Petition — Amadeo v. Russeau

RECEIVED

JEC 25 YEO

OFFICE OF THE CLERK

IN THE SUPREME COURT, U.S.

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. | w-sedz

TONY B. AMADEO,

Petitioner

Vs.

EUGENE RUSSEAU, SHERIFF,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

\V EpwarD T. M. GARLAND

GARLAND, NUCKOLLS & CATTS,

1012 Candler Building

Atlanta, Georgia 30303

Telephone: (404) 577-2225

\WILLIAM M. WARNER

1010 Angelo Court

Atlanta, Georgia 30319

Telephone: (404) 261-5519

ATTORNEYS FOR PETITIONER

P.C.

QUESTION PRESENTED FOR REVIEW

WHETHER THE ENTIRE JURY LIST INVOLVED IN

PETITIONER'S INDICTMENT AND TRIAL, BOTH

GRAND AND PETIT, WAS UNCONSTITUTIONALLY

COMPOSED IN VIOLATION OF HIS DUE PROCESS

RIGHTS UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITU-

TION.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW. ......4+464 6

WHETHER THE ENTIRE JURY LIST INVOLVED IN

PETITIONER'S INDICTMENT AND TRIAL, BOTH

GRAND AND PETIT, WAS UNCONSTITUTIONALLY

COMPOSED IN VIOLATION OF HIS DUE PROCESS

RIGHTS UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION

TABLE OF AUTHORITIES. . . . «© «© © © © © © © © © «@

OPINIONS BELOW. . . 2. «© © © © © © © © © © © © ©

So) gs P

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED .

| STATEMENT OF THE CASE. .........2ee8-6

REASONS FOR GRANTING THE WRIT

THE ENTIRE JURY LIST INVOLVED IN PETITION-

ER'S INDICTMENT AND TRIAL, BOTH GRAND AND

PETIT, WAS UNCONSTITUTIONALLY COMPOSED IN

VIOLATION OF HIS DUE PROCESS RIGHTS UNDER

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION... . .

es Ss a a a

CERTIFICATE OF SERVICE. .......2446-.

APPENDICES A through F.

TABLE OF AUTHORITIES

Amadeo v. State, 243 Ga. 667 (1979) ...

Anderson v. State, 223 Ga. 174, 154 S.E.2d

246 (1967). Te gata ra ae ae ee ee

Anderson v. Georgia, 390 U.S. 206, 19 L.Ed. 1039,

88 S.Ct. 902 (1968) a a oe ee ee ee

Bailey, Willie, et al. v. Vining, Roy L. et al.,

Ga. Number 76-199-MAC . . . . . . . . . . . .

Barrow v. State, 235 Ga. 635, 221 S.E.2d 416 (1975)

Brownfield v. South Carolina, 189 U.S. 426 (1902)

Bryan v. State, 124 Ga. 79, 52 S.E. 298 (1905)...

Burke v. Whitley, 221 Ga. 108, 143 S.E.2d 171 (1965).

Cestaneda v. Partida, 320 U.S. 482, 97 S.Ct. 1272,

eee Se eat Se 5 ee eee er

‘Cobb v. State, 218 Ga. 10, 126 S.E.2d 231 (1962).

Durham v. State, 239 Ga. 697 (1977)

Francis v. Henderson, 425 U.S. 536 (96 S.Ct. 1708,

48 L.Ed.2d 149) (1976). “Oaks pe ah it Oe ee oe

Furman v. Georgia, 408 U.S. 238 (1972).

Gardner v. Florida, 430 U.S. 349, 51 L.Ed.2d 393,

97 S.Ct. 1i9/7 (1977). Se ee ee ae ee ee ee

Goodwin v. Hopper, 243 Ga. 193 (253 S.E.2d 156) (1979).

Gregg v. Georgia, 428 U.S. 153 (1976)

Harris v. Hopper, 243 Ga. 244 (1979).

Hayes v. State, 138 Ga. App. 666 (1976)

Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4 (1967).

Martin v. Texas, 200 U.S. 316 (1905).

MeGhee v. King, 518 F.2d 791 (Sth Cir. 1975).

McHan v. State, 232 Ga. 470, 207 S.E.2d 457 (1974).

Neal v. Delaware, 103 U.S. 370 (1880)

New York v. Attica Brothers, 359 N.Y.S.2d 699 (1974).

Sanford v. Hutto, 394 F.Supp. 1278 (E.D. Ark. 1975)

Scott v. State, 121 Ga. App. 458 (1970)

Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed.

665 °(1880). . . . . . . . . . . . . . . . . .

Swain v. Alabama, 380 U.S. 202, 13 L.Ed.2d 753,

We Ose. wee Ceeeesy i. oc ks 6 ce es Sigg on cai

Sanders v. Georgia, 235 Ga. 425, 219 S.E.2a (1975).

Taylor v. Louisiana, 419 U.S. 522, 42 L.Ed.2d 690,

oe ees Wee REOTED book we eoeee we Ae «és ee ae

Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532 (1970) . ..13, 14

Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643,

BY Been ee BOR FAOSEP 8 ke 6G 8 eS we ee ke we ee whe Oy Re

Williams v. State, 31 Ga. App. 173, 120 S.E.

Bae EE fe es a Canes ena Oa ee

Williams v. State, 210 Ga. 665, 82 S.E.2d 217 (1954). . .9

Woodson v. North Carolina, 428 U.S. 280 (1976). .....12

United States Constitution

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POUEEGONEN MORERORE . is sw tt ttc e tthe. et, Os Bee

‘Statutes

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IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1980

TONY B. AMADEO,

Petitioner

VS.

EUGENE RUSSEAU, SHERIFF,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF GEORGIA

BRIEF OF PETITIONER

The Petitioner, TONY B. AMADEO, respectfully prays that a

Writ of Certiorari issue to review the judgment of the Supreme

Court of the State of Georgia rendered on September 10, 1980,

which denied his application for a certificate of probable cause

to appeal the denial of habeas corpus relief, sought in Putnam

County, Georgia.

OPINIONS BELOW

The opinion of the Supreme Court of Georgia was entered on

September 10, 1980, and is attached hereto as Appendix A. The

Petitioner's Motion for Rehearing was denied by the Supreme

Court of Georgia on September 24, 1980.

JURISDICTION

The judgment of the Supreme Court of the State of Georgia

was entered on September 10, 1980, and is set out in Appendix A.

A Motion for Rehearing was filed and denied on September 24,

1980. Jurisdiction of this Court is invoked under 28 U.S.C.

1257(3), the Petitioner having asserted below, and asserting

here, deprivation of rights secured by the Constitution of the

United States.

CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED

Fifth Amendment, United States Constitu-

tion:

No person...shall be...deprived of

life, liberty, or property, without

due process of law; ...

Fourteenth -Amendment, United States Con-

stitution:

---nor shall any State deprive any

person of life, liberty, or property,

without due process of law; ...

Ga. Code Ann. §59-201:

Qualifications of grand jurors, in-

competency of certain public officers

to serve: All cit zens of this State,

18 years of age or older, being nei-

ther idots, lunatics, nor insane, who

have resided in the county for six

months preceding the time of serving,

and who are the most experienced, in-

telligent and upright persons, are

qualified, and liable to serve as

grand jurors, unless exempted by law:

Provided, however, that all elected

public officers and officials, county

commissioners, tax receivers, tax

collectors, members of the county

board of education, county school

commissioners, judges of the probate

courts, and county treasurers shall be

incompetent to serve as grand jurors

during their respective terms of of-

fice: Provided, further, however

that persons who have been convicted

of a felony, and who remain unpardoned

or whose civil rights have not been

restored are incompetent to serve as

grand jurors.

