Opposition — Rose v. Mitchell

yun 24978 |

IN THE

MiCHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1976

NO. 77-1701

JIM ROSE, WARDEN

PETITIONER

vs.

JAMES E. MITCHELL and

JAMES NICHOLS, JR.

RESPONDENTS

ee a " OO ew —_———s-. = ~ . —_—— as —— =

BRIEF FOR RESPONDENTS IN OPPOSITION TO THE

PETITION FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

T= ‘eee Ss eee ee a A —= =e eS dn

WALTER C. KURTZ

LEGAL CLINIC

UNIVERSITY OF TENNESSEE

SCHOOL OF LAW

c/o DODSON, HARRIS, ROBINSON

& ADEN

900 NASHVILLE CITY BANK BUILDING

NASHVILLE, TENNESSEE 37219

615- 244-6840

OF COUNSEL:

K. HARLAN DODSON, III

DODSON, HARRIS, ROBINSON & ADEN

900 NASHVILLE CITY BANK BUILDING

NASHVILLE, TENNESSEE 37219

615-244-6840

INDEX

OPINIONS Dis 668 5 6S666666666066666660606000606066066000

JURISDICTION... eee eee eer eeeeeneeenee ener eneeneeneneneneeneneeneeeeneee 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........1

QUESTIONS ee eee © © wr TTyT CT Tir |

STATEMENT OF THE Petes sebeesbeseeceeded 006seboceeescoon

Ds 66600600660 600066666660 60 ebb sebebeseeseseehecnecel

I. THE INDICTMENT AND SUBSEQUENT CONVICTION

OF THE RESPONDENTS CANNOT STAND WHEN THE

METHOD OF SELECTION OF THE GRAND JURY

FOREMAN VIOLATES THE FOURTEENTH AMENDMENT. .6

A. THE FOREMAN OF THE GRAND JURY THAT

INDICTED THE RESPONDENTS WAS SELEC-

TED IN A MANNER VIOLATIVE OF THE

POURTEENTH PE 6 OG See eSeooceocoeoocece

B. THE UNCONSTITUTIONAL SELECTION OF

THE GRAND JURY FOREMAN NECESSITATES

THE RELIEF GRANTED BY THE COURT OF

APPEALS... seeeeececcccccreecceeeeceeeg ll”

II. STONE V. POWELL, 428 U.S. 465 (1976) DOES

NOT AFFECT FEDERAL HABEAS CORPUS CLAIMS

INVOLVING ILLEGAL DISCRIMINATORY SELEC-~

TION OF A GRAND JURY FOREMAN............- 13

III. AUTHORITIES OF THIS COURT DO NOT SUPPORT

THE GRANTING OF THE PETITION OF CERTIOR-

ARI IN THIS Sin 6665066 Cheseesoesesooscoeese

A. THERE IS NO CONFLICT OF DECISION.......15

B. THIS CASE HAS LIMITED SIGNIFICANCE

BEYOND THE LITIGANTS INVOLVED..........16

I eee eee ee: fe eff © eevee eee ecole

CITATIONS

Cases:

Alexander vy, Louisiana, 405 U.S. 625 (1972)..... --10,11

Bird.y-.State, 103 Tenn. 343, 52 S.W. 1076 (1899).....7

Bonds, ve,~State, 220 Tenn 555, 421 S.W.2d 87 (1966)...10

Brown, ve, Allen, 344 U.S. 443 (1953).......0005- ececee 14

Castaneda, v., Pustida, 430 U.S. 482 (1977)...10,11,12,15

Exances vy. Henderson, 425 U.S. 536 (1976).....--eeees 16

Hale vy. Hendegson, 485 F.2d 266 (6th Cir. 1973).......6

Hale.vye Henderson, 336 F.Supp. 512 (W.D. Tenn. 1972)..9

Hale.y.. Henderson, 349 F.Supp. 567 (W.D. Tenn. 1972).10

Bill v., Texas, 316 U.S. 400 (1942)...... cece eececees 12

Mitchell y.. Bose, 570 F.2d 129 (6th Cir. 1978).....3,12

Peters. vy. .Kiff, 407 U.S. 493 (1972)........ ecccceckdg lS

State, vy. Collins, 65 Tenn 151 (1875).....seeeeeeeecees 7

Stone v., Powell, 428 U.W. 465 (1976)......... 2,13,14,15

Tyyner.ye.Fouche, 396 U.S. 346 (1970)... eee eenneeuee il

Vi Heights v. Metropolitan Housin

__ Development Corporation, 429 U.S. 252 (1977)........ 15

Washington, y. Davis, 426 U.S. 229 (1976)....-++eeeees 15

Whitus ve, Georgia, 385 U.S. 545 (1960).....-eeeeeenees 9

tpti ovisions:

United States Constitution, Fourteenth Amendment...... 2,6

Constitution of Tennessee, Article One,

Beet iam SOUCSSGRc ccc cccccec eee ese eeeseeeeseeseeecseoes 1,6

Statutes:

Di, BIE OR ic ieibnttndcnbsdsins codacdpcotucdel

CB, GIGI 6s oid bndsddavncdesenscecédiniccsedceccicesld

DAEs Ciao Snacercicsivnsk candids cecsladiisccedbdetad

Dia Cac cin ecnnds ccitisadcedcennncies- téccaeusace?

Ds Be ek senedudiestusicccvenadscdbicccicces ad

Das BO anksks ccicdcncvccciqctdsccedviesiascsstedl

DBs Genders vncisadnscccavssdscasesdecicvcccsstet

Miscellaneous:

Mitchie's Digest of Tennessee Reports (1937)..........+-7

Noore’s Pederal Practice, VOl. SA.ccccccccccccccccccccchl

Note, GRAND JURIES-GROUP DISCRIMINATION,

BS BoB. 98 FED CESTD ccccccccceccces TETTUTILIT TTT TTT 10

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

=a + see ie te ee 8

NO. 77-1701

ee

JIM ROSE, WARDEN, Petitioner,

Vv.

JAMES E. MITCHELL and JAMES NICHOLS, JR.,

Respondents.

a ee

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

oe

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinions below are correctly set out in the

Petition.

JURISDICTION

The jurisdictional requisites are adequately set

forth in the Petition.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLV=D

In addition to those provisions set out in the

Petition, the following provisions should be added.

Article One, Section Fourteen of the Constitution

of the State of Tennessee is as follows:

Section 14 prerequisites to criminal charge--that

mo person shall be put to answer any criminal charge but by

presentment, indictment or impeachment.

QUESTIONS PRESENTED

1. Whether the indictment and subsequent

conviction of the respondents can stand when the method of

selection of the grand jury oreman violates the Fourteenth

Amendment.

2. Whether this Court's decision in Stone v.

Powejl, 428 U.S. 465 (1976) applies to non-Fourteenth

Amendment claims so as to preclude federal habeas corpus

relief in a case involving discrimination in the selection

of a grand jury foreman.

3. Whether there sufficient reasons under the

authorities of this Court to warrant the granting of the

Petition for Writ of Certiorari.

STATEMENT OF THE CASE

The respondents, both black men, were indicted on

November 6, 1972, for two counts of first degree murder by

the Tipton County, Tennessee, grand jury. On March 22,

1973, the petitioners were found guilty after a jury trial

of the murders and given two (2) sixty (60) year sentences

to rum consecutively. Prior to the trial, the respondents

filed a written pro se pre-trial motion in the nature of

a plea in abatement in which they asked the court to

dismiss the indictment for, in part, “systematic exclusion

of Negroes...in regards to the position of the foreman of

said grand jury." (R, State Trial, Vol. II, page 21).

-2-

Evidence adduced from the witnesses at the state

court hearing on the plea in abatement established that

three prior foremen of the grand jury could not remember

there ever being a black grand jury foreman. (R, State

Trial, Vol. I, 72, 75, and 81-82). The state produced no

witnesses or evidence in the state court showing why there

had never been a black grand jury foreman. One of the

foremen testifying was the foreman of the Grand Jury

indicting the respondents. He testified that he had been

foreman of va.ious grand juries in Tipton County since the

early 1950's and that he had been asked to serve by the

criminal court judge again as foreman of the grand jury for

the November, 1972 Term because the regular foreman could

not serve. (R, State Trial, Vol. I, 74-77). In Tennessee

the criminal court judge appoints the foreman of the grand

jury. T.C.A. 40-1506.

