Petitioners Brief — Rose v. Mitchell

Supreme U.

FILED

NOV 21 1978

MIGHAEL R®DAK, JR., CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-1701

JIM ROSE, WARDEN,

Petitioner,

VS.

JAMES E. MITCHELL and

JAMES NICHOLS, JR.,

Respondents.

BRIEF FOR PETITIONER

MICHAEL E. TERRY

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

Phone: (615) 741-2640

Of Counsel:

WILLIAM M. LEECH, JR.

Attorney General

State of Tennessee

a

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

al

TABLE OF CONTE

Page

Opinions Below .......----+-sesrrerrrrstr l

Grounds on Which Jurisdiction Is Invoked ......------ 2

Constitutional and Statutory Provisions Involved ......-- 2

Questions Presented ........----sseeerrrrerrrtttt 8

Statement of the Case .....-.---- essere rerrrrttt 9

Argument:

I. State Prisoners Should Not Be Granted Federal

Habeas Corpus Relief on a Claim Questioning the

Selection of the Non-Voting Foreman of Their

Grand Jury When Their Subsequent Trial Is Free of

Reversible Constitutional Error, When There Has

Been No Demonstration of Actual Prejudice and

There Is No Rational Basis to Presume Prejudice,

and When the Claim Has Been Fully and Fairly

Litigated in State Court ......-----++sss00) 13

Il. The Sixth Circuit’s Decision Does Not Comport

With the Clearly Erroneous Standard and Is Con-

trary to Decisions of This Court Regarding the

Equal Protection Clause ....-------ssee000' 24

Ill. Trror, if Any, Was Harmless Beyond a Reasonable

Sn rr 28

Comet occ ccc ccccscecccevoscreessvccoesss 29

Table of Authorities

Cases:

Akins v. Texas, 325 U.S. 398, 403-404 (1945) ......--- 25

Alexander v. Louisiana, 404 U.S. 625, 630, 632 (1972) 25

Barrow v. State, 239 Ga. 162, 236 S.E.2d 257 (1977) .... 23

Bonds v. State, 220 Tenn. 555, 421 S.W.2d 87 (1966) .. 23

Brown v. United States, 411 U.S. 223 (1975) .......... 29

Carter v. Jury Commission, 396 U.S. 320 (1970) ...... 17,27

Case v. Nebraska, 381 U.S. 336, 339 (1965) .......... 21, 22

Castaneda v. Partida, 430 U.S. 482 (1977) ...... 19, 20, 25

Chapman v. California, 386 oF @ | |) 28

Fay v. loia, 372 U.S. 391, 399-426, 449-463 (1963) 14, 15, 22

Francis v. Henderson, 425 U.S. 536 (1976) .......... 20

Hale v. Henderson, 485 F.2d 266, 272 (6th Cir. 1973) .. 16

Harrington v. California, 395 U.S. 250 (1969) ........ 28

Henry v. Mississippi, 379 U.S. 443, 452-453 a

Hernandez v. Texas, 347 U.S. 475 (1954) ............ 17

Hurtado v. California, 110 U.S. 516 (1884) .......... 24

Kaufman v. United States, 394 U.S. 217, 231 (1969) .... 16

Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132 (1946)

I EE MED goo cccccccccececcsoeccs 23

Miranda v. Arizona, 384 U.S. 436 (1966) ............ 21

Neal v. Delaware, 103 U.S. 370, 397 (1881) .......... 16

Norris v. Alabama, 294 U.S. 587 (1935) .............. 17

People v. Stephen J.B., 23 N.Y.2d 611, 246 N.E.2d 344,

296 WM. VSE.26 SED (19GB) .. wn nc rcccccccccccvees 21

Prieser v. Rodriguez, 411 U.S. 475, 484-487 (1973) ....14, 21

Rabinowitz v. United States, 366 F.2d 34 (Sth Cir. 1966) 28

Schneckloth v. Bustamonte, 412 U.S. 218, 255-56

ee ie. cee pes vas 14, 16, 21

State v. Jefferson, 529 S.W.2d 654, 680 (Tenn. 1975) .. 23

State v. Plenty Horse, 85 S.D. 401, 184 N.W.2d 654 (1971) 23

Stone v. Powell, 428 U.S. 465 (1976) .....-- 14, 16, 18, 19, 23

State v. Silva, 259 So. 2d 153 (Fla. 1972) ...-.---+->> 23

Strauder v. West Virginia, 100 U.S. 303, 309 (1880) .... 25

Swain v. Pressley, 97 S.Ct. 1224 (1977) ...------ se ees 20

Tollett v. Henderson, 411 U.S. 258 (1973) ...----->> 20, 23

Turner v. Fouche, 396 U.S. 346 (1970) ......-.-- 17, 25, 27

United States ex rel. Stephen J.B. v. Shelley, 430 F.2d

215 (2d Cir. 1970) ......-- ee eee ee eet ene 21

Village of Arlington Heights v. Metropolitan Housing De-

velopment Corporation, 429 U.S. 252 (1977) ......--- 27

Washington v. Davis, 426 U.S. 229, 241 (1976) ...... 25

Whitus v. Georgia, 385 U.S. 545 (1966) ......----0ee: 17

Whitus v. Georgia, 385 U.S. 545 (1967) .....-eeeeeees 25

Younger v. Harris, 401 U.S. 37 CIDT1) .. cc ccecccess 21

Statutes and Rules:

Tenn. Code Ann.§ 22-223-243 .... 2... 52s seer eres 24

Tenn. Code Ann. § 40-1501-1505 .....---- ee ee eeeee 24

Tenn. Code Ann. §§ 40-1506, 1507 ....-----.-eee> 24

Tenn. Code Ann. §40-1706 ......----- see eer rrree 24

Fed. Rule Civ. Proc. 52(a), 81(a)(2) ...--- eee ee eee 26

IB U.S.C. 2254) ....-- cere e cece e eee teeeeeeges 26

2B US.C. § 2241 ......- cece eee eee etteee 3

28 U.S.C. § 2254 .. 0. eee teen eet eneeees 3, 18

iv

0 EL Ee re tee 20

Tennessee Rules of Criminal Procedure, Rule 6 ........ 4

Tennessee Code Annotated

DT ccudeeebenneeccessecccococeseccosoce 7

EE Sis coed e seuss a raesepapecccaccccece 7

DE pcasepecvecssseseestvesccecccesccces 7

DD cchdunpedecetedeeccccvccedcopeccces 8, 10

i EL Ee rs ee 2

11 U.L.A. § 48S (1966) ....... ccc rc ccccccceccees 23

N.C. Gen. Stat. n. 8, § 15-217—15-222 (1959) ........ 23

Ga Code Ann. § 50-105—-50-127 (1967) ............ 23

Fourteenth Amendment to the Constitution of the United

DP CCUM Ecko Se Gees es pees Loos easeeces 2

Wis. Stats. § 974.06 (1969) ......... 2.2 23

AT cece ck cenectoveccesvecoescocees 17

Tenn. Code Ann. § 40-3801 ........... 0.00 c eee eee 17, 23

Miscellaneous Cited:

Bator, “Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners”, 76 Harv. L. Rev. 441, 463-

tt ett vic eee Doth eececdvoeveebsceeecs 14

Bator, Finality in Criminal Law and Federal Habeas

Corpus for State Prisoners, 76 Harv. L. Pev. 441 (1963) 21

“Developments in the Law—Federal Habeas Corpus”, 83

Harv. L. Rev. 1038, 1042-62, 1263-74 (1970) ...... 14

Eades, Appellant and Post Conviction Relief in Tennessee,

5 Memp. State L. Rev. (1974) ................045. 23

Eisenberg, Post-Conviction Remedies in the 1970's, 56

Marquette L. Rev. 69 (1972) ...-----ssssccrrree

Friendly, Is Innocence. Irrelevant? Collateral Attack on

Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970) ..