Code Ann. §59-106:

At least biennially, or, if the judge

of the superior court shall direct, at

least annually, of the first Monday in

August, or within 60 days thereafter,

the board of jury coumissioners shal]

compile and maintain and revise a jury

list of intelligent and upright cit-

izens of the county to serve as

jurors. In composing such list the

commissioners shall select a fairly

representative cross-section of the

intelligent and upright citizens of

the county from the official regis-

tered voters' list which was used in

the last preceding general election.

If at any time it appears to the jury

commissioners that the jury list, so

composed, is not a fairly representa-

tive cross-section of the intelligent

and upright citizens of the county,

they shall supplement such list by

going out into the county and person-

ally acquainting themselves’ with

other citizens of the county, includ-

ing intelligent and upright citizens

of any significantly identifiable

group in the county which may not be

fairly representative thereon.

After selecting the citizens to serve

as jurors, the jury commissioners

Shall select from the jury list a

sufficient number of the most ‘experi-

enced, intelligent and upright citi-

zens, not exceeding two-fifths of the

whole number, to serve as grand

jurors. The entire number first

selected, including those afterwards

selected as grand jurors, shall con-

stitute the body of traverse jurors

for the county, except as otherwise

provided herein, and no new names

shall be added until those names orig-

inally selected have been completely

exhausted, except when a name has

already been drawn for same term as

grand juror shall also be drawn as a

traverse juror, such name shall be

returned to the box and another drawn

in its stead.

STATEMENT OF THE CASE

The Petitioner, TONY B. AMADEO, was accused of shooting

James D. Turk, Sr. during the course of an attempted armed

robbery on September 29, 1977, in Putnam County, Georgia,

thereby causing Mr. Turk’s death.

On November 30, 1977, the Petitioner was convicted of the

capital felony of murder and of the felony of criminal attempt

to commit armed robbery. The Petitioner was sentenced to the

death penalty on the charge of murder and was sentenced to a term

of 10 years on the charge of criminal attempt to commit armed

' robbery. A Motion for New Trial was filed on December 21, 1977,

and overruled on September 18, 1978, by the trial court. Notice

of Appeal was filed on behalf of Petitioner on October 17, 1978,

and the appeal was docketed with the Supreme Court of Georgia on

November 28, 1978.

The Georgia Supreme Court affirmed the Petitioner's con-

viction and sentence in a decision rendered on May 2, 1979,

Amadeo v. The State, 243 Ga. 627 (1979). On May 29, 1979, the

Petitioner's Motion for Rehearing was denied by the Georgia

Supreme Court.

On January 30, 1980, a Petition for Habeas Corpus was filed

in the Superior Court of Putnam County, Georgia, requesting an

evidentiary hearing. On February 29, 1980, this Petition was

summarily denied by the Honorable Joseph P. Duke of Putnam

County. On March 28, 1980, the Petitioner filed an Application

for a Certificate of Probable Cause. This Application was denied

on September 10, 1980. A Motion for Rehearing was subsequently

denied on September 24, 1980. It is from this denial that the

Petitioner seeks redress with this present application. Sub-

sequent to the Petitioner's trial and conviction the entire jury

lists involved in his indictment and trial were found to be

unconstitutionally composed as a matter of fact and law by the

United States District Court for the Middle District of Georgia

in the case of Willie Bailey, et al v. Roy L. Vining, et al, Ga..

Number 76-199-MAC. This jury issue was raised in the state

habeas corpus action by the Petitioner.

REASONS FOR GRANTING THE WRIT

| ISSUES RAISED IN STATE HABEAS CORPUS PROCEEDING.

THE ENTIRE JURY LIST INVOLVED IN PETITION-

ER'S INDICTMENT AND TRIAL, BOTH GRAND AND

PETIT, WAS UNCONSTITUTIONALLY COMPOSED IN

VIOLATION OF HIS DUE PROCESS RIGHTS UNDER

THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

The Jury List and Box From Which

Petitioner Tony Amadeo's Jury was Drawn

i| Were Unconstitutional as a Matter of Fact and Law

The jury list and box from which the trial jury in this case

/ was drawn were found to be unconstitutionally composed as a

‘matter of fact and law by the United Scates District Court for

‘the Middle District of Georgia in the case of Willie Bailey, et

al v. Roy L. Vining, et al, Ga. Number 76-199-MAC. This defect

wae a violation of the Georgia law applicable, Ga. Code Ann. §59-

108, as well as a violation of United States Supreme Court

decisions.

Attached to this Petition is Appendix "B" which is the Order

of the Court in the above-cited case as well as a transcript of

the applicable portion of the evidentiary hearing, attached

hereto as Appendix "C".

The conclusion of this case is very clear. The jury source

involved in Petitioner's case was tainted, as the list and box

were not constitutionally valid.

The Court found in the above-cited case that there had been

intentional under-representation of blacks and women which

‘amounted to a systematic exclusion of discrete groups in the

community.

The Federal Court for the Middle District of Georgia

jreceived a memorandum written by the prosecutor's office of

Putnam County, Georgia. This handwritten memorandum, attached

as a part of Appendix "pb", instructed the jury commissioners to

put numbers of blacks on an under-represented basis on the lists,

but within the guidelines set by the case of Swain v. Alabama,

380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824 (1964), which held

, that 10% disparity was not enough to make out a prima facie case

/ on percentages alone, and the case of Preston v. Mandeville, 428

F.2d 1392 (5th Cir. 1970) which held that 15% was enough to make

out a case. The handwritten memorandum it is clear, puts the

_ prearranged figure in this range. The result is a list which is

not representative, but which would discourage or prevent jury

challenges.

While this procedure was an ingenious method of under-

representing women, blacks and youth by purposeful selection on

the part of the State and the jury commissioners, it denied the

Petitioner the right to be judged by a jury of his peers.

The concept of the right to be judged by a jury of one's

peers is as old as the Magna Carta. The concept has been a

, continuing and refining element of American law. ‘The United

| States Supreme Court, in 1880, defined the fundamental nature of

' the right in the case of Strauder v. West Virginia, 100 U.S. 303,

25 L.Ed. 665 (1880). The Supreme Court states:

The very idea of a jury is a body of men

composed of the peers or equals of the

person whose rights it is selected or sum-

moned to determine: that is, of his neigh-

bors, fellow associates, persons having the

same legal status in the society as that

which he holds.

It is now clear as a matter of law that to determine if a

jury is a constitutionally acceptable cross-section of the

community, or a jury of the defendant's peers, there must be a

"look beyond facially valid statutes and there must be an inquiry

into the practices of jury commissioners in order to assure the

‘Court that the Constitution has not been subverted. Neal v.

Delaware, 103 U.S. 370 (1880); Martin v. Texas, 200 U.S. 316

(1905); Brownfield v. South Carolina, 189 U.S. 426 (1902);

Whitus v. Georgia, 385 U.S. 545, 551, 87 S.Ct. 643, 17 L.Ed.2a

599 (1967), and Castaneda v. Partida, 430 U.S. 482, 97 S.Ct.

1272, 51 L.Ed.2d 498 (1977).

1 The fact that the defendant was not a minority person or

among the class of persons under-represented on the jury, does

not diminish his right to have the constitutionally acceptable

" cross-section of the community on the jury list. Taylor v.

' Louisiana, 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692 (1975).

As the United States District Court for the Middle District

of Georgia found in the Bailey case, the memorandum which

_ rejected the lowest number of blacks, women and youth that could

be placed on the jury in order to “get by”, was evidence of

discrimination. (See attached Ordeisof the U.S. District Court

for the Middle District of Georgia, as Appendices "E" and

"P".) The further conclusion of the U.S. District Court was that

‘| the jury list could not be used to provide jurors for any further

criminal trials.

There was No Waiver of Defendant's Right

to a Constitutionally Composed Jury Because

There Was No Oppurtunity to Discover

the Purposeful Discrimination

The Georgia Courts have recently taken a strict view on the

timing of challenges to the jury. Anderson v. State, 223 Ga.