After hearing the evidence on the selection of

the foreman of the grand jury and other matters, the state

trial judge stated his ruling: “Plea in abatement will be

Genied." (R, State Trial, Vol. I, 96). The state trial

Judge made no written or oral findings of facts or law.

The sum total of his rulings from the bench was that the

plea was denied. The state judges written order denying

the plea in abatement reads in full: “Plea in abatement is

overruled.” (R, State Trial, Vol. II, 42).

After exhausting state remedies, the responcents

filed a petition for writ of habeas corpus in the District

Court of the Western District of Tennessee. During the

course of those proceedings, the District Court asked for

and received an affidavit from tne grand jury foreman on

April 14, 1976, which stated that the foreman did not vote

-3-

on the indictment of the respondents. On April 14, 1976,

the petitioners also filed with the District Court an

affidavit of the state trial judge. The state judge

indicated that the foreman of the Tipton County November,

1972 Grand Jury, Mr. Peyton Smith, was personally selected

by the trial judge as foreman when the regular foreman

became ill. Mr. Smith was not a member of the regular jury

panel or venire. As to racial discrimination, the trial

judge stated:

In my five counties, I do not have a

black grand jury foreman, although I

have a black member of my Jury

Commission in one county. Most all of

my Grand Juries and Petit juries have

Sizeable numbers of blacks on thea,

both men and women. I don't appoint

Grand Jury Foreman very often because

when their two year term expires, I

usually reappoint them, thus they serve

a long time and the problem doesn't

come up very often.] gon‘t think that

I. hav y giver " hought to

ppointing a black foreman > I ve

no feeling gainst doing so.

(Emphasis dded).

(R, Affidavit filed in District Court on April 14,

1976).*

ARGUMENT

The issue in this case involves the

constitutionality of the process by which the foreman of

ee

louring the habeas corpus proceeding in the District

Court and on appeal to the United States Court of Appeals

for the Sixth Circuit, there was an issue of whether or not

constitutional standards had been violated in the selection

of the grand jury itself. The Court of Appeals, because of

its decision as to the foreman, found it unnecessary to

reach this issue, but indicated that if it did, the case

would probably have to be remanded for a further

evidentiary hearing in this District Court. Mitchell v.

Rose, 5370 F.2d 129, 132-134 (6th Cir. 1978).

-&

i i ee

the Tipton County Grand Jury was selected. It is the simple

position of the respondents, as it was the position of the

United States Court of Appeals for the Sixth Circuit, that

the respondents made a prima facie case of discrimination

in the selection of the foreman, and the petitioners were

not able to rebut that im acie case. Therefore, the

respondents were granted relief.

The petitioner makes much of its contention that

the respondents were guilty of a violent crime and it

couches much of its argument in emotional terms, interwoven

with the facts of the crime. The facts of the crime are

not relevant. Whether the crime be drunk driving or

murder, this Court has continually held that discriminatory

selection of grand juries [and one would assume

G@iscriminatory selection of the foreman of the grand jury]

will not be tolerated. Such illegal action on the part of

state officials will result in the voiding of the

indictment and the granting of a new trial. The facts

which are relevant to this case are those facts surrounding

the selection of the grand jury foreman and the focus of

this case should remain on those facts. The decision in the

Court of Appeals was mandated because there had never been

a black grand jury foreman within the memory of persons who

testified in the state proceeding and the petitioner's

attempt to rebut the prima facie case produced nothing

except the affidavit of the appoining authority that he did

not have anything against appointing a black, but he had

just never thought of it. The case for relief is clear

when the facts are judged against the prior decisions of

this Court.

The petitioner has not shown this Court any

-s-

direct conflict with prior decisions of this Court or any

conflict on the points of law involved in this case between

the Courts of Appeals or other lower courts. The impact of

the decision below will be limited; it will not bring about

voiding of other indictments of those convicted in Tipton

County, Tennessee, unless the unconstitutional practices

continue prospectively.