Kirkland, the Federal Court Abstention Doctrine, 24

F.R.D. 481 (1959) ....---- eee e terete

Oakes, “Legal History in the High Court—Habeas Corpus”,

64 Mich. L. Rev. 451-68 (1966) ....-.----+-++>>

Oaks, “Ethics, Morality, and Professional Responsibility,”

3 B.Y.ULL. Rev. 591, 596 (1975) .-.------ eee ee re

Reits, Federal Habeas Corpus, 108 U.Pa.L.Rev. 461, 466

MOND: . Sc cevvdvcescreconensescivcserssserss

Report of the Special Committee on Habeas Corpus to the

Conference of Chief Justices, June 1953, printed in H.R.

Rep. No. 1293, 85th Cong. 2d Sess. 7 (1956) ...020-:

Speech of Justice Paul C. Reardon, Address at the Annual

Dinner of the Section of Judicial Administration, Ameri-

can Bar Association, San Francisco, Cal., August 14,

1972 (pp. 5,9, 10) ..-----eeeereeeeere errr

State Post Conviction Remedies and Federal Habeas Cor-

pus, 12 W&M L.Rev. 149 (1970) ...------ errr

1978 Annual Report of the Director of the Administrative

Office of the United States Court, 47, 76 ....------>:

22

21

21

14

29

22

22

21

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM. 1977

No. 77-1701

JIM ROSE, WARDEN,

Petitioner.

VS.

JAMES E. MITCHELL and

JAMES NICHOLS, JR..

Respondents.

BRIEF FOR PETITIONER

OPINIONS BELOW

The memorandum opinion of the United States Court of

Appeals for the Sixth Circuit was rendered on January 9, 1978,

and is reported as Mitchell v. Rose, 570 F.2d 129 (6th Cir.

1978). This opinion is contained within the Appendix /at

pages 127-141.

This case arose as separate petitions for federal habeas corpus

relief in the United States District Court for the W

trict of Tennessee, Western Divisior: istrict court these

—_

cases were originally styled: Mitchell v. Rose, Warden, Civil

C-75-222, and Nichols v. Rose, Warden, Civil C-75-265. The

memorandum decisions and orders of the district court are

not reported, but are contained within the Appendix at pages

98, 106, 121.

The opinion of the Tennessee Court of Criminal Appeals,

affirming the convictions of Mitchell and Nichols, was filed on

June 5, 1974; and a copy is contained in the Appendix at page

36. This opinion is not reported. The Supreme Court of Ten-

nessee denied certiorari on March 10, 1975. A copy of that

court’s order is contained in the Appendix at page 42.

GROUNDS ON WHICH JURISDICTION IS INVOKED

The opinion and judgment of the Court of Appeals for the

Sixth Circuit was entered on January 9, 1978. The state’s

petition to rehear was denied by order of that Court filed on

March 30, 1978. The petition for certiorari was timely filed

within ninety (90) days of that date, and granted by this

Court on October 2, 1978. Jurisdiction is invoked pursuant to

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution of the

United States provides in pertinent part:

. No state-shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life,

liberty or property, without due process of law; nor deny

to any person within its jurisdiction equal protection of

the laws.

———— —_——

ons iivaia

Habeas corpus is codified in Title 28, United States Code,

which provides in pertinent part:

§ 2241. Power to grant writ:

(a) Writs of habeas corpus may be granted by the Su-

preme Court, any justice thereof, the district courts and

any circuit judge within their respective jurisdiction . .

(c) The writ of habeas corpus shall not extend to a prisoner

unless—

(3) He is in custody in violation of the Constitution or

laws or treaties of the United States. . .”

§ 2254. State custody; remedies in Federal Courts;

(d) In any proceeding instituted in a Federal Court by an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court, a

determination after a hearing on the merits of a factual

issue, made by a State court of competent jurisdiction

in a proceeding to which the applicant for the writ and

the State or an officer or agent thereof were parties, evi-

denced by a written finding, written opinion, or other

reliable and adequate written indicia, shall be presumed

to be correct, unless the applicant shall establish or it

shall otherwise appear, or the respondent shall admit—

(1) that the merits of the factual dispute were not re-

solved in the State court hearing;

(2) that the factfinding procedure employed by the

State court was not adequate to afford a full and fair

hearing;

(3) that the material facts were not adequately de-

veloped at the State court hearing;

— vn

(4) that the State court lacked jurisdiction of the

subject matter or over the person of the applicant in

the State court proceeding;

(5) that the applicant was an indigent and the State

court, in deprivation of his constitutional right, failed

to appoint counsel to represent him in the State court

proceeding;

(6) that the applicant did not receive a full, fair, and

adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due proc-

ess of law in the State court proceeding;

(8) or unless that part of the record of the State court

proceeding in which the determination of such factual

issue was made, pertinent to a determination of the

sufficiency of the evidence to support such factual de-

termination, is produced as provided for hereinafter,

and the Federal court on a consideration of such part

of the record as a whole concludes that such factual

determination is not fairly supported by the record:

The Tennessee Rules of Criminal Procedure’ provide in per-

tinent part as follows:

Rule 6. The Grand Jury.—(a) Formation of the Grand

Jury.

1 The Tennessee Rules of Criminal Procedure became effective

on July 13, 1978. The Rules reflect the effort of the Supreme Court

of Tennessee to provide uniform procedure in criminal matters. The

Rules are to supplement the existing statutory procedural law, but

the Committee comments to Rule 1 state: “It is intended that these

rules be applied in every instance in which they address the procedure

involved. If they do not expressly or by clear implication relate to

the procedure in question, then existing law is to be applied. These

rules take precedence over preexisting statutes and case law which

are in conflict with them, but statutes passed subsequent to their

adoption which conflict with these rules shall control”.

=

(1) Formation at a Regular Term.—The judge of the

court authorized by law to charge the grand jury and to

receive the report of that body shall, on the first day of each

term of court at which a grand jury is required to be im-

paneled, direct the names of all the qualified jurors in at-

tendance upon the criminal courts of the county to be

written on separate slips of paper and placed in a box or

other suitable receptacle and drawn out by the judge in

open court. The twelve qualified jurors whose names are

first drawn shall, with the foreman, be the grand jury for

the term and shall attend the court until dismissed by the

judge or until the next term.

(b) Vacancies on the Grand Jury.

(2) Vacancy as to Grand Jury Foreman.—If for any rea-

son the foreman of the grand jury is unable to serve or is

relieved, the court shall appoint a new foreman according

to Subdivision (g) until such time as the foreman is able to

serve or until expiration of his term.