174, 154 S.E.2d 246 (1967). The Georgia Supreme Court has held

that if the defendant ic represented by counsel at the committal

hearing and does not raise the grand jury issue before in-

dictment, it is deemed waived. Hayes v. State, 138 Ga. App. 666

(1976); McHan v. State, 232 Ga. 470, 471(2), 207 S.E.2d 457

(1974); Scott v. State, 121 Ga. App. 458 (1970).

The various cases in the Georgia Court of Appeals and

Georgia Supreme Court decided after 1968 were decided on the same

/ analysis as Anderson, even though Anderson was reversed by the

United States Supreme Court in 1968. See Anderson v. Georgia,

/ 390 U.S. 206, 19 L.Ed. 1039, 88 S.Ct. 902 (1968). The U.S.

Supreme Court simply reversed the Georgia Supreme Court, citing

Whitus v. Georgia, 385 U.S. 545, 17 L.Ed.2d 599, 87 S.Ct. 643.

While the Whitus case reversed two Georgia convictions on both

grand jury and traverse jury issues, there was not a clear ruling

SS ———

,on the issue of waiver by untimeliness. The status of Georgia

law on timeliness and waiver seems to be unclear in that the

' Anderson case was reversed, but there is no specific language

relating to waiver.

The law in Georgia is clear, however, that failure to timely

raise the objection may be dee..ed not a waiver under special

circumstances. In Barrow v. State, 239 Ga. 162(1) (1977), the

Court stated:

Barrow was indicted on April 21, 1975.

Although he was represented by counsel from

February 11, 1975, no motion was made re-

garding the composition of the grand jury.

Barrow was tried, convicted and given the

death sentence for murder, but his convic-

tion was overturned by this court and sent

back for a new trial. Barrow v. State, 235

Ga. 635, 221 S.E.2d 416 (1975). Barrow then

filed his challenge to the grand jury,

which the trial court overruled as not

timely. We however, because of the special

facts of this case, reversed the trial

court on this point.

The general rule is that the grand

jury composition must be challenged prior

to indictment unless the defendant shows he

had no actual or constructive notice of the

illegality. Sanders v. State, 235 Ga. 425,

219 S.E. 768 (1975) ; McHan Vv. State, 232 Ga.

470, 207 S.E.2d 457 (1974); Williams Vv.

State, 210 Ga. 665, 82 S.E.2da 217 (1954).

Failure to do so is deemed a waiver. Cobb

v. State, 218 Ga. 10, 126 S.E.2d 231 (1962).

Under these general rules, Barrow's chal-

lenge would indeed have been filed too

late.

We have also said, however, that "it

is a lawyer's proper function and duty to

determine whether it is to the interest of

his client to raise the issue of systematic

exclusion. Cobb _v. State, 218 Ga. 10,

24(6), 126 S.E.2d 231 (1962)." Burke v.

Whitley, 221 Ga. 108, 109, 143 S.E.2d 171

(1965). In his testimony at the hearing on

Barrow's motions, the public defender, who

had represented Barrow at his first trial,

made very clear that he did not consider

making such a challenge, even though he

realized that under our cases he probably

would have been successful.

While the Barrow case mixes the question of effective

| assistance of counsel with the timelinesss and waiver issue, the

relevance of this case to the »%ne sub judice is clear. The rule

that the challenge to the grand jury must be made prior to

indictment is a general, and not an absolute, rule. It is also

clear that lack of notice is an exception. In the case sub judice

the matter turns in a different way. Here the lawyers, no matter

how effective, could not have known of this insidious defect in

‘the jury selection process, until it was unearthed in the federal

proceeding. The lawyers raised the issue in the trial court

below by way of notice of appeal and enumeration of error, at the

earliest possible time after notice of the defect.

The above analysis would apply as well to the timeliness

question of a challenge to the array of the trial jury under the

applicable Georgia law, Ga. Code §59-803. Bryan v. State, 124

Ga. 79, 80, 52 S.E. 298 (1905); and Williams v. State, 31 Ga. App.

173(3), 120 S.E. 131 (1923). Specifically, the reason that the

defendant's lawyer could not have known of this defect was that

an examination of the statistics on the representation of

various cases would not have led the lawyers to conclude that a

Prima facie case on the percentage disparity could be made out.

,In fact, this was the apparent purpose of the memorandum.

Further, there was available to the defense counsel no means to

discover this unofficial directive or memorandum which was not

a part of the public record.

Therefore, there was no notice of the actual defect and no

means to discover it. This means that it would have been

impossible to discover the defect before trial. To conclude

otherwise would put an onerous and perhaps impossible task on the

, trial defense counsel and the court. The conclusion that it

“might have been possible for defense counsel to discover this in

1a hearing would put defense counsel in the position of having to

bring a jury challenge in every case and conduct a full hearing

calling for an examination of every person connected with the

| Jury selection process, including the District Attorney, his

“state, the judge who drew the jury and a host of other court

personnel.

The burden placed on the defendant unrepresented by counsel

by such a conclusion is obvious. Even when represented by

counsel, the defendant cannot rely on the failure of his lawyer

to raise such claims to be available in habeas corpus. Durham

v. State, 239 Ga. 697, 701(6) (1977). If defense counsel and

defendant are deemed to have waived such a hidden issue by

failure to timely raise such issues, ne increased burden on the

administration of justice is obvious.

A persuasive holding on the relationship of timeliness and

the concern for orderly administration of justice is found in New

York v. Attica Brothers, 359 N.Y.S.2d 699:

The cases, however, leave no doubt

that a defendant's constitutional and

common law right to atrial by a jury of his

peers and to the equal protection of the

laws under the Fourteenth Amendment created

as an essential corollary, the right to

ll

assert the failure of those charged with

the jury selection process to comply with

the constitutional guarantee in all state

Statutes, rules and regulations enacted to

implement it.

The objections to the timeliness of

the motion into the lack of statutory

authority for its initiation must yeild to

the overriding consideration that a present

resolution of this question is necessary

for the orderly administration of justice.

The Right to a Jury of One's Peers is so Fundamental

That the Waiver Doctrine Should Not be Applied

In Death Penalty Cases in which Jury Defects are Discovered

The function of a jury is clearly different in a death

penalty case from any «rdinary trial. In Georgia, in a death

penalty case, the jury serves two equally important functions.

For one, it determines guilt or innocence, and secondly it

determines whether punishment is to be life imprisonment or

death by electrocution. In this latter role, the jury acts as

the conscience of the community in dispensing both punishment

and meicy.

The fact that the death penalty is different from other

Sentences is clear in the eyes of the law. Woodson v. North

Carolina, 428 U.S. 280, 287 (1976); and Gregg _v. Georgia, 428

U.S. 153 (1976). The necessity for the Georgia Supreme Court to

review the action of juries in imposing the death penalty, as

held in Gregg, supra, is heightened in this case in which the

jury that imposed the verdict and penalty was not a cross-section

of the community ard was unconstitutional. This automatic

review function of the Supreme Court is one of the reasons that

the U.S. Supreme Court approved the death penalty statute in

Georgia, 408 U.S. 238, 313 (1972). Since the death penalty in

the case sub judice was imposed by an unconstitutional jury, the

Georgia Supreme court in its decision could not properly review

f

the case to determine whether the sentence was excessive or

' disproportionate to the sentence imposed in similar cases under

Georgia law. Ga. Code Ann. §27-2537(C) (3); Gregg v. Georgia,

- supra, 428 U.S. 204. The reason for this is because the Georgia

| Supreme Court would be forced to compare the sentence with those

imposed by properly composed juries.

The right to have a jury of one's own peers rises to a higher

'standard in a death penalty case because of the jury's role in

dispensing mercy. This higher standard makes this right so

fundamental that this Court should reverse this conviction and

' sentence because the defendant was denied a jury of his peers to

dispense mercy to him in this case.