Re

THE INDICTMENT AND SUBSEQUENT CONVICTION

OF THE RESPONDENTS CANNOT STAND WHEN THE

METHOD OF SELECTION OF THE GRAND JURY

FOREMAN VIOLATES THE FOURTEENTH

AMENDMENT.

A. THE FOREMAN OF THE GRAND JURY

THAT INDICTED THE RESPONDENTS WAS

SELECTED IN A MANNER VICLATIVE OF

THE FOURTEENTH AMENDMENT.

The position of foreman of a Tennessee grand jury

is one of great importance in the Tennessee grand jury

system. ? In Hale y. Hengerson, 485 F.2d 266 (6th Cir.

1973) the United States Court of Appeals for the Sixth

Circuit stated that:

"Petitioner also points out that the

grand jury foreman has important

statutory duties in Tennessee, T.C.A.

40-1510, 40-1622 (1955), and exercises a

leadership role, as well as casting a

vote in the grand jury.” Id. at 270.

The grand jury foreman in Tennessee, (under the

provisions of T.C.A. 40-1506), “sits as the thirteenth

member of the grand jury.” Since T.C.A. 40-1706 provides

ose YS =

2rhe grand jury indictment or presentment in Tennessec

is a constitutional requirement. Article One, Section

Fourteen, Constitution of Tennessee.

-6-

that “at least twelve grand jurors" must concur before an

indictment can be returned, the foreman's vote can be the

twelfth in returning the indictment. More importantly, even

though the foreman may not always vote, he must sign the

indictment. T.C.A. 40-1706. The indictment is void if not

Signed by the foreman. Bird. y. State, 103 Tenn. 343, 52

S.W. 1076 (1899). In Tennessee there must always be a

foreman in the finding of an indictment. State vy.

Collins, 65 Tenn. 151, 153 (1875). See 9 Michie's Digest

of Tennessee Reports, Indictments, Information, and

Presentments §22 (1937). While the petitioner may argue

that the foreman in this case did not vote, the fact

remains that the indictment is not valid under Tennessee

law unless the foreman concurs with the vote and signed the

indictment.

The grand jurors themselves are selected by

random draw from the entire preselected jury panel. T.C.A.

40-1501. The jury panel (the jury pool) itself is chosen

by the jury commissioners every two (2) years. See T.C.A.

22-221 et. seg. The grand jury foreman is chosen in a

completely different manner. In essence the grand jury

foreman is hand-picked by the criminal court judge. T.C.A.

40-1506. Also, as in this case, the grand jury foreman need

not be a member of the jury panel or of the grand jury.

T.C.A. 40-1507.

Tennessee Code Annotated §40-i1510 sets out the

statutory duties of the grand jury foreman. He must assist

the District Attorney in ferreting out crime. Out of term

he must advise the District Attorney with respect to law

violations and provide him with names of witnesses which

may be summoned before the next term of the grand jury. In

ajo

term the foreman may order the issuance of subpoenas for

witnesses to go before the grand jury, unless directed

otherwise by the District Attorney. Thus, it can readily be

seen that the foreman in Tennessee has important statutory

duties as to the day-to-day operation of the Grand jury as

well as to the validity of the indictments returned.

When the three prior grand jury foreman testified

in the state court procecding, they acknowledged that there

had not been a black grand jury foreman in memory. The

State produced no evidence to remove the taint of

Giscrimination from the repondents* prima facie case.

The state did, however, file the affidavit of the state

trial judge who had presided over the case and who had

selected the grand jury foreman.

The presiding trial judge stated as follows in

his affidavit filed in the District Court: * *t think

e eli ins oi so." (Emphasis

added). (R, Affidavit filed April 14, 1976, in District

Court). This statement shows a negligent and callous

exclusion of blacks by the person designated by statute to

appoint the grand jury foreman. It is obvious that if the

trial judge has never even “thought" of appointing a black

forman then blacks have been excluded peremptorily by

having never been considered for the position.

