# Petition — Amadeo v. Russeau

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 450 U.S. 1035

## Text

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
Pare pea 2 as ee oe kk a ke ex we ee oe

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

‘Statutes
ws See Oey Bewrnees «6 ew eee ee ka ee -—

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Oe. Coge Anh. Sarmanst te) tal .3 . & we Se ek ee ee

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
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

~

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

—~

—

~ 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 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

-
a“
ct
?
14)
+
»-
7)
cr
.@)
th
"

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

4

tion

you

e
@it

-
rr

one or

Cc

S order as far as the jury commissioners

have

J
~-

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

u
fu
rm
fu
cr
9

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

rh
na
&

ce)
©
mM
i a
°o
"

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

'

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1821%3A1. Public record. Not legal advice.