Petition for Writ of Certiorari — Ruud v. United States
Supreme Court brief1966
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” i Office-Supreme Court, U.S.
LIBRART ; FILED
- covet. U.
.
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2
JOHN F. DAVIS, CLERK ©
IN THE
Supreme Court of the United States
29 4°
WILLIAM L. MAXWELL,
Petitioner,
v.
DAN D. STEPHENS, Superintendent of Arkansas
State Penitentiary.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT ECA.
' axe
.
GEORGE HOWARD, Jr. JACK GREENBERG
3291 Main Street JAMES M. NABRIT, III
Pine Bluff, Arkansas MICHAEL MELTSNER
LEROY D. CLARK
FRANK H. HEFFRON
HAROLD B. ANDERSON 10 Columbus Cirele
205 Century Building New York, New York 10019
Little Rock, Arkansas ‘
ANTHONY G. AMSTERDAM
3400 Chestnut Street
Philadelphia, Pennsylvania
Attorneys for Petitioner
INDEX
PAGE
IIE TIIIIID ss ss:sschcideacassncctesenaacteahicaalancaieneaaieasameiciaheiaaia 1
ME 5 sscsascnesnctedcate-actoch nasiecinssiccs eg edensamntodamasndoaumaanetiadas 2
eee rE on eemnaenes 2
Constitutional and Statutory Provisions Involved ...... +
RIN. osc sis canteens icecocbeduansiheve misedeneorckeemsacenonicieseunanraotn 7
Pe GE CN so Benccitcirenesessiccserotcneinemaciennenees 8
Capital Punishment for Rape .................................... 13
a, BEE DED een eee 17
Jurisdiction of the Distriet Court —......0000200020.... 18
REASONS FOR GRANTING THE WRIT ...........-....0---22---2-ceeeeeeeeeee 18
I. Certiorari should be granted to determine the
legality of search of petitioner’s home without a
warrant, in petitioner’s absence, under purported
SOE OF Tt SD irc. 18
A. The search and seizure issues are important,
requiring consideration by this Court on certi-
NE senescent eee eceaaoaemannne 22
B. The decision below is wrong and sends peti-
tioner to death in violation of his Fourth-
Fourteenth Amendment rights -.......................... 29
II. Certiorari should be granted to determine
whether Arkansas’ death penalty for rape is un-
constitutional because (A) an unrebutted prima
ll
PAGE
facie showing has been made of its racial applica-
tion, in violation of the equal protection clause of
the Fourteenth Amendment, or (B) its allowance
to the jury of unfettered discretion to impose
capital punishment for all offenses of rape, in
the absence of aggravating circumstances, permits
cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments ...................... 33
A. Petitioner’s Equal Protection contention,
wrongly rejected below presents an impor-
tant question for consideration by this Court
SR I ieee nett ecssancineguhudaccromvoionmmaedinniaien 33
B. The Court should grant certiorari to consider
petitioner’s contention that his sentence is un-
constitutional under the Eighth and Fourteenth
aa ic cacaleserasasanmacoeancinowni 44
IlI.- Certiorari should be granted to determine
whether use of poll tax books containing racial
designations, as required by statute, in the system —
of jury selection is constitutional 2.0.0.0... 46
Ikea eee ee enna ee res freee sa 51
TABLE OF CASES
Aaron v. Holman, U.S. Dist. Ct., M.D. Ala., C.A.
ERENCES GY RSet ata aoe en RIE ACE en ee 36
Abel v. United States, 362 U.S. 217 (1960) 00000000... 21
Alabama v. Billingsley, Cir. Ct. Etowah County,
No. 1159 ......0..0su. absdlsnduracbatidaeiniibatachaatnndetionea ideas 36
Allison v. State, 204 Ark. 609, 164 S.W.2d 442 (1942) 44
Amos v. United States, 255 U.S. 313 (1921) _........... 25, 29, 31
lil
PAGE
Anderson v. Martin, 375 U.S. 399 (1964) ...............-+- 37, 48
Arnold v. North Carolifia, 376 U.S. 733 (1964) ............ 39
Avery v. Georgia, 345 U.S. 559 (1953) ..........---------------- 48
Bailey v. Henslee, 287 F.2d 936 (8th Cir. 1961), cert.
denied, 368 U.S. 877 ..................-ceccccscsecsessnsssessecesrersoseres 39
Boyd v. United States, 116 U.S. 616 (1886) .................... 32
Brown v. Board of Education, 347 U.S. 483 (1954) .... 37
Burge v. United States, 332 F.2d 171 (8th Cir. 1964),
cert. denied, 379 U.S. 938 .............-.-:.-escseeeeeeeeeeeesesees 24, 25
Burge v. United States, 342 F.2d 408 (9th Cir. 1965) 28
Bush v. Kentucky, 107 U.S. 110 (1882) .....................-.--- 38
Calhoun v. United States, 172 F.2d 457 (5th Cir.
BOD annsevsicnstnescseveciecesnssescrosocnsosneenetorstusinnsneananwsennensnonseten 27, 28
Carroll v. United States, 267 U.S. 132 (1925) ............ 21, 28
Cassell v. Texas, 339 U.S. 282 (1950) -........-..------------------ 46
Channel v. United States, 285 F.2d 217 (9th Cir. 1960) 24
Chapman v. United States, 365 U.S. 610 (1961) ........ 21, 29
Cline v. Frink Dairy Co., 274 U.S. 445 (1927) .............. 43
Cobb v. Balkcom, 339 F.2d 95 (5th Cir. 1964) ................ 50
Cofer v. United States, 37 F.2d 677 (5th Cir. 1930) ... 27
Commonwealth v. Wright, 411 Pa. 81, 190 A.2d 709
(NOG) on cncennnennncsnnsnsncepeenencensvensnenensncesaseceseevasssoctensnsasowewnets 22, 26
Communist Party v. Subversive Activities Control
Board, 367 U.S. 1 (1961) ...........-.-.-...-c.csesseeeeesnsnsesees = 39
Connally v. General Construction Co., 269 U.S, 385
CBI) anna cnersnsnsnscoasnesecnterenreovssvesisceresomensesnenesasnasannnensnceeenents 43
Cox v. Louisiana, 379 U.S. 536 (1965) -.............-.------------- 43
Craig v. Florida, Sup. Ct. Fla., No. 34,101 -.................. 36
Cutting v. United States, 169 F.2d 951 (9th Cir. 1948) 28
Davis v. United States, 327 F.2d 301 (9th Cir.
TOD ccessicecvenesenecsnsescsenlomrerereeornosntenemenemseensatieiiens 23, 26, 28, 29
Ww
PAGH
Davis v. United States, 828 US. O82 (1946) 26
Dombrowski v. PAlater, S80 U.S. 479 (1965) 433
Driekill vo United States, J&P Med. 146 (th Cir. 1922) 28
Blmore v. Commonwealth, 282 Ky. 443, 188 S.Widd 966
(1940) 31
Butiek vo Carrington, 1 How. St. Tr. 10290 (CLP. 1765) 32
Bacobedo vo Ulingia, 878 US. 478 (164) 32
Rubanks vo Louisiana, 356 ULS. O84 (1958) 40
Fay vo Nota, 872 U.S. 881 C1968) | 50
Fisher v. United States, 824 Fild 775 (Sth Cir, 1963),
eort, denied 877 U.S, 999 28
Foster vo United States, 281 F.2d 810 (8th Cir, 1960) 27
Fowler v. Rhode Island, 845 U.S. 67 (1953) ae
Frank v. Maryland, 359 U.S. 860 (1959) 32
Fredricksen vo United States, 266 F.ld 468 (D.C. Cir.
W9) aaa aaiaibaadnapeacawes 28
Freedman v. Mary land, “380 us S.51 (1965) _.. oo 648
Frve v. United States, 315 Fd 491 (9th Cir. 1963),
cert, denied, 375 U.S. S49 | aaceBiaa nen Saidansgiaattenstaie . ee
Gatlin v. United States, 326 F. - 666 (D.C. Cir, 1963) 22
Goamillion v. Lightfoot, 364 U.S. 339 (1960) . .. 40
Gouled v. Cnited States, 255 U.S. 298 (1921) o. 25
Hamilton v. Alabama, 376 U.S. 650 (1964) 000000... 37
Hamm v. Virginia State Board of Elections, 230 F.
Sapp. 156 (E.D. Va. 1964) aff'd sub nom. Tancil v.
Ug IT TN ca lense ad 46, 47
Hart v. United States, 316 F.2d 916 (5th Cir. 1963) .... 24
Henslee v. Stewart. 311 F.2d 691 (8th Cir. 1963),
COON. OM, De nnn 39
Hernandez v. Texas. 337 U.S. 475 (1954) 2000... 38, 40
PAOE
Herndon v. Lowry, 301 U.N. 242 (1987) 42
Hester v. United States, 265 US. 57 (1924) iat
Higgins v. United States, 200 F.2d 819 (IC. Cir.
| ye 24
Holt v. State, 17 Win. 21 468, 117 N, W, 2d 626 (1962) 22
Holthey v. United States, 224 F.2d 823 (Sth Cir, 1995) 2
Johnath v. United States, 333 U.S, 10 (1948) 21, 25, 90
Johnson v. Lerbat, 304 U.S, 458 (1998) 80,
Jones v. United States, 357 0.8. 493 (1958) 000000 2
Joseph Burstyn, Ine, v. Wilson, 343 U.S. 495 (1952) .. 44
Judd v. United States, 190 F.2d 649 (D.C. Cir, 1951), 24
~~
Lombard v. Louisiana, 373 US. 267 (1968) 20000. 42
Louisiana ex rel. Scott v. Hanchey, 20th Jud. Dist. Ct,
Parish of West Felieiana 0000000000 ee. .
Louisiana v. United States, 380 U.S. 145 (1965) 2.000... 43
Lustig v. United States, 338 U.S. 74 (1949) 000000... 29
McDonald v. United States, 307 F.2d 272 (10th Cir.
MII i sssvosnsecocsaddaceannbeencniohechiasactinsaen da ansasiomeemiaianinaidd 25
McDonald v. United States, 335 U.S. 451 (1948) 0... 27
McLaughlin v. Florida, 379 U.S. 184 (1964) 00000. Aw
Mapp v. Ohio, 367 U.S. 643 (1961) 2000000 23, 32
Martinez v. United States, 333 F.2d 405 (9th Cir.
SITU sisnsnsncssipsnconcdedeaenepananithicaaanntseencndunidaenemipaldeneieticn 23, 24
Mitchell v. Stephens, 232 F. Supp. 497 (E.D. Ark.
1964) _........... Willacacaielsasscensn son uaugsonsuanoonaceustadaieteaneiaien 36
Moorer v. MacDougall, U.S. Dist. Ct., E.DS.C. No.
AC-1583 ............. Rig aterenisstnisnenensedaentiincieontanrcneinaeibeunsaneets 36
Mosco v. United States, 301 F.2d 180 (9th Cir. 1962),
ee SS? Fa
N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958) 7
vi
PAGE
N.A.A.C.P. v. Button, 371 U.S. 415 (1963) .0000002 2... 43
Neal v. Delaware, 103 U.S. 370 (1881) ........000000.00000000.... 38
Niemotko v. Maryland, 340 U.S. 268 (1951) .......00000000... 37
Norris v. Alabama, 294 U.S. 587 (1935) ...0...0000000000000... 40
Oyama v. California, 332 U.S. 633 (1948)... 40
Pekar v. United States, 315 F.2d 319 (5th Cir. 1963) 24
Peterson v. City of Greenville, 373 U.S. 244 (1963) .. 42
Preston v. United States, 376 U.S. 364 (1964) .....00..0...... 21
Ralph v. Pepersack, 335 F.2d 141 (4th Cir. 1964) ........ 44
Reece v. Georgia, 350 U.S. 85 (1955) 00. 40
Reed v. Rhay, 323 F.2d 498 (9th Cir. 1963), cert.
I, TAG sincera a sictedtensttcacbiananiiaicanresdiaaaiiienin 24
Rees v. Peyton, 341 F.2d 859 (4th Cir. 1965) ............ 26, 28
Reszutek v. United States, 147 F.2d 142 (2d Cir. 1945) 28
Rios v. United States, 364 U.S. 253 (1960) ................ 21, 23
Roberts v. United States, 332 F.2d 892 (8th Cir.
SEED) sinscichcovastoucitapdiahiein gpamamandecdionaadiativendiademisiiiadl 27, 28, 29
Robinson v. Florida, 378 U.S. 153 (1964) _..00000.... 42
Robinson v. United States, 325 F.2d 880 (5th Cir. 1964) 22
Romero v. United States, 318 F.2d 530 (5th Cir. 1963),
ee Rs Deemer 28
Rorie v. State, 215 Ark. 282, 220 S.W. 2d 421 (1949) 44
Rudolph v. Alabama, 375 U.S. 889 (1963) .............. 13, 44, 45
Sartain v. United States, 303 F.2d 859 (9th Cir. 1962),
Os a te ne 28
Shelley v. Kraemer, 334 U.S. 1 (1948) ....--.ecccccsccssecsssee-0 37
Skinner v. Oklahoma, 316 U.S. 535 (1942) 2000000000... 45
Smith v. Cahoon, 283 U.S. 553 (19381) 2.000002... 43
State v. Hanna, 150 Conn. 457, 191 A.2d 124 (1963) .... 22
State v. Scrotsky, 39 N.J. 410, 189 A.2d 23 (1963) ...... 22
Stein v. United States, 166 F.2d 851 (9th Cir. 1948) .... 29
vii
PAGE
Stoner v. California, 376 U.S. 483 (1964) .......... 21, 29, 32, 33
Swain v. Alabama, Ala. Sup. Ct., 7 Div. No. 699 .......... 36
Tatum v. United States, 321 F.2d 219 (9th Cir. 1963)
Teasley v. United States, 292 F.2d 460 (9th Cir. 1961)
SS
United States ex rel. Goldsby v. Harpole, 263 F.2d 71
(5th Cir. 1959), cert. denied, 361 U.S. 838 ................ 50
United States ex rel. McKenna v. Myers, 232 F. Supp.
GB CERD,. PG. 1006) oecccccerccsisicccncoscoccccpiscvceness a 26, 28, 29
United States ex rel. Puntari v. Maroney, 220 F. Supp.
GOL CW.D. Pa. TRGB) cnccnccsocccccccscccassscccascsecenssssvescsssenccesens 27
United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th
Cir. 1962), cert. denied, 372 U.S. 924 ......2.2.------scsnee- 50
United States ex rel. Stacey v. Pate, 324 F.2d 934 (7th
Cir. 1963), cert. denied, 377 U.S. 937 (1964) .............. 26
United States v. Arrington, 215 F.2d 630 (7th Cir.
DOG) eaecccccncicecesscenscoctacscsesssocesnsesttasscaimmpionniacssseciiemesueseioneniins 23
TO) acecccccncctncccccceciseccsnnsccnsssasscenintsanscsstnincsinanctnnseneststsstte 26
United States v. Blok, 188 F.2d 1019 (D.C. Cir. 1951) 32
United States v. Boston, 330 K.2d 937 (2d Cir. 1964),
cort. denied, 377 U.S. 1006 22...2....-csccccscceccccecerescscessscssnsase 28
United States v. Eldridge, 302 F.2d 463 (4th Cir. 1962) 28
United States v. Evans, 194 F. Supp. 90 (D.D.C. 1961) 24
United States v. Goodman, 190 F. Supp. 847 (N.D. IIl.
DOGE) asaciceccncecicsenncnntascensnssassuteassecencnseenatassconeccesssemensnianesiores 26
United States v. Haas, 106 F. Supp. 295, 109 F. Supp.
GAB CUD. Phen. TOG) iccincceccceccssnsccsncnqecccenccctccrnsstcnccnee 24, 25
‘United States v. Heine, 149 F.2d 485 (2d Cir. 1945) -.... 25
United States v. Hilbrich, 341 F.2d 555 (7th Cir. 1965) 22
United States v. Horton, 328 F.2d 132 (3rd Cir. 1964),
cart. Gemied, BTT UB. GIO 3nnapocaea-a.ccanccccccccccescccnsebessnecens 22
United States v. Jeffers, 342 U.S. 48 (1951) -.......... 21, 29
Vili ”
PAGE
United States v. MacLeod, 207 F.2d 853 (7th Cir.