(g) Appointment, Qualifications, Term, Compensation,

Vote, and Duties of Foreman.—The judge of the court

authorized by law to charge the grand jury and to receive

the report of that body shall appoint the foremen of the

grand juries in the counties of their respective jurisdictions.

If concurrent grand juries are impaneled, a foreman shall

be appointed for each grand jury. Every person appointed

as a foreman shall possess all the qualifications of a juror.

The foreman shall hold office and exercise his powers for a

term of two (2) years from appointment; however, in the

discretion of the presiding judge, he may be removed, re-

lieved, or excused from office for good cause at any time.

It shall be the duty of such foremen of grand juries to assist

— son

and cooperate with the district attorney general in ferreting

out crime, to the end that the laws may be faithfully en-

forced; and such foremen are directed out of term to ad-

vise the district attorney general with respect to law vio-

lations and furnish him names of witnesses, whom the dis-

trict attorney general may, if he deem proper, order sum-

moned to go before the grand jury at the next term. In

term time, the foreman or the district attorney general may

order the issuance of supoenas for witnesses to go before

the grand jury. The foreman may vote with the grand

jury and his vote shall count toward the twelve necessary

for the return of an indictment. A foreman shall receive

as compensation a sum to be determined by the county

legislative body, to be paid out of the county treasury in

the same manner as jurors are paid, and shall receive no

other compensation for his services. Such compensation

shall not be less than ten dollars ($10.00) per day for each

day the grand jury of which he is foreman is actually in

session and such sum shall not be diminished during his

term of appointment.

(j) Witnesses Before Grand Jury.

(4) Oath of Grand Jury Witnesses.—Witnesses thus sum-

moned may be sworn by the clerk, or by the foreman of

the grand jury, who shall indorse the fact on the subpoena,

and sign his name to such indorsement officially.

(5) Power of Grand Jury Foreman to Administer Oath.—

The foreman of the grand jury shall have power to ad-

minister oaths to all witnesses brought before the grand jury

to testify as to the violations of the criminal laws in all

cases where the clerks of the criminal and circuit courts

may administer said oath.

a,

—I-=4

Tennessee Code Annotated provides in pertinent part as

follows:

40-1506. Appointment and term of foreman or fore-

woman.—Judges having criminal jurisdiction in any

county, are authorized, and required to appoint the fore-

men or forewomen of the grand juries in the counties of

their respective jurisdictions; and said foremen or fore-

women shall hold office and exercise their powers for a

term of two (2) years from appointment, unless for good

cause, in the discretion of the presiding judge, he may be

removed, relieved, or excused from office at any time.

Said foreman or forewoman shall be the thirteenth mem-

ber of each grand jury organized during his term of office,

having equal power and authority in all matters coming

before the grand jury with the other members thereof.

[Acts 1919, ch. 37, § 1; Shan. Supp., § 5832al; mod.

Code 1932, § 10026, Acts 1976 (Adj. S.), ch. 383, § 1.]

40-1507. Qualifications of foreman or forewoman.—

Every person appointed as a foreman or forewoman of the

grand jury under § 40-1506 shall be at least twenty-five

(25) years of age, and shall be a good and lawful man or

woman, possessing all the qualifications of a juror. Pro-

. vided that no justice of the peace shall be eligible for ap-

pointment as foreman or forewoman of the grand jury,

the provisions of this section requiring that no justice of

the peace shall be eligible for appointment as foreman or

forewoman of the grand jury shall not apply in those coun-

ties where arraignment in criminal cases is had exclusively

before general sessions court. [Acts 1919, ch. 37, § 2;

Shan. Supp., § 5832a2; Code 1932, § 10027; Acts 1957,

ch. 252, §§ 1, 2; 1976 (Adj. S.), ch. 383, § 2.]

40-1510. Duties of foremen or forewomen.—It shall be

the duty of such foremen or forewomen of grand juries

to assist and cooperate with the district attorney in ferret-

—_—

ing out crime, to the end that the laws may be faithfully

enforced, and such foremen or forewomen are directed out

of term to advise the district attorney with respect to law

violations and furnish him names of witnesses, whom the

district attorney may, if he deem proper, order summoned

to go before the grand jury at the next term. In term time,

the foreman or forewoman may order the issuance of sub-

poenas for witnesses to go before the grand jury, unless

otherwise ordered by the district attorney. [Acts 1919,

ch. 37, § 4; Shan. Supp., § 5832a4; Code 1932, § 10029;

Acts 1976 (Adj. S.), ch. 383, § 5.]

40-1706. Concurrence in true bill—An indictment can-

not be found without the concurrence of at least twelve

(12) grand jurors, and, when so found, shall be indorsed

“A true bill,” and the indorsement signed by the foreman.

[Code 1858, § 5093; Shan., § 7055; Code 1932, § 11600. }

QUESTIONS PRESENTED

1. Whether Discrimination in the Selection of the Non-Vot-

ing Foreman of the Grand Jury Is a Basis Upon Which a State

Prisoner May Be Granted Federal Habeas Corpus Relief When

the Subsequent Trial Is Free of Reversible Constitutional Error,

When There Has Been No Demonstration of Actual Prejudice

and There Is No Rational Basis to Presume Prejudice, and

When the State Has Provided an Opportunity for Full and Fair

Litigation of the Claim?

2. Whether the Decision of the Court of Appeals Comports

With the Clearly Erroneous Standard and With This Court’s

Decisions Interpreting the Equal Protection Clause?

3. Whether, Assuming Arguendo, Systematic Exclusion of

Blacks From the Post of Grand Jury Foreman in Tipton County,

oe es

the Doctrine of Harmless Error Can Be Applied When There

Has Been No Actual Prejudice and No Rational Basis Exists

Upon Which to Presume Prejudice?

STATEMENT OF THE CASE?’

On October 28, 1972 Claudie Greer and William Nabors

were murdered by the respondents during an armed robbery of

a cafe* in Tipton County, Tennessee. The respondent Nichols

began the criminal episode by pistol whipping a customer. Then

Nichols, wielding two pistols, forced the proprietor to hand over

about five or six hundred dollars. Nichols also took other money

from the proprietor and customers in the cafe. Then, for no

apparent reason, Nichols fired several shots into the back room

of the cafe and fied. Eyewitnesses testified that Claudie Greer,

standing in the back room, fell and subsequently died after the

shots were fired from the front room. Proof later showed that

Greer was killed by a shot from a .38 caliber pistol.

Simultaneously, the co-respondent James Mitchell, armed

with a sawed-off shot gun, was in the process of robbing persons

in the back room. William Nabors was among these people.

When Nabors bent over to pick up some change from the floor,

Mitchell shot him through the mouth with the sawed-off shot

2 Unless otherwise indicated, the references contained within this

statement are to pages of the state court record. The state court

record was before both the federal courts below.

3 The race of the defendants, the victims, or the eye-witnesses was,

of course, not an issue at trial. However, since the Court of Appeals

has found racial discrimination and presumed prejudice, the race of

these people is perhaps relevant here to demonstrate the total absence

of prejudice and the lack of any evidence showing discriminatory in-

tent. The only evidence of race appears in Volume Il, page 87 of

the trial where on redirect examination the cafe’s proprietor i

he is black and black customers comprised almost 100 percent of his

business. There is nothing in the record to support any conclusion

except that the victims and witnesses were also black.