The Action of the State in Establishing ,

A Jury List that, Under Current Law Would Not Present

A Prima Facie Case of Systematic Exclusion by Numbers

Alone, Shows Intentional Discriminatio

A lawyer considering a challenge to the grand and traverse

| Juries, acting reasonably, would have concluded in the present

‘case that the disparity of 11% of under-representation of blacks

in the jury pool would not support a prima facie case of

exclusion. The current law is that 14% will be sufficient to

make out the case. Preston v. Mandeville, 428 F.2d 1392 (Sth

A lawyer, acting reasonably, would consider the single most

important factor in establishing a prima facie case of system-

atic exclusion of a cognizable group of people from the jury pool

to be the under-representation of the particular category of

people in the challenged jury pools.

The disparity of the percentage representation of the group

allegedly discriminated against in the jury pool and the per-

centage of the group in the community determines whether or not

the group has been under-represented and systematically ex-

cluded. Taylor v. Louisiana, 95 S.Ct. 692 (1975); Whitus v.

Georgia, 385 U.S. 545, 87 S.Ct. 643 (1967); Turner v. Fouche, 396

U.S. 346, 90 S.Ct. 532 (1970); McGhee v. King, 518 F.2d 791 (Sth

Cir. 1975); Sanford v. Hutto, 394 F.Supp. 1278 (E.D. Ark. 1975).

13

In many cases statistical disparity alone is so marked as

to present a prima facie case of systematic exclusion. However,

where the statistical disparity suggests the possibility of

discrimination the courts have looked for “other evidence of

, Systematic exclusion." Sanders v. State, supra, at 859.

As the Court in the Fifth Circuit stated in Sanford v.

Hutto, 394 F.Supp. 1278, 1282 (5th Cir. 1976), "What constitues

a substantial disparity depends largely on how this disparity

occurred and if it results from the use of subjective criteria."

Accordingly, the courts have also considered the following

factors as indicative of whether a particular group has been

Systematically excluded from a jury pool: selection in a manner

/ Such that the commissioners know the race, sex and/or age of the

potential jurors, Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4

(1967), Whitus v. Georgia, Supra; a selection process which uses

subjective rather than objective criteria and judgments, Turner

Vv. Fouche, supra; a selection process in which the Opportunity

for discrimination exists, Turner v. Fouche, supra; failure of

the State. to explain the disparity which exists, Whitus v.

Georgia, supra.

The lawyer does not have access to this information without

investigative resources or a lengthy and thorough hearing to

attempt to "discover" these factors. In the case of an indigent,

the potential for discovery of these additional factors, when a

showing from the numbers alone cannot be made, is very remote.

The act of the State in Structuring the disparity low

enough to prevent the presentation of the prima facie case, but

Still guaranteeing systematic exclusion of blacks, women and

youths shows that discrimination was intended as to the struc-

ture of the jury list in the present case. The Georgia Supreme

Court rendered an initial decision in this case on May 2, 1979,

in Amadeo v. State, 243 Ga. 627, 629 630(4). The Georgia Supreme

Court held, as to the present issue, in the following manner:

Amadeo's fourth enumeration of error re-

lating to jury composition is without merit

as his challenge comes too late. Goodwin v.

Hopper, 243 Ga. 193 ( S.E.2d ) (1979);

Harris v. Hopper, 243 Ga. 244 (1979);

Holton v. State, Case No. 34272, decided

March 6, 1979. The case of Barrow v. State,

239 Ga. 162(1) (236 S.E.2d 257) (1977), is

to be distinguished from the present case

in that Barrow's conviction and sentence

had been set aside on the appeal, after

which he filed and pursued timely chal-

lenges to the arrays’ then brought his

case back to this court by interlocutory

appeal after denial of his challenges

brought prior to trial and conviction.

Barrow did not take his chances with un-

challenged grand and traverse juries then

attempt to challenge the arrays after con-

viction, this being the trial tactic that

is precluded by such decisions as Francis

48 L.Ed.2d 149) (1976) and Goodwin v.

Hopper, supra. The fourth enumeration is

without merit.

This decision by the Georgia Supreme Court is a holding

violative of Petitioner's due process rights under the

Fourteenth Amendment to the United States Constitution,

Petitioner is being denied due process of law in that the

improper composition of the jury lists is depriving him of his

liberty, and ultimately his life, without due process of law.

This Honorable Court should analyze the Georgia Supreme Court's

apparent misinterpretation of controlling authority under the

15

t material facts involved in the particular indigent's case. The

|| improper composition of the jury lists in Putnam County has

|| deprived Petitioner of his right to a fair trial in that he was

: not tried by a jury that represented a cross-section of the

| community .

The Petitioner was indicted by an unconstitutionally com-

posed grand jury in Putnam County, Georgia. He was tried by a

| jury chosen from an unconstitutionally composed panel that did

| not represent a proper cross-section of the community in Putnam

| County. The constitutional error was not discovered until after

| trial, but was raised at the earliest possible time after notice

| of this error. The action of the State of Georgia, by way of the

- improper composition of the grand and petit juries available at

| the time of Petitioner's trial, and by way of the decision of the

— Supreme Court in its failure to review the challenge to

| the jury composition because of its alleged untimeliness, de-

| prives the Petitioner of his life and liberty in contravention

of his due process rights under the Fourteenth Amendment to the

United States Constitution. The decision of the Georgia Supreme

Court, under the applicable facts in the instant case, should be

reversed, The overly technical application of the waiver

doctrine should not apply to absolve the Court from an examina-

tion of the merits of the claim when the penalty exacted here is

_the death of the Petitioner by electrocution. The issue was

resolved by the Georgia Supreme Court with the Simple uncon-

stitutional admonition that "you are too late". The merits of

the issue were never reached.

in Gardner v. Florida, 430 U.S. 349, 51 L.Ed.2a 393, 97

S.Ct. 1197 (1977), this Court fully recognized that the death

penalty is a peculiar breed of sentence when it said:

| First, five Members of the Court have now

expressly recognized that death is a dif-

ferent kind of punishment .from any other

which may be imposed in this country. Gregg

HT 1&é

Vv. Georgia, 428 U.S. 153, 181-188, 49

L.Ed.2d 859, 96 S.Ct. 2909 (Opinion of

Stewart, Powell, and Stevens, JJ.); see

id., at 231-241 (Marshall, J., dissenting);

Furman v. Georgia, 408 U.S. at 286-291, 33

| L.Ed.2d 346, 92 S.Ct. 2726 (Brennan, J.,

: concurring), 306-310, 33 L.EFdad.2d 346, 92

S.Ct. 2726 (Stewart, J., concurring); see

id., at 314-371, 33 L.Ed.2a 346, 92 S.Ct.

iF 2726 (Marshall, J., concurring). From the

i point of view of the defendant, it is dif-

1 ferent in both its severity and its fin-

ality. From the point of soci ‘y, the

| action of the

[430 U.S. 358]

} sovereign in taking the life of one of its

} citizens also differs dramatically from any

other legitimate state action. It is of

vital importance to the defendant ana to

the community that any decision to impose

the death sentence be, and appear to be,

based on reason rather than caprice or

emotion.

The Petitioner respectfully implores this Honorable Court

to take this last mentioned language from Gardner, supra, into

account and to give it ample and weighty consideration in its

| decision on the legal propriety of the Georgia Supreme Court's

|

_affirmance of the death penalty in Petitioner's case.

CONCLUSION

For the within and foregoing reasons, a Writ of Certiorari

\Should issue to review the judgment and opinion of the Georgia

|

|

i| 17

|

l

|

1)

| Supreme Court in its denial of the Petitioner's Application for

oa Certificate of Probable Cause to appeal the denial of his

habeas corpus relief that was sought in the trial court.

Respectfully submitted,

GARLAND, NUCKOLLS & CATTS, P.C.

