object Sie COURT: The objection is overruled. R. 21. If Witherspoon has any application to capital trials in which the j purportedly does not decide the issue of punishment » he, the triel « * é lusi C this juror was reversible error, * 22/ The Covrt « A} tls for the Fifth Circuit has recoqnized thet t} ni venir : mafully excluded on account scrup] against the death penalty is irrelevant: The magnitude « i decision to take a human life ; is pre b] unparalleled in the human experience of & ember of a2 civilized ciety: indeed, many ag 1 or religio grounds that it 1 in hensib] that an advanced ciety such as ours shoul et engage in ich practice. Given the weightin f the subject involved it really a not fol] t t the improper exclusion of a rel- ati ly s ll nu of th total venir en exami ] Gor not pre judi tl defendant's rights to an is partial cross-section of the community. Where, as here, unanimity of decision is required to impose the death sentence, the stark reality is that onc improperly excluded ‘juror may mean the difference betwenn life or death for a defendant Although a defendant : é perly empaneled jury will not imposc penalty, it seems to us that in light of the vast difference in treatment which may result from the improper exclusion of a single venireman, even that degree of error is prejudicial to the rights of a defendant in a capital case. » 24-6 Second. This Court should determine whether scruples against the imposition of capital punishment in all circumstances can he made"“unmistakably clear," as required by Witherspoon, 391 U.S. at 522, n. 21, in the absence of an instruction by the trial court that it is the civic duty of each venireman to sit as a juror if he possibly can. As the Court declared in Boulden vy. jolman, 394 U.S. 478, 483-484 (1969): “[I}jt is entirely possible that a person who has ‘a fixed opinion against' or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law -- to follow conscicnt- iously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case." A venireman must be instructed that the law requires him to “sub- ordinate his personel views to what he . . . « [perceives] to be his duty to abide by his oath as a juror and to obey the law of the State," Witherspoon vy, Lllinois, supra, at 514-515 n. 7. Although a mumber of the excluccd venireren here stated that they would “nutometically" vote against @ verdict which entailed the imposition of a death sentcnce, none of them was given any in- struction on their duty to subordinate their beliefs to the Ja. of North Carolina that would be given them by the trial court. Third, the Court should decide whcther the voir dire here was in some cases simply too brief to determine with “unmis- takabie" certainty, Witherspoon v. Tllinois, supra, at 522 n. 21, _— 22/ cont'd. Marion v. Beto, 434 F.2d 29, 32 (5th Cir. 1970). This Court has reversed convictions when only three veniremen were wrongfully ex- cluded, Sequra_v. Patterson, 403 U.S. 946 (1971), rev'g, 402 F.2d 246 (10th Cix. 1906); Lacctto v. Masgachusetts, 403 U.S. 947 (1971), rev'g 254 N.E.2d 415 (1969); and a mumber of other courts have held that the wrongful exclusion of a single venireman was re- versible error. Woodards v. Maxwell, 303 F. Supp. 690 (S.D. Ohio 1969); People v. Schager, 80 Cal. Rptr. 1, 457 P.2da 841 (Sup. Ct. 1969); In re Hillery, 79 Cal. Rptr. 773, 457 P.2a 656 (Sup. Ct. 1969). In the instant case, of course, nine other veniremen were excluded. eo 25 « ee ee t} t } n¢ ) ~ ~~ — — bd -— . v. m - — « - - ~ . . om ~ . . “an “ . 