=

gun, ending his life. Mitchell then went into the front room,

took more money from the proprietress and also fled.

The next day Mitchell and Nichols were arrested together in

the Memphis apartment of Nichols’ girlfriend. A .38 caliber

pistol was recovered from Nichols at the time of his arrest, and

a ring taken during the robbery was found at the scene of arrest.

A sawed-off shot gun and blood splattered clothing were then

found in the apartment of Mitchell’s girlfriend. After his arrest,

Mitchell gave a confession to members of the Memphis Police

Department.

Nichols and Mitchell were jointly indicted in two indictments

on November 6, 1972. The grand jury was composed of twelve

jurors, one being a black woman, and one acting foreman. The

regular foreman of the grand jury was unavailable and the trial

judge chose a former foreman as his substitute. The former fore-

man was chosen to serve by the trial judge because he had previ-

ously served as a regular foreman, had previously served as an

acting foreman, had been willing to perform in the past, and

according to the judge’s experience had always served well.*

Although some twenty (20) witnesses were scheduled to testify

before the grand jury, the grand juors unanimously voted to

indict the respondents after hearing one police officer testify.

This witness did not mention the race of the respondents and

this fact was not known to either the acting foreman or the

other members of the grand jury.° The acting foreman did not

vote on the indictment because of the unanimity, but he did

sign the indictment, as is required by Tennessee law. (T.C.A.

§ 40-1706).

4 See Affidavits submitted by the state trial judge and the acting

foreman. These affidavits formed part of the state’s response in the

U.S. merry Court and were also before the Court of Appeals. (App.

pp. 102-111).

5 See Affidavit of acting foreman, App. p. 102, and the testimony

on the plea in abatement. App. p. 111.

— i

Prior to trial, the petitioners filed a plea in abatement asking

for dismissal of the indictment and alleging the grand jury and

foreman were selected in a constitutionally offensive manner.

(p. 21). On March 13, 1973 an evidentiary hearing was held in

state court. At that hearing, three jury commissioners of Tipton

County, three former foremen of the Tipton County Grand Jury,

eleven of the grand jurors who indicted the respondents (one

was out of town), and the circuit court clerk of Tipton County

all testified. All witnesses were subject to full examination by

rounsel for the respondents. The proof elicited demonstrated

the plea in abatement was without merit. There was a total lack

of countervailing evidence. The state court overruled the plea

in abatement. (App. pp. 35, 36)

Trial was held on March 21 and March 22 of 1973 in the

Circuit Court of Tipton County. The state introduced the testi-

mony of five eyewitnesses who identified Nichols and five eye-

witnesses who identified Mitchell as the murderers. (pp. 65, 70,

90, 92, 98, 126, 131, 142, 143, 211, 242, 243, 244, 255, 266,

282). In addition, a redacted version of Mitchell's confession

was introduced. Proof showed the recovery of the murder

weapons from the respondents and showed that a ring stolen

during the crime was recovered from the scene of arrest. The

defense proof consisted almost wholly of a testimonial denial by

Nichols of any participation. The jury found both respondents

guilty of first degree murder and sentenced them to sixty years

incarceration on each count. (pp. 357-360).

The respondents appealed their convictions first to the Ten-

nessee Court of Criminal Appeals where they made some twelve

assignments of error including assignments attacking the com-

position of the grand jury and the selection process for grand

jury foreman. In a unanimous opinion, the Court of Criminal

Appeals affirmed the convictions and found, “the facts here do

not demonstrate a systematic exclusion of Negroes upon racial

— —

grounds”. (App. pp. 38, 39) The Supreme Court of Tennessee

denied certiorari. (App. 42).

The respondents’ resort to the federal court system began as

separate applications for federal habeas corpus relief in the

United States District Court for the Western District of Ten-

nessee, Western Division. The initial petitions for habeas corpus

relief each included some eleven grounds. In the district court,

the cases were consolidated and twice referred to the magistrate

for report. The state filed four separate responses, the entire

state transcript, and affidavits from the state trial judge and the

acting foreman of the indicting grand jury. After reviewing the

first state response, the state trial court record, and the first re-

port on reference, the district judge, on February 17, 1976, dis-

missed all claims except the selection issues and a Bruton issue.

(App. p. 98). On these issues, the district court ordered further

response and another reference to the magistrate. On February

17, 1977, by memorandum and order, the district court found

the Bruton violation to be harmless beyond a reasonable doubt

and further found that the acting foreman was selected for

other than racial reasons. The petitions were dismissed. (App.

p. 123). A final order denying a motion to amend judgment

was entered by the district court on March 23, 1977. (App. p.

124).

The respondents appealed to the Court of Appeals for the

Sixth Circuit which reversed the district court on January 9,

1978. (App. p. 127). The Court of Appeals found discrimina-

tion in the selection of the grand jury foreman in Tipton County,

and set aside the convictions. The state sought the Writ of Cer-

tiorari from this Court which was granted on October 2, 1978.

=

I

State Prisoners Should Not Be Granted Federal Habeas Cor-

pus Relief on a Claim Questioning the Selection of the Non-

Voting Foreman of Their Grand Jury When Their Subsequent

Trial Is Free of Reversible Constitutional Error, When There

Has Been No Demonstration of Actual Prejudice and There Is

No Rational Basis to Presume Prejudice, and When the Claim

Has Been Fully and Fairly Litigated in State Court.

The Court of Appeals for the Sixth Circuit has voided two

state first degree murder convictions obtained more than five

years ago. The Sixth Circuit’s decision is based on a finding

that the non-voting acting foreman of the indicting grand jury

was selected in a discriminatory manner. The Sixth Circuit has

granted habeas corpus relief on the basis of perceived error oc-

curring during the now moot accusatorial stage. The relief has

been granted without a demonstration of prejudice and upon

a record which can not support any reasonable presumption of

prejudice. The Sixth Circuit decision comes after three state

courts had denied relief, the district court had dismissed the

petitions without an evidentiary hearing, and despite a record

which demonstrates:

1. The race of the respondents was unknown to either the

acting foreman or other members of the grand jury (App. pp.

28, 29, 33);

2. the grand jury contained a black woman, who testified in

state court and established the total absence of any racial con-

sideration; (App. p. 32)

3. the regular foreman was unavailable and a former fore-

man was picked by the trial judge to replace him solely because

the trial judge knew of his demonstrated ability, his willingness

cm Shon

to serve, and his availability; App. pp. 19-24, 105, 106, 112,

113)

4. the acting foreman did not vote on the indictment because

of the grand jury’s unanimity; (App. p. 105)

5. although some twenty witnesses were scheduled, the grand

jury unanimously voted to indict after hearing one witness;

(App. p. 24)

6. the selection of the grand jury itself is an issue previously

resolved in favor of the state; (App. p. 122)

7. the subsequent trial was without reversible constitutional

error and the petit jury was not an issue;

3. the evidence against respondents at trial included five eye-

witness identifications for each, a confession, recovery of the

murder weapons from the respondents, and other physical evi-

dence; and (App. pp. 91, 116-121)

9. the issue of grand jury foreman selection was fully and

fairly litigated in state court. (App. pp. 3-36)

The Great Writ, habeas corpus ad subjiciendum, has de-

servedly enjoyed a prestigious place in the history of Anglo-

American jurisprudence. Elaborate and scholarly discussions of

the Great Writ and its evolution can be found in the decisions of

of this Court and other legal writings. See Fay v. Noia, 372

U.S. 391, 399-426, 449-463 (1963); Prieser v. Rodriguez,

411 U.S. 475, 484-487 (1973); Stone v. Powell, 428 U.S. 465

(1976); “Developments in the Law—Federal Habeas Corpus”,

83 Harv. L. Rev. 1038, 1042-62, 1263-74 (1970); Oakes,

“Legal History in the High Court—Habeas Corpus”, 64 Mich.