ERE SRR «CO Se a eee 24, 25
United States v. Minor, 117 F. Supp. 697 (E.D. Okla.
ape ns RC SARIS 0s cE eR 24
United States v. Mitchell, 322 U.S. 65 (1944) 0.020... 25
United States v. Page, 302 F.2d 81 (9th Cir. 1962) ........ 23
United States v. Pugliese, 153 F.2d 497 (2d Cir. 1945) 27
United States v. Rabinowitz, 339 U.S. 56 (1950) .......... 21
United States v. Rivera, 321 F.2d 704 (2d Cir. 1963) ..... 25
United States v. Roberts, 179 F. Supp. 478 (D. D.C.
ee 24, 25
United States v. Ruffner, 51 F.2d 579 (D. Md. 1931) 27
United States v. Rykowski, 267 Fed. 866 (S.D. Ohio
DIS Sill ovcibunecseahiaceinasiedtecssederaniietdndacmeniverunnaaiey Sea acne 27
United States v. Sergio, 21 F. Supp. 553 (E.D.N.Y.
RN Rec et 1 ie PC BE SED RADEON DAE Re ROE 27
United States v. Sferas, 210 F.2d 69 (7th Cir. 1954),
ET, I, Ge Fhe nna vsc cence cseccssesnisacintnses 26, 27
United States v. Smith, 308 F.2d 657 (2d Cir. 1962-63),
Ue ey te Fe osc creche etree 22
United States v. Walker, 197 F.2d 287 (2d Cir. 1952),
ie I SO 27
United States v. Walker, 190 F.2d 481 (2d Cir. 1951),
I NT I FE sa ices cedcncecectaevecssmsenin: 27
United States v. Ziemer, 291 F.2d 100 (7th Cir. 1961),
I I, I I acc cance ite lineceee 24
United States v. Zimmerman, 326 F.2d 1 (7th Cir.
Ra ae a Se sn te SEE DALAL CNC A AEG A 28
Villano v. United States, 310 F.2d 680 (10th Cir. 1962) 22
Von Eichelberger v. United States, 252 F.2d 184 (9th
sa alacant ecatecdnceetR lairdepiniadecenncnsils 98
a a Oe ee ee ~ *
ix
PAGE
Waldron v. United States, 219 F.2d 37 (D.C. Cir.
BOG) acsisnscincisininesscnsecnsssnsoebacsnisastesiovcsetinsnbigeerontetassemsctorses 26, 29
Watson v. City of Memphis, 373 U.S. 526 (1963) .......... 37
Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964), cert.
Genied, 379 U.S. O81 ..............c.-c-cececesssscceeecesscsnsssesnsoceasneses 50
Williams v. United States, 263 F.2d 487 (D.C. Cir.
DDD asscesciivessnssievesscsacccscancioeccnsecsencesnistbvhesttarnseeniouinseaiaes 26
Winters v. New York, 333 U.S. 507 (1948) .................... 43
Wion v. United States, 325 F.2d 420 (10th Cir. 1963),
cert. Gomied, S77 U.S. G66 .......:...n..cccceececennsoserecoseneesiee 28
Woodard v. United States, 254 F.2d 312 (D.C. Cir.
1958), cert. denied, 357 U.S. 930 -.........-------eeeeeeeeeeees 28
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ...................... 37
Zap v. United States, 328 U.S. 624 (1946) 02.2... 26
STATUTES
BE UTE. GID CI) niin cnc nicscissaninsermetomnncnsserosrencnion 34
TE TBR. SIG CAGE) anissscsricsseeocinsierniniennonnesnnciniccnntnsbowes 34
SB UGC. GUSGA(1) (ROGB) nanan nncscnncssccccscsccisessscesricoinie 2
OE UC. SI COR. cicichindnekeee 18
Rev. Srat. §1977 (1875), 42 U.S.C. §1981 (1964) -........ 37
Supreme Court Rule 19(1) (b) ......-----.-.-----:.:c:-:eeeeeeeeeees 22
Civil Rights Act of 1866, Ch. 31, $1, 14 Stat. 27 —...... 36, 38
Enforcement Act of May 31, 1870, ch. 114, §§$16, 18,
WB Beek. 20 TOE. ccc cae eeiins eeee 36
Axa. Code §§14-395, 14-397, 14-398 (1958) -................... 33
Ark. Stat. ANN. §3-118 (1956) ........-2.02...22.--220c-sccseceeesees 4,17
PAGE
Ark. Srat. Ann. §3-227 (1956) ..........................-..---- ae
Ark. Stat. ANN. §39-208 (1962) ........2...2.2..2....-0cc.sececccceecees 6,17
Ark. Stat. Ann. §§41-805 to 41-810 (1964) —............. 42
Arg. Stat. Ann. §41-3403 (1964) —..200000000.. 7, 8, 13, 33
Ark. Stat. Ann. §41-3405 (1964) 2000000002 33
Ark. Stat. Ann. §41-3411 (1964) 200022 33
Ark. Srat. Ann. §43-2153 (1964) —...00000002000000.... 7, 13, 33
Akx. Stat. Ann. §§46-144, 145 (1964) 00. 42
Ark. Stat. Ann. §§55-104, 105 (1947) 22202 .. 42
Argx. Srat. Ann. §73-1218 (1957) ..........2......22.20.-cc-eccseeee- 42
Ark. Stat. ANN. §73-1614 (1957) 2200202222... eeeeeee 42
Ark. Stat. Ann. §73-1747 (1957) .222.2222...02..:ccccccccseceeeeeet 42
Ang. Srar. Aw. §76-1119 (1957) ...2.2.22.2.2.22...-cscececcsceneeee 42
Ark. Strat. Ann. §80-509 (1960) 20020222 eeeeeeee 42
Ark. Stat. Ann. §80-2401 (1960) 2.000022 .. 42
ArK. Stat. Ann. §84-2724 (1960) _..000000 eee 42
BD. Cl; CO. BAT, Se CD insist reircces 34
Fria. Stat. Ann. §794.01 (1964) ............... Si pdsaadatsoaoavenuens 33
Ga. Cope Ann. §26-1302 (1963) ....22...220022002.cccccccccccsssceenee 33 »
Ga. Cope ANN. §26-1304 (1963) 200000002220... 34
Ky. Rev. Srat. Ann. §435.090 (1963) _..000000020 34
La. Rev. Stat. Awn. §14:42 (1950) >.....02.222.e eee 34
Wim. Acmpm. Camm, rt, Boy GI incest 34
Mp. Ann. Cons, art. 27, §§461, 462 (1957) 00... 34
Miss. Cope ANN. §2358 (1956) 202.2....2..2.eccecccecceeeeseeees 34
Vernon’s Mo. Stat. ANN. §559.260 (1953) 200000... 34
Nev. Rev. Stat. §200.360 (1963) 2.000000. 33
Nev. Rev. Star. §200.400 (1963) 2.00.22. oo. eect 33
BA. Gum. Beew. GORE CURR) oe 34
oe Seen yr
PAGE
Oxia. Stat. Arn., tit. 21, §1111 (1958) —.....2.. 34
Oxta. Stat. Ann., tit. 21, §§1114, 1115 (1958) —.......... 34
GL. Came Ame. GIGTS (IGG) ccnccccccccccccsssecccensececensssccses 34
BC..Come Asim. GIBGD (IGG) anncesecrcccccoccaccnccccocccnsecncescosoors 34
Tenn. Cope Ann. §§39-3702, 39-3703, 39-3704, 39-3705
COD ernie cten gn arconecsscncnsninipeichivtsicnenanniasnnciiaisntamcnnananstrshutoete 34
Trex. Pen. Cove Ann., art. 1183 (1961) -.................-...-.. 34
Trex. Pen. Cope Ann., art. 1189 (1961) ........................---. 34
Va. Cope Aww. §18.1-16 (1960) .o...ccccccccccccccccceebreeeeeee 34
Va. Cope ANN. §18.1-44 (1960) -...22.2..22.-.2-cceccecceeceeeeeceeeseeees 34
OrHEeR AUTHORITIES
Wernoren, Tue Urce to Punisn, 164-165 (1956) -...... 42
Bullock, Significance of the Racial Factor in the Length
of Prison Sentences, 52 J. Crim. L., Carm. & Pou.
Te ID sticeectecctertetesbindneihncanedoinsintantaadonensiinintons
Fairman, Does the Fourteenth Amendment Incorporate
the Bill of Rights, 2 Stan. L. Rev. 5 (1949) .........
Hartung, Trends in the Use of Capital Punishment, 284
pS A: —_| eRe nara nan ENTE n NET Senne Be
Lewis, The Sit-In Cases: Great Expectations, [1963]
Supreme Court Review 101 ........222222222222..20.---ccceeeeooeeeeee
Packer, Making the Punishment Fit the Crime, 77
ees 3S *: ae
tenBroek, Thirteenth Amendment to the Constitution
of the United States, 39 Cauir L. Rev. 171 (1951) -...
Weinstein, Local Responsibility for Improvement of
Search and Seizure Practices, 34 Rocky Mr. L. Rev.
Be CR agrees dehccscoeeendhnhenianneennttancinieiicemneiinlniassiteniciin
42
xii
PAGE
Wolfgang, Kelly & Nolde, Comparison of the Executed
and the Commuted among Admissions to Death
Row, 53 J. Crm. L., Cram. & Pox. Sct. 301 (1962) .... 42
Comment, 69 Dick. L. Rev. 69 (1964) —...0000000000. ee... 22
Note, 51 Cau. L. Rev. 1010 (1963) ...00000. ee. 22
Note, U. Inu. L. Forum (1964) 200000000 . =
Note, 109 U. Pa. L. Rev. 67 (1960) 0.000000... 35
Note, 113 U. Pa. L. Rev. 260 (1964) .....000000 2. 22
Note, Wis. L. Rev. 119 (1964) 2000000. 22
Annot., 31 A.L.R. 2d 1078 (1953) 0... 22
Conc. Guose, 39th Cong., Ist Sess. 475 (Jan. 29, 1866)
SE II Solis sccacduieachrahiencteosinapldnsionantmiinbenninbieiiitns 38
Cone. Grosz, 39th Cong., Ist Sess. 1758 (April 4, 1866) 38
New York Times, July 24, 1965, p. 1, col. 5 2000... 45
Unrtep States DEPARTMENT oF JUSTICE, BUREAU OF
Prisons, NationaL Prisoner Statistics, No. 32:.
Executions, 1962 (April 1963) 2.0.00... 43
In THE
Supreme Court of the United States
October Term, 1965
Wim L. Maxwe.,
Petitsoner,
v.
Dan D. Srepuens, Superintendent of Arkansas
State Penitentiary.
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Petitioner prays that a writ of certiorari issue to review
the judgment of the United States Court of Appeals for the
Eighth Circuit entered in the above-entitled case on June
30, 1965.
Opinions Below
The opinion of the United States Court of Appeals for the
Eighth Circuit (C.A. 1)’ and the dissenting opinion of Judge
Ridge (C.A. 24) are as yet unreported. They are set forth in
1The certified record, which is not printed, consists of six volumes.
Volume I contains the record of proceedings in the district court except
for the transcript of the hearing. It is cited as D.C. ——.
Volumes II and III, paginated consecutively, contain the complete
record of proceedings in the Garland County Circuit Court and are cited
as Ark. ——.
Volume IV is the transcript of the hearing in the district court and is
cited as Tr. ——.
Volume V contains depositions and is not cited in this petition.
Volume VI contains the opinion and orders of the court of appeals and
is cited as C.A. ’
7
2
the appendix,’ pp. 2a, 26a. The opinion of the United
States District Court for the Eastern District of Arkansas
(D.C. 39) is reported at 229 F. Supp. 205 and is set forth
in the appendix, p. 30a. The opinion of the Supreme Court
of Arkansas is reported at 236 Ark. 694, 370 S.W. 2d 113
and is set forth in the appendix, p. 55a.
Jurisdiction
The judgment of the United States Court of Appeals
for the Eighth Circuit was rendered on June 30, 1965
(C.A. 28). The jurisdiction of this Court is invoked pur-
suant to 28 U.S.C. $1254(1).
Questions Presented
1. Petitioner, a Negro, was detained at the police station
on suspicion of rape of a white woman. His requests to use
a phone to call a lawyer or his family at home were denied.
Two white policemen went to his home at 5:00 a.m. to obtain
evidence. They had no warrant. Only petitioner’s mother
and two younger brothers were at home. The policemen
were admitted by petitioner’s mother. They searched peti-
tioner’s room and obtained a coat belonging to him. The
coat was used at his trial, which resulted in a sentence of
- death.
a) ‘Where petitioner’s mother was visibly upset, did not
know of her right to resist a warrantless search, and was
not informed 0 right, did her acquiescence in the
search and seizure satisfy the requirements of voluntari-
ness and iniihesmiling requisite to waiver of Fourth-
Fourteenth Amendment rights!
* The appendix is separately bound.
TEE LT LIN LA TEN
3
b) If the answer to question (a) is yes, did acquiescence
by petitioner's mother waive petitioner’s Fourth-Four-
teenth Amendment rights as well as her own?
2. Where petitioner, a Negro sentenced to death for the
rape of a white woman, has shown that nine times as many
Negroes as whites have been executed for rape in Arkansas
although in three representative counties (to which inquiry
was limited) an equal number of Negroes and whites have
been convicted of rape, may the State deny that racial dis-
crimination violating the equal protection clause of the
Fourteenth Amendment produced such a result without
submitting proof that impartial and non-arbitrary factors
explain the grossly disproportionate number of Negro exe-
cutions?
3. Does Arkansas’ granting to the jury of unfettered
discretion to impose capital punishment for all offenses of
rape, irrespective of the existence of aggravating circum-
stances, permit cruel and unusual punishment in violation
of the Fourteenth Amendment?
4. Did the system of selecting petit jurors used in Gar-
land County satisfy the equal protection clause of the
Fourteenth Amendment where the qualifications of all pro-
spective jurors were determined by reference to poll tax
books which, pursuant to state statute, designated the race
of each elector?
Constitutional and Statutory Provisions Involved
This case involves the Fourth, Fifth, Eighth, and Four-
teenth Amendments to the Constitution of the United States.
This case also involves the following Arkansas statutes :
Arkansas Statutes ANNOTATED, §3-118 (1956) :
3-118. List of poll tax payers furnished county clerk
and election commisstoners.—Not later than the 15th day
of October of each year the collector shall file with the
county clerk a list containing the correct names, alpha-
betically arranged (according to the political or voting
townships, and according to color) of all persons who have
up to and including October ist of that year paid the poll
tax assessed against them respectively. The correctness of
this list shall be authenticated by the affidavit of the col-
lector in person. The county clerk shall at once record the
said list in a well bound book to be kept for that pur-
pose....
Arkansas Statutes ANNOTATED, §3-227 (1956):
3-227. Evtdence of right to vote—Filing and return of
documents—Additional list of voters—Poll tax receipts,
requirements—Certified poll tax lists—Rejection of bal-
lots—No person shall be allowed to vote at any primary
election held under the laws of this State, who shall not
exhibit a poll tax receipt, or other evidence that he has
paid his poll tax within the time prescribed by law to en-
title him to vote at the succeeding general State election.
Such other evidence shall be:
(a) A copy of such receipt duly certified by the clerk of
the county court of the county where such tax was paid.
b)
(b) Or, such person’s name shall appear upon the list
required to be certified to the judges of election by section
three of Act 320 of Acts of 1909 [§3-118].
Or, if any person offering to vote shall have attained the
age of twenty-one [21] years since the time of assessing
taxes next preceding such election, which period of assess-
ment is here declared to mean between the second Monday
in May and the second Monday in September of each year,
and possesses the other necessary qualifications, and shall
submit evidence by written affidavit, satisfactory to the
judges of election, establishing that fact, he shall be per-
mitted to vote.