There is no doubt that the selection of the grand

jury foreman just like the selection of the members of the

grand jury is subject to the requirements of the Pourteenth

Amendment. If a person is indicted by the grand jury,

then, of course, blacks cannot be Systematically excluded

in the selection process by which the foreman is selected.

-8-

AS was stated by the District Court for the Western

District of Tennessee:

If the [state] Court means to say that,

if the twelve members of the grand jury

other than the foreman were selected

without systematic exclusion of Negroes,

it would be constitutionally immaterial

if Negroes were systematically excluded

from the position of foreman, we cannot

agree. We cannot agree because ek

gia, §s {385 u.Ss. s

Ha v. on, 336 F.Supp. 512, 516 (W.D. Tenn.)

(Bailey Brown, Chief Judge).

Hale v. Henderson involved a challenge to the

selection process of the grand jury foreman in that it was

alleged that racial discrimination was present in the

selection process. When the fale case finally came to be

heard on the question of the selective discrimination of

the selection of the grand jury foreman, Judge Mac

Swinford, was sitting by special designation in the Western

District of Tennessee. Judge Swinford indicated that if the

petitioner therein had shown that the grand jury foreman

had been chosen from outside the body of the grand jury

venire, his claim would have been "well taken” as there had

been a long history of complete exclusion of blacks from

the position of grand jury foremen. In the case then before

the Court, the foreman was a foreman pro tempore who had

been chosen from among the members of that grand jury. The

petitioners had not challenged the legality of the

selection of the grand jury venire or of the grand jury

itself, so the Court said that it must reach the conclusion

"that the venire was, selected in a manner that did not

-9-

systematically exclude blacks." (Emphasis added). Hale vy.

Henderson, 349 F.Supp. 567, 568 (1972), affd 485 F.2d 266

(6th Cir. 1973). Simply stated, Judge Swinford would have

granted relief if the grand jury foreman in that case had

been chosen from a source other than the grand jury. In

this case, under facts almost identical to Hale vy.

Henderson, the grand jury foreman was chosen from a source

other than the grand jury. Therefore, the opinion of Judge

Swinford is on all fours with that of respondents in this

case.

A showing that the percentage of blacks selected

as foremen over a period of time (in this case 0% for as

long as people could remember) varied significantly with

the percentage of blacks in the population (32.4% according

to 1972 statistical abstract) and that the selection

process is amenable to discriminatory action is thus

sufficient to warrant a prima facie finding of

discrimination. Castaneda y.,Partida, 430 U.S. 482,

494-495, 97 S.Ct. 1272, 1280 (1977); Ale er v.,

Louisiana, 405 U.S. 625, 92 S.Ct. 1221 (1972).% In

Alexander this Court in a unanimous opinion held that

where there was proof of opportunity for discrimination

coupled with a disproportionately low number of Negroes

throughout the selection process, discrimination is in fact

proved.

SS

3on the entire subject of discrimination in the

selection of grand juries and this Court's prior decisions,

see Note, GRAND JURIES-GROUP DISCRIMINATION, 33 L.E.2d 783

(1973). A Tennessee case which reversed a conviction and

voided the indictment for discrimination in the selection

of a grand jury is Bonds.y, State, 220 Tenn. 555, 421

S.W.2d 87 (1966).

-10-

The burden of proof necessary to overcome a

peipa, facie case cannot be met by the self-serving

testimony of the person who selects the venire that he did

not intend to discriminate. taneda Partida,

supra at 499 n. 19. It also cannot be overcome by the

statement of the trial judge that he had “no feeling

against” appointing a black foreman. A ander v.

Lopisiane, supra at 632; Turner v, Fouche, 396 U.S.

346, 361 (1970). The petitioner in this case has failed to

overcome the respondents’ prima facie case of

discrimination in the selection of the grand jury foreman.

Thus, the decision of the Court cf Appeals should therefore

stand.‘

B. THE UNCONSTITUTIONAL SELECTION

OF THE GRAND JURY FOREMAN

NECESSITATES THE RELIEF GRANTED BY

THE COURT OF APPEALS.