L. Rev. 451-68 (1966); Bator, “Finality in Criminal Law and

Federal Habeas Corpus for State Prisoners”, 76 Harv. L. Rev.

441, 463-507 (1963). As Mr. Justice Powell wrote in Schneck-

loth v. Bustamonte, 412 U.S. 218, 255-56 (1973):

— i$ — $y

Much, of course, has transpired since that first Habeas

Corpus Act (citations omitted). The scope of federal habeas

corpus for state prisoners has evolved from a quite limited

inquiry into whether the committing state court had juris-

diction (citations omitted), to whether the applicant had

been given an adequate opportunity in state court to raise

his constitutional claims (citation omitted); and finally to

actual redetermination in federal court of state court rulings

on a wide variety of constitutional contentions (citation

omitted).

The noble purpose of the Great Writ was and should remain

to determine whether a violation of a personal constitutional

right has resulted in the deprivation of liberty. See Fay v. Noia,

372 U.S. at 423, 424. However, through the years this noble

purpose has been joined by other purposes at the substantive

scope of the writ was expanded. This expansion has resulted

from the employment of the Great Writ to further society’s

interest in preserving the integrity of the judicial system and

‘implementing minimum constitutional standards within the

nation’s criminal justice system. Society's interests have been

fostered by this expansion, but the issue of undeserved or unjust

incarceration has become almost secondary. In fact, since this

Court's decision in Fay v. Noia, federal habeas corpus relief

has, in reality, been a continuation of the state appellate process.

Society's interests now demand a reconsideration of the ap-

plicability of this form of relief to pre-trial constitutiunal errors

which have no real relationship to the deprivation of liberty. The

issuance of the writ should again depend primarily on a rela-

tionship between constitutional error and deprivation of liberty.

The Sixth Circuit has not determined that Tennessee is incar-

cerating two possibly innocent individuals. Any reasonable per-

son viewing the overwhelming evidence admitted at trial must

conclude that retrial will reach the same result if the state can

resurrect evidence which is now more than five and one-half

-_ 16 —

years old. Therefore, if guilt is unquestioned, if the trial is

without reversible flaw, and if there is no basis to reasonably

presume any prejudice to respondents from the preceived error,

then the rationale supporting the writ’s issuance must be remedial.

The Sixth Circuit’s opinion supports this conclusion: “. . . there

is injury to the jury system, to the law as an institution, to the

community at large, and to the democratic ideal reflected in

the processes of our courts”. (See App. Pp. 140). The result is

that a conviction, no matter how overwhelming, can not with-

stand a pre-trial procedural constitutional error unrelated to the

fact finding process. This philosophy is remedial and similar to

the rationale which formerly supported federal habeas relief

to state prisoners asserting Fourth Amendment claims.

The decision of the Sixth Circuit, in reality, represents an

expansion of the substantive scope of federal habeas corpus

relief for remedial purposes. At least since Neal v. Delaware,

103 U.S. 370, 397 (1881) this Court has sanctioned the extra-

ordinary relief of quashing the indictment when the grand jury

itself was selected through a racially discriminatory system. How-

ever, not until this case has this extraordinary relief been applied

to a situation when only the selection of a non-voting foreman

is at issue. The extraordinary relief was allowed in Neal, to a

great extent, because of a lack of existing alternative remedies,

and because of the importance of the grand jury.’ As a result,

6 This condition is not a small consideration and is a significant

cost factor. Reconstruction of a trial is never a certainty, especially

after five and a half years. The cost to society in terms of money is

obvious. The cost in other terms is also quite clear. See, Stone v.

Powell, 96 S. Ct. at 3050-52; Schneckloth, at 259 (Powell, J., concur-

ring) and Kaufman v. United States, 394 U.S. 217, 231 (1969)

(Black, J., dissenting). Perhaps, the biggest cost is the loss of public

confidence in the system. The system has obviously failed when the

cost overcomes the benefit. The criminal justice system should not

be a game of endurance where guilt or innocence is a secondary con-

sideration.

7 See also Hale v. Henderson, 485 F.2d 266, 272 (6th Cir. 1973)

(Lambros, J., concurring).

=,

grand jury selection systems have been changed and society has

been the benefactor.* The cost has been justified. However,

alternative remedies now exist. Turner v. Fouche, 396 US.

346 (1970) and Carter v. Jury Commission, 396 U.S. 320

(1970) were not habeas cases and demonstrate the benefits can

be achieved through class action litigation without much of

the cost attendant to habeas corpus proceedings. Other alterna-

tives also exist including criminal sanctions, 18 U.S.C. § 243;

and the state remedies which in Tennessee include two levels

of appellate review and the state post-conviction law. Tenn.

Code Ann. § 40-3801, et sequel. Finally, an individual is en-

titled to seek the direct review of this Court after a decision of

the State Supreme Court.

As a remedial device the Sixth Circuit's decision is a failure

and classically demonstrates the peculiar inappropriateness of

habeas corpus for such purposes. The reindictment and retrial

of the respondents does not change the system of foreman selec-

tion in Tennessee. The impact of the decision, besides the waste

in resources, may only be to subject each trial judge to a sub-

jective scrutiny of his motivations for selection. Thereis no real

benefit to society since a racially motivated judge would pre-

sumably disguise his true motivations. Assuming error, the

cure is not attained, the cost outweighs the benefit, the system

has failed.®

® See Whitus v. Georgia, 385 U.S. 545 (1966) (coding by race

eliminated); Hernandez v. Texas, 347 U.S. 475 (1954) (exclusion

by ancestry barred); Norris v. Alabama, 294 U.S. 587 (1935) (rule

of exclusion adopted).

9 Assuming the remedial goal is to assure that black citizens have

equal access to the post of foreman, then the position of petitioner is

that the present system works. It is fair to assume that the people of

Tennessee will today select as their trial judges people of integrity

who realize their responsibility to allow and encourage all citizens

to participate in the system. It is unfair to test this assumption by

history, either in Tennessee or anywhere else. More importantly, if

this system does not work then the change is best made through other

procedures, including class action litigation (where the relief can be

more than retrial affords); legislative action; and even the political

process.

= 18

In Stone v. Powell, 428 U.S. 465 (1976), this court deter-

mined that, as the remedial purposes embodied in the Fourth

Amendment exclusionary rule would no longer effectively be

served through collateral federal habeas corpus relief,'° the

need for § 2254 adjudication of such claims (once the state has

provided a full and fair opportunity to litigate the claim) was

far outweighed by the judiciary’s interests in “(i) the most

effective utilization of limited judicial resources; (ii) the neces-

sity of finality in criminal trials; (iii) the minimization of fric-

tion between federal and state systems of justice, and (iv) the

maintenance of the constitutional balance upon which the

doctrine of federalism is founded”. Stone v. Powell, 428 U.S.