All such original and certified copies of poll tax receipts
_and written affidavits shall be filed with the judges of elec-
tion and returned by them with their other returns of
election, and the said judges of election shall, in addition
to their regular list of voters, make an additional list upon
their poll books of all such persons -permitted by them to
vote, whose names do not appear on the certified list of poll
tax payers, and such poll books shall have a separate page
for the purpose of recording names of such persons.
It shall be the duty of each elector, at the time of pay-
ment of his poll tax, to state, and it shall be the duty of the
collector to record and certify in his receipt evidencing the
payment of such poll tax, the color, residence, postoffice
address (rural route, town or street address), voting pre-
cinct, and school district, of such person at the time of the
payment of such tax, and all poll tax receipts not containing
such requirements shall be void and shall not be recognized
by the judges of election; provided, however, it shall not be
necessary to state or have certified the street address of
any such person in cities and towns where the numbering
of houses is not required by the ordinances thereof.
6
The certified liste required by section 3 of Act 320 of
1909 [§3-118] shall contain, in addition to the name of the
person paying such poll tax, his color, residence, post-
office address (rural route, town, or street address where by
ordinance the numbering of houses is required), the school
district and voting precinct, and such list shall be arranged
in alphabetical order, according to the respective voting
precinets, The county election commissioners shall supply
the judges of primary elections with printed copies of such
lista... .
Arkansas Stature Annotatap §39-208 (1962):
Preparation of lists of petit jurors and alternates—In-
dorsement of lists. —The commissioners shall also select
from the electors of said county, or from the area constitut-
ing a division thereof where a county has two [2] or more
districts for the conduct of circuit courts, not less than
twenty-four (24) nor more than thirty-six (36) qualified
electors, as the court may direct, having the qualifications
prescribed in Section 39-206 Arkansas Statutes 1947 Anno-
tated to serve as petit jurors at the next term of court;
and when ordered by the court, shall select such other num-
ber as the court may direct, not to exceed twelve [12]
electors, having the same qualifications, for alternate petit
jurors, and make separate lists of same, specifying.in the
first list the names of petit jurors so selected, and certify
the same as the list of petit jurors; and specifying in the
other list the names of the alternate petit jurors so se-
lected, and certifying the same as such; and the two [2]
lists so drawn and certified, shall be enclosed, sealed and
indorsed “lists of petit jurors” and delivered to the court
as specified in Section 39-207, Arkansas Statutes 1947,
Annotated for the list of grand jurors.
7
Ankannas Stratitiun Annoraten §41-3408 (1962):
41-3403, Penalty for Rape.—-Any person convicted of the
orime of rape shall suffer the punishment of death for life
imprixonment]. [Act Dec. 14, 1842, $1, p. 19; C. & M. Dig.
62719; Pope's Dig., §3405.]
Anwansas Sravures Ansoratren §43-2153 (1962):
43-2163, Capital caxes—Verdict of life imprisonment. —
The jury shall have the right in all case where the punish-
ment is now death by jaw, to render a verdict of life im-
prisonment in the State penitentiary at hard labor.
Statement
Petitionay William L. Maxwell, a Negro, was charged by
information for the crime of rape on November 7, 1961
(Ark. 1). He was convicted in the Circuit Court of Garland
County, Arkansas, and sentenced to death on April 5, 1962
(Ark. 42). The conviction was affirmed by the Supreme
Court of Arkansas, and rehearing was denied.
A petition for writ of habeas corpus was filed in the
United States District Court for the Eastern District of
Arkansas on January 20, 1964 (D.C. 1). It alleged, inter
alia, that the number of Negroes on jury panels in Gar-
land County was systematically and intentionally limited
through the use of poll tax books designating the race of
qualified jurors (D.C. 2-3). On January 21, 1964, the dis-
trict court issued an order to show cause and a stay of exe-
cution (D.C. 6). On January 31, 1964, the court permitted
an amendment to the habeas corpus petition alleging that
clothing of petitioner was seized during an unlawful search
and introduced at trial (D.C. 11-13). On February 12, 1964,
petitioner filed a second amendment, alleging that Ark.
8
Stat. Ann. §41-3403 (1962 Repl. Vol.), providing for the
death penalty upon conviction of rape, was applied with
unequal severity against Negroes (D.C. 33). It was al-
leged that imposition of the death penalty in rape cases not
involving loss of life was erratic and in conflict with the
mores, principles and basic concepts of fairness of civil-
ized societies (D.C. 34). At the hearing on February 12,
1964, the district court permitted the filing of the second
amendment (Tr. 22).
Following the hearing held on February 12, 13, and 27,
the district court dismissed the petition for writ of habeas
corpus afd vacated the stay of execution on May 6, 1964
(D.C. 62). On May 19, 1964, petitioner filed notice of appeal
(D.C. 70). The district court granted a petition for cer-
tificate of probable cause for appeal and stayed execution
pending appeal (D.C. 67).
The United States Court of Appeals for the Eighth Cir-
cuit affirmed on June 30, 1965 (C.A. 1, 28), Judge Ridge
dissenting on the search and seizure issue (C.A. 24).
On July 13, 1965, the court’ of appeals granted a stay of
the mandate for thirty days. If the clerk of the court of
appeals receives within that time period a certificate from
the clerk of this Court that a petition for writ of certiorari
has been filed, the stay is to continue in effect until final
disposition of the case by this Court (C.A. 29).
Search and Seizure
In his amended petition for the writ of habeas corpus,
petitioner contended that his Fourteenth Amendment rights
against unreasonable search and seizure had been violated
by the use made at his trial of a blue coat seized from his
9
bedroom closet by police officers acting without a warrant
(D.C. 11). The court of appeals found that the
blue coat in question was obtained from that closet.
It was eventually sent to the FBI laboratory. At the
trial there was expert testimony that fibers in the coat
matched others found on the victim’s pajamas and on
part of a nylon stocking picked up near the scene of
the crime, and that fibers in the pajamas matched those
found on the coat (C.A. 17).
Accordingly, the court of appeals—as had the district court
—entertained petitioner’s Fourth-Fourteenth Amendment
contentions on the merits (C.A. 16; see D.C. 45). It rejected
those contentions, finding that the warrantless seizure of
the coat was validated by consent given the officers, in
petitioner’s absence following his arrest, by petitioner’s
mother (C.A. 23).
The facts surrounding the search and seizure may be
concisely stated by adopting the findings of the court of
appeals, with a few additions supported by the testimony
of police officers or by the uncontradicted testimony of
petitioner’s witnesses in the district court. In the para-
graphs which follow, the quoted portions are taken from
the circuit court’s opinion (C.A. 16-18); bracketed inser-
tions with record references are from the transcript in the
district court.
“. . . The offense took place at approximately three\
o‘clock in the morning of November 3, 1961. It was raining
and wet. The victim was promptly taken by the police to
a hospital. At the hospital she described her assailant to
Captain Crain of the Hot Springs Police Department and
to Officer O.D. Pettus, a Negro. She stated that the man
had told her he was Willie C. Washington. Two persons
with that name, senior and junior, were brought before her
10
but she identified neither. [A third Negro man was also
brought in but not identified. (Tr. 256, 258, 262-263; testi-
mony of Captain Crain and of the victim.)] She described
her attacker in greater detail. Pettus thereupon suggested
that it might have been Maxwell. Officer Childress, who
was on car patrol duty and in uniform at the time, was
directed by radio to pick up Maxwell. He went to the
Maxwell home. The defendant’s mother, then age 38, an-
swered his knock. [Maxwell’s father was then away from
home at work. (Tr. 159; uncontradicted testimony of Max-
well’s father.)] He told her he wanted to talk to William.
She let him enter, checked to see if her son was in, and
led Childress to the bedroom occupied by Maxwell and two
younger sons. [Childress awakened Maxwell by shining a
flash in his face. (Tr. 135, 186-187; uncontradicted testi-
mony of Maxwell’s mother and Maxwell.)] Childress told
Maxwell he wanted to talk to him down town and asked
him to dress. Childress testified that Maxwell went to the
closet for clothes that were hanging there in a wrapper,
and that he asked him ‘to put on these other clothes here
that he had on.’ The latter were wet. Maxwell testified
that he was told to put on the clothes he had on that night,
that he went to the closet to get these, that he was then
told to put on the clothes folded on the chair, that he was
going to take those clothes to the cleaners, and that they
were not his. [It is uncontested that Maxwell objected to
wearing the clothes on the chair, which he said were wet
and not his, but that Childress told him to put them on
anyway. (Tr. 267; testimony of Officer Childress.) ]
{Maxwell’s mother testified that she was upset at this
time. (Tr. 135.) At the hearing below, Childress was asked
whether he had advised Maxwell or his parents (sic) that
they were entitled to consult with an attorney, and replied:
“No, I didn’t give them any advice at all because I didn’t
11
know whether he was being arrested or what. I just re-
ceived the call over the radio to go pick him up. I didn’t
know what it was.” (Tr. 267.) ]
“Maxwell was taken to the hospital and before the victim.
She at first did not identify him as her attacker but wit-
-nesses described her as visibly disturbed and shaking when
he stood before her. She later said she recognized him but
feared for her life if she identified him. Maxwell was
taken from the hospital to the police station.
[The district court found “that when petitioner was
taken into custody and incarcerated in the City Jail he
was not permitted to see his parents or a lawyer.” (D.C.
49.) This finding was based on petitioner’s testimony that
“IT asked them could I use the telephone to call my—my
mother, somebody to come up, a lawyer or something, and
they told me I weren’t going to use the phone or nothing
..” (Tr. 189; see also Tr. 190.) The testimony is un-
contradicted; Captain Crain testified only that he did not
advise petitioner of his right to consult an attorney (Tr.
250), and that he made no attempt to bring petitioner
before a magistrate because there was no magistrate’s court
until 9:00 a.m., the magistrate had traffic court at that
time, and “We still had not completed our investigation.”
(Tr. 253.) Petitioner’s incommunicado detention continued
for two or three days thereafter in the jail to which he
had been removed to avoid mobbing. (Tr. 192-196; uncon-
tradicted testimony of petitioner.) ]
“Both sides admit that the exact times and place of
Maxwell’s arrest ‘is not entirely clear from the record’.
It might have been at the home at about four a.m. or
shortly thereafter at the hospital.
“Captain Crain, with Officer Timms, went to the Maxwell
home about five a.m. to get, as he testified at the habeas
12
corpus hearing, ‘some more clothes that we thought might
help us in our investigation of this case’ or, as he tostifled
at the trial, ‘I was looking for a particular object... I
wanted what he was wearing that night’. They had no
search warrant, Mra. Maxwell permitted them to enter.
[She testified below: “IT did not know nothing about axk-
ing the officer for a search warrant, I didn’t—I just didn’t
know..." (TY. 146.) And, again, responsive to a question
why she had not asked the officers for a warrant: “Be-
cause I didn’t know—know to just quite honestly I didn't
know—I was—well, | was half asleep and I just wasn’t—
didn’t think to ask him. And I kept—my children were
all at home and I just didn’t think anything were wrong.”
(Tr. 156.)] They were in uniform. The testimony is in
conflict as to whether Mrs. Maxwell was then informed
of any charge against her son; Crain said he so advised
her but she stated, ‘He didn't say nothing about no rape
cease’. (The district court found she had been so advised).
She directed the officers to the clothes closet... . [Captain
Crain testified that Officer Timms checked the closet while
he, Crain, talked to petitioner’s mother. “Well, we—I felt
sorry for her. She was in—well, she wasn’t feeling any
too good being—having a thing like that happen and her
son being accused.” (Tr. 243.) |
“Mrs. Maxwell was understandably upset at the times
the officers called at her home. In the margin we quote
her testimony as to both the first call’? and the second call."
2“ |. it was late and I was asleep and someone knocked un
the door and I woke up and I asked who was it and he said the
policeman and I went to the door to let him in. He asked me did
I have a son here by the name of William and I told him yes and
he just come on in, he didn’t have a search warrant or anything
and I let him. I didn’t know any better myself but I—I didn’t
know that he—you know, everything was all right,»my children
were at home and all and I just let him in.”
13] opened the door and I was afraid not to let them in because
—you know—when they said they were police officers—well, you
13
just—I've just always—I just let the police officers in because I]
just feel like he is for peace and all, and I just—I don’t know, I
didn’t know anything—I never been in anything like this and
I just let them in and I still didn’t think anything, didn’t any of
those officer (sie) have any search warrant or anything, didn’t
show me anything like that.”
Maxwell’s father worked at night and was not home when
the officers called.”
{Asked at the hearing below whether he had told Mrs.
Maxwell that she did not have to relinquish the items of
clothing to him, Captain Crain replied that he did not
recall. (Tr. 248.) He testified flatly that he did not men-
tion to Mrs. Maxwell that things taken could be used in
evidence against her son. (Tr. 249.)]
Capttal Punishment for Rape
Petitioner’s second amended petition in the district court
challenged the constitutionality in their application to him
of the Arkansas statutes allowing capital punishment for
rape in the diseretion of the jury. Ark. Stat. Ann. §§41-
3403, 43-2153 (1964 Repl. Vols.), p. 7, supra. He con-
tended that prosecutors and juries applied the statutes
racially, in that Negroes convicted of rape upon white
women were-usually sentenced to death, while other classes
of rape convicts usually received lesser sentences (D.C.
33); that the death sentence in his case “where life has
not been forfeited is so erratic so as to deny due process
of law” and equal protection of the laws (D.C. 34); and
that in such a case the death sentence constituted cruel
and unusual punishment (D.C. 34).? In support of the
3 The language of part (2), para. 3, of the seeond amendment to the
petition paraphrases the language of the opinions dissenting from denial
of certiorari in Rudolph v. Alabama, 375 U.S. 889 (1963) (D.C. 34), and
was understood by the district court to raise an Eighth-Fourteenth Amend-
ment issue (Tr. 10-13).
14
claim of racial discrimination, petitioner’s counsel sought
leave to take testimony of certain state officials, and to
submit to the prosecutors or clerks of court of the 72
Arkansas counties not to be covered by oral testimony
interrogatories or questionnaires inquiring with respect
to all rape prosecutions after January 1, 1954 the name
and race of the defendant, the race of the prosecutrix, the
extent to which deadly force was attempted or employed
in the course of the offense, and the disposition including
sentence.‘ Counsel for the State expressed doubt that such
information could be supplied by the prosecutors or county
clerks (Tr. 312-313), and the district court thereupon
declined “to go into an expedition of trying to submit it
to the 72—72—75 clerks when I am convinced that they
cannot furnish most of it.” (Tr. 313.) However, over the
strenuous objection of State’s counsel (Tr. 314-317), and
notwithstanding the court’s disposition to believe “that
the information that the petitioner is trying to obtain
can’t be obtained” (Tr. 317), the court did agree, as a
“trial run” (Tr. 317) to hear testimony of state officials
for three counties, in order to “see how fruitful it might
be on a smaller basis” (Tr. 318; see Tr. 317-321). Ac-
cordingly, petitioner presented the testimony of the cir-
cuit clerk, sheriff and prosecuting attorney of Garland
County (Tr. 327-356), the circuit clerk and prosecuting
attorney of Pulaski County (Tr. 357-385), and the circuit
*The request to take depositions and to submit interrogatories and
questionnaires was first made in the second amendment to the petition
(D.C. 34). It was pressed at the hearing (Tr. 6-10, 14-26) and, following
an initially inconclusive disposition (Tr. 25-26), renewed (Tr. 227). The
district court asked counsel for the petitioner to prepare for the court’s
consideration the sort of interrogatories he wished to submit (Tr. 228-229) ;
this was done (Tr. 311-312); and petitioner’s request for leave to submit
the interrogatories renewed again (Tr. 310-311). After the district court
determined to permit testimony limited to three counties as a “trial run”
(see text infra), petitioner’s counsel put the draft questionnaire into the
record to preserve his point (Tr. 321).