Rs/ OGN. leh hare!”

EDWARD T. M. GARLAND

_1012 Candler Building

Atlanta, Georgia 30303

(404) 577-2225

—— 4 f }

: Cid WY Vi Ce / mal waren, we

WILLIAM M. WARNER

1010 Angelo Court ATTORNEYS FOR PETITIONER

Atlanta, Georgia 30319

(404) 261-5519

18

Application No. 1202

SUPREME COURT OF GEORGIA

PLANTA,

N September 10, 1980

The Honorable Seoreme Court met pursuant to adjournment.

The following order was passed:

TONY B AMADEO V. EUGENE RUSSEAU, SHERIFF

Upon consideration of the application for a certificate of

probable cause to appeal filed in this case, it is ordered that

it be hereby denied. All the Justices concur, except Hill, J.,

dissents.

The stay of execution issued by this Court on March 14, 1980,

having been granted pending disposition of this Application, is

uow hereby dissolved.

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK'S OFFICE, ATLANTA,

I certify that the above is a true extract from the minutes

of the Supreme Court of Georgia

Witness my signaiure and the seal of said court hereto affixed

the day and year last above written

Voom fs helen, Clerk

APPENDIX "A"

~

UNITED STATES DISTRICT COURS: es

. a

(PED

a of ‘

FOR THE MIDDLE DISTRICT OF GEORGIA Me

AUG

MACON DIVISION 9 28 1972

fn L20F, 7,

eEPUtY Cloviy < OUES 7

Wir Nieto tries Cov .

EA@-,

WILLIE BAILEY, et al., :

Plaintifés, : CIVIL ACTION NO. 76-199-mac

vs. :

ROY L. VINING, et al.,

Defendants. :

a. 2!

of

August 22,

from the constitutional deficiencies heretofo £

court.

—_ 4 ~ 5 ’ Ravin + a. ~- ,- ;

The submitted plan having been found to be i

t*

19)

ct

as recompiled.

fd

vising the jury lists shall then submit a factual

court as to the nanner in which the list was revi

will then consider whether or not the lists have

constitutional deficiencies.

>

SO OADERED, this the 28h Gay of Ausust,

Va

Ft AM ee

Va ( x

a rn \, Q — wou oS) > wd as

~~

advance app

na

approvec an

=

1978, subd-

ccordance

pA

oceed to

the

,

/

~

4 Ve VUWOAS, wt

’

- ar - & “7! .

Were OCU Szates ere bo

Ro ee eee oe -

s ¥

sce

=

oi inc aia /

et ee. eet eee

a eee

Le

SO Re A SS Se Sl at ene

ee

-

OO 0 me Sr ee tet Orem meet deen ee oe

WILLIE BAILEY, et al. ) Ss Be

Vs. . )

ROY | VILIII¢G JR,

he |

o = Tu = ¥ Visetrict ;

ses @ c. y

Acsust 1S, 16, 17, 197 e ht3eoa, COrece

APPLCARNICES:

Por the Plainti‘f¢e: MR. CHRUISTOPiInsn eco

GR. NE BPAUOEY

52 Fatrlie Streat

Atlant Georgia

Fox the Neflendants:

County Commission: osRe JESSE COPELAN,

Pr. O 10°

Catonto: Georoia

City Council, ime OO, VEAL

- . ~ 7 a“

Se Ve DUN sey

Natonto Georaina

Doare of Educativo: : ie. WAY S. GRAD

Nhidledceville,

tio.

76-195-Mac

Ga.

w

~

a ]

7)

es

=e.

ee eee

i ONES “ewes: weeesueces ee ee teem oe

. MACON DIVISION A li

on WILLIE BAILEY, et al. ) C. A. Now 76-199-Mac.

+ ee

~

<

v)

—d

ROY L. VINING, JR., et al

eee ee ee et

w

-

EVIDENTIARY HEARING

‘

{ a ef LIT? serp ee oi F ;

o ON. WLiuhURr vo. ONLNS, JRe, U.S. District SENS We ee: f

Tantric 5

August 15, 16, 17, 1978 acon,

9 os ue ¢ , Pianswnei Le ‘ Stee

| For the Plaintiffs: MR. CHRISTOPIER COATES

r WR. NEAL BRADLEY

3 92 Fatrlie Street, No Vv

Mtlanta, Georgia 30203

~ 0mm

|

For the Nefendants:

ri '; 8 i a ares

; 1s |i Coudty Comeleatan: oa pitas ken aAak ca

' 2 t fathead ted” De at ihe dhe etONs eette JESSE COPELAN, JR,

Ij PrP. ©, Box 109

16 | batonton, Ceorgia 31024

; I

, l; .

‘ 17 be Aas arr get . “Wy ry.

7 |i City Councils MR. D. D. VEAL

; tie on

| i. \J eo DUAN yuru

‘ 12 II Thre Sey py de eygs yen : c >

1! Jota & QTE UC ‘ey Get Ord2a 31024

‘ i!

‘

, ! Tey nf Setsepwmde ft onus erty TPM aep ese os

19 boare of ha \CaACLON »s hte WAAND B. BRADLEY

| Sancordad RuLlding

é Ta) ' ees 3 .

20 | fadledseville, Ga. 31061

‘ !

. 2 i

Sm ee eee

c

—~

—

~<-+

‘

23

'

i |

n |

‘ pg

!

\

;

. i

Fp i

‘ j }

|

Le | : Princ /

{ iy ( !

i ‘" %

Ps ,ppPrr rw Hon

v-

«

Beer se

A Ho.

E Q In 1977, after Judge Jackson ruled that the

jury list needed to be reconstituted, did you receive a

memorandum from the office of the S0licitor?

: 0 I will show you wha

es HY at ah 2 FF we t

> Plaintif¢ess

|

|

| Exhibit A and ask if you could identify it.

| . eR

| A Yes sir, there's some Parts Of it missine,

ij Dut it's immaterial.

il

i

i Q Sir?

| aN There's some parts of this copy you have - you

L Y

}

| don't have some parts on there that I have ona copy of nine.

!

It's inunaterial though, I think.

4

‘

'

'

' Tr , '

THE COURT: Let me see the comnolete copy.

1

|

'

@) MR. COATES: In reconstituting the jury z32%,

!

! Mr. Dennis, Gid the Juxy commissioners aim at

ee eal

’ o-- « 4s e = “- \ Say -* - A M _— . 2 om *

Suggestec there by the writer of! this menorancum?

, they Cid. I turned that list ever to the

f 0) With recards to granada jury, the writer of that

t

, BeMorandem suagested 101 blac: persons be put on the arand

I :

i dury list?

U .

H A Yes .

+ She

i MERRY ANN FINCH Negs

UNITED STAIES COURT REVORTER

P.O NOX 534. MACON, GLORGIA 3120?

7; T to y173 "POFCanc?

;

wae

“0. @ wwe es

COCs comm

. A Correct,

Z | Q With regards to -.

} ' . re . .

5 |! THE Court; Is this the Way the present jury

{

li

bi box is made up 2n your county?

7 | THE WITNESS: Yes sir,

§ MR. COATES: Your HNoner--

||

9 |I THE CoOurr: Y'all are Wasting a lot Of time

| ‘

0 | Over in that County trying anybody for a Crime

Wi : ER. COATES: Your Honor, that's the

'

1? | Solicitor. We Would suggest that the writer o¢ that

| $ £

li

1a ji Reno is telling the Jury Commissioners hoy Lo

‘i

" . F - ) ’ ° ® 2 °

igi! ENO we reprasent PeACkS but avoid a prima Lacie case

I

| et .

3 {I under Pifen Circuit case law.

7 i THE COuRT: Yes sir, louks like it.

'

I!

+i

y ; MR. COATES: No further ¢ MeStlons, I'm SOrry =

is || excuse me.

j}

i!