2 = . . ? - _- p — * ** : “ ~ 4 om ** er i- + ve 7) - . - ‘ ww _ - 4 - . e ° « _ - : a ~ 4 -~ + = Y A a WA ’ ~ - 4 ee ee — _ _ the guilt of the defendant in this case of the Crime charged, would you find it impossible to bring in a verdict of guilty, under any cir- cumstances, knowing - beceuse of the capital Penalty? ... Would you? JUROR TONY: Yes, sir; I would. MR, PIERCE: You would find it impossible to, under any circumstances, to bring in that ver- dict, Mrs. Tony? JUROR TONY: Yes, I would. MR. PIERCE: Your Honor, we would ask that Mrs. Tony be excused for caugc, COURT: The challenge for cause is sustained. MR. EPTING: Note our continuing chjection, on the basis of a representative jury. counrT: The objection is overruled. Call in another juror. R. 21-22. Finelly, the Court should decide whether Witherspoon scientious scruples against the imposition of the death penalty for rape, in a case where the victim is not otherwise injurcd. For Venireman Dennis was excluded not because of inflexible and cateyorical conscientious scruples against the death penalty, but because -- in the exercise of obviously selective judgment -- he opposed that penalty for rape: MR. PIERCE: Would you find it impossible to bring in such a verdict, that required the death penalty, under any circumstances? You can think about it. JUPOR SNIPTS: It would be impossible; yes. MR, PIERCE: How about you, Mr. Dennis? JUROR DENNIS: I really don't know. MR. PIERCE: Let me put the auestion to you the same way, would it be impossible, under any circumstances, even though the State had satis- fied you beyond a reasonable doubt, from the evidence in the case, as to the defendant's guilt, to bring in a verdict which resulted in the death penalty? JUROR DENNTS: Well, for what this is, I'd have to say yes. MR. PIERCE: In a rape case, you couldn't ao it? JUROR DENNIS: Right. MP. PIERCE: Your Honor, the State would ask that these two gentlemen be excused for cause. MR. EPTING: The defendant would like to have Wor. Dennis examined somewhat further, as to his objection of the death penalty. 1 believe he understoud, unless in this type of case; is that right, Mr. Dennis? » 37 « As the Court has clarified the nature of the “jury” guaranteed in state-court proceedings by the Sixth Amendment, the importance of the cross-section requirement has become increasingly highlighted, and the permissibility of death quali- fication has become increasingly suspect. Williams v. Florida, 399 U.S. 78 (1970) held that a jury of twelve was not an essen- tial port of the Sixth Amendment right, since the key function of the jury wos to provide a group representative of the community which would prevent Government oppression ef criminal @efendants. "[Tihe essentio)]) feature of a jury obviously lies in the inter- position between the accused and his accuser of the common sense judgment of a group of laymen, and in the comeunity participation and shared responsibility thet results from that group's deter- mination of guilt or innocence.” 399 U.S. at 100. The Sixth Amondment required only that the jury be large enongh “to pro- vide ® fair porsibility for obtaining a representative cross-sec- 27 tion of the community ...”* Ibid. In Anotuca wv. Oregon AO0% & , < ee ee ee U.S. 404, 410 (1972), the Court similarly ruled that the Sixth Amendment did not require state jurier to reach a unanimous ver- dict, because the jury's common sense judgment could still be rendered without unanimity “as long ar it consists of a group of Jaymen representative of a cross section of the comaunity." the principle that no identifieble group may be systema- tically excluded from jury panels is not limited to cases invol- ving race: see White v. Crook, 251 F. Supp. 401, 408-409 (M.D. Ala. 1966) (exclusion of women); Iabat v. Bennett, 365 F.2d 698 ©thA, Cir. 1966), cert. denied, 386 U.S. 99) (1967) (exclusion of wage 23:/ The Court remarked the fact that in capital cases, no State provided for less than twelve jurors; it concluded that in death cases, this fact “suggests implicit recognition of the value of the larger body as a means of legitimating society's decision to impose the death penalty.” 399 U.S. at 103. - 29 - > | — ’ hy " ‘ ‘4 4 , + ; ‘ ; , ; P ; ’ ‘ . ; ; . . . . , ‘ , ; ‘ , 4 ; Veniremen Snipes and Wagner cannot be excluded for cause. 