15
clerk, sheriff and prosecuting attorney of Jefferson County
(Tr. 386-421). The evidence given by these officials is
summarized in the margin, substantially in the words of
the court of appeals.’ It demonstrated, first, that the in-
formation sought by the petitioner was, for the most part,
available: of 59 defendants charged in three counties over
ten years, the race of all but four defendants was known;
the race of 47 of their 63 victims was known; and dispo-
5 The quoted passage which follows is from the opinion of the court of
appeals (C.A. 7-8). Bracketed insertions supply omitted information,
derived from the testimony of the state officials at Tr. 327-421.
“As to Garland County, for the decade beginning January 1, 1954,
Maxwell’s evidence was to the effect that seven whites were charged
with rape (two of white women and the race of the other victims not
disclosed), with four whites not prosecuted and three sentenced on
reduced charges; that three Negroes were charged with rape, with one
of a Negro woman not prosecuted and another of a Negro receiving
a reduced sentence, and the third, the present defendant, receiving
the death penalty. With respect to Pulaski County for the same
decade, there were 11 whites (two twice) and 10 Negroes charged,
with the race of the victim of two whites and one Negro not dis-
closed. Three whites received a life sentence. [Two of these had white
victims; the third, a victim of undisclosed race.] One white was ac-
quitted of rape of a Negro woman. One received a sentence on a
reduced charge [victim, white], two were dismissed [victims, white],
two cases remained pending [victims, white], one was not prosecuted
[victim of undisclosed race], and the last was executed on a convic-
tion for murder [victims, white; two rape charges were nol prossed].
Of the Negroes, three with white victims and two with Negro victims
received life. One case was dismissed [victim of undisclosed race},
one was not arrested [victim, white], two with Negro victims were
sentenced on reduced charges, and one, Bailey, with a white victim,
was sentenced to death. In Jefferson County eight Negroes were
charged, with the cases against five dismissed [victims, one white, one
Negro, three of undisclosed race], another dismissed when convicted
on a murder charge [victim of undisclosed race], and two receiving
sentences on reduced charges [victims, Negro]. Sixteen whites were
charged. One was charged three times with respect to Negro victims
and as to two of these charges received five years suspended on a
guilty plea. [The remainder had white victims, except in the single
case indicated infra.] Two others received three year sentences. One
is pending, one was executed, and the rest were dismissed [one of
these latter having a victim of undisclosed race.] The race of four
defendants was not disclosed; three of these cases were dismissed and
one is pending.”
16
sitions of all prosecutions, including sentence, were known.
Second, the evidence showed that for the counties and
period covered, Negroes were charged with rape consider-
ably less frequently than whites (by a ratio of 2:3) and
were convicted of rape no more frequently than whites.
Specifically, the figures are:
Garland Pulaski Jefferson Total
Number of White 7 11 (two twice) 16 (onethrice) 34 (two twice)
defendants (one thrice)
charged Negro 3 10 8 21
Total 10 21 28 (four un- 59
known race)
Number of
defendants White 0 3 4 (one twice) 7 (one twice)
convicted Negro 1 6 0 7
of rape Total 1 9 4 14
Number of
defendants White 0 0 1 1
sentenced Negro 1 1 0 2
to death Total 1 1 1 3
On the basis of evidence in the state court transcript, it
further appears, as found by the court of appeals, “that,
in the 50 years since 1913, 21 men have been executed for
the crime of rape [in Arkansas]; that 19 of these were
Negroes and two were white; that the victims of the 19
convicted Negroes were white females; and that the vic-
tims of the two convicted whites were also white females.”
(C.A. 7.) The court of appeals held, as did the district
court, that this was an insufficient showing of racially
discriminatory application of the death penalty for rape
(C.A. 8; see D.C. 60), and both courts refused to give
consideration to petitioner’s contention that capital pun-
ishment for rape was cruel and unusual punishment, the
circuit court saying that a declaration of the unconstitu-
tionality of the death penalty on this ground “must be
for the Supreme Court in the first instance and not for
17
us.” (C.A. 11-12; and see the district court’s similar dis-
position at D.C. 61).
Selection of Jury Panels
In Garland County, Arkansas, petit jury lists were se-
lected by a jury commission consisting of three commis-
sioners, who met periodically to draw up a list of names
(Tr. 47, 64). They relied primarily on their knowledge
of persons in the community (Tr. 61), but also used a
telephone book (Tr. 60, 77) and a list of persons who had
previously served (Tr. 55, 77).
At the time of petitioner’s trial, only qualified electors
who had paid the poll tax were eligible to be jurors. Ark.
Stat. Ann. §3-227 (1956); §39-208 (1962). The jury com-
missioners checked the poll tax books to determine
whether the persons they had selected were qualified
(Tr. 70, 80). An Arkansas statute required that poll tax
books designate the race of all qualified electors. Ark.
Stat. Ann. §3-118. The poll tax book for September 1961,
introduced in evidence as Exhibit I, showed a small “c”
after the names of Negro electors (Tr. 57, 59).
After the jury commission completed the jury list, the
commission transmitted the list to the circuit clerk (Tr.
99-101). The circuit clerk for Garland County between
1955 and 1963 testified that the lists had “c’s” after the
names of Negroes when he received them (Tr. 48-50).
The clerk also testified that he copied the lists, placing the
names and racial markings into a jury book (Tr. 42).
The issue of discriminatory selection of jury panels was
not raised in the state courts. Following petitioner’s ap-
prehension on November 3, 1961, two attorneys were ap-
pointed to defend him on November 28, 1961 (Ark. 2).
They were discharged at their request on February 5,
%
18
1962 (Ark. 15). On January 31, 1962, Attorney Christopher
C. Mercer was hired to defend petitioner (Ark. 13). Mercer
discussed many aspects of the case with petitioner, in-
eluding the jury panel, but he did not discuss with peti-
tioner whether to raise the issue of racial discrimination
in the jury selection process (Tr. 298, 305-306).
Jurisdiction of the District Court
Jurisdiction of the United States District Court for the
Eastern District of Arkansas was based on 28 U.S.C. $2241.
REASONS FOR GRANTING THE WRIT
Certiorari should be granted to determine the legal-
ity of search of petitioner’s home without a warrant,
in petitioner’s absence, under purported consent of
his mother.
Two issues arising out of the search of petitioner’s home
and seizure of his clothing without a warrant call for the
exercise of this Court’s certiorari jurisdiction. The State
of Arkansas seeks to support the search and seizure under
consent given by petitioner’s mother in his absence fol-
lowing his arrest. Petitioner contends, first that his
mother’s acquiescence in the search and seizure was not
voluntary and understanding ; second, that her acquiescence
could in no event effect a waiver of petitioner’s Fourth-
Fourteenth Amendment rights. The district court rejected
petitioner’s contentions on one theory and the court of
appeals on another, Judge Ridge dissenting. On this foun-
dation, relief against the death penalty has been denied.
19
The facts surrounding the search and seizure issues have
been set forth at pp. 8-13, supra. Except in a minor point,
they are uncontested. A white police officer went to the
home of petitioner’s Negro family in Hot Springs, Arkan-
sas, shortly before 4:00 a.m. Petitioner’s father was away
at work; petitioner’s 38 year old mother, petitioner, and
two brothers were at home asleep. The officer woke peti-
tioner’s mother by knocking at the door. She asked who
was there; he said it was a policeman; she let him in.
“He asked me did I have a son here by the name of
William and I told him yes and he just come on in, he
didn’t have a search warrant or anything and [| let him
in. I didn’t know any better myself, but I—I didn’t know
that he—you know, everything was all right, my children
were at home and all and I just let him in.” P. 12, supra.
Once inside, the officer awakened petitioner by shining
a flashlight in his face and told him to get dressed. He
refused to permit petitioner to put on the clothing chosen
by petitioner, ordered him to put on other clothing. Peti-
tioner was told that he was being taken to the police
station, that the police wanted to talk to him. He was not
told why. Petitioner’s mother was not told that she could
call an attorney; she was not told the charges against
petitioner; the officer “didn’t give them any advice at all
because I didn’t know whether he was being arrested or
what.” Pp. 10-11, supra.
Petitioner was taken to a hospital for identification by
a white rape victim, then to the police station where he
was held incommunicado and refused permission to, phone
a lawyer or his parents. One hour later, two white police
officers returned to petitioner’s home. Petitioner was then
incarcerated; it was about 5:00 a.m.; and although the
officers went for the specific purpose of obtaining clothing
which would incriminate petitioner, they sought no search
warrant. Petitioner’s father was still not home. They
20
asked petitioner’s mother if they could come in take some
of petitioner’s clothing. She let them in and directed them
to the closet. “I opened the door and I was afraid not to
let them in because—you know—when they said they were
police officers—well, you just—I’ve just always—I just
let the police officers in because I feel like he is for peace
and all, and I just—I don’t know, I didn’t know anything—
I never been in anything like this and I just let them in
and I still didn’t think anything, didn’t any of those officer
have a search warrant or anything, didn’t show me any- ‘
thing like that.” P. 12, supra. “I did not know nothing
about asking the officer for a search warrant.” P. 12, supra.
Petitioner’s mother testified below that the officers had not
told her the charges against her son. Crain contradicted
this, said that he told her the charges and—as might be
expected of a Negro mother whose son is charged with
rape of a white woman in Arkansas—“well, she wasn’t
feeling any too good being—having a thing like that hap-
pen and her son being accused.” P. 12, supra. In any
event, the mother’s testimony that she did not know the
officers needed a warrant to maké the search was uncon-
tested. Captain Crain said he did not recall that he told
Mrs. Maxwell she need not relinquish the clothing, and
testified flatly that he did not advise her the clothing
could be used against her son. While he was talking to
her, his companion officer took the coat which provided a
damaging link in the evidence later used to support peti-
tioner’s conviction and sentence of death.
On this.record, the district court found that it was the
mother’s “free and voluntary choice to permit the police
to enter and search the closet.” (D.C. 49.) “However, the
propriety of the search and seizure need not rest solely
upon the consent given by petitioner’s mother. The law-
fulness of this search and seizure is based upon a consi-
_
21
deration of all the facts and circumstances. ... [T]Jhere
was nothing unfair, unreasonable or oppressive in the
conduct of the police in the performance of the search
and seizure... .” (D.C. 49.) Apparently recognizing the
untenability of this latter ground,® the court of appeals
6 Although language in some of this Court’s cases has suggested that the
test of validity of a search and seizure under the Fourth Amendment is
general reasonableness, e.g., United States v. Rabinowitz, 339 U.S. 56
(1950), the Court has never sustained the warrantless search of a dwelling
not incident to arrest unless validated by consent. And, at least since 1950,
the Court’s decisions have made clear that a warrantless search is eo ipso
unreasonable and unconstitutional, e.g., United States v. Jeffers, 342 U.S.
48 (1951) ; Chapman v. United States, 365 U.S. 610 (1961), unless “‘...
brought . . . within one of the exceptions to the rule that a search must
rest upon a search warrant.’” Stoner v. California, 376 U.S. 483, 486
(1964), quoting Rios v. United States, 364 U.S. 253, 261 (1960). See also
Jones v. United States, 357 U.S. 493 (1958). Those exceptions are
specific. There are special rules relating to search of moving vehicles,
stemming from Carroll v. United States, 267 U.S. 132 (1925), not in-
volved here. There is the doctrine allowing search incident to a valid ar-
rest, United States v. Rabinowitz, supra, which cannot validate the present
search. Preston v. United States, 376 U.S. 364 (1964). Cases involving
“abandoned property,” see Abel v. United States, 362 U.S. 217 (1960),
fall vutside the scope of “persons, houses, papers, and effects” in which
the Fourth Amendment guarantees the citizen against unreasonable search
and seizure. See Hester v. United States, 265 U.S. 57 (1924). But peti-
tioner’s home and clothing are clearly within the protection of the Amend-
ment and, inside that sphere, the Court’s decisions allow only the excep-
tions enumerated above to the warrant requirement. Dictum in a few
eases also suggests that a warrant may be foregone if compelling neces-
sity to seize easily transported or destroyed contraband or instruments of
crime makes resort to a magistrate impossible. Johnson v. United States,
333 U.S. 10 (1948); Chapman v. United States, supra. But no such
necessity has found by any of the courts below; nor could it have
been on this sop Hence, absent consent, the search and seizure here
were unconstitfitional.
However, even were the question under the Fourth Amendment one—
as the district court believed—of general reasonableness, fairness and un-
oppressiveness, it would be difficult to imagine a more unreasonable, unfair
and oppressive search. Having petitioner in their custody and seeking
items of his clothing to incriminate him, the police did not ask his per-
mission to seize them. Instead, they detained him incommunicado, re-
fused him leave to phone a lawyer or the persons at his home. Then,
without a warrant, at 5:00 a.m., they went to petitioner’s dwelling and
intruded on his mother for the second time that night. Uniformed, and
without explaining that she had a right to refuse them entry, they asked
permission to come in, which she—unknowing—granted.
22
rested the validity of the search solely upon its finding
of consent. (C.A. 19, 23.)
A. The search and seizure issues are important,
requiring consideration by this Court on
certiorari.
The two issues thus presented—the requisites for valid
waiver of the requirement of a search warrant, and the
effect of waiver by one cotenant upon the Fourth-Four-
teenth Amendment rights of another—clearly present “an
important question of federal law which has not been, but
should be, settled by this court.” Supreme Court Rule
19(1)(b). The circuit courts are in conflict on both issues.
(1) No issue under the Fourth Amendment is more fre-
quently litigated than the validity of consent to a war-
rantless search.’ Nor is any issue more critical to the
Amendment’s effective protection, for where consent is
found all of the scrupulous safeguards preserved by this
Court’s decisions as limitations upon official intrusion are
nullified. Not only is no warrant required, but—the pro-
tection of the Amendment being deemed waived—searches
7 In addition to the cases collected in the following pages, see, e.g., these
recent federal circuit court decisions: Mosco v. United States, 301 F.2d
180 (9th Cir. 1962) ; United States v. Smith, 308 F.2d 657 (2d Cir. 1962) ;
Villano v. United States, 310 F.2d 680 (10th Cir. 1962); Frye v. United
States, 315 F.2d 491 (9th Cir. 1963); Robinson v. United States, 325 F.2d
880 (5th Cir. 1964); Gatlin v. United States, 326 F.2d 666 (D.C. Cir.
1963); United States v. Horton, 328 F.2d 132 (3d Cir. 1964); United
States v. Hilbrich, 341 F.2d 555 (7th Cir. 1965). Litigation of the issue
in the State courts is not less frequent, see e.g., the California cases col-
lected in Note, 51 Cauir. L. Rev. 1010 (1963) ; State v. Hanna, 150 Conn.
457, 191 A.2d 124 (1963); State v. Scrotsky, 39 N.J. 410, 189 A.2d 23
(1963) ; Commonwealth v. Wright, 411 Pa. 81, 190 A.2d 709 (1963); Holt
v. State, 17 Wis.2d 468, 117 N.W.2d 626 (1962), and the importance of
the question has made it the subject of much recent law review comment,
eg., Comment, 69 Dick. L. Rev. 69 (1964); Comment, [1964] U. Ini. L.
Foaum 653; Note, 113 U. Pa. L. Rev. 260 (1964); Note, [1964] Wis. L.
Rev. 119. For earlier state cases, see Annot., 31 A.L.R.2d 1078 (1953).
23
and seizures may proceed without probable cause*® and
unfettered of any other constraint of reasonableness.’
