Petition for Writ of Certiorari — Craig v. Florida

Wuuiam Bensamin Cralic,

_ Petitioner,

—

FoR.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Jack GREENBERG

James M. Nasart, III

Leroy D. CuarKk

MicHaEL MELTSNER

CuarLes STEPHEN RatstTon

10 Columbus Circle

New York, New York 10019

Toss Simon

H. W. Drxon

Maurice Rosen

223 Southeast First Street

Miami 32, Florida

Attorneys for Petitioner

Jay H. Torxis

575 Madison Avenue

New York, New York

x AwrHory’ G. AMSTERDAM

ay -~-2 Chestnut Street

/ Philadelphia, Pennsylvania

of Counsel; |

6

INDEX |

PAGE

Opinion Below ; “7

Jurisdiction 1

Questions Presented : 2

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

Statement : . 3

How the Federal Questions Were Raised and De-

cided Below 9

Reasons for Granting the Writ 10

I. Certiorari Should Be Granted to Determine

Whether the Application to Petitioner of

Florida’s Death Penalty for Rape Is Uncon-

, stitutional Because an Unrebutted Prima

Facie Showing Has Been Made of Its Racial

Application in Violation of the Equal Protec-

tion Clause of the Fourteenth Amendment .... 10

II. The Court Should, Grant Certiorari to Con-

sider Petitioner’s Contention That His Sen-

tence Is Unconstitutional Under the Eighth

and Fourteenth Amendments 19

III. The Court Should Grant Certiorari to Decide

Whether Florida’s Single Verdict Procedure

Allowing the Jury Which Determines Guilt

Simultaneously to Fix Capital Punishment

for Rape Violates the Due Process Clause

of the Fourteenth Amendment -.., 22

CoNncLusION 27

ii

TABLE oF CasES

cAaron.v. Holman, U.S. Dist. Ct., M.D. Ala., C.A.

No. 2170-N_................... ‘a kcccatestnasonoieas

Alabama v. Billingsley, Cir. Ct. Etowah County,

MIT cccibictctaisideiicsblakteskac Seneca tala cateisesaaienaiacedad

Bell v. State, 93 So.2d 575 (1957) eecccsccceceeecceenee 2

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 ............

Bush v. Kentucky, 107 U.S. 110 20.0000

Cline v. Frink Dairy Co., 274 U.S. 445 ~.......... ‘seca

Connally v. General Construction Co., 269 U.S. 385 ....

Cox v. Louisiana, 379 U.S. 536 o00.0...02..02....lecccccceceneeesseeee

Craig v. State, 168 So.2d 747. (Filla. 1964) 2.000002...

Craig v. State, 179 So.2d 202 (Fla. 1965) ~.............. 4,

Davis v. State, 123 So.2d 703 (1960) 0.000.000... 7,2

Dombrowski v. Pfister, 380 U.S. 479 -0.0000000002e eee

Fowler v. Rhode Island, 345 U.S. 67 (1953) ................

Frady v. United States, 348 F.2d 84 (D.C. Cir. 1965) ....

Freedman v. Maryland, 380 U.S. 51 ......000022220..

Hamilton v. Alabama, 376 U.S. 650 —..00002020 ee.

Harris v. State, 162 So.2d 262 (1964) W200...

Hernandez v. Texas, 347 U.S. 475 _00000 00 1

Herndon v. Lowry, 301 U.S. 242 000000 .. sis

Jackson v. Denno, 378 U.S. 368 _....000000020022 eee 2

\

PAGE

18

i PAGE

Lombard v. Louisiana, 373 U.S. 267 17

Louisiana v. United States, 380 U.S. 145 18

Louisiana ex rel. Scott v. Hanchey, 20th Jud. Dist. Ct.,

' Parish of West Feliciana 13

hon,

McLaughlin v. Florida, 379. U.S. 184 15, 17

Malloy v. Hogan, 378 U.S.:1 -.- 22

Maxwell v. Stephens, 348 F.2d 325 (8th Cir. 1965)

cert. denied, —— U.S. ——, 15 L.ed.2d 358 ............13, 19

Mitchell v. Stephens, 232 F. Supp. 497 (E. D. Ark.