27/ {MP. PTERCHE] Mr. Snipes, let me go ahead and get to this question. Let me ask you, would... you find it impossible, under any circumstances, to bring in a ver- dict which resulted in the imposition of the death pen- alty, even though theState satisfied you beyond a reason- able doubt of the defendant's guilt, from the evidence in this case? You wouldn't have any trouble, Mr. Snipes? JUROR SNLPTS: T wouldn't bring in that kind of a verdict. Mk. PTENCE: Would you find it impossibie to bring in such a verdict, thet requiree the death ponaltly, «nder any Circumstances? You con think about it. JUROR SUTIPMS: It would be impossible; yes. MR. PTURCH: Let me ask you this? Would it be im- possible for you to bring in a verdict of guilty,knowing thet that would be a verdict for--to bring in a verdict of guilty, even if the State satisfied you beyond a reasonable doubt that he is quilty? JUROR WACNER: Mean to be convicted, that he would be hilled? MR, PIFSCFr: Lady, sentenced to Geath. JUNON WAGNER: We would be sentenced if i--we all aqrecd, we twelve agreed you had proved without a coubt he was guilty: Mk. PIaNCk: Would it be impussible to bring in such a verdict, no matter what the State proves? JUROR WAGNLK: Yes. R. 20. Iil. THE COURT: SHOULD GRANT CERTTORARI TO CONSTI WUETHER PETITIONER'S RIGHTS GUARANTED BY THE SIXTIT AND FOURTEENTH AMOND) ls TO THE CONSTITUTION OF TH INITED STATES WERE VIOLATED BY Till CALCULATED MISCONDUCT OT! lib PROSECUTOR IN: (a) IMPERMISSIBLY SUGGESTING THROUGH EXAMINATIO OO” A PROSECUTION WITS LHAT EVID! ICE, NEVER IN FACT PRO -eD AND NOT SUBJ] ' TO CROSS } M 1] vile ‘* LO Pn i | j i PROS EC II I'S CASE; AND (b) ELICIT"! rROM Vi Willy y i! ‘ hu | ,) ! Yr Ci ( j wil |’ ! , j PAC ] ] ] ‘ " ( } ; } C%\ J | ) PRI i Bt LfsGlie ( aro ! conduct in tl petit the rj : \ { } VU} ] ty of Lh ‘ i ls. On one « ion, the pro tis ( t }) } } li | lic ! si Cy, ? } ; { . ‘ | " Tar \ i j oO thi y »} 1? it, . ! M } f J t Lé if e | iJ DY iF \ c t q ] ua {« i < ] | : , Ltne ’ | i { LO v > Wa Cc )2 ( 4 lt ‘ . ] Vi t i *, ‘] } iy j j } ») Lf) Ol m Se — ma ansy Wa th ’ ’ ! ' ; ratic 11d have been present but for th 111 of th l toy . nation in qt tion pro ed as follows: (MR. PIERCE) 1 M Pord, Mrs. Ford, t t conduct t re t the hospital }) (nih , ‘ ‘ , if ‘ )) Y +s thie C. (MR. PI ) 3 t wo) they, ii you know ] own knowlLe rs (M&S. FORD) There were slides done, sur- n, buvble secretion, which is COURT: The motion is allowed. Do not con- th last statement. ° pre mant Wiic, who wa test ifyi | in his b half, wh n the two had »o mn marricd and when their hild was due. The obvious if plication of th ceries of questions was that the child had becn col t f 1 ; In an interracial ray pro tution of :, . a b i ry to a \ te woman, thi revelation \ as ¢ } } ‘ ne 1 tend: ry i« ‘ ’ {-¢ } ) ? ‘ { ] l l ! i ‘ y } ( ? t , un ( | c¢ ' e ' As % o I _ » a . a). (? - ) ‘ Wd no ’ ; ' ¢ P { A! ! uf I © e hy f ; { 5 ] Y i t i ° } s . \ ‘ } \ f } bs ( . . > . \ ‘4 As { ° f we | f | | | } } ’ , vA ‘ ‘ a’ i i ¢ i 2) ; ' 1 . a l, I } vit i¢ | ( ' , . ' i¢ if Co? ; t t hy ‘ t } 1] ) ;u i ot i : Provi i, th th " i U Wil } Of ); Lj oUun . és) t yiolatin an provi ) { ti ] Li j i j " j i I t f | i: 4 doll 10.00), impr ' 1t for not mor thai 1 iths, or both.” This Court has insisted that a strict standard of fairness be observed »y prosecuting officers, both federal and state. See antohello v. Now York, 404 U.S. 257 (1971); Giglio v. United oo —_ —_—— Hee] States, 405 U.S. 150 (1972), and cases cited. "While [the pros: cutor] . . . may strike hard blows, he is not at liberty to strike foul ones." Berger v. United States, 295 U.S. 78, 83 (1935). The degree of prejudice required to render prosecutorial coaduet coyniveble as a due process violation takes account of the gravity of the prosecutor's violation of this standard: ""j,> reason why the showing of prejucice required to bring down the balance in favor of a new trial will vary from case to case in that the pans contain weights and covunter~- weights other than the interest in a perfect trial, Sonetimes only a small showing of prejuiice, or none, is de- monae? beeause that interest is rein- foree’d by the necessity that *Tho administration of justice must not only be above reproach, it must also be beyond the suspicion of reproach.’ People v. Savvides, Supre, and by the teaching of experience that mere ad- monitions are insufficient to prevent repetition of abuse. Sec Mapp v. Ohio, 397 U.S. 643, 650-653 (1961).iIn other cases, where the conduct of the trial has been less censurable, or not censurable at all, a greater show- ing of prejudice is Gomanded. « « -« Kyle v. Unite! States, 297 F.2d 507, at 514 (2d Cir. 1951). The prosecutor's abuses here were plainly willful, and conse- quently of the gravest sort. Each was highly prejudicial both intrinsically and in its calculated design to defeat independent Fourteenth Awendment rights of a defendant on trial for hislife. For, the evidence relating to medical tests not only gave inad- missible support to the prosecutor's case, but also called upon — o me — _ “4 ~ \ \ . a ‘S) - ms * ” y aoe -- IV. THE COURT SHOULD GRANT CERTIORARI TO CONS TDER WHETHER PETITIONER WAS DENIED THE FUNDAMENTAL FAIRNESS IN CRIMINAL PROSECUTIONS GUARANTEED BY THE DUL PROCESS CLAUSE OF TIIE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNTTED STATIS WHEN THE POLICE FAILED ADEQUATELY TO INVESTIGATE THE CRIME FOR WHICH PETITIONER WAS CONVICTED. In Giles v. Maryland, 386 U.S, 66, 73-74 (1967), the Court considered “the broad questions whether the prosecution's consti- tutional duty to disclose extends to all evidence admissible and useful to the defense, ard the deqree of prejudice which must be shown to make necessary a new trial," although the decision in tnut case rested on narrower grounds, In Wardine yv. Oregon, 412 U.S. 470, 474 (1973), the Court held that the Due Process Cleuse “speat{[s] to the balance of forces between the accused and his aceuser," and reversed a conviction on the ground that “fundasentsl] fairness" reguired reciprocal discovery if a State compelled a criminal defendant to disclose alibi evidence in advance of trial. This petition presents the important question whether, in a case where an indigent Gefendaut is charged with a capital crime and held in jail without appointed counsel, the State's qualified duty to disclose evidence useful to a defendant compels investigation of an alibi with reasonable dispatch end the use of certain other normal investigative techniques in order to preserve the defendant's right to a fair trial. Petitioner was arrested on the day Miss DiCenzo was raped. When questioned at the police station, he repeatedly proclaimed his innocence and asserted that at the time of the rape he had been in Durham, North Carolina, at a job interview with an executive at a tire company. R. 52. At trial, petitioner's wife and mother testified in support of this alibi, R. 69-70, 65, « 37 « his fingernails or pubic hair for possible evidence that he was the person who attacked Miss DiCenzo. | Although the police are normally free to adopt whatever inves- tigative methods appear most effective, the failure of the police i to check petitioner's alibi severely prejudiced him, since it resulted in his inability to secure what wel] cculd have been important exculpatory evidence. The Court should grant certiorari to determine whether the police investigation in this case, pri- marily the failure to check an alibi, when a capital defendant strongly proclaims his innocence and gives an exculpatory state- ment which covld be confirmed by one phone call, constitutes a fundamentally unfair practice which results in the suppression of possible exculpatory evidence. Cf. Mooney v. Holohan, 294 U.S. 103 (1935); Napve v. Tilinois, 360 U.S. 264 (1959); Alcorta v. Texas, 355 U.S. 28 (1957); Brady v. Maryland, 373 U.S. 63 (1963); Miller v. Pate, 386 U.S. 1 (1957). A violation of bue Process has been found when a defendant, charged with driving uncer the influence of alcohol, is arrested and kept in jail without a lawyer if the police do not perform some kind of tests which will determine the presence of alcohol in the defendant's system; because of bodily metabolism, such crucial evidence will be lost without either prompt action by counsel for the defendant or by the authorities, and courts have recognized the fundamental unfairness of denyiny both such alternatives to a defendant. See In re Martin, 58 Cal.2d 509, 24 Cal. Rptr. 833, 374 P.2d 601 (1962); Winston v. Commonwealth, 188 Va. 386, 49 S.E.2d 611 oe (1948); City of Tacoma v. Heater, 67 Wash.2d 733, 409 P.2d 867 (1966). ‘The claim that police investigatory tactics have deprived — ~ on 1 tion tion.” ho id. at petit ji for whicn THE COURT SHOULD GRANT CERTIORARI TO CONSIDLR WHETHER THE PROCESS OF SE- LECTING PETITIONER'S TRIAL JURY IN AN INTERRACIAL RAPE CASF SENIED PETITIONER'S RICHTS GUARANTEED THE SIXTH AND FOURTEEN’ MENDMENTS TO THE CONSTITU- TION OF THE UNITED STATES WHEN: (a) THE TRIAL COURT DENILD PETITIONER'S CHALLENGE TO A WHITE VENTRE- CAUSE BY Vil A “* . ror MAN WiTO EXPRESSED “FEELINGS ACAINST INTERRACIAL MARRIAGE" IN A CASE WHERE ' Tiikk BLACK PETITIONER AND HIS WHITE WIFE BOTH TESTIPIFD; (b) THE TRIAL COURT DENTLD vYETITIONER'S CHALLENGE FOR CAUSE TO A WHITE VENTREMAN WHO STAT j WAS “NOT SURE" WHETHER HE WOULD VO TO ACOUIT IF NE HAD ONLY A REASON- ARLE DOULT OF PETITIONER’ GUILT; AND (c) OT WSL LLIGIiBI BLACK VENIREMEN WRI Bee £8 i Tim JURY THROUGH THE INTHOACTT( ( ROS HCUTORIAL CHALLENGES FOR CAUSK ON TNR CROUND OF CONSCLENTIOJS SCRUP] ACAINST CAPLTAL PUNISHMENT AND Tit Pl LCUTOR'S EXERCISE OF HIS PERENP=- TO! CIHLALGENGES « Yhis Court has noted in several contexts the particular coa- cern of tI rt ith A: ent against race discrimination in a_ / the jun sole precess,. In the prosecution of a black de- fend for the all rapo of a white victim, where the only available p lty is death, the importiun of a jury selection Bf Eedee Pel . Kiff, 407 U.S. 493 (1972). “[S)ince a prin- cipal pu of the Fourtcenth Amendment was to prohibit the Stat ft avidiously discriminating on the basis of race," yudaes net refu L« tate criminal proceedings to allow rol- evant it rojgation of jurors “upon the subject of racial preju- dice." H . South Carolina, 409 U.S. 524, at 525-26 (1973). Moreover, de ite the normai rule that the defense and prosecu- tion are pe? thed te « rcise peremptory challenges “without a renson stated, without inguiry and without being subject to the court's control," Swain v. Ala! a, 389 U.S. 202, at 220 (1965), a consistent and syst i\tic exercise of peremptory challenges “to prevent envy and all jroes on potit jury venires from serving iry itself"would constitute “invidious discrinina- the peremptory system is insufficient justifica- 273 emwve . . 41 proce «.4 ‘ . L at CG } ; parent. , y i ‘~ f . ‘ | ’ \ | ¢c Li c . f . j as a vu . t! f ; ‘ 4 \ at r , if wil taint ric j by for cau } 4 ’ ‘ T l ’ « | Ps , ‘ . ‘ . ‘ . lyi t 3 j , 7 . : 4 i i‘ . ; s/t | ‘ i / j ‘ ta tt} y ¢ i ’)’¢)7T , Br ’ J | } , yt ; . J , i ‘ g*y ] ' ; » 5 ’ " , yf) } an <é ‘ Li; . ; i . j Ul A424 '» } , } } il ‘ ’ P ] Ld ] cris * i A i ‘ ‘ ' | . il. ) ee oe , . ‘ _ ce c . - . ‘N - —- | : . - - = " . * . . . “ . > - , “ ( - . . - ™ . . . a . - . “ ° NS “ . —" . — . ; . ~ e . . ! - ° . ~ E < or) , 410 U.S. 284, at 302 (1973), and ‘ts and circumstances of this case the petit ioner] of a fair - Petit nor rm? ; 17 ; r tition for a writ of certiorary) } ep 04 4 Pius « } toad i ’ | | \ j \ } ) . ‘ ; é , . " . ’ , 4 ( ’ } ‘ , ‘ i j { } ‘ . , } 5 | ’ ‘ > j ; : , } ° , " . ’ , i ‘ ‘ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0219%3A1. Public record. Not legal advice.