Normally, if the state fails to successfully

rebut a prima facie case of discrimination, a writ of

habeas corpus must issue since the indictment anc all

proceedings on that indictment are void. See tan _V:

—_— =< . . o

‘the petitioners contend that the Court of Appeals

somehow violated the clearly erroneous rule by reversing

the District Court. It should be remembered that the

District Court did not conduct an evidentiary hearing but

based its findings on the state court transcript and

certain affidavits filed in the District Court. Therefore,

the “clearly erroneous” rule would not apply. Moore's

Federal Practice, Vol 5A §52.03 {1}, page 2624 (1977).

Furthermore, the Court of Appeals did not disagree with the

District Court's findings of facts, but rather with the

District Court's application of the facts to the law. Of

course, the Court of Appeals is not bound by the District

Court's conclusions of law or findings that combine both

fact and law, when there is an error as to the law. Moore's

Federal Practice, Vol. SA §52.03 [3], pages 2662-4

(1977).

-ll-

Partida, supra. Despite the emotional argument of the

petitioner, there is no need for the respondents to show

prejudice, and a showing of no prejudice by the state is no

defense. Peters y. Kiff, 407 U.S. 493 (1972); Hill _v.

Texas, 316 U.S. 400 (1942).

The powerful duties of the grand jury foreman

have already been reviewed. [These duties make the grand

jury foreman an extremely important person in the

administration of criminal justice in the State of

Tennessee and thus a person able to bring improper

influence on the proceeding if he or she so desires).

Therefore, as in discrimination in the selection of the

entire grand jury, the indictment in this case was properly

voided. "The conviction cannot stand, because the

Constitution prohibits the procedure by which it was

obtained.” Hill v..Texgs, supra at 406. The Court of

Appeals in this case succinctly states its reasons as

follows:

It seems clear that the potential for

prejudice, given the position of

authority and influence the foreman or

forewoman holds, is considerable, and in

such cases where the fact of prejudice

may be impossible to prove, yet its

effect could be so insidious and

far-reaching, the courts have refused to

require proof of prejudice before

granting relief.

Mitchel) y. Rose, supra at 136.

It is not the potential for prejudice alone that

mandates the correctness of the opinion below. In fact,

relief has been granted by this Court to a white defendant

who was indicted by a grand jury from which blacks had been

improperly excluded. Peters.v..Kiff, supra. This

relief is mandated as a vindication for the rights of those

-})2-

excluded and because the courts owe a duty to the “law as

an institution" and to the integrity of the process. This

reasoning is just as valid when it is the foreman of the

grand jury who has been illegally selected instead of the

grand jury.

II

Q 9) L, 428 U.S. 465 (1976)

DOES NOT AFFECT FEDERAL HABEAS CORPUS

CLAIMS INVOLVING ILLEGAL DISCRIMINATORY

SELECTION OF A GRAND JURY FOREMAN.

Stone y., Powell has no application whatsoever

to non-Fourth Amendment claims. The holding of Stone v.

Powel} is that the exclusionary rule will not be applied

on collateral review of Fourth Amendment claims. This case

does not involve a Fourth Amendment claim. In response to

the dissenters’ claim that Stone would bring about a

"drastic withdrawal of federal habeas corpus jurisdiction,"

the majority replied:

"With all respect the ee of tye

j 1 mi rected, Our

ecision. to S not concerned wit

° the as. corpus statute

4s. .authority for litigating

° a e£ iliy. We do

reaffirm that the exclusionary rule is a

judicially created remedy rather than a

personal constitutional right .. . and

we emphasize the minimal utility of the

rule when sought to be applied to Fourth

Amendment claims in a habeas corpus pro-

ceeding . . . In sum, we hold only that a

federal court need not apply the

exclusionary rule on habeas review of a

Fourtn Amendment claim absent a showing

that the state prisoner was denied an

Opportunity for a full and fair

litigation of that claim at trial and on

direct review. Our decision does not mean

that the federal court lacks jurisdiction

over such a claim, but.only that. the

application, of the syle is Jimited to

-13-

Stone v.,Powell, 428 U.S. 465, 494 n. 37, 96 S.Ct. 3037,

3052 n. 37.