I} 0 Bery i i

's i \ ON © $)- Yye ; . . M .

; ee. Se s+ CO. OD Ma. Dennis, is this exhibit a copy

ie | O- the maino that was received fron the so} icitor's Office?

i |

‘| A Yes, it bY

Is

"

ii] MR. COATES No further « stions

i S.

1 :

sg y ‘OULT: } Lohe. \

j 1S COU All ri P YU gentlowon wane to

iI ‘

| examine the Witness?

tl

}

‘

i!

i

\

I 119

; MERRY ANN FincH /

‘, t » ST Counr i

P.O GOR S34. MACON. Gre & 31202

. ; ° - se J oe

! ov: ' enemtitioiaiaael

J

H

!

‘| mes a a oe

i [LNW ecRSe ¥ey

‘ 7

: [ By oD. -

j al PASS i ty Wes

i; 7 ;

Werte | a vey Fr a ‘Y | fa a oa jc.)

!

~

? i UY BF. (/P- 2G yrs op Aye)

¥ Wr, UP=24 yrs op aye)

Ye Bm. (/F-24 prs o Are)

: (CR AA 2

ar Y 37

Lv - CD rss

*) by im " .- ve

}- Su lt

-

] pp eve RSE Jury

_ a

Lae and e . a or ~~ >,

Us Ss wMa/e 4 LO %, Pep. % sy

|

|

1 32 Women lio % a “~ S/-6 -_

- , 4 ~ t-*, .

SOF Wha he. 63% 7 , 51.6

{

- ° ,

, ay OP by toe 2% wD

i?

' ;

Grand Fue we

' Re ns oe ED

a

ft 74

; . ¢ ~

‘! ’ ab Tagless 1D 7 pee ee) 4s

|

H OF ns . fe

( i Cy i/ fi x r/ A

' .

i!

i a | ‘r ‘

[oj Adi ck Stes / wi by ’ad

APPENDIX "p"

IN THE

UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

WILLIE BAILEY, et a1.,

Pisintiffs, No, 76-399-MAC.

v. ur dl ee tt Dy

Olen geal £2, 1929

Ye Je >

it hk LS'cBsee.! ¢

waaty © & he

Ke a C

ROY I, VININGS, JR., et al.,

eee es ees es

Defendants.

ORDER

—

Plaintiffs having moved that the Jury Commissioners

*

of Putnam County, Georgia, be added as parties defendant

in this action, end the Court having heard evidence

herein regarding the make-up of the jury ijists in

Putnam County, tne Court finds that the motion is due

to be grantec and it is hereby ordered that the Jury

Commissioners of Putnam County, Georgis, be made

Gefendents in this action,

August 17, 1978

* HARRY HUDSON

HOWARD HARRISON

J. W. REID

RENNIE SADLER

RUSSELL COPELAN

VIRGINIA WINSLETTE

fs URES

a See

BAILLDY

etre =

vs

Robert, THO

and on behalf

similarly situ

Vs.

se rUR -

VINING, Roy ise s

Wetle gy RIDLE

,

I

and DANIEL, Wal

Oo

a

AU Lf fery

Cra

IN THE UNITED STATES DISTRICT COURT ciem, u's, Dake coe

FOR TIE MIDDLE DISTRICT OF GLORGIAE distmer ae cenars

MACON DIVISIO

HARGROVE, ) C. A. Now 76-199—-Mac.

George W.,

individually )

those

, BAUGH, )

et al.

Defendants

Ti COURT: Of course you all were not

present during the past two days. aAmonq the things that the

ee

submitted to yo

,

“~>* la a

ay eaitner cne s

eee ee

in his of<Zice 1

for us to take a minute

Do we have all the

to was evidence concerning a

,

‘ 5 ary = 4 = ‘ “en 5 - 4

u idacies anc gentlemen as jury commissioners

Ss eiene - + sau ~* wnat caf leap

OLLICItCOS OF THE GiSericere aTtreorney Os Sonewvoc

mn which it was suggested to you that you put

box a certain number of names of men anc womar

of the Caucasian race and of persons of the

| ee ae ee

4PPENDIX "F"

day when court was to commence, composed from a racial per-

centage and a sex standpoint the same as the population of

your county is.

Well, the person who wrote you that memo frankly

didn't study the law at all in dding that because that's just

not the law. Let me tell you in common sense what I beaiove

the law to be. Judges are not infallible just like lawyers

are not, but it does happen that in the Federal Court systen

I believe we get more of this type of problem than most other

courts would have because it's a constitutional problen.

The concent, first of all, and acain, this is laid out

by the Supreme Court of the United States, is that every

citizen has a right, a constitutional richt, to serve ona

jury. Translated into everyday language that means that

you lacies and gentlemen, as jury commissioners, have an

obligation to see that every person in your community is

fairly considered. You can't, as jury commissioners, eliminate

anybody just because you want to. In other words you can't

come up anc have this list that says well, we are only goings

"

” +

to consider "x" number of people in our community, because

you are Gepriving those you don't consider automatically of

the right they have to be considered. That's where that memo

gets off on the wrong foot. You have already eliminated a sub-

stantial number of people in the community. I've forcotten the

figures but it is a right larae number.

IZ you want to look at it from the standpoint of how

Co we go about’ doing what we are required to do, that is

consider everybody in the county, and end up with the number of

people that we are required to have in the jury box -= you have

Te at emeieniick

ee ee ee et

—

got to consider every person who is on the list of registered

voters and you've got to end up with a jery list that. has on

it at least one-half, numerically - because he State Says

now one-half = of all those names. on the list. I you've

cot 10,000 names ana you want to end up with 5,000, how do you

gO about doing it?

Since you ladies and gentlemen are not supposecé to make

@ conscious selection, that is you are not supposed to choose

between Tom and Dick just because you like Tom ane you Gon't

like Dick or vice versa, about the only way you can do it

is to come up with some System so that you yourselves don't

make a human choice between people. About the Only one I nave

seen that has gone up through the courts an@ has been approved

is what's similar to the System cGeviseé hy Congress that is

used in the Federal Courts. tiere basically is the way we do

it. Again, this is Getermined by law. I didn't Create it; I'm

just telling you what it ee

We are required, through the Clerk of the Court, to °

s

.

Start with the registered voters iist. If we have 10,000 names

on a list and we need 2,000 in the box, we are SoOing to use

One~fifth of the list, We use a computer, Those names are

alphabetized and we rig the Computer to pull out every fifth

mame on the list. To make sure that one of us is not choosing

any of those names, we Craw out Of a hat between the numbers

one anc five, so we will know where to begin. Suppose we Craw

a 2 = then we take the second name on the list and we Skip Live

names all the way through the list. So We haven't made any

choice, you see. The names are just there hecause they were

hen

jeer ——0e- oo o-

alphabetically so arranged and because whoever drew the

beginning mame out of the hat and selected it the way it was

selected again purely by chance, We then send each of those

2,000 names a form, and the law requires those people to

‘

return the form. They don't have a choice about it. it

even authorizes us to send the United States Marshal out to the

house of the person wno got the form and compel him to complete

a form.> We send them the form and tell them they have to

complete it and send it back. And on that form are the ques-

tions designed to determine whether or not they are each

Gualified as a matter of law to be a juror. & says "have you

ever been convictec of a felony?” Yes or no. "Can you read;

can you write; can you understand the Fnqlish language. Are

you between certain ages..." The statutory qualifications,

Similar to what's set forth in the Georgia law.

When those forms comes back our Clerk can't do hut one

thing, and that is see if according to the forn that name

ought to go in the box, and if accordcGins to that form the

name is qualified, he has to put the name in the box. Then

when we want a jury we simply then have the Clerk come into

the courtroom in open court and craw names out of that box

that are on little slips of paper.