Little wonder that “consent” is the policeman’s preferred
authority to search; that in 1954 a federal circuit court
remarked upon “this increasing practice of federal officers
searching a home without a warrant on the theory of
consent .. .”;'® that the response of more than one state
police official following Mapp v. Ohio, 367 U.S. 643 (1961),
was, in substance: “We are going to get consent to search
forms similar to the ones used by the F.B.1.” ™
(2) Nothwithstanding frequent litigation, the decisions
of the lower courts are in irresolvable conflict and con-
fusion. All courts agree, of course, that consent must be
“voluntary” to be effective. But, as the Ninth Circuit has
recently said, “In other contexts the word voluntary might
comnote anything from enthusiastic action taken on one’s
own initiative, at one extreme, to grudging action just
short of being compelled by what the law would regard
as duress, at the other.” Martinez v. United States, 333 F.2d
405, 407 (9th Cir. 1964). Far from giving meaping to the
concept of voluntariness as respects consent to a warrant-
less search, the circyit courts of appeals have more or
less explicitly declared the concept not susceptible of
reasoned analysis. “Each case necessarily depends upon
its own facts. The mere fact that a particular panel of
this court may feel that another panel, in a prior decision,
was mistaken in holding that a finding was ‘clearly erro-
neous’ is not a basis for convening the court in bank and
overruling the prior decision.” United States v. Page, 302
§ See Rios v. United States, 364 U.S. 253 (1960).
* See, ¢.g., Davis v. United States, 327 F.2d 301 (9th Cir. 1964).
1° United States v. Arrington, 215 F.2d 630, 637 (7th Cir. 1954).
") See the Appendix to Weinstein, Local Responsibility for Improve-
ment of Search and Seizure Practices, 34 Rocky Mr. L. Rev. 150, 176, 177
(1962). For similar responses, see id. at 178-179.
24
F.2d 81, 86 (9th Cir. 1962), distinguishing Channel v. United
States, 285 F.2d 217 (9th Cir. 1960). See also Hart v.
United States, 316 F.2d 916, 920 (5th Cir. 1963); United
States v. Ziemer, 291 F.2d 100, 103 (7th Cir. 1961); Burge
v. United States, 332 F.2d 171, 173 (8th Cir. 1964); Tatum
v. United States, 321 F.2d 219, 220 (9th Cir. 1963). Ex-
pectably, the result of thus calling consent a “question of
fact,” without attempting to formulate any general prin-
ciples of law which tell the trier what facts he is to in-
quire about and what he is to do if he finds one set of
facts rather than another, has been serious inter-circuit
conflict." In Untted States v. Roberts, 179 F. Supp. 478
(D.D.C. 1959), Judge Youngdahl found a mother’s con-
sent involuntary on facts virtually indentical with those of
the present case. This sort of fortuitous result may be
blinked away, under the prevailing lore of the circuit courts,
by saying that two district judges took different views
on the same question of fact. But when the cases are closely
compared, it becomes apparent that what controlled the
differing results were differing views on an unarticulated
question of law: whether one who does not know and is
not told that officers cannot make a search without a war-
rant should be held to waive the warrant requirement by
agreeing to a request for leave to search. Judge Young-
12 Compare Pekar v. United States, 315 F.2d 319 (5th Cir. 1963), with
United States v. Ziemer, 291 F.2d 100 (7th Cir. 1961). Compare Higgins
v. United States, 209 F.2d 819 (D.C. Cir. 1954), with United States v.
MacLeod, 207 F.2d 853 (7th Cir. 1953). Compare Reed v. Rhay, 323 F.2d
498 (9th Cir. 1963), with United States v. Evans, 194 F. Supp. 90 (D.D.C.
1961). Compare United States v. Haas, 106 F. Supp. 295, 109 F. Supp.
433 (W.D. Pa. 1952), with United States v. Minor, 117 F. Supp. 697
(E.D. Okla. 1953). Underlying these inconsistent results are large in-
consistencies of attitude. Compare the inhospitality toward a finding of
consent by the Court of Appeals for the District of Columbia Circuit,
e.g., Judd v. United States, 190 F.2d 649, 651-652 (D.C. Cir. 1951), with
the hospitality toward such a finding by the Court of Appeals for the
Ninth Cireuit, e.g., Martinez v. United States, 333 F.2d 405, 407 (9th
Cir. 1964).
20
dahl assumed that the answer to this question was nega-
tive ;'* District Judge Young below assumed that it was
positive; the Court of Appeals below affirmed without dis-
cussing the question; and, indeed, the question has not
been explicitly framed in any circuit court decision.‘ Surely
this question is one which permits and rationally demands
an answer in law; but until this Court grants review to
frame and decide such subordinate questions underlying
the issue of consent, circuit court decisions in cases involv-
ing life or death will continue to be made lawlessly.
This Court has not decided a case involving the volun-
tariness of consent to search and seizure in almost twenty
years. The few decisions prior to that time do not squarely
address the questions arising in case after case today."
13Tn Roberts, defendant’s mother had been told by the searching officers
that they were not permitted to search without a warrant unless she con-
sented. But Judge Youngdahl found: “It is difficult to believe that this
particular woman understood the significance of what the officers told her;
it is quite implausible to believe she was aware a search warrant was a
prerequisite to a valid search.” 179 F. Supp. at 479. Therefore, Judge
Youngdah] found her consent ineffective. In. the present case, Judge
Young found consent by petitioner’s mother effective on a record which
makes clear that she did not know and was not told that a Search warrant
was a prerequisite to a valid search.
14In a number of cases where effective consent has been found, it ap-
pears the person consenting was told that, unless he consented, a search
could not be made without a warrant. United States v. Heine, 149 F.2d
485 (2d Cir. 1945) ; United States v. Rivera, 321 F.2d 704 (2d Cir. 1963) ;
United States v. MacLeod, 207 F.2d 853 (7th Cir. 1953); Burge v. United
States, 332 F.2d 171 (8th Cir. 1964) ; United States v. Haas, 106 F. Supp.
295, 109 F. Supp. 443 (W.D. Pa. 1952). But consent has also been found
where no such warning was given, e.g., McDonald v. United States, 307
F.2d 272 (10th Cir. 1962) (alternative ground), and petitioner has found
no cireuit decisions squarely facing the question.
18 Gouled v. United States, 255 U.S. 298 (1921), where consent was
procured by misrepresentation, and Johnson v. United States, 333 U.S. 10
(1948), where entry “was granted in submission to authority,” id. at 13,
have been viewed as extreme cases. United States v. Mitchell, 322 U.S. 65
(1944), eonsiders only the effect of the McNabb rule on consent to search.
McDonald v. United States, 335 U.S. 451 (1948), does not distinctly ad-
dress the question of voluntariness of consent. The Amos case is discussed
at p. 31, infra. \
26
Worse still, the Court’s most extended discussion of the
consent principle came in the “public documents” cases,
Davis v. United States, 328 U.S. 582 (1946), and Zap v.
United States, 328 U.S. 624 (1946); and notwithstanding
the admonition that “Where officers seek to inspect public
documents at the place of business where they are required
to be kept, permissible limits of persuasion are not so
narrow as where private papers are sought,” ** the courts
of appeals have relied on Davis and Zap in sustaining
searches for entirely private items.’’ The circuit court
below thus erroneously relied on Davis. (C.A. 20.) Peti-
tioner respectfully submits the question is ripe for renewed
consideration by the Court.
(3) Similarly, the question under what circumstances,
if any, consent to search given by one cotenant can affect
the Fourth Amendment rights of another, urgently de-
mands the attention of the Court. Frequently arising in
cases where, as here, the voluntariness of the consent is
also in issue,’* the point is one upon which the “federal
court decisions . . . are not in accord.” Commonwealth v.
Wright, 411 Pa. 81, 85, 190 A.2d 709, 711 (1963).'* The
Eighth Circuit itself, in an opinion upon which the de-
cision below relies, has admitted that “Without the benefit
of a Supreme Court clarification of the issue, those federal
16 Davis v. United States, supra, 328 U.S. at 593.
1T See, e.g., Rees v. Peyton, 341 F.2d 859 (4th Cir. 1965), relying on
Zap.
18 See, e.g., United States v. Sferas, 210 F.2d 69 (7th Cir. 1954);
Waldron v. United States, 219 F.2d 37 (D.C. Cir. 1955); Williams v.
United States, 263 F.2d 487 (D.C. Cir. 1959); Davis v. United States,
327 F.2d 301 (9th Cir. 1964); United States v. Goodman, 190 F. Supp.
847 (N.D. Ill. 1961) ; United States v. Block, 202 F. Supp. 705 (S.D.N.Y.
1962); United States ex rel. McKenna v. Myers, 232 F. 65 (E.D. Pa.
1964).
1$ Wright itself is not in aceord with United States ex rel. Stacey v.
Pate, 324 F.2d 934 (7th Cir. 1963), decided six months later.
27
courts which have considered the question have taken
divergent positions.” Roberts v. United States, 332 F.2d
892, 895 (8th Cir. 1964).2° Early decisions held that the
cotenant’s consent could not validate a warrantless search
against complaint by a person having a possessory in-
terest in the premises searched." Most of the subsequent
cases appearing to give effect to such consent can be ex-
plained on various narrow grounds. Where the consenting
and complaining parties were co-conspirators as well as
cotenants and consent was given for the purpose of be-
guiling the searching officers, the result rested simply on
the ordinary concepts of agency applicable among cou-
spirators.** In a number of cases, the complaining party
had no possessory interest whatever in the place searched;
if given standing to complain at all,** it was as a means for
vindicating by the exclusionary sanction the rights of the
possessor ;** and a finding of consent by the possessor
ended the complaining party’s grievance, which had never
been bottomed on infringement of his own protected in-
2° The Eighth Circuit had earlier reserved the question. Foster v. United
States, 281 F.2d 310 (8th Cir. 1960).
*1 Cofer v. United States, 37 F.2d 677 (5th Cir. 1930) (alternative
ground); United States v. Rykowski, 267 Fed. 866 (S.D. Ohio 1920)
(alternative ground); United States v. Ruffner, 51 F.2d 579 (D. Md.
1931).
*2 See United States v. Pugliese, 153 F.2d 497 (2d Cir. 1945) (alter-
native ground); United States v. Sferas, 210 F.2d 69 (7th Cir. 1954) ;
United States v. Sergio, 21 F. Supp. 553 (E.D.N.Y. 1937).
*3 In some of the cases in which the courts advert to consent by a party
other than the one complaining of a search, the opinions make relatively
clear that they are doing so for the purpose of stressing that the consent-
ing party, but not the complaining party, had the sort of interest in the
searched premises which the Fourth Amendment protects. See United
States v. Walker, 190 F.2d 481 (2d Cir. 1951), 197 F.2d 287 (2d Cir.
1952); Calhoun v. United States, 172 F.2d 457 (5th Cir. 1949); United
States ex rel. Puntari v. Maroney, 220 F. Supp. 801 (W.D. Pa. 1963).
4 See McDonald v. United States, 335 U.S. 451 (1948).
28
terests.** Cases involving searches and seizures of mov-
ables upon consent of the person to whom their owner
had entrusted them stand on different principles: warrant-
less searches of movables being lawful if based upon prob-
able cause,** consent in such cases is pertinent only be-
cause the information conveyed in the consenting party’s
communication to the police gives the police reasonable
ground to believe items subject to seizure are concealed
within the movable.” Yet in a few recent decisions, among
which petitioner’s is the most extreme, courts have thought
to find within these earlier cases a general principle which
the cases will not support, that one cotenant in a dwelling
may effectively waive another’s constitutional immunity
against warrantless search.”
38 Woodard v. United States, 254 F.2d 312 (D.C. Cir. 1958) (complain-
ing party is transient guest in consenting party’s dwelling); Fredricksen
v. United States, 266 F.2d 463 (D.C. Cir. 1959) (same); Rees v. Peyton,
341 F.2d 859 (4th Cir. 1965) (same); Calhoun v. United States, 172 F.2d
457 (5th Cir. 1949) (same); Burge v. United States, 342 F.2d 408 (9th
Cir. 1965) (same). See also Cutting v. United States, 169 F.2d 951 (9th
Cir. 1948); Von Eichelberger v. United States, 252 F.2d 184 (9th Cir.
1958); Wion v. United States, 325 F.2d 420 (10th Cir. 1963). The prin-
ciple is apparent in cases sustaining against an absentee landlord’s com-
plaint searches consented to by his tenant in possession. See Driskill v.
United States, 281 Fed. 146 (9th Cir. 1922); Reszutek v. United States,
147 F.2d 142 (2d Cir. 1945); Fisher v. United States, 324 F.2d 775 (8th
Cir. 1963).
26 Carroll v. United States, 267 U.S. 132 (1925); United States v.
Boston, 330 F.2d 937 (2d Cir. 1964) (alternative ground); Romero v.
United States, 318 F.2d 530 (Sth Cir. 1963) (alternative ground); United
States v. Zimmerman, 326 F.2d 1 (7th Cir. 1963).
27 Compare Sartain v. United States, 303 F.2d 859 (9th Cir. 1962), with
Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955), where the
movable was within a dwelling and consent of a cotenant was held in-
effective. See also United States v. Eldridge, 302 F.2d 463 (4th Cir. 1962).
Cases involving entry into a dwelling, upon consent of one cotenant, to
arrest another, have been thought to involve the same principle, since
arrest may be made on probable cause without a warrant. See Teasley v.
United States, 292 F.2d 460 (9th Cir. 1961).
°8 Roberts v. United States, 332 F.2d 892 (8th Cir. 1964); Davis v.
United States, 327 F.2d 301 (9th Cir. 1964); United States ex rel. Me-
Kenna v. Myers, 232 F. Supp. 65 (E.D. Pa. 1964). These cases, like the
29
No such broad doctrine is sanctioned by this Court’s
decisions. But neither has the Court condemned unequiv-
ocally a finding that one cotenant’s Fourth Amendment
rights may be waived by another. The question was re-
served in Amos v. United States, 255 U.S. 313 (1921), and
has not since been considered by the Court. Cases holding
that a landlord may not effectively consent to search of his
tenant’s premises, see Lustig v. United States, 338 U.S.
74 (1949); United States v. Jeffers, 342 U.S. 48 (1951);
Chapman v. United States, 365 U.S. 610 (1961), were
thought distinguishable by the courts below, which read
the Court’s recent statement in Stoner v. California, 376
U.S. 483, 488 (1964), that “the rights protected by the
Fourth Amendment are not to be eroded by strained ap-
plications of the law of agency or by unrealistic doctrines
of ‘apparent authority,’” as limited to such cases. The
issue is squarely presented in the present case, and de-
mands decision by this Court.
B. The decision below is wrong and sends petitioner
to death in violation of his Fourth-Fourteenth
Amendment rights.
(1) Judged by appropriate standards, the consent to
search given by petitioner’s mother was not voluntary
and understanding. While this Court has never had occa-
sion to confront the question squarely, its opinion in John-
decision below (see C.A. 20) purport to rest upon the cases cited in notes
17-22 supra. The Roberts holding, however, did not involve a seizure of
the complaining party’s personal effects, and in Davis the trial -ecourt
found that the purpose of the officers making entry was to talk to the
occupant, not to search. McKenna is quite similar to the instant case.
In Stein v. United States, 166 F.2d 851 (9th Cir. 1948), it was indeed
held that a commonlaw wife could validate by her consent the search of
the dwelling which she shared with her husband. Waldron v. United
States, 219 F.2d 37 (D.C. Cir. 1955) (alternative ground), is to the con-
trary, unless the cases are reconcilable on the ground that the husband
in Stein had closed up the house and moved out prior to the search.
30
sow v. United States, 333 U.S. 10, 13 (1948), plainly takes
the view that in order to be effective a consent to search
or seizure must be “an understanding and intentional
waiver of a constitutional right.” This is the concept of
waiver ordinarily applicable to fundamental guarantees.
See Johnson v. Zerbst, 304 U.S. 458, 464 (1938). It is not
enough that the individual acquiesces in a method of
procedure against which the Constitution gives protec-
tion; he or she must know of the protection which the
Constitution gives and intentionally abandon or relinquish
it. On the present record it is uncontested that petitioner’s
mother neither knew nor was told that the officers needed
a warrant to conduct a lawful search. For this reason
alone, her consent was ineffective. The point is the
stronger because, one hour before she allowed the inerim-
inating search, she had seen a police officer who arrested
her son without a warrant compel him to put on clothes
which he did not choose to wear. Nothing in the subse-
quent conduct of the officers dispelled the implication that
their power to seize items of clothing without a warrant
was limitless.
Other considerations too compel the conclusion that this
consent failed to meet constitutional standards for waiver.