465, 491 n.31 (1976).

The proposition here put forth is that the rational of Stone

should extend beyond cases involving Fourth Amendment

claims and should encompass a case such as the one sub judice,

where a constitutional infirmity'' occurs during the accusatory

stage of the criminal process and has been mooted by the sub-

sequent trial and conviction.'* The nature of respondent's

19 28 U.S.C. §2254.

11 This characterization is solely for the purpose of presenting this

portion of the brief. No concession of error in the selection process

is intended.

12 This very extension of the doctrine and philosophy of Stone

was expressly pe oh the district court in the instant case. In

the post-decision order March 23, 1977, Chief Judge Brown

stated: “Since this court made the determination that this contention

be dismissed, our determination is further supported by the decision

of the Supreme Court of the United States in Stone v. Powell, —

U.S. —, 49 L. Ed. 2d 1067 (1976). As we read that decision, where

the claim of constitutional error does not go to the integrity of the

fact finding process so far as the conviction is concerned, if the peti-

tioner received a full and fair ing in state court as to his claim,

the federal court will not review the determination by the state court.

Thus, not only have we found the decision in the state court to be

correct, but also it appears that, since the contention was fairly heard

? state — petitioners are not entitled to another review here”. See

pp. p. .

—

claim; its attenuated relation to the integrity of the fact finding

process, fairness of the trial, or guilt or innocence of the accused;

and the particular inappropriateness of federal habeas corpus

as a means to adjudicate the interests of society, all weigh

against the issuance of the writ in this case.

In Castaneda v. Partida, 430 U.S. 482 (1977), Mr. Justice

Powell, in dissent,'* specifically recognized “a strong case may

be made that claims of grand jury discrimination are not cog-

nizable on federal habeas corpus after Stone v. Powell . . .”

Mr. Justice Powell explained in Castaneda that the rationale of

Stone is better applied to a case involving a tainted indictment

than a casé involving the admission of tainted evidence. As

stated by Mr. Justice Powell:

Unlike the prisoner in Stone, who could complain that his

conviction rested on evidence tainted by Fourth Amend-

ment violations and could ask for a new trial with that

evidence excluded, the prisoner in this case challenges only

the now moot determination by the grand jury that there

was sufficient cause to proceed to trial. He points to no

flaw in the trial itself. As in Stone, the incremental bene-

fit of extending habeas corpus as a means of correcting

unconstitutional grand jury selection procedures might be

viewed as outweighed by the acknowledged costs to other

values vital to a rational system of criminal justice.

Castaneda, at 1287, footnote 1.

The matter sub judice presents facts more appropriately

suited for an application of the Stone rationale than the facts

13 Mr. Justice Powell's dissent was joined by the Chief Justice and

Mr. Justice Rehnquist. Mr. Justice Stewart, separately dissenting,

stated that he was in substantial agreement with the other dissenting

opinions. Castaneda, at 1287. The issue of extending the rationale of

Stone, was not before the Court in Castaneda. The issue had not

ra gags in the lower courts and was not briefed or argued in

is Court.

a= 20) =

before this Court in Castaneda. In Castaneda the composition

of the entire Grand Jury was in question. In this matter, only

the selection of the non-voting foreman is in question. Fur-

thermore, in Castaneda the Mexican-American surname of the

defendant is a fact upon which a presumption of prejudice

could rest. In the instant matter the evidence demonstrates

that the race of respondents was unknown to the grand jury

when the indictment was returned. (App. pp. 28, 29, 33)

As indicated in Castaneda, there is no peculiar characteristic

regarding claims of grand jury selection irregularities which

- would weigh against an extension of the Stone logic beyond

the Fourth Amendment. This Court has previously stated fed-

eral habeas relief is not automatically available to a state

prisoner who pled guilty and later attacked the grand jury se-

lection process, Tollett v. Henderson, 411 U.S. 258 (1973).

More recently this Court held a state prisoner was not entitled

to habeas relief on grand jury selection grounds when he failed

to conform with a state requirement that such objections be

raised before trial, absent a showing of both cause and actual

prejudice. Francis v. Henderson, 425 U.S. 536 (1976). Both

the result and rativuule of Stone, Francis, and Tollett are in-

consistent with the decision of the Sixth Circuit in this case.'*

Stone, Francis, Tollett and Swain amply demonstrate the

sensitivity which this Court has always applied to cases which

require a consideration of the need to preserve and maintain

rational state procedures even when they affect (and override)

federal constitutional claims. The grant of federal collateral

relief must be balanced against other values endemic to a

rational system of criminal justice; including the need to pre-

serve the integrity of the state system, the need to avoid du-

14 See also Swain v. Pressley, 97 S.Ct. 1224 (1977) where the

availability of an adequate local statutory remedy for the adjudica-

tion of federal rights in the District of Columbia was seen as suf-

ficient to vitiate the need for 28 U.S.C. § 2255 relief.

_— oo

plicative judicial effort, and the values of finality.'° See Preiser

v. Rodriguez, 411 U.S. 475, 492 (1973); Case v. Nebraska,

381 U.S. 336, 340 (1965) (Clark, J., concurring); Henry v.

Mississippi, 379 U.S. 443, 452-453 (1965); Younger v. Har-

ris, 401 U.S. 37 (1971), c.f. Kirkland, the Federal Court

Abstention Doctrine, 24 F.R.D. 481 (1959).

The dual system of review resulting from the expansion of

the scope of federal habeas corpus has come under increas-

ingly sharp attack by both federal and state judges and legal

commentators as both an inappropriate use of scarce judicial

resources and a needless federal imposition on state authority.

See Friendly, Is Innocence Irrelevant? Collateral Attack on

Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970), Bator,

Finality in Criminal Law and Federai Habeas Corpus for State

Prisoners, 76 Harv. L. Rev. 441 (1963), Speech of Justice

Paul C. Reardon, Address at the Annual Dinner of the Section

of Judicial Administration, American Bar Association, San

Francisco, Cal., August 14, 1972 ((pp. 5, 9, 10) (quoted in

part ia Schneckloth v. Bustamonte, 412 U.S. 218, 264 (n.

21 (1972)).'®

‘8 The value of finality is more than economic. Continual relitiga-

tion of alleged errors years after conviction and incarceration is costly

in terms of a rational system of corrections and rehabilitation.“ . .

we should at least tentatively inquire whether an endless reopening

of convictions, with its continued underlying implication that perhaps

the defendant can escape from corrective sanctions after all, can be

consistent with the aim of rehabilitating offenders . . . The idea

of just condemnation lies at the heart of criminal law, and we should

not lightly create processes which implicitly belie its possibility”.

Bator, supra at 452.