1964) 13

Moorer v. MacDougall; U.S. Dist. Ct., E.D.S.C.,

No. AC-1583 13

N.A.A.C.P. v. Button, 371 U.S. 415 18

Nash v. United States, 54 F.2d 1006 (2d Cir. 1932),

. cert. denied, 285 U.S. 556 23

Neal v. Delaware, 103-U.S. 370 (1881) ........,.....2.2.-..---.-- 14

‘Niemotko v. Maryland, 340 U.S. 268 14

Norris v. Alabama, 294 U.S. 587 o2..........-.escscssscossccseesooees 15

, Oyama v. California, 332 U.S. 633 .. ice Aa 15

Peterson y. City of Greenville, 373 U.S. 244 ............. 17

Ralph v. Pepersack, 335 F.2d 128 (4th Cir. 1964),

cert. denied, 380 U.S. 925 cn ae

Raulerson v. State, 192 Se.2d 281 (1958) -........2..... 7

Robinson v. Florida, 278 U.S. 158 ............ 17

Rudolph v. se SUI IN, TIIIEE -ancesinctciscentenncwatensoustcrs 19, 21

Shepherd v. Florida} 341 U.S. 50 8

Sims v. Georgia, 144 S.E.2d 103 .. 13

\

iv

PAGE

Skinner v. Oklahoma, 316 U.S. 5350 200220. 21

Smith v. Cahoon, 283 U.S. 553 18

Swain v. Alabama, Ala. Sup. Ct., 7 Div. No. 699,

cert. denied, —— U.S. —, 15 L.ed.2d 353 ............ 13

Truluck v. State, 108 So.2d 748 (1959) W002... 7

United States v. Curry, —— F.2d —— (2nd Cir.

- No. 29000, Dec. 22, 1965) ........................ 26

United States ex rel. Rucker v. Myers, 311 F.2d 311

(3rd Cir. 1962), cert. denied, 374 U.S. 844 _.W0.. 26

United States ex rel. Scoleri v. Bonmiller, 310 F.2d 720

(3rd Cir. 1962), cert. denied, 374 U.S. 828 ................... 26

Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964) 25

Williams v. New York, 337°U.S. 241 _....022222... 23, 25

Williams v. Oklahoma, 358 U.S. 576 —..20020222.......-. 23

Williams v. State, 110 So.2d 654 (1959) ................... 23

Winters v. New York, 333 U.S. 507 sncsonsesensennnsssensseenncsete 18

Yick Wo v. Hopkins, 118 U.S. 356... 14

FEepERAL STATUTES

Civil Rights Act of April 9, 1866, ch. 31, §1,

OG TOE. wecasininnctaecectiatnaamuatialcbekit a aie aoe 13

Enforcement Act of May 31, 1870, ch. 114, $416, 18,

Se Ss. BI sanctesiaeccecenpissciiiessaseslebsiudssabeecneGuesbaeeaniotasanaatia’ 13

Federal Rules of Criminal Procedure, Rule 32(a) ........ 26

Rev: Stat. $1977 (1875) 13

Oat 2 ae 11

BUA gh AND 11

. PAGE

18 U.S.C. §2113(e) iciiaichadsegcilaail

28 U.S.C. §1257(3) Sian | #

42 U.S.C. §1981 (1964) | ie me |

te State prunehes

Ala. Code §§14-395, 14-397, 14-398 (Recomp. Vol. |

1958) 2 10

Ark. Stat. Ann. §§41-3403, 41-3405, seat ini 43-2153 :

(1964 Repl. Vols.) 10

D.C. Code Ann. §22-2801 (1961) if 11

Fla. Const., Art. 16, §24 | yw.