The test of voluntariness of a consent to search and seizure
should be more stringent than that for voluntariness of a
confession, for while it is plain that some questioning is
essential to police investigation, only the convenience of
police officers requires procurement of consent to search
in lieu of a warrant. There is legal process consistent with
the Fourth Amendment for attaining the officer’s end, but
he chooses not to use it. Here, it was more convenient
to the Hot Springs police to disturb a Negro woman at
5:00 a.m. than to disturb a magistrate. Following one
hour after arrest of her son in their home—a circumstance
31
calculated to distract her, and which Captain Crain ob-
served had in fact distracted her—two white, uniformed
officers asked admittance for the purpose of a warrant-
less search and it was granted. These conditions consti-
tute the sort of “implied covrcion” found in Amos v. United
States, 255 U.S. 313, 317 (1921),?°—coercion to be con-
demned becaused of its almost inevitable tendency to
produce an undeliberated and cowed consent. See Elmore
v. Commonwealth, 282 Ky. 443, 138 S.W.2d 956 (1940),
relied on by Judge Ridge in his dissent below. Where such
conditions are found, judicial speculation that petitioner’s
mother did not succumb to their overbearing force is al-
together impermissible.
(2) Even assuming the mother’s consent voluntary and
understanding, it could not effectively waive petitioner’s
constitutional rights. The officers went to petitioner’s home
for the specific purpose of seizing items of clothing which
would incriminate him. He was available to them; they
had him in custody at the time. But no effort was made,
after due warning of his constitutional rights, to ask his
permission for the search. Whatever may be the case
when the individual at whom a search is aimed cannot be
found by the police, only callous disregard for the Fourth
Amendment can justify allowing the police to bypass a
man whom they hold confined and seek a waiver of his
rights at the hands of another. “It is important to bear
29 The facts in Amos upon which this Court found consent ineffective
were as follows: “Coleman and Rector . . . as deputy collectors of Internal
Revenue . . . went to defendant’s home and, not finding him there, but
finding a woman who said she was his wife, told her they were revenue
officers and had come to search the premises ‘for violations of the revenue
law’; . . . thereupon the woman opened the store and the [offieers] . . .
entered, and in a barrel of peas found a bottle containing not quite a
half-pint of illicitly distilled whiskey . . .; and . . . they then went into
the home of the defendant and on searching found two bottles under the
quilt on the bed, one of which contained a full quart, and the other a little
over a quart of illicitly distilled whiskey.” 255 U.S. at 315.
32
in mind that it was the petitioner’s constitutional right
which was at stake here...” Stoner v. California, 376
U.S. 483, 487 (1964). And it would be callousness com-
pounded to allow such bypassing where, as here, the police
are detaining their prisoner incommunicado, preventing
him, in flagrant violation of Escobedo v. Illinois, 378 US.
478 (1964), from calling upon a lawyer for his protection
or from phoning the very persons at home whose consent
to search the police are then actively seeking.
Moreover, any rule which would permit one cotenant,
without actual authority from another, to waive the lat-
ter’s Fourth Amendment rights ignores the intimate re-
lationship between the Fourth and Fifth Amendments
which this Court has long remarked. Boyd v. United States,
116 U.S. 616, 633-635 (1886); see Mapp v. Ohio, 367 U.S.
643, 657 (1961). Whatever its modern extensions, the
Fourth Amendment has at its core a prohibition of war-
rantless official entries designed to secure incriminating
evidence against a criminal suspect. Entick v. Carring-
ton, 19 How. St. Tr. 1029 (C.P. 1765) ; Frank v. Maryland,
359 U.S. 360, 365 (1959). Entries of this sort are dis-
similar to other entries, both by reason of their practical
consequences and because the historical experience em-
bodied in the Fourth Amendment has singled them out
as a source of especial concern. See United States v. Blok,
188 F.2d 1019 (D.C. Cir. 1951). And so it does not follow
that, because petitioner’s mother might have admitted a
friend, relative or the exterminator to petitioner’s bed-
room closet, she could consistently with the Fourth Amend-
ment admit a policeman in quest for evidence of petition-
er’s guilt. Of actual authority to permit this incriminating
search, petitioner’s mother had none. Petitioner believes
this Court spoke generally, and not with reference only
to the landlord-tenant relationship, when it said in Stoner
ee ee ae ee
33
v. California, supra: “Our decisions make clear that the
rights protected by the Fourth Amendment are not to be
eroded by strained applications of the law of agency or
by unrealistic doctrines of ‘apparent authority.’ ” 376 U.S.
at 488. Nothing more than an unrealistic finding of ap-
parent authority supports the death sentence on this record.
Certiorari should be granted to determine whether
Arkansas’ death penalty for rape is unconstitutional
because (A) an unrebutted prima facie showing has
been made of its racial application, in violation of the
equal protection clause of the Fourteenth Amendment,
or (B) its allowance to the jury of unfettered discre-
tion to impose capital punishment for all offenses of
rape, in the absence of aggravating circumstances,
permits cruel and unusual punishment in violation of
the Eighth and Fourteenth Amendments.
A. Petitioner’s Equal Protection contention, wrongly
rejected below presents an important question for
consideration by this Court on certiorari.
Seventeen American States retain capital punishment
for rape. Nevada permits imposition of the penalty only
if the offense is committed with extreme violence and great
bodily injury to the victim;*° the remaining sixteen juris-
dictions—which allow their juries absolute discretion to
punish any rape with death—are all southern or border
states.*! The federal jurisdiction and the District of Colum-
30 Nev. Rev. Stat. §200.360 (1963). See also §200.400 (aggravated as-
sault with intent to rape).
31 The following sections punish rape or carnal knowledge unless other-
wise specified. Ala. Code §§14-395, 14-397, 14-398 (Reeomp. Vol. 1958) ;
Ark. Stat. Ann. §§41-3403, 43-2153 (1964 Repl. Vols.) ; see also §41-3405
(administering potion with intent to rape); §41-3411 (foreing marriage) ;
Fla. Stat. Ann. §794.01 (1964 Cum. Supp.); Ga. Code Ann. §§26-1302,
34
bia, with its own strong southern traditions, also allow
the death penalty for rape.”
Between 1930 and 1962, the year in which petitioner was
sentenced to die, 446 persons were executed for rape in
the United States. Of these, 399 were Negroes, 45 were
whites, and 2 were Indians. All were executed in Southern
or border States or the District. The percentages—89.5%
Negro, 10.1% white—are revealing when compared to simi-
lar racial percentages of persons executed during the
same years for murder and other capital offenses. Of the
total number of persons executed in the United States,
1930-1962, for murder, 49.1% were Negro; 49.7% were
white. For other capital offenses, 45.6% were Negro;
54.4% were white. Louisiana, Mississippi, Oklahoma, Vir-
ginia, West Virginia and the District of Columbia never
executed a white man for rape during these years. To-
gether they executed 66 Negroes. Arkansas, Delaware,
Florida, Kentucky and Missouri each executed one white
man for rape between 1930 and 1962. Together they exe-
cuted 71 Negroes. Putting aside Texas (which executed
13 whites and 66 Negroes), sixteen Southern and border
States and the District of Columbia between 1930 and
1962 executed 30 whites and 333 Negroes for rape: a ratio
26-1304 (1963 Cum. Supp.); Ky. Rev. Stat. Ann. §435.090 (1963); La.
Rev. Stat. Ann. §14:42 (1950) (called aggravated rape but slight force
is sufficient to constitute offense; also includes carnal knowledge); Md.
Ann. Code, art. 27, §§461, 462 (1957); see also art. 27, §12 (assault with
intent to rape); Miss. Code Ann. §2358 (Recomp. Vol. 1956); Vernon’s
Mo. Stat. Ann. §559.260 (1953); N.C. Gen. Stat. §14-21 (Recomp. Vol.
1953); Okla. Stat. Ann., tit. 21, §§1111, 1114, 1115 (1958); S.C. Code
Ann. §§16-72, 16-80 (1962) (includes assault with attempt to rape as well
as rape and carnal knowledge); Tenn. Code Ann. §§39-3702, 39-3703,
39-3704, 39-3705 (1955); Tex. Pen. Code Ann., arts. 1183, 1189 (1961);
Va. Code Ann. §18.1-44 (Repl. Vol. 1960); see also §18.1-16 (attempted
rape).
3218 U.S.C. §2031 (1964); 10 U.S.C. §920 (1964); D.C. Code Ann.
§22-2801 (1961).
35
of better than one to eleven. Clearly, unless the incidence
of rape by Negroes is many times that of rape by whites,
capital punishment for rape survives in the twentieth cen-
tury principally as an instrument of racial repression.”
33 The figures in this paragraph are taken from Unrrep States Depart-
MENT OF JUSTICE, BuREAU oF Prisons, NATIONAL Prisoner STATISTICs,
No. 32; Executions, 1962 (April 1963). Table 1 thereof shows the fol-
lowing executions under civil authority in the United States between
1930 and 1962:
Number
Per Cent
Number
Per Cent
MURDER
Total White Negro
3298 1640 1619
100.0 49.7 49.1
RAPE
Total White Negro
446 45 399
100.0 10.1 89.5
OTHER OFFENSES
Total White Negro
68 37 31
100.0 54.4 45.6
Other
39
12
Table 2 thereof shows the following executions under civil authority in the
United States between 1930 and 1962, for the offense of rape, by State:
District of Columbia
Florida
White Negro
@| wensnhuoBeteBEwutBe
46
If thie be eo—if the raclally unequal resulta in’ these
States derive from any cause Which takes account of race
as a factor in meting out punishment——-a Negro punished
by death isn denied, in the moat radical sense, the equal
protection of the laws. One of the cardinal purposes: of
the Fourteenth Amendment was the elimination of racially
discriminatory eriminal sentencing. The Mirat Civil Rights
Act of April 9 1866, eh. 31, 91, t4 Stat. 27, declared the
Negroes citizens of the United States and guaranteed that
“auch citizens, of every race and color, .. . shall be sub-
ject to like punishment, pains, and penalties [as white
citizens], and to none other, any law, atatute, ordinance,
regulation, or custom, to the contrary notwithstanding.”
The Pourteenth Amendment was designed to clevate the
Civil Rights Act of 1866 to constitutional stature. See,
eg, tenBroek, Thirteenth Amendment to the Constitution
of the United States, 39 Cave, L. Rev. 171 (1951); air-
man, Does the Fourteenth Amendment Incorporate the
Bul of Rights, 2 Svan. L. Rev. 5 (1949). The Enforce-
ment Act of May 31, 1870, ch. 114, §§16, 18, 16 Stat. 140,
144, implemented the Amendment by reenacting the 1866
act and extending its protection to all persons. This ex-
plicit statutory prohibition of racially discriminatory sen-
* The contention that racially discriminatory application of the death
penalty in rape cases denies equal protection has been raised in a number
of cases now pending in state and federal courts. See, eg., Mitchell v.
Stephens, IRQ F. Supp. 497, 507 (ELD. Ark. 1964), appeal pending;
Moorer v. MacDougall, U.S. Dist. Ct, E.D.S.C., No. AC-1583, petition
fer writ of habeas corpus pending; Aeron Vv. Holman, U.S. Dist. Ct.,
M.D. Ala. C.A, No. 2170-N, proceedings on petition for writ of habeas
corpas stayed pending exhaustion of state remedies July 2, 1965; Swain
v. dladame, Ala. Sup. Ct.. 7 Div. No. 699, petition for leave to file peti-
tem for writ of error coram nobis denied June 25, 1965; Alabama v.
Bukagsiey. Cir. Ct. Etowah County, No. 1159, motion for new trial and
motion for redaction of sentence pending; Craig v. Florida, Sup. Ct. Fla.,
Ne. 34.101, appeal from denial of motion for reduction of sentence pend-
ime: Lowisiama ex rei. Scott v. Hanchey, 20th Jud. Dist. Ct., Parish of
West Feliciana. petition for habeas corpus pending.
DE i NERA ot ON Nat tm
a7
fencing survives tuday us Kev. Srat. 61977 (1876), 42
U.S.C. §1981 (1964),
For purposes of the prohibition, it is of course imma-
terial whether a State writes on the face of its statute
hooks: “Rape shall be punishable by imprisonment .. .,
except that rape by a Negro of a white woman, or any
other aggravated and atrécions rape, shall be punishable
hy death by electrocution,” or whether the State's juries
read a facially color-blind statute to draw the same racial
line, Discriminatory application of a statute fair upon
its face ix more difficult to prove, but no less violates: the
Stute’s obligation to afford all persons within its juris-
diction the equal protection of the laws. E.g., Yick Wo v.
Hopkins, 118 U.S. 356 (1886); Niemotko v. Maryland, 240
U.S. 268 (1951) (alternative ground); Mowler v. Rhode
Island, 345 U.S. 67 (1953); Hamilton v. Alabama, 376 US.
650 (1964) (per curiam). And it does not matter that
the discrimination is worked by a number of separate
juries functioning independently ‘of each other, rather
than by a single state official. However it may divide re-
sponsibility internally, fhe State is federally obligated to
assure the equal application of its laws. This Court has
long sustained claims of discriminatory jury exclusion
95 It is also immaterial whether a State imposes different penalties for
classes of cases defined in terms of race, gy whether it imposes a penalty
of death in all cases of a given crime, subject to the option of the jury
in some racially defined sub-class of the cases. The Fourteenth Amend-
ment’s obligation of equality extends not only to those “rights” which a
State is federally compelled to give its citizens, but also to any benefits
the State may choose to give any class of them, however gratuitously.
Brown v. Board of Education, 347 U.S. 483 (1954); Watson v. City of
Memphis, 373 U.S. 526 (1963).
36 Execution by the State of the death sentence which it has given juries
discretion to impose clearly provides that “interplay of governmental and
private action,” N.A.A.C.P. v. Alabama, 357 U.S. 449, 463 (1958). quoted
in Anderson v. Martin, 375 U.S. 399, 403 (1964), whieh makes the State
responsible for the diserimination. Shelley v. Kraemer, 334 U.S. 1 (1948).
38
upon a showing of exclusion continuing during an extended
period of years, without inquiry whether the same jury
commissioners served throughout the period. E.g., Neal
v. Delaware, 103 U.S. 370 (1881); Bush v. Kentucky, 107
U.S, 110 (1882); Hernandez v. Texas, 347 U.S. 475 (1954).
Congress, when it enacted the 1866 Civil Rights Act know-
ing that “In some communities in the South a custom pre-
vails by which different punishment is inflicted upon the
blacks from that meted out to whites for the same of-
fense,” " intended precisely by the Act, and subsequently
by the Fourteenth Amendment, to disallow such “custom”
as it operated through the sentences imposed by particular
judges and juries."
So the question on this record is one of proof: whether
petitioner has made a sufficient showing of racially dis-
eriminatory capital sentencing under Arkansas’ rape stat-
utes. The court of appeals below held that he had not,
and in so holding rested its decision upon two principles
of sufficient generality and importance to merit this Court’s
review on certiorari. First, the court of appeals rejected
without discussion petitioner’s attempt to apply the “prima
facie” evidence principle of the jury-exclusion cases to
proof of sentencing discrimination. Stating that “the bur-
den is on the one asserting discrimination” (C.A. 6), it
declined to find that burden carried because: “The cir-
cumstances of each rape case have particular pertinency.
We are given no information as to how many Negroes and
how many whites, after investigation, were not charged”
(C.A. 9). Second, it rejected petitioner’s attempt to draw
37 Cone. Guose, 39th Cong., Ist Sess. 1758 (4/4/1866) (remarks of
Senator Trambuall, who introduced, reported and managed the bill which
became the act).
38 See the text of the act supra; see also, e.g., Conc. GLose, 39th Cong.,
lst Sess. 475 (1 29 1866), 1759 (4/4/1866) (remarks of Senator Trum-
ball).
Mae etl BR A hen ae ene BN an MD
39
evidentiary support from the fifty-year history of admin-
istration of capital punishment for rape in Arkansas, on
the ground that “The defense argument goes too far and
would, if taken literally, make prosecution of a Negro im-
possible in Arkansas today because of the existence in
the past of standards which are now questionable.” (C.A.
9.) Together, these grounds make proof of discrimination
in the application of the death penalty nigh impossible.
Petitioner does not seek to tangle the State of Arkansas
in past sins. He seeks only a fair opportunity to demon-
strate the obvious: that his present incarceration under
sentence of death is the product of a long-continued and
continuing system of discriminatory administration of
justice, operating in every gap of discretion left by the
State’s written law, to deny him equal treatment and
subject him to extreme punishment which in practice is
virtually never applied to the white man, but is reserved
as the ultimate weapon of terror to hold the Negro in his
place. To show this, he relies on the past, and necessarily
so. “Institutions, like other organisms, are predominantly
what their past has made them. History provides the
illuminating context within which the implications of pres-
ent conduct may be known.” Communist Party v. Sub-
verswe Activities Control Board, 367 U.S. 1, 69 ( 1961). It
is unreasonable to seek to understand petitioner’s death
sentence in isolation from history—most pertinently, Ar-
kansas’ long-time practice of systematic jury exclusion,
see, e.g., Bailey v. Henslee, 287 F.2d 936 (8th Cir. 1961) ;
Henslee v. Stewart, 311 F.2d 691 (8th Cir. 1963), and
Arkansas’ fifty-year experience in the exercise of jury ‘dis-
cretion to impose the death sentence for rape. This Court
has looked far into the past in jury-exclusion cases, e.g.,
Arnold v. North Carolina, 376 U.S. 773 ( 1964), and by the
nature of things proof of capital sentencing discrimina-
40
tion requires a still more extended canvass. For the death
sentence is rarely imposed; it is a random scourge—albeit
applied better than nine times to one against a Negro.
Petitioner asks this Court to consider whether he has
not made a prima facie showing of discrimination, suffi-
cient to throw some burden of explanation on the State.
Because of the Fourteenth Amendment’s overriding pur-
pose to secure racial equality, “racial classifications [are]
‘constitutionally suspect,’ .. . and subject to the ‘most
rigid scrutiny.’ ...” McLaughlin v. Florida, 379 U.S. 184,
192 (1964). This principle has as its corollary that a suffi-
cient initial showing of unequal treatment of the races is
made, calling State procedures in question, whenever it
appears that the races are substantially disproportion-
ately represented in groups of persons differently dis-
posed of under those procedures: such a showing compels
the inference that a State is drawing the racial line unless
the State offers some justification in non-racial factors for
the disproportion. E.g., Norris v. Alabama, 294 U.S. 587
(1935); Hernandez v. Texas, 347 U.S. 475 (1954); Reece
v. Georgia, 350 U.S. 85 (1955); Eubanks v. Loutsiana, 356
U.S. 584 (1958); Gomillion v. Lightfoot, 364 U.S. 339
(1960) ; cf. Oyama v. California, 332 U.S. 633 (1948). Here
the disproportion is extreme: more than nine executed
Negroes to one executed white over fifty years. The dis-
trict court impermissibly circumscribed petitioner’s proof
by limiting to three counties his inquiry into the causes of
the disproportion, but the evidence taken in the counties—
treated by the district court as a “trial run” and appar-
ently thought by the court of appeals not unrepresentative
of the State (C.A. 18)—clearly negatived the possibility
that the nine-and-a-half to one ratio was accounted for by
differing numbers of rape convictions for the races. Three
whites to two Negroes were charged, and an equal num-
ber of whites and Negroes convicted of rape.
41
This alone should suffice to make an initial showing of
racial discrimination and throw the burden of explenation
to the State. Of course it is true, as the court of appeals
said, that the circumstances of each particular rape case
are significant for sentencing. To determine with scien-
tific precision the influence of the racial factor in capital
sentencing, it would be desirable to gather data concern-
ing, and to hold constant, other potential factors: the
number of assailants and victims in a rape episode, the
ages of the defendant and the prosecutrix, the character
of each, the degree of force which the sentencing jury
could find that the defendant employed, and the degree
of resistance with which he was met, the extent of injury
if any to the prosecutrix—in all, an innumerable host of
details about the parties, the offense and the trial. Many
of these matters cannot be shown with respect to past
rape prosecutions. Many can, and with far more ease by
the State than by the petitioner. Whatever the State can
show in explanation should be permitted to be shown and
then evaluated. The issue on the present record is whether
the State has any obligation to show anything, or whether
it may rest silent in the teeth of evidence that more than
nine times the number of Negroes than whites convicted
of rape are sentenced to death.
This Court should hold that the State may not rest on
such a record. Several considerations support the holding.
First, the hypothesis of racial discrimination is particu-
larly likely in view of the coincidence between the Arkansas
figures and those of the other jurisdictions—all southern—
which have executed persons for rape during the past
thirty years. For all jurisdictions, the Negro-white ratio
is nine to one—although for other crimes than rape it is
about one to one. Studies and observations by students of
the criminal process tend to support the hypothesis of
42
discrimination. E.g., Bullock, Significance of the Racial
Factor in the Length of Prison Sentences, 52 J. Crim. L.,
Crim. & Pou. Scr. 411 (1961); Wolfgang, Kelly & Nolde,
Comparison of the Executed and the Commuted among
Admissions to Death Row, 53 J. Crim. L., Camm. & Pot. Sct.
301 (1962); Hartung, Trends in the Use of Capital Pun-
ishment, 284 Annas 8, 14-17 (1952) ; WerHoren, THE Urce
to PunisH 164-165 (1956).
Second, the broader picture of Arkansas life and law
cannot be ignored. The State’s resistance to the rights of
Negro school children and to the law of the land at Little
Rock, its pattern of excluding Negroes from its criminal
juries, have a place in the estimate of probabilities. Ar-
kansas still by statute forbids the intermarriage of whites
with Negroes, Ark. Stat. Ann. §§55-104, 55-105 (1947),
and punishes interracial cohabitation (called concubinage)
as a felony, although intraracial cohabitation is a misde-
meanor, Ark. Stat. Ann. §§41-805 to 41-810 (1964). The
lesson it thus officially teaches its citizens respecting the
abhorrence in which even voluntary interracial sexual re-
lations should be held cannot help but have an impact on
the views which a criminal jury will hold of an interracial
rape. Cf. Peterson v. City of Greenville, 373 U.S. 244
(1963) ; Lombard v. Louwtstana, 373 U.S. 267 (1963); Rob-
mson v. Florida, 378 U.S. 153 (1964).*°
Third, the absolute discretion which Arkansas law gives
jurors to decide between life and death, undirected by any
rational standards for making that decision, see part
39 On the statute books of Arkansas still stand requirements of segre-
gation in railroads (including waiting rooms), Ark. Stat. Ann. §73-1218
(1957), street cars, Ark. Stat. Ann. §73-1614 (1957), buses, Ark. Stat.
Ann. §73-1747 (1957), schools, Ark. Stat. Ann. §80-509 (1960), penal
institutions, Ark. Stat. Ann. §§46-144, 46-145 (1964), deaf and blind in-
stitutes for children, Ark. Stat. Ann. §80-2401 (1960), chain gangs, Ark.
Stat. Ann. §76-1119 (1957), and any “establishment where gaming is
legal,” Ark. Stat. Ann. §84-2724 (1960).
43
III(B), wfra, invites the influence of arbitrary and dis-
criminatory considerations. This Court has long been
concerned with a vagueness of criminal statutes which
“licenses the jury to create its own standard in each
case.” Herndon v. Lowry, 301 U.S. 242, 263 (1937). See,
e.g., Smith v. Cahoon, 283 U.S. 553 (1931); Cline v. Frink
Dairy Co., 274 U.S. 445 (1927); Connally v. General Con-
struction Co., 269 U.S. 385 (1926); Winters v. New York,
333 U.S. 507 (1948). The vice of such statutes is not
alone their failure to give fair warning of prohibited con-
duct, but the breadth of room they leave for jury caprice
and suasion by impermissible considerations, N.A.A.C.P.
v. Button, 371 U.S. 415, 432-433 (1963) ; Freedman v. Mary-
land, 380 U.S. 51, 56 (1965); Lewis, The Sit-In Cases:
Great Expectations, [1963] Supreme Court Review 101,
110; Note, 109 U. Pa. L. Rev. 67, 90 (1960), including racial
considerations, see Louisiana v. United States, 380 U.S.
145 (1965); Dombrowski v. Pfister, 380 U.S. 479 (1965) ;
Cox v. Loutsiana, 379 U.S. 536 (1965). Unlimited sentenc-
ing discretion in a capital jury presents this vice in the
extreme. To paraphrase Joseph Burstyn, Inc. v. Wilson,
343 U.S. 495, 505 (1952): “Under such a standard the most
careful and tolerant [lay juror] . . . would find it virtually
impossible to avoid favoring one [race] .. . over another.”
Petitioner requests the Court to grant certiorari, that it
may review and reverse the judgment of the court of ap-
peals, which cast an unwarranted and impossible burden
upon petitioner in demonstrating that he had been denied
equal treatment in the most grievous penalty known to law.
a4
B. The Court should grant certiorari to consider
petitioner’s contention that his sentence is un-
constitutional under the Eighth and Fourteenth
Amendments.
The issue which three Justices of the Court thought
deserving of certiorari in Rudolph v. Alabama, 375 U.S.
889 (1963), was deemed by the court of appeals below one
which “must be for the Supreme Court in the first in-
stance.” P. 16, supra. The Fourth Circuit has taken the
same view. Ralph v. Pepersack, 335 F.2d 141 (4th Cir.
1964). Petitioner respectfully requests the judgment of
the Court on the issue.
The question is not. in this aspect, whether on any
rational view which one might take of the purpose of
criminal punishment, the defendant's conduct as the jury
might have found it at its worst on this record could sup-
port a death sentence consistent with civilized standards
for the administration of criminal law. As the issue of
penalty was submitted to the jury in their unlimited dis-
cretion under Arkansas procedure,” their attention was
directed to none of the purposes of criminal punishment,
nor to any aspect or aspects of the defendant’s conduct.
They were not invited to consider the extent of physical
harm to the prosecutrix, the moral heinousness of the
defendants’ acts, his susceptibility or lack of susceptibility
to reformation, the extent of the deterrent effect of killing
the defendant “pour décourager les autres.” Cf. Packer,
Making the Punishment Fit the Crime, 77 Harv. L. Rev.
1071 (1964). They were permitted to choose between life
and death upon conviction for any reason, rational or
irrational, or for no reason at all: at a whim, a vague
caprice, or because of the color of petitioner’s skin if that
** Allison V. State, 204 Ark. 609, 164 S.W.2d 442 (1942); Rorie v. State,
215 Ark. 282. 220 S.W.2d 421 (1949).
45
did not please them. In making the determination to
impose the death sentence, they acted wilfully and un-
reviewably, without standards and without direction.
Nothing assured that there would be the slightest thread
of connection between the sentence they exacted and any
reasonable justification for exacting it. Cf. Skinner v.
Oklahoma, 316 U.S. 535 (1942). A judgment so uncon-
fined, so essentially erratic, is per se eruel and unusual
because it is purpoxeless, lacking in any relationship by
which its fitness to the offense, or to the offender or to
any legitimate social purpose may be tested. It is cruel
not only because it is extreme but because it is wanton;
and unusual not only because it is rare, but because the
decision to remove the defendant from the ordinary
penological regime is arbitrary. To concede the complex-
ity and interrelation of sentencing goals, see Packer, supra,
is no reason to sustain a statute which ignores them all.
It is futile to put forward justifications for a death so
inflicted ; there is no assurance that the infliction responds
to the justification or will conform to it in operation.
Inevitably under such a sentencing regime, capital punish-
ment in those few, arbitrarily selected cases where it is
applied both is “ ‘disproportioned to the offenses charged’ ”
and constitutes “‘ unnecessary cruelty.” Rudolph v. Ala-
bama, supra, 375 U.S. at 891." :
‘!The United States Department of Justice has taken the following.
position on continued imposition of the death penalty: “We favor the
abolition of the death penalty. Modern penology with its correctional and
rehabilitation skills affords greater protection to society than the death
penalty which is inconsistent with its goals. This Nation is too great in
its resources and too good in its purposes to engage in the light of present
understanding in the deliberate taking of human life as either a punish-
ment or a deterrent to domestie crime.” Letter of Deputy Attorney
eral Ramsey Clark to the Honorable John L. MeMillan, Chairman, Dis-
trict of Columbia Committee, House of Representatives, July 23, 1965,
reported in New York Times, July 24, 1965, p. 1, eol. 5.
46
Certiorari should be granted to determine whether
use of poll tax books containing racial designations,
as required by atatute, in the system of jury selection
ia constitutional,
This Court has long made clear that “Jurymen should
be selected as individuals, on the basis of individual quali-
fications, and not as members of a race.” Cassell v. Tewas,
B89 US, Wx, WEL|7_ Petitioner contends that the jury selee-
tion procedures established by state law and used in
Garland County, Arkansas, encourage and permit the se-
lection of jurors on the basis of race, in violation of the
Fourteenth Amendment.
In Garland County, petit jury lists are selected by a
jury commission consisting of three commissioners who
meet together periodically and draw up a list of names
(Tr. 47, 64). They rely primarily on their knowledge of
persons in the community (Tr. 61), but also use a telephone
book (Tr. 60, 77) and a list of persons who have previ-
ously served (Tr. 55, 77). At the time of petitioner’s trial,
only qualified electors who had paid the poll tax were eli-
gible to be jurors.*? Thus the jury commissioners checked
the poll tax books to determine whether the persons they
had selected were qualified. In accordance with statute,
Ark. Stat. Ann. (3-118 (1956), the poll tax books desig-
nated the race of all qualified electors (Tr. 57, 59).
In the recent case of Hamm v. Virginia State Board of
Elections, 230 F. Supp. 156 (E.D.Va. 1964) aff'd sub nom.
Tancd v. Woolls, 379 U.S. 19, a three-judge district court
declared that Virginia statutes requiring that lists of
*2In November, 1964, Arkansas approved a constitutional amendment
outlawing the pol] tax. Ark. Const., Amend. 51.
Pea
47
voters and taxpayers be kept in separate books according
to race violated the Fourteenth Amendment. The district
court stated that it was now
axiomatic that no State ean directly or casually pro-
mote a distinetion in the treatment of persons solely
on the basis of their color. To be within the condem-
nation, the governmental action need not effectuate
segregation of facilities directly. Cf. Anderson v.
Martin, 375 U.S. 309, 402, 84S, Ct. 454, 11 L. Ed. 439
1964, The result of the statute or policy must not
tend to separate individuals by reason of difference
in race or color, No form of State discrimination, no
matter how subtle, is permissible under the gnarantees
of the Fourteenth Amendment. 280 F. Supp. at 157-
158.
One of the Virginia statutes struck down dealt specifically
with poll tax lists.‘
The court of appeals in this case, however, merely stated
that the JIamm case “appears to cast some doubt on [the]
validity” of racially designated poll tax books (C.A. 15).
By refusing to give full weight to the three-judge court's
decision and this Court’s affirmance, the court of appeals
was able, in a capital case, to avoid the full force of
petitioner’s constitutional claim. The court should have
acknowledged that racially designated poll tax books are
unconstitutional and should have examined Arkansas’ jury
selection procedures from this starting point. Its failure
to do this, and the consequent need for clarification of the
issue, is reason enough for this Court to grant certiorari.
The court of appeals tried to minimize the significance
of the racially designated poll tax books on the ground that
‘The Arkansas statute differs in that it does not eall for separate
books, but this distinction is without significance.
48
the jury commissioners drew up an independent list of
jurors before consulting the poll tax book. ut the fact
that an independent list is drawn up first does not elimi- ©
nate the many opportunities for discrimination created by
the statutorily imposed system of racial designations.
A selection procedure which provides unnecessary oppor-
tunities for discrimination violates the Fourteenth Amend-
ment. In Avery v. Georgia, 345 U.S. 559, a conviction was
reversed because the names of potential jurymen were
placed on different colored slips according to race. The
trial judge testified that he selected the slips without re-
gard to color, but Chief Justice Vinson stated that “Even
if the white and yellow tickets were drawn from the jury
box without discrimination, opportunity was available to
resort to it at other stages in the selection process.” /d.
at 562. And Justice Frankfurter, concurring said: “We
may accept the testimony of the judge who drew the
slips from the box as to the honesty of his purpose; that
testimony does not refute the fact that there were oppor-
tunities to discriminate, as experience tells us there will
inevitably be when such differentiating slips were used.
Id. at 564.
That a state must not provide unnecessary “opportu-
nities to discriminate” is also shown by Anderson v. Martin,
375 U.S. 559, where this Court ended the Louisiana prac-
tice of designating the race of all candidates for public
office. There was, of course, no positive proof that these
racial designations in any way influenced the voting pat-
terns of Louisiana citizens. Nonetheless, the Court held
that the designations were unconstitutional because the
state was indicating that race was “an important—per-
haps paramount—consideration” in a voter’s choice. Jd.
at 402. The Court added that a state cannot “encourage
its citizens to vote for a candidate solely on account of
hates eta
49
race. Cf. Steele v. Louisville d N. R. Co., 323 US. 192,
203, 89 L. Ed. 173, 183, 65 S. Ct. 226 (1944). And that
which cannot be done by express statutory prohibition
cannot be done by indirection.” Jd. at 404. In the jury
situation it is clear that a state cannot encourage, or even
permit, its jury commissioners to select juries on the basis
of race. But the Arkansas procedure, “by indirection,”
both permits and encourages selection along racial lines.
The Court of Appeals, having held against petitioner
on the merits, stated that it was “unnecessary to consider
the argument [raised in the district court] that Maxwell
waived any objections to the petit jury panel and did so
within the permitted scope of Fay v. Noia, supra, 372 U.S.
438-40 (1963).” The district court had strongly suggested
that petitioner waived his rights with respect to jury se-
lection by failing to raise the issue in the state courts. It
relied on the fact that the attorney who represented psti-
tioner in the state courts was aware of petitioner’s con-
stitutional rights and familiar with the procedure for
selecting jurors in Garland County. The district court
also noted the trial attorney’s testimony that he had “dis-
cussed the jury panel” with petitioner. It apparently in-
terpreted this testimony as meaning that the attorney had
discussed with Maxwell the jury selection procedures used
in Arkansas. A more plausible interpretation is that the
attorney merely talked with petitioner about the desir-
ability of certain jurors. There was no explicit evidence
‘hat the attorney discussed with petitioner the question of
raising or not raising a challenge to the method of jury
selection by motion to quash, and, in fact, the attorney
testified that he never gave petitioner this choice (Tr. 297-
298, 305-306). There is no evidence that petitioner knew
or understood the nature of the right involved or the par-
ticular practices of the jury commission attacked here.
50
Waiver of a constitutional right is the “intentional re-
linquishment or abandonment of a known right or privi-
lege.” Johnson v. Zerbst, 304 U.S. 458, 464. In Fay v.
Nota, 372 U.S. 391, this Court declared that “the doctrine
of fictitious waiver is unacceptable.” The strict standards
required by the courts before finding waiver of the con-
stitutional right to a jury chosen without discriminaticn
on account of race are set forth in a line of Fifth Circuit
cases. United States ex rel. Goldsby v. Harpole, 263 F.2d
71 (5th Cir. 1959), cert. denied, 361 U.S. 838; United States
ex rel. Seals v. Wiman, 304 F.2d 53 (5th Cir. 1962), cert.
denied 372 U.S. 924; Whitus v. Balkcom, 333 F.2d 496 (5th
Cir. 1964), cert denied, 379 U.S. 93; Cobb v. Balkcom, 339
F.2d 95 (5th Cir. 1964). In Goldsby and Seals, as in the
case of petitioner, “the important fact . . . was that the
attorney for the Negro defendant did not consult his client
with regard to his decision to refrain from making attacks
on the jury system.” Whitus, supra, 333 F.2d at 502. Thus
the fact that trial counsel did not raise the issue with re-
spect to county jury selection methods can in no way
prejudice petitioner, for petitioner was never actually
consulted concerning the attorney’s failure to raise the
issue.
ol
CONCLUSION
For the foregoing reasons the petition for writ of
certiorari should be granted.
Respectfully submitted,
Jack GREENBERG
James M. Nasrit, IIT
MicHAEL MELTSNER
Leroy D. Cuark
Frank H. Herrron
10 Columbus Circle
New York, New York 10019
Greorce Howarp, Jr.
32914 Main Street
Pine Bluff, Arkansas
Harotp B. ANpDERSON
205 Century Building
Little Rock, Arkansas
AntHony G. AMSTERDAM
3400 Chestnut Street
Philadelphia, Pennsylvania
Attorneys for Petitioner
‘
IN THE
Supreme Court of the United States
WILLIAM L. MAXWELL,
*»
Petitioner,
v.
DAN D. STEPHENS, Superintendent of Arkansas
State Penitentiary.
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
GEORGE HOWARD, Jr. JACK GREENBERG
32914 Main Street JAMES M. NABRIT, III
Pine Bluff, Arkansas MICHAEL MELTSNER
LEROY D. CLARK
FRANK H. HEFFRON
HAROLD B. ANDERSON 10 Columbus Circle
205 Century Building New York, New York 10019
Little Rock, Arkansas ‘
ANTHONY G. AMSTERDAM
3400 Chestnut Street
Philadelphia, Pennsylvania
Attorneys¥or Petitioner
—_
Anited States Court of Appeals
For THE E1gHtu Circuit
No. 17,729
September Term, 1964
&
Wiiuum L. Maxwet.,
Appellant,
vs.
Dan D. Steruens, Superintendent of Arkansas
State Penitentiary.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF ARKANSAS
Judgment of Court of Appeals
This cause came on to be heard on the original files of
the United States District Court for the Eastern District
of Arkansas, and was argued by counsel.
On Consideration Whereof, It is now here Ordered and
Adjudged by this Court that the Order of the said District
Court entered May 6th, 1964 in this cause, denying peti-
tion for writ of habeas corpus be, and the same is hereby,
affirmed, in accordance with majority opinion of this Court
this day filed herein.
June 30, 1965.
Order entered in accordance
with majority opinion :—
Rosert C. Tucker
Clerk, U. S. Court of Appeals
for the Eighth Circuit.
2a
Opinion of Court of Appeals
UNITED STATES COURT OF APPEALS
For THE E1igHtuH Crrcvit
No. 17,729
WituuaM L. Maxwe.t,
Appellant,
v.
Dan D. StepuHens, Superintendent of Arkansas
State Penitentiary,
7 Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF ARKANSAS
[June 30, 1965. ]
Before Matrues, BLackmun, and Ripeg, Circuit Judges.
Buacxmun, Circuit Judge.
William L. Maxwell, a Negro possessing an eighth grade
education, stands convicted by a jury in the Circuit Court
of Garland County, Arkansas, of the crime of rape, as de-
fined by § 41-3401, Arkansas Statutes 1947. The offense
was committed on November 3, 1961. Maxwell at the time
was 21 years of age. The jury did not “render a verdict
3a
Opinion of Court of Appeals
of life imprisonment in the State penitentiary at hard
labor”, as it had the right to do under §{§ 43-2153 and
41-3403, and for which it had been given an alternate ver-
dict form. As a consequence, and in line with the inter-
pretation consistentlyg given {43-2153 by the Supreme
Court of Arkansas,’ the death sentence was imposed. On
appeal the conviction was affirmed. Mazwell v. State, 236
Ark. 694, 370 S.W.2d 113 (1963).?
Four days before the execution date which was fixed
following that unsuccessful appeal Maxwell filed a petition
for a writ of habeas corpus in the United States District
Court for the Eastern District of Arkansas. Judge Young
conducted a hearing on the federal constitutional issues
raised by that petition. Briefs were filed. The court
wrote a detailed opinion denying the relief requested,
Maxwell v. Stephens, 229 F.Supp. 205 (E.D. Ark. 1964),
but then granted Maxwell’s petition for a certificate of
probable cause, as contemplated by 28 U.S.C. § 2253, and
further stayed execution.
Except for an early period prior to the state trial when
court appointed attorneys were in the case, Maxwell has
been represented through all the state and federal pro-
ceedings by competent, although different, non-court-ap-
pointed counsel.
1 Kelley v. State, 133 Ark. 261, 202 S.W. 49, 54 (1918); Bullen v. State,
156 Ark. 148, 245 S.W. 493, 494 (1922) ; Clark v. State, 169 Ark. 717, 276
S.W. 849, 853-54 (1925); Smith v. State, 205 Ark. 1075, 172 S.W.2d 248,
249 (1943); Turner v. State, 224 Ark. 505, 275 S.W.2d 24, 31 (1955);
Stewart v. State, 233 Ark. 458, 345 S.W.2d 472, 475 (1961), cert, denied
368 U.S. 935.
2 No petition for certiorari was filed with the Supreme Court of the
United States. This of course no longer constitutes a failure to exhaust
available state remedies. Fay v. Noia, 372 U.S. 391, 435-38 (1963) ; Curtis
v. Boeger, 331 F.2d 675 (8 Cir. 1964).
da
Opinion of Court of Appeals
We note, as we have noted before in other cases of this
type,’ that Maxwell’s guilt or innocence is not in issue
before us. This is still another situation where, as the
United States Supreme Court described the posture of an
earlier Arkansas case, “ ... what we have to deal with
is not the petitioners’ innocence or guilt but solely the
question whether their constitutional rights have been
preserved”. Moore v. Dempsey, 261 U.S. 86, 87-88 (1923).
The circumstances and details of the crime are, as
usual, sordid. They are set forth in the Arkansas opin-
ion, pp. 114-16 of 370 S.W.2d, and need not be repeated
here. It suffices only to say that the victim was a white
woman, 35 years old, who lived with her helpless ninety-
year-old father; that their home was entered in the early
morning by the assailant’s cutting or breaking a window
screen; that in the ensuing struggle the victim bit her
assailant and caused bleeding; and that she was assaulted
and bruised, her father injured, and the lives of both
threatened. Confessions taken from Maxwell were not
employed at the trial. The defense presented no evidence.
The jury was out several hours. No question is raised as
to the sufficiency of the evidence.
Qn this habeas corpus appeal Maxwell presses three
issues:‘ (1) he was denied due process of law and the
' * Beiley v. Henslee, 287 F.2d 936, 939 (8 Cir. 1961), cert. denied 368
U.S. 877; Henslee v. Stewert, 311 F.2d 691, 692 (8 Cir. 1963), cert. denied
* Other issues arged in district court, see pp. 208-09 and 211-12 of
229 F.Supp., but abandoned 6n this appeal, were the legality of Maxwell’s
arrest, the denial of a motion,for change of venue, the validity of con-
ee ee ee a 2 eee ee poe
Sadana lige he was wearing. This search produced or revealed
hair, a nylon thread, and blood and seminal stains which tended to
nthe Ae Fame te trie egace ta
5a
Opimon of Court of Appeals
equal protection of the laws, guaranteed by the Fourteenth
Amendment, because he was sentenced under statutes
which are discriminatorily enforced against Negroes; (2)
he was denied due process and equal protection because
the Garland County jury lists revealed race and were
compiled from racially designated poll tax books; and (3)
the taking of his coat while he was in custody, and refer-
ences to it in testimony at the trial,’ violated rights guar-
anteed to him under the Fourth, Fifth, and Fourteenth
Amendments.
A. The statute’s enforcement. The argument here is
that § 41-3403, which prescribes the death penalty for
rape, and § 43-2153, which, since its enactment as Acts
1915, No. 187, §1, permits a jury in a death punishment
case to render a verdict of life imprisonment, although
perhaps constitutionally valid on their face, have been
discriminatorily enforced against members of the Negro
race and in favor of members of the white race. It is
claimed that in practice “Negroes remain liable to the
supreme penalty for the crime of rape, but whites, with
very rare exceptions, suffer lesser punishments”; that
“there is reason to believe that every person suffering
the death penalty has been convicted of a crime against
a white woman”; that “All but two of the men executed
for rape since 1913 have been Negroes”; that Negro de-
fendants are more likely to be sentenced to death and
5 No point is apparently made about the fact the coat itself (despite
a contrary statement in the Maxwell brief) was not introduced in evi-
dence. In view of this, we do not raise the point on our own seccord.
We assume that, for present purposes, questions of admissibility are as
applicable to testimony concerning the coat as to the coat itself. McGinnis
v. United States, 227 F.2d 598, 603 (1 Cir. 1955); Williams v. United
States, 263 F.2d 487, 488-89 (D.C. Cir. 1959). See Silverthorne Lumber
Co. v. United States, 251 U.S. 385, 391-92 (1920), and Wong Sun v. United
States, 371 U.S. 471, 484 (1963).
6a
Opinion of Court of Appeals
only white women are protected by the deterrence of the
supreme penalty; that in Garland County (Hot Springs),
Pulaski County (Little Rock), and Jefferson County (Pine
Bluff), in the decade beginning January 1, 1954, only
three charges were lodged against white men for the rape
of Negro women; that one of these resulted in an acquit-
tal and the other two in reduced charges; that in the
same period seven Negroes were charged with raping
white women; that of these, two were sentenced to death,
three to life imprisonment, one dismissed, and one not
apprehended; that “This history raises serious doubts
about the fairness of Arkansas’ system of criminal jus-
tice”; that the figures are not to be explained by the pro-
portion of Negroes in the state’s total population nor by
any claim that the crime rate is higher among Negroes,
for in the three counties about two-thirds of the rape
charges were against white persons; that the proportion
of Negroes who receive the death penalty “cries out for
an explanation”; that race is the answer; and that the
state should be required to come forward with a rational
explanation.
It is further argued that there is no basis for assuming
a Negro’s victims have better character than the victims
of whites; that differing sentences for Negroes and whites
are consistent with Arkansas’ system of justice; that re-
sponsibility for administration of penalties in rape cases
lies with other officials besides juries; that “it is not what
public officials say but what they do which must be deter-
minative when discrimination is at issue”; that in Max-
well’s state court proceedings “several occurrences under-
scored the presence of the racial factor”, namely, the use
of the term “nigger”, the excuse or successful challenge
of the nine Negroes who were called for jury service, and
7a
Opinion of Court of Appeals
the prosecutor’s reference to the race of the defendant
and the victim three times during the state trial “ander
the guise of requesting the jurors to dismiss the fact from
their minds”; that the state’s laws on segregation and
the history of the resistance to desegregation of schools
in Little Rock are consistent with the contention that race
is a factor in the disposition of rape cases and the im-
position of the death penalty; that the court erred in re-
stricting the defense proof of race figures to the three
counties; and that, finally, the imposition of the death
penalty for rape violates due process in that it is a cruel
and unusual punishment.
This question of unconstitutionality in application was
raised \both in the Supreme Court of Arkansas and in the
United States district court. Each tribunal decided the
issue adversely to Maxwell. Pp. 117-18 of 370 S.W.2d;
pp. 216-17 of 229 F.Supp.
There can be no doubt that the equal protection clause
of the Fourteenth Amendment and 42 U.S.C. § 1981,‘
which implements it, (and, it would appear, Art. 2, §3,
of the Arkansas Constitution)’ operate to invalidate any
state statute which would differentiate punishment solely
on the basis of race. Virginia v. Rives, 100 U.S. 313, 318
(1879); Strauder v. West Virginia, 100 U.S. 303, 307
(1879); McLaughlin, v. Florida, 379 U.S. 184, 192-94
(1964) ; see Skimmer v. Oklahoma, 316 U.S. 535, 541 (1942).
We recognize, too, that a statute’s discriminatory admin-
* Section 1981. “All persons within the jurisdiction of the United States
. . Shall be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other.”
7“The equality of all persons before the law is recognized, and shall
ever remain inviolate; nor shall any citizen ever be deprived of any right,
privilege or immunity, nor exempted from any burden or duty, on account
of race, color or previous condition.”
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.