16 For an example, see United States ex rel. Stephen J.B. v. Shel-

ley, 430 F.2d 215 (2d Cir. 1970) where a district judge without hear-

ing any further evidence, annulled the unanimous holding of 13 New

York appellate judges including a unanimous opinion of the Court

of Appeals. People v. Stephen J.B., 23 N.Y.2d 611, 246 N.E.2d

344, 298 N.Y.S.2d 489 (1969) on the admittedly close question of

the application of Miranda v. Arizona, 384 U.S. 436 (1966). What

made this ruling especially disturbing is that the defendant had al-

= =

Such duplication of effort has not been without substantial

cost to the federal judiciary. Petitions for federal habeas

corpus filed by state prisoners have increased from 1,020 in

1961 to 7,033 in 1978. Although after State v. Powell, the

number of such petitions had decreased (down 12.3% be-

tween 1976 and 1977), it is apparent that such filings are on

the increase again (up 2.4% to 7,033 between 1977 and

1978). During the year 1978, state prisoner petitions (includ-

ing both civil rights and habeas corpus), represented 12.2%

of all civil filings in the district courts. In the appellate courts

state prisoner petitions accounted for 7.7% of the filings. Al-

though this marks a decrease of 11.2% over the last year, it

is worthy to note that such petitions have taken up over 13%

of the appellate work-load in three circuits, amounting to over

27.2% of all filings in the Fourth Circuit. See 1978 Annual

Report of the Director of the Administrative Office of the

United States Court, 47, 76.

The determination in 1953 that state procedures for the

remedy of federal constitutional claims were inadequate,*’

which, in part, prompted this court’s decision in Fay v. Noia,

372 U.S. 391 (1963), is no longer true. The states have con-

tinuously sought to strengthen their own post-conviction pro-

cedures'* and have not hesitated to disqualify juries where a

ready been placed on probation, and because of his juvenile status,

his conviction carried with it no civil consequences. See Shelly,

supra, 430 F.2d 215, 219 (dissent). In the instant case the judgment

of 10 judges (9 state and 1 district judge) has been overturned by

the Court of Appeals.

17 See Report of the Special Committee on Habeas Corpus to the

Conference of Chief Justices, June 1953, printed in H.R. Rep. No.

1293, 85th Cong. 2d Sess. 7 (1958), Reits, Federal Habeas Corpus,

108 U.Pa.L.Rev. 461, 466 (1960), Case v. Nebraska, 381 U.S. 336,

339 (1965) (Clark, J. concurring).

18 See generally, State Post Conviction Remedies and Federal

Habeas Corpus, 12 W&M L.Rev. 149 (1970), Eisenberg, Post-Con-

viction Remedies in the 1970’s, 56 Marquette L. Rev. 69 (1972).

= 23

prima facie case of discrimination in the choosing of the venire

has been shown.'® The Uniform Post Conviction Procedures

Act*® has been approved in eleven (11) states, and many

others have seen fit to pass their own comprehensive statutes

in recent years.*! Justice Powell stated the current position of

this Court best in Stone v. Powell,“. . . we are unwilling to

assume that there now exists a general lack of appropriate

sensitivity to constitutional rights in the trial and appellate

courts of the states.” Stone v. Powell, 428 U.S. at 493 (n. 35).

The Sixth Circuit’s grant of federal habeas corpus relief in

this cause is contrary to recent decisions of this court inter-

preting the substantive scope of the writ. In fact, the Sixth

Circuit’s decision represents an unnecessary extension of the

writ’s substantive scope. The relief ordered in this cause is

contrary to the historical and meaningful purpose of the Great

Writ. The record demonstrates with unmistakable clarity that

there is no unconstitutional deprivation of liberty. Any bene-

fit achieved is available through other means, at much less

cost. Without any real remedial impact and without any real

19 See Barrow v. State, 239 Ga. 162, 236 S.E.2d 257 (1977);

State v. Plenty Horse, 85 S.D. 401, 184 N.W.2d 654 (1971); State

v. Silva, 259 So. 2d 153 (Fla. 1972).

20 11 U.L.A. § 485 (1966).

21 See Ga. Code Ann. § 50-105—S0-127 (1967), N.C. Gen.

Stat. n. 8, § 15-217—15-222 (1959), Wis. Stats. § 974.06 (1969).

Partially as a response to particular criticism of the protection of

rights in state courts in the south, Tennessee has passed its own de-

tailed Post Conviction Review Act, Tenn. Code Ann. § 40-3801

et seq. (1967), providing for review of any claim of incarceration

contrary to the state or federal constitutions. See Eades, Appellant

and Post Conviction Relief in Tennessee, 5 Memp. State L. Rev.

(1974). The Tennessee courts have further not hesitated to strike

down grand juries where a prima facie case of discrimination has

been shown. See Bonds v. State, 220 Tenn. 555, 421 S.W.2d 87

(1966); State v. Jefferson, 529 S.W.2d 654, 680 (Tenn. 1975);

Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132 (1946) cert. de-

nied 333 U.S. 846 (expressly approved in Tollett v. Henderson, 411

U.S. 258, 277 (Marshall, J. dissenting).

—

question of possible innocence, the issuance of the writ of

habeas corpus in this case becomes a hollow victory with no

celebrants. The Great Writ should not be employed when

neither the personal nor societial benefits can be identified.

II

The Sixth Circuit’s Decision Does Not Comport With the

Clearly Erroneous Standard and Is Contrary to Decisions of

This Court Regarding the Equal Protection Clause.

Tennessee uses the key man system of jury selection. Three

jury commissioners are appointed by the trial judge in each

county. Following statutory guidelines, these commissioners

compile a jury pool from which both grand and petit juries are

randomly drawn. See Tenn. Code Ann. § 22-223-243 and

Tenn. Code Ann. § 40-1501-1505. The grand jury foreman

or forewoman”? is selected in a different manner. The crim-

inal court judge appoints the foreman for a term of two years.

The foreman may be chosen from the general population and

otherwise qualified to serve on the grand jury. See Tenn. Code

Ann. §§ 40-1506, 1507. The foreman becomes the thirteenth

grand juror and is required by law to sign all true bills. Tenn.

Code Ann. § 40-1506, 1706.?*

The United States Constitution does not guarantee to a state

defendant the right to a grand jury. Hurtado v. California,

110 U.S. 516 (1884). However, this Court has long held that

a criminal defendant is denied equal protection of the law if,

as a result of purposeful discrimination, members of his own

22 Hereinafter, only the masculine designation will be used. The

statute uses both.

23 Tenn. Code Ann. § 40-1706 requires the concurrence of twelve

grand jurots to return a true bill. Although the foreman must sign

all true bills, his vote is not necessary to indict.

— wa

race are excluded from grand jury service. Strauder v. West

Virginia, 100 U.S. 303, 309 (1880). The early cases involved

absolute exclusion but today the principle is established that

substantial under-representation constitutes a constitutional vio-

lation, if the cause is purposeful discrimination. Castaneda,

97 S.Ct. at 1279; Turner v. Fouche, 396 U.S. 346, 359 (1970).

A criminal defendant, in order to prove an equal protection

violation in the context of grand jury selection, must first estab-

lish that the excluded group is a distinct class, singled out for

different treatment under the laws. Next the defendant must

prove the degree of under-representation. Finally the defendant

must show that the selection procedure is susceptible to abuse.

Castaneda, 97 S.Ct. at 1280; Alexander v. Louisiana, 404

U.S. 625, 630, 632 (1972); Akins v. Texas, 325 U.S. 398, 403-

404 (1945). If substantial under-representation is demon-

strated and the other requirements shown, then a prima facie

case is made and the burden shifts to the state to rebut the case.