That haakeekiy is all that it amounts to. In other

woras it is a mechanical process, It's not the Clerk CGeciding

between human heings. The only cifference between the Federal

law and the State law is that the State law doesn't provide

that persons wio receive these forms must return them. it doesn’

authorize you ladies and gentiemen to send the sheriff out

to the house to find out why they have not returned then.

eee ee oa ee oo ee eee ose

——<-

ee ee

Now the Federal courts in applying the Georgia pro-

cedure, and when I say Federal courts I mean baginning with

the Supreme Court of the United States in a case out of

‘

Tolliver County where I represented the county before I came

on the Bench, and I-have given the gentlenen here @ copy of

it, said that there is an obligation on the jury commissioners

wnen those forms are sent out to find out that why those that

Gon't come back were not sent back. In other words the

typical thing that happens is if you ladies ana gentlemen, for

instance, take every other name on the list hecause you only

\

want half, so let's start and assume you alphahbetize the whole

w

ist of registered voters, anc the State law says that you

have got to have halt of those, so if you were to take every

other name on the list and vou mail out a jury questionnaire

form to all of those persons, well if 20 percent of those

persons don't send the form back or the forms don't return

then you've got to do something to find out why they cida't

come back. Of courSe you are going to find that some of then

Gon't come back hecause the person whose name is on the list

is now Geceased. You are going to find out that some of those

people have movec. You are going to find out that some of then

-

just don't want to send the form back. Put nevertheless vou

rh

have to account for it. You just can't sit back and say well,

they cidn't send the forma to us and we are going to forget about

This procedure was recently used in Peach County,

Georgia, and I had a copy of that mace for you gentlemen too,

ury comm.ssioners sid not fine out

—-_

ee ee ee eee ee ee

' reversed,

why the forms that were not re

and I okay'd it

That

there's no

question,

Giving you as a matter of just

of this is

Now the cifficuity is,

only happened about three weexs ago.

not only olé law but

of

curned failed to come back

without requiring it and my decision was

So

ladies and centlemen, that what I am

an overall commonsense version

new law.

course, since you all are

requirec to come up with one-half, there is no Way you can

Getermine how many of the forms that you

chose of

voters who really don't reside

still on your list. You micht

and they are still voting

there's no way to achieve one-half

«2 -

With

one-half,

Registered voters.

persons who have moved; vou

You've got about 2,000

send out to

are going

may have some registered

in your county, they are just

have people who work in Atlanta

in theic

olc home county. So

thet vou can

start

names

MR. COPLAND: 4509,

Suk COURT: “4590

you aze tryins

law. As a practical

revisec under order of

@as a prospective juror are recuir

sOrmm, that you might get a better

You've got to be right elementary, I

forms back you can then look ata

those int

£Oo get 2,250 nan

voters. So

Dox under State .

ain, this is just a suggestion,

came up with a questionnaire

Of your 4503 people and put in

the box is hein

ed States Court ané that you,

—~— oeee

ee ee ee eee me

me w+ come woe

a

‘

aneé one statutorily disqualifiec. If you ended up with 3500

names and you want to get 2250, then simply line them up

alphabetically and make a - if you want to select one out of

two names, or two out of three names, just do it by coming

Gown the list in alphabetical order and put them in the box.

Wow of course you have ‘an obligation to make sure that

those names represent a cross-section, so you then would have

to Getermine from a racial standpoint what your result is.

Then the law says if you have enced up with ‘ jury box that

Goesa't represent, racially anc sexually too, cenerally the same

overall composition as the county that then you co have to

maxe a conscious effort to correct the situation. I believe

chat generally is what you are soinc to do to correct

Nn

cr

2 |

ey

pou)

<

re)

When is the next texm of Superior Court?

MR. COPLAND: The third week in September.

Tiin COURT: Well, there's no question in the

Court's best judgment that the jury box as it now exists: is

unconsttution

yw

liy composed and cannot be further utilized for

any purpose until it is compietely reconstituted, both in

accorcance with the statutes of the State of Georgia ané the

Gcecisions of the Supreme Court cf the United States and of the

other courts to the extent they may supplement and add to the

cecisions of the Supreme Court.

For tne purpose of seeing that that is Gone, the Court

will orcer that the cefenéant jury comuissioners within one

week prepare ana present to tne Court a srovoseda plan and

: i ‘ i

procecure for reconstituting this jury hox, anc that when that

has been submitted to the Court and opposing counsel have

had an opportunity to comment thereon, the Court will then,

by order, specify the manner in which this hox will be

revised. The jury oninaionead ati. then be ordered to proceed

to do it in that manner.

When the process has been completed the order will

further provide that the jury commissioners will file a

report with the Court as to the result, that is a copy of the

ee

jury list as well as a resort of how they went about filing

it, and at that time there will he a further hearing as to

whether or not the ena result is constitutionally sufficient,

But only after it has heen determined to be constitutionally

surficient may it be utilized for the purpose of court

actually functioning any further.

MR. COPLAND: On your racial percentage and also

on the sex percentage, shall we project the '70 ficures to

the Gate and also how much variance on the percentage are we

tasking about in there? ‘Two or three percent, or what?

.

Till COURT: There's no absolute magic. You

can see in the Peach County case there's about a ten percent

variance. The Fifth Circuit disapproved of that even though

this Court approved it.

MR. COPLAND: Also, do you want us to project

the percentage of hiacks aad percentage of women?

SHE COURT: Well, i think what we micht do is

let's stop at this point and let this order be fashioned ane

maybe when we get through with all our other problems we wil}

alk in Chambers a littie bit about how you are qoinag to

ee ee eee mn me ee me

EE ce ee

accomplish it.

Again, just because vou do it the way the Court suggests

Coesn't mean that that's the absolute last word. Bear that

in mind. I wish I coulé onnhin wie that it is. Ail I cana

tell you is the way we've done it before and what the result

has been,

Of? course further, ladies and gentlemen, the Court

= that is ladies and gentlemen of the jury commission, the

Court observed yesterday that one of the basic problems in’

Putnam County is that the source of names for your jury box

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egistered voters, and the list of registered

voters is still maintaineé on a racially segrecated basis.

Tne Supreme Court of the United States hele years ago in cases

coming out of the State of Georgia that when vou ena up with

a Cisproportionate aumber of blacks versus whites on a jury

list and the source of the list was another list kept ina

racially segregated fashion, that there is a presumption

.

that those who compiled the jury list intentionally dis-

in Going so. So the first thing you've go. to éo

ao .

Cramianatea

in this county is get rid of all of your records which are

kept on a racially segregated basis.

Now the board of registrars are not parties to this

case - I realize that - but at the same tine the probate juice

seems to me the superintendent of elections, with the powers

¢iven him uncer the election code and with the responsibility

— oe

Pe eee ot eh ee Ss eae

LSE Oe te ete

———om ee ee

—-eee-

— er ren eee wee nee ee

anything on a racially segregated hasis. And I think, as

we have suggested, that that’s qot to stop today, not

tomorrow. You've just got to go hack and take all your

names and put them on one list alphabetized, and leave off

any Gesignation by race. Now that obviously presents

some commonsense problems to the jury conmmi

because the jury commissioners, when they aet

the process of compiling a jury list, they’

ve got

tse percentage that's in your county. So then

ssioners,

through with

to loorx

represents

you've got

to go back and identify what we have just told you you can't

use aS a source. I share your concern over tha

So the Court

prodDate judge that he instanter cause the registrars

county to prepare a list of the registered

ef which shail be in alphabetical oréer and

: =< - . - <

GCes.gnation oO. race,

b Phd ~A » N rs AY 4 - aot =“ 5S A : ~ 8 . *

“ec -~@aiisce GiiaS 1s & ‘ ecnaniacad proc

at) mans Mi - -~ ' es = .