There is nothing in prior precedents of this

Court that indicate that a claim involving discrimination

in the selection of a grand jury foreman is not cognizable

on petition for habeas corpus in federal court. See

generally Brown vy. Allen, 344 U.S. 443 (1953).

The State of Tennessee thought so little of the

Stone ve.,Powell argument that in its brief to the Court

of Appeals, the petitioner stated in total:

The state respectfully submits that the

district judge's citation to §tone y.

ah came at a time when the case was

already decided on other grounds. The

citation is surplusage and not relevant

or determinative of the issues before

this Court.

(R, Reply Brief for Respondent-Appellee in the Court of

Appeals, page 24).

The decision of the Court of Appeals does not

even mention Stone y., Powell, and it was only after the

decision was rendered by the Court of Appeals on January 9,

1978, that the petitioner raised the issue of Stoney.

Powel] in a Petition to Rehear. (R, Petition to Rehear on

Behalf of Respondent-Appellee). On March 30, 1978, the

Court of Appeals refused to reconsider its decision of

January 9, 1978, and in so doing, simply stated that “the

court concludes that the issues raised therein [the Stone

Me.Powell issue] were fully considered upon the original

submission and decision of this case.” (R, Order of United

-l4-

States Court of Appeals for the Sixth Circuit, dated March

30, 1978).

The respondent is convinced that the petitioner's

view of Stone y., Powell is incorrect. However, should

this Court want to consider a drastic expansion of the

doctrine of Stone. y. Powell beyond Fourth Amendment

claims, it should not come in a case where this Court does

not even have the benefit of a reasoned decision by the

Court of Appeals on the issue.

Ill

AUTHORITIES OF THIS COURT DO NOT SUPPORT

THE GRANTING OF THE PETITION OF

CERTIORARI IN THIS CASE.

A. THERE IS NO CONFLICT OF

DECISION.

The petitioner has shown no decision of this

Court, of another Court of Appeals, or State Supreme Court

to be clearly contrary to the decision of the United States

Court of Appeals for the Sixth Circuit. The decision of

the court below was entirely consistent with a long series

of cases by this Court. See Castaneda y, Partida,

Supra; Peters v. Kiff, supra; Note 33 L.E.2d 783

(1973).°

aectetaiae teeta

petitioner's citation to Reerap it kee 426

U.S. 229 (1976) and Vj age.o ington Heights v.

Metz Oped ter ee Tsenent Corporation, 423 0.S. 252

9 , aS authority for the contention that discrimination

must be proved by positive proof of intent is inappositive.

This Court made clear in Washington v. Davis that

statistical disparity and the shifting of the burden of

proof after the showing of prima facie case was still the

Clear law in the area of grand jury selection. Waghington

vy; is, sppra at 239 and 241. Again in Arlington He

i ts, this Court made clear its adherence to the

traditional rules for jury selection cases. Arlington

Hei ts v. tro ougsi evelopment Corp,, supra at

2 n. 13. See stan 2vV._Partida Supra at

493-494. ‘

-15-

B. THIS CASE HAS LIMITED

SIGNIFICANCE BEYOND THE LITIGANTS

INVOLVED.

This Court's decision in Francis v.,Henderson,

425 U.S. 536, 96 S.Ct. 1708 (1976), extremely limits the

application of the decision of the court below. In most

cases, Francis would prohibit any kind of collateral

attack on a conviction by persuwns previously indicted and

convicted in Tipton County, Tennessee, unless, like the

respondents herein, they raised the issue prior to their

State trial by proper motion. Erangis thus eliminates the

fear that this case would bring about wholesale voiding of

prior convictions for persons not a party to this case.

CONCLUSION

For the foregoing reasons, it is respectfully

Submitted that this petition for a writ of certiorari

Respectfully submitted,

@

UY 7>

WALTER C. KURTZ

LEGAL CLINIC

UNIVERSITY: OF TENNESSEE

SCHOOL OF LAW

c/o DODSON, HARRIS, ROBINSON

& ADEN

900 NASHVILLE CITY BANK BUILDING

NASHVILLE, TENNESSEE 37201

should be denied.

615-244-6840