Castaneda, 97 S.Ct. at 1279; Alexander, 405 U.S. at 632; See

also, Whitus v. Georgia, 385 U.S. 545 (1967).

The method of proving an equal protection violation in the

context of grand jury selection is sometimes called the “rule

of exclusion.” This method of proof may give rise to a presump-

tion of unconstitutional action which will prevail if unrebutted.

Washington v. Davis, 426 U.S. 229, 241 (1976). However,

the essential element of inviduous discriminatory purpose is still

required. “The central purpose of the Equal Protection Clause

of the Fourteentii Amendment is the prevention of official con-

duct discriminating on the basis of race.” Washington, 426 U.S.

at 239. A prima facie case fails when the presumption is dis-

pelled by plausible evidence demonstrating the official action was

not racially motivated. Castaneda, 97 S.Ct. at 1282; Turner,

396 US. at 361.

There can be no doubt that a Court of Appeals may set aside

a district court’s findings in a habeas action only if they are

= =

clearly erroneows. Fed. Rule Civ. Proc. 52(a), 81(a)(2);

Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 1286

(1977) (Stewart, J. dissenting). The district court below dis-

missed the foreman selection issue, finding “that the foreman

was selected for other than racial reasons. . . .” and “that this

issue had been adequately investigated by the state trial judge

and his determination that there had been no racial discrimina-

tion was correct.”** These findings can not be said to be clearly

erroneous.

Certainly, black people are a distinct class satisfying the

first element of proof. Further, the Tennessee system, which

allows the criminal judge to exercise his discretion in selecting

a foreman, could be used to discriminate. Therefore, in order

to make a prima facie case the respondents were required only

to demonstrate substantial under-representation over a sig-

nificant period of time. The proof on this element is very ques-

tionable?® but was sufficient for the district judge to find a prima

24 The district judge also based his decision on Stone v. Powell,

428 U.S. 465 (1976), as is discussed above. Although not cited in

his memoranda, the district judge’s decision is also a correct applica-

tion of 28 U.S.C. 2254(d).

Legh oa of the Sixth Circuit is very misleading on a number

of an. relating to the evidence adduced by respondents, the rebut-

tal evidence, and the procedure below:

(a) First, there was no hearing of any kind in district court in

this case. All references in the opinion to a “hearing” are to the

hearing in state court on the plea in abatement. The transcript of this

hearing was before the federal courts.

(b) Second, the opinion states “There has never been a black

foreman or forewoman in Tipton County according to the recollec-

tions of the trial judge, three jury commissioners, and three former

foremen”. In fact, the record shows that the three jury commissioners

never testified on this issue whatsoever, and the trial judge’s affidavit

does speak to his recollection but only to the present. See, state rec-

I, pp. 55-71). Therefore, the total evidence of substantial

underrepresentation is drawn from the testimony of three foremen.

One had only served for two years in the early seventies. One served

= =

facie case. The state responded with two affidavits, from the

acting foreman and the trial judge. These affidavits demon-

state with frankness and clarity the solely pragmatic reasons

why the foreman was selected. Simply stated, the regular fore-

man was unavailable so the judge chose a former foreman be-

cause of his availability, his willingness, his experience, and his

demonstrated ability. The reasons for selection are very credible

and demonstrate a responsible and natural course of human ac-

tion which is wholly void of racial consideration. The district

court so found and this finding can not be said to be clearly

erroneous.

The decision of the Sixth Circuit is contrary to a long, un-

broken line of decisions by this Court requiring proof of in-

tentional discrimination to sustain an equal protection claim.

See Castaneda, 97 S. Ct. at 1279; Washington, 426 US. at

239; Village of Arlington Heights v. Metropolitan Housing De-

velopment Corporation, 429 U.S. 252 (1977); Turner, 396

U.S. at 361; and Carter v. Jury Commissioners, 396 U.S. at

339. Analogous to the facts in Carter, the proof here only

shows that the post of foreman has not been held by a black

according to the recollection of three foremen. Unlike Carter,

the facts here also show a plausible, credible, non-racially

motivated reason for the selection in issue. This reason is dif-

ferent from the general, self-serving explanations rejected by

this Court in Turner. The reason here is pragmatic and sup-

ported by facts admitted by both sides. The rejection of this

reason establishes a standard which can only be met by ran-

dom selection or historical proportional representation. This

is contrary to the decisions of this Court. See especially, Carter,

396 US. at 339.

“5 or 6 years” in the early sixties. The third served “several years”

in the fifties. Two of them had also substituted. These recollections

form the whole proof of underrepresentation. (See, state record, Vol.

1, pp. 71-82).

—

The Sixth Circuit decision has in effect extrapolated from the

doctrine that “a person intends the natural consequences of his

acts”. See Rabinowitz v. United States, 366 F.2d 34 (Sth Cir.

1966). Such a rule may aptly be applied to a situation such as

Rabinowitz or other cases where the validity of a system is at

issue. There a drastic statistical disparity is only plausibly ex-

plained by either invalid procedure or intentional discrimina-

tion. Thus, historical statistics are valid criteria against which a

system may be tested. However, history is not a valid criteria

against which one man’s motivations may be tested. The system

of selection for foremen in Tennessee is essentially—the discre-

tion of one man. When the system is such, then history is ir-

relevant. Only the individual’s motivation and maybe his per-

sonal history are valid in assessing his intent. Given these

considerations, the prima facie case here built on historical

statistics is virtually meaningless. However, the clear and con-

vincing pragmatic motivation set out in the affidavit of the

trial judge is most meaningful. The district court accepted these

motivations and refused to find discriminatory intent. The dis-

trict court’s finding is not clearly erroneous.

Ill

Error, if Any, Was Harmless Beyond a Reasonable Doubt.

Assuming, without conceding, error in the selection of the

acting foreman and that the issue is cognizable on federal

habeas corpus, the error was harmless beyond a reasonable

doubt. Harrington v. California, 395 U.S. 250 (1969); Chap-

man v. California, 386 U.S. 18 (1967).

The perceived error involves the selection of the acting fore-

man. The foreman did not vote for indictment. and his only

involvement was to call one witness, swear in the witness, ask

the grand jury if they were ready to vote, and sign the indict-

——.... <a

=

ment. If error, this is a now moot procedural error which had

no effect on the integrity of the trial. Ironically, a Bruton?*

type error in this case has been declared harmless by all re-

viewing courts. Bruton errors certainly have the potential of

affecting the reliability of the fact finding process. The fore-

man selection error, if any, had no such potential. See also

Brown v. United States, 411 U.S. 223 (1975).

CONCLUSION

“Our goals are truth and justice, and procedures are but

means to these ends. Truth and justice are ultimate values, so

understood by our people, and the law and the legal profession

will not be worthy of public respect and loyalty if we allow

our attention to be diverted from these goals.” Oaks, “Ethics,

Morality, and Professional Responsibility,” 3 B.Y.U.L. Rev.

591, 596 (1975). For these values, and for the other reasons

explained in this brief we respectfully pray that the judgment

of the Court of Appeals be reversed and that the petitions for

the writ of habeas corpus be dismissed.

WILLIAM M. LEECH

Attorney Generai

ROBERT E. KENDRICK

Deputy Attorney General

MICHAEL E. TERRY

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

26 Bruton v. United States, 391 U.S. 123 (1968).