Jusy commassioners can't co an

the list. it's going to be a week, unless

~ + ar oe “ , - es Vie \

sooner with a plan, before we finalize how

¢o about coing it, but certainly within a week

. ~ ° -».9 yy & - ‘ L.

ast. You also ought to transmit that

secretary of state as a substi

cr

is

if

oO

’

Oo

ec

e c

we J

but

hey cone

they

whatever

iis

4ist

he =- 3 & : A) = hn want eeewn bet :

nereco.ore cransnittec, Un tne registration carcs,

2euy

eliminate the designation or £11] ous a new

* e ~ how '~ . - . - =

otner. Of course there's cot to he soma ée

card,

ning

$icdi

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tion

you

e

@it

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rr

one or

Cc

S order as far as the jury commissioners

have

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the

y'all have the ability to put them together and take them

apart again.

You all might find it feasible to combine your

ee

registration process. That, again, is up to you. That's

something that Bibb County finally realized could he easier

to handle. We now have one place to reqister for hoth city

and county and they just simply se the county people

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fu

rm

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out of it. That might be something that would help you.

iiR. COPLAND: Your lionor, Mr. Dennis, who

is Clerk o Court and also the Secretary of Boare

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of Registrars has some questions.

THE COURT: Sure. Go right ahead, Mr.

Dennis.

MR. DENNIS: I would like to ask you if we

are supposed to co by the Georgia Code and use the exemptions

that they set out in the Code?

TiC COURT: Yes sir, you are required to do

enact.

.

MR. OONNISs We Gon't need to send then

SHE COURT: rf you nnow that those persons are

exempt, you do not need to send them a questionnaire. Dut when

you get ready to report to the Court as to what consideration

you gave those 4500 people you will need to say that of those

4500 ten were exempt because they were doctors, six were

exempt because they were nurses or school teachers or mothers

of infant children or whatever tie catecory is. The probien

iow about people that are on the

veanes diss that are under indiccment but hava not been

= oc me @ oar Gorse wee o- o-

When

out of the box the judge takes

eliminate them, but you can't.

not have a September term of Superior

the court meets, of

care of that. We can

think yon can eliminate

course, if their names cone

that we will

THE COURT: IZ the box is revised in time

£0 do so--

MR. DENNIS: It can't he.

THz COURT: Tnen I cGon't believe the court can

meet, That's what we had to Go with Peach County. They just

stopped until we got the job accomplished. That is, court

can’t meet for jury purposes. In other words your grand jury

jury, 1S what it amounts to.

SO ORDERED this i7th eEay

‘

your

trial

United States Judae

—— =

me re oe en ee ee es wee

ee OO OT ol

ft ral IN THE SUPERIOR COURT OF PUTNAM COUNTY

| Se RECEIVED

GI ,

: ; | STATE OF GEOR “ JAN 29 198]

OFFice Ur ink CLE

TONY &% AMADEO, SUPREME COURT, U.S.

/ Petitioner

Vv.

SHERIFF EUGENE RESSEAU,

Respondent

ORDER

The court finds that defendant in his petition for writ of

habeas corpus contends that the trial court's charge to the jury on the

sentencing phase of the trial failed to clearly instruct the jury that if they

found the presence of aggravated circumstances, they could still recommend

a sentence of life imprisonment,

The court after careful reading of the charge of the trial judge

_ finds that the presiding judge clearly informed the jury orally that they

could, even if they found the presence of aggravating circumstances, recommend

a sentence of life imprisonment. In addition to this, the trial court

furnished the jury with a written document containing the three possible

verdicts and that in this document it was clearly set out that the jury, even

if they found the presence of aggravated circumstances, could still recommend

a sentence of life imprisonment.

Defendant, in his second ground of his petition of writ of habeas

corpus, cornplains that the entire jury list involved in his indictment and trial,

both Grand and petit, was unconstitutionally composed.

This issue was raised by defendant on his post conviction appeal

to the Supreme Court of Georgia and this matter was decided adversely to

—

defendant. Amadeo v. The State, 243 Ga. 627, 629.

The Defendant's petition for writ of habcas corpus is hereby

denied and petitioner is hereby remanded to the custody of the Sheriff of

Putnam County, and the stay of execution granted in this case is hereby

dissolved.

So ordered this AT aay ot February, 1980,

boa — —

Judge, Sperior Courhd

Ocmulgee Judicial Circuit

ee Application No. 1202

SUPREME COURT OF GEORGIA

ATLANTA, September 24, 1980

The Honorable Supreme Court met pursuant to adjournment.

The following order was passed:

TONY B. AMADEO V. EUGENE RUSSEAU, SHERIFF

Upon consideration of the Motion for Reconsideration filed

in this Application, it is ordered that it be hereby denied.

All the Justices concur, except Hill, J., dissents.

SUPREME COURT OF THE STATE OF GEORGIA,

CLERK'S OFFICE, ATLANTA,

I certify that the above is a true extract from the minutes

of the Supreme Court of Georgia.

Witness my signature and the seal of said court hereto affixed

the day and year last above written.

aa ee Lh cll prick » Deputy Clerk.

Litgeh & Mi

-&

4

2 &

RECEIVED

UEC 4 5 WE

OFFICE OF THE CLERK

SUPREME COURT, U.S,

IN THE

| SUPREME COURT FOR THE UNITED STATES

TONY B. AMADEO,

y

Petitioner :

V. : CASE nn 20-5 eee

EUGENE RUSSEAU, SHERIFF,

Respondent

MOTION FOR LEAVE TO

PROCEED IN FORMA PAUPERIS

! The Petitioner, TONY B. AMADEO, who is now confined to the

‘Putnam County Jail in Eatonton, Georgia, and who is under a

sentence of death, asks leave to file the attached Petition for

Writ of Certiorari to the United States Supreme Court without

pre-payment of costs and to proceed in forma pauperis pursuant

to Rule 53.

The Petitioner's Affidavit in support of this motion is

attached hereto.

GARLAND, NUCKOLLS & CATTS, P.C.

nly IY Ler heen

SDWARD IT’. M. GARLAND

By:

1012 Candler Building

Atlanta, Georgia 30303

(404) 577-2225

e / ‘ }

oe \\ ce WEN

WILLIAM M. WARNER ©

1010 Angelo Court

Atlanta, Georgia 30319 ATTORNEYS FOR PETITIONER

(404) 261-5519

RECEIVED

EC 4.5 48

N THE SUPREME COURT OFFICE OF THE CLERK

: SUPREME COURT, U.S,

FOR THE UNITED STATES

TONY B. AMADEO,

Petitioner

V. CASE NUMBER _

Respondent

PAUPER'S AFFIDAVIT

TONY B. AMADEO, Petitioner, being duly sworn, deposes and

says:

(1) I ama citizen of the United States and the Petitioner

in the above-entitled action.

(2) I desire to prosecute a review of the judgment entered

by the Supreme Court of the State of Georgia on

September 10, 1980, and affirmed on rehearing on

September 24, 1980, pursuant to 28 U.S.C. §1257(3), but

because of my poverty, I am unable to pay the costs of

such a review.

(3) I believe I am entitled to the redress I seek by such

a review, and that such a review presents substantial

issues of deprivation of rights secured by the Con-

stitution of the United States.

The nature of the question to be presented upon such a review

is as follows:

WHETHER THE ENTIRE JURY LIST INVOLVED IN

PETITIONER'S INDICTMENT AND TRIAL, BOTH

GRAND AND PETIT, WAS UNCONSTITUTIONALLY

COMPOSED IN VIOLATION OF HIS DUE PROCESS

RIGHTS UNDER THE FIFTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITU-

TION.

fe

I contend that the Supreme Court of Georgia erred in

upholding my conviction and sentence.

WHEREFORE, Affiant prays that he may have leave to proceed

in this Court on Petition for Writ of Certiorari in forma

pauperis.

Non Z el Hf nadir

~ B] AMADEO

Sworn to and subscribed

‘before me this 1fonaay

08 Laer , 1980.

,Notary Public

'