Fla. Stat. Ann., Chapter 924, Florida Criminal

dure Rule No. 1 3

Fla. Stat. Ann. §§741.11-741.16 17

Fla. Stat. Ann. §794.01 (1964 Cum. Supp.) ........ 3, 5, 9, 10,

; | 19, 22

Fla. Stat. Ann. §798.04 ........... : 17

Fla. Stat. Ann. §798.05 ......... e a

Fla. Stat. Ann. §913.11 _ x 24

Fia. Stat. Ann. §921.13 23

Ga. Code Ann. §§26-1302, 26-1304 (1963 Cum. Supp.) ... 10

Ky. Rev. Stat. Ann. §435.090 (1963) .... oe

La. Rev. Stat. Ann. §14:42 (1950) _........ a. ae

Md. Ann. Code, art. 27, §12, $§461, 462 (1957) _....... 10

Miss.: Code Ann. $2358 (Recomp. Vol. 1956) _.............. 10

Vernon’s Mo. Stat. Ann. §$559.260 (1953) 10)

Nev. Rev. Stat. §200.360, §200.400 (1963) ei

N.C. Gen. Stat. §14-21 (Recomp. Vol. 1953) ....°............ 10

Okla. Stat. Ann., tit. 21, §§1111, 1114, 1115 (1958)... 10

_—

Vi

“PAGE _

S.C. Code Ann. §§16-72, 16-80 (1962) ............ ae oe

Tenn. Code Ann. §§39-3703, 39-3704, 39-3705 (1955) ... 10

Tex. Pen. Code Ann. arts. 1183, 1189 (1961) ................ 11

Va. Code Ann, §18.1-16, §18.1-44 (Repl. Vol. 1960) ........ “11

OtrHER AUTHORITIES

A.L.L, Model Penal Code, Tent. Draft No. 9 (May 8, s

SOD) CUE Ge II ances ecsnntpntnssensinconsen 23

tenBroek, Thirteenth Amendment to the Constitution

of the United States, 39 Caurr. L. Rev. 171 (1951) .... 13.

Bullock, Significance of the Racial Factor in the

Length of Prison Sentences, 52 J. Crim. L., Crim. &

i i, TE ins rctescoereenn ewe dia 17

Cong. Globe, 39th Cong. 1st. Sess. 475, its 1759

SRI, PII icine cicsscicideiaceplccasssteaSewseceuscn 14

Fairman, Does the Fourteenth Amendment Incor-

porate the Bill of Rights, 2 Stan. L. Rev. 5 (1949) .... 13°

Hartung, Trends in the Use of Capital | 7m,

ee I © Ce ice ate ete 17

Letter of Deputy Attorney General Ramsey Clark’ to

the Honorable John L. McMillan, Chairman, District

of Columbia Committee, House of Representatives,

July 23, 1965, New York Times, July 24, 1965, p. 1,

col. 5 Sickancsibichi ducsciideanbneibisisadasiharebclaikanbbadidicdeiheiaees 21

Lewis, The Sit-In Cases: Great Expectations [1963]

Supreme Court Review 100 @22o2 oe ecececeeceeeeeeeeee 18

Note, 109 U.Pa.L.Rev. 67 (1960) 00. ccccccscccsssssscseseseseeees 18

PAGE

Packer, Making the Punishment ,Fit the Crime,

77 Harv. L. Rev. 1071 (1964) 20, 21

United States Department of Justice, Bureau of

Prisons, National Prisoner Statistics, No. 32; Ez-

ecutions, 1962 (April 1963) 11

Weihofen, The Urge to’ Punish (1956) 17

Wolfgang, Kelly & Nolde, Comparison of the Executed

and the Commuted among Admissions to Death Row,

, 58 J. Cem. L., Crim. & Pou. Sct. 301 (1962) ............ 17

\ P id

. ~”

‘In THE

ey Court of the United States

Octosen Term, 1965

iL Seibuciiilen

‘Wuiuius Bensamin Crate,

Petitioner,

—Y

FLorma. ~

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

Petitioner prays that a writ of certiorari issue to review

the judgment of the Supreme Court of Florida entered in

the above-entitled case on October 13, 1965.

Opinion Below

The opinion of the Supreme Court of Florida and the

dissenting opinion of Judge Ervin are reported at 179

So.2d 202. They are set forth in the Appendix, pp. la-16a.

jurisdiction

The judgment of the Supreme Court of Florida was

entered October 13, 1965. The time for filing this petition

for writ of certiorari was extended by Mr. Justice Fortas

to and including February 11, 1965. The jurisdiction of

this Court is invoked pursuant to 28 U.S.C. §1257(3),

petitioner having asserted below and asserting here dep-

rivation of rights secured by the Constitution of the

United States.

2

Questions Presented

the rape of a white woman. He has shown that \n the

past twenty-five years only one white man has beeh exe-

cuted for rape, and that for the rape of a white child under

aggravated circumstances. On the other hand, twenty-nine

Negroes have been executed, all for the rape of white

adult women. No white or Negro male has ever been

executed for the rape of a Negro, child or adult. In con-

trast, the number of Negroes convicted for rape is only

slightly higher than the number of whites. Under these

circumstances, has petitioner made sufficient showing of a

denial of the equal protection of the laws in violation of

the Fourteenth Amendment to require the State to come

forward with some evidence that the disproportion of

Negroes executed for rape is not accounted for by race?

1. Petitioner, a Negro, has been sentenced to “lp for

2. Does the imposition of the death penalty for the

. offense of rape by the State*of Florida on the basis of

the jury’s unfettered, unreviewable discretion constitute

cruel and unusual punishment in violation of the Eighth

and Fourteenth. Amendments?

3. Does the assigning to the jury in a capital rape case

under Florida law the function of deciding simultaneously

both the guilt of the defendant and the penalty to be in-

flicted constitute a denial of due process of law in viola-

tion of the Fourteenth Amendment?

Constitutional and Statutory Provisions Involved

This case involves the Eighth Amendment and Section 1

of the Fourteenth Amendment to the Constitution of the

United States. ®

~~

>

.

3

This case also involves the following statute of the

State of Florida:

Section 794.01—Rape and forcible carnal knowledge;

penalty.

Whoever ravishes and carnally knows a female of

the age of ten years or more, by force and against

her will, or unlawfully or carnally knows and abuses

a female child under the age of ten years, shall be

punished by death, unless a majority of the jury in

their verdict recommend mercy, in which event pun-

ishment shall be by imprisonment in the state prison

for life, or for any term of years within the discretion

of the judge. It shall not be necessary to prove the

actual emission of seed, but the crime shall be deemed

complete upon proof of penetration only.

os Statement

Petitioner William Benjamin Craig was indicted on June

6, 1963, by the Grand Jury of Leon County, Florida for

the crime of rape upon a female person over the age of

ten years. Petitioner Craig is a Negro and the victim is

an adult white female. He was tried before a jury in the

Circuit Court of the Second Judicial Circuit in and for

Leon County. Under provisions of Florida law, the same

jury considered simultaneously the questions of the guilt

of petitioner and the sentence to be imposed. The jury

returned a verdict of guilty without a recommendation

of mercy on June 20, 1963 (R., p. 6).

On June 27, 1963, a judgment and sentence of death was

entered by the Court. An appeal was taken from the ver-

dict and sentence, they were affirmed October 21, 1964, by

the Supreme Court of Florida (Craig v. State, 168 So.2d

_

oe

4

747; R., pp. 32-34), and an order denying a petition for

rehearing was entered December 7, 1964.

On February 10, 1965 petitioner filed a motion for re-

duction of sentence from death io life imprisonment or

less in the Circuit Court of Leon County. The bases for

the motion were that:

(1) Imposition of the death penalty on petitioner denied

him the equal protection of the laws guaranteed by the

Fourteenth Amendment of the Constitution of the United

States because the death penalty had been used as an

instrument of racial discrimination against Negroes con-

victed of the rape of white women.

(2) The procedure under Florida law which allows the

jury which determines the guilt of a person accused of

rape also to determine simultaneously the punishment to

. _be imposed violated the due process clause of the Four-

teenth Amendment.

(3) The imposition:of the death sentence for rape sub-

jected the petitioner to cruel and unusual punishment and

violated due process of law in violation of the Eighth and

Fourteenth Amendments to the Constitution. (See Record,

pp. 8-10.)

In support of this motion the petitioner introduced

statistical data regarding the imposition of the death

penalty for rape. The State did not object to or contra-

dict the data and it was accepted as accurate by the trial

court in deciding the motion for reduction of sentence

(R., p. 26).1 The: motion for reduction of sentence was

1The Court said: ;

The Defendant offered to prove up the statistics therein contained

with the respective files of each of the 285 convictions from the

several Florida counties involved should this Court feel such proof

B)

denied in the trial court on February 17, 1965 (R., p. 26).

An appeal was taken to the Supreme Court of Florida,

and on October 13, 1965, the decision of the trial court

was affirmed by the Supreme Court of Florida (179 So.2d

202). (Appendix, pp. la-3a.) Judge Ervin dissented on the

ground that by permitting the same jury to decide both

the guilt and punishment of the petitioner the State had

denied due process of law in violation of the Fourteenth

Amendment to the United States Constitution (179 So.2d

at 204-210). (Appendix, pp. 3a-16a.)

Capital Punishment for Rape

In his motion for reduction of sentence, petitioner main-

tained that Section 794.01 of the Florida statutes, which

imposes the death sentence for the crime of rape, was

unconstitutional as applied to him. In support of this

contention, statistics were introduced which revealed the

pattern of discrimination against Negroes in the imposi-

tion of the death sentence.? The statistics, which were ac-

desirable or necessary in addition to the verification of the memo- —

randum brief by counsel. This Court does not feel that such proof —

is required, desirable or necessary, and for the purposes of this

motion accepts the statistics contained in the memorandum as sub-

stantially correct. The State of Florida voiced no objection to this

proeedure (R., p. 26).

2 This footnote sets out in tabular form the statistics discussed in the

text infra:

TABLE A

Rare Convictions: 1940-1964

TOTAL: DEFENDANT , VicTIM

(Negro) (White) (Indian) | (Negro) (White)

285" 152 68> 84c

132 7 1254

: 1 0 —

(footnote 2 continued on next page)

6

cepted as accurate by the trial court, may be summarized

as follows:

During the 25-year period between January 1, 1940 to

December 31, 1964, there have been a total of 285 convic-

tions for the crime of rape for which information con-

cerning the race of the victims and the defendants is avail-

able.* (R., p. 18) One hundred and thirty-two white men,

or 46% of the total, have been_convicted for the rape of

125 white and 7-Negro women (Jbid.). One hundred and

fifty-two Negro men, or 54% of the total, have been con-

victed for the rape of 84 white and 68 Negro women (Jbid.).

-The remaining conviction was that of an Indian who raped

2 (continued) TABLE B

Disposition or 54 Rare Derenpants SENTENCED TO DeatH,

BY Race or DEFENDANT AND Race or Victim—1940-1964

i)

Defendant Victim

Negro White Negro White

30 Electrocutions 29 0 29

1 1¢

5 Commutations 2 0 2

3 0 3e

12 Awaiting Execution 12 ~ o. 10

1 Killed 1 0 1

6 Death Judgment :

Reversed 4 1 3

; “ 2 0 2

Totals 54 48 6 See

a—Excluding 13 cases from Brevard and Hillsborough Counties because

race information is unavailable.

b—lIncludes 26 children under 14.

e—Includes 3 children under 14.

d—Includes 34 children under 14.

e—Children under 14.

(R., pp. 21-22)

3 There were 13 other cases in two counties for which no information

as to race was available (R., p. 18).

7

a white woman. Fifty-four men have been sentenced to

death for rape; 48 Negroes and six whites (R., p. 14).

There have been 125 cases of white females being raped

by white men; 34 of the victims were children under 14

(R., p. 19). Six white men have been sentenced to death

for these offenses but only one has been electrocuted (R.,

p. 19). The single white man actually electrocuted, Robert

, Wesley Davis, was convicted of raping an eleven-year old

white child under extraordinarily aggravated circumstances

(see, Davis v. State, 123 So.2d 703 (Fla., 1960)).

Of the other five whites originally condemned to die,

three raped white children ranging in age from 9 to 13,

and in all three cases the State Pardon Board commuted

their sentence to life imprisonment (R., p. 15). The final

‘two were co-defendants convicted of raping a single white

adult (R., p. 15). The jury verdicts finding them guilty

“without recommendation of mercy were reversed by the

Supreme Court of Florida which found that the judgment

of death had been the result of prejudicial comments made

by the trial judge. Raulerson v. State, 102 So.2d 281 (1958).

No white man has been electrocuted for the rape of a white ~

adult or even sentenced to death for the rape of a Negro

adult or child.

The remaining 48 men who received sentences of death

were all Negroes (R., p. 16). Of these, 29 have already

been electrocuted, and 12 others are presently awaiting

execution on death row at the Florida State Prison (R.,

pp. 16-17). The death sentences of four other Negroes were

reversed by the Supreme Court of Florida (R., p. 17)

(Harris v. State, 162 So.2d 262 (1964); Bell v. State, 93

So.2d 575 (1957) ; Truluck v. State, 108 So.2d 748 (1959));

they thereafter received lesser sentences. ‘A sheriff killed

one Negro en route to a new trial after his conviction was

» ce

reversed by Shepherd v. Florida, 341 U.S. 50. The Pardon

Board commuted the death sentences of the remaining two

Negroes who were given the death penalty for rape (R.,

p. 17). a

Of 84 convictions of Negro men for the rape of white

women, 45 resulted in sentences of death (53%) (R., p. 19).

Only one of these cases involved the rape of a white child.

Thus, 44 Negro defendants have been sentenced to death

for the rape of white adult women; 29 of them have been

executed and ten await execution (Ibid.).

On the other hand, in the 68 cases in which Negro males

have been convicted of raping Negro women (26 cases in-

volving children under. 14), only three have been sentenced ©

to death. All three of these convictions were for attacks

on children; two defendants are presently awaiting exe-

cution (Ibid.). The third conviction was reversed by the |

Supréme Court of Florida. (Bell v. State, 93 So.2d 575

(1957).) Therefore, to date no Negro has been electrocuted

for the rape of another Negro adult or child.

Statistics introduced with regard to the actions of the

Florida State Board of Pardons also show a disparity in

the treatment of white and Negro defendants. The Board

has heard 38 appeals for clemency from convicted rapists

out of the 54 death sentences for rape, and commuted three

of the four white death sentences. On the other hand, it

denied relief to 32 of the 34 Negro applicants (R., p. 20).

These results contrast sharply with treatment afforded

those convicted of murder. Since January 1, 1924, the —

Pardon Board heard pleas from 216 convicted ‘murderers,

of which 129 were Negroes and 85 white, and two of un-

known race. Thirty-three, or 25.6%, of the Negroes and

21, or 24.7%, of the whites secured commutation of sen-

9

tence ¢ p. 20). In other words, for murder, go racial

factor seems to operate in deciding clemency applications.

To summarize, between January 1, 1940 and December

31, 1964, fifty-four men were sentenced to death in Florida

following convictions for the crime of rape. Six of the 54

men who received the death sentence were white, the bal-

ance, 48,-were Negroes. However, only one white was

actually executed (for the aggravated rape of a white

child), while 29 Negroes have been electrocuted, (all of

whom were convicted of raping white adult women) and

twelve others (ten of whom raped white women) are pres-

ently awaiting execution.

These statements of fact are not dhiaeiial, No inference

other than one of racial discrimination in —— of

the death penalty has been offered.

How the Federal Questions Were Raised

and Decided Below

After the affirmance of his conviction and sentence by

the Supreme Court of Florida on Juné 27, 1963, petitioner

filed a motion for reduction of sentence from death to a

term of years in the Circuit Court of Leon County (R.,

pp. 8-10). The ground for the motion was that the sentence

of death was a denial of the equal protection of the laws

and of due process of law in violation of the Fourteenth

Amendment to the Constitution of the United States.

Therefore, Sec. 794.01, Fla. Stat. Ann., was unconstitu- ©

tional on its face and as applied to him. The motion was

denied, and petitioner appealed to the Supreme Court of

Florida. That court accepted jurisdiction, considering the

motion as a collateral, post-conviction assault on a judg-

ment of conviction within the scope of the Florida Criminal

Procedure Rule No. 1, Fla. Stat, Ann., Chapter 924, Ap-

ee

4 A

a we

~y

10

pendix. The denial of the motion by the lower court, up-

holding the statute as valid under the federal Constitution,

was affirmed on the merits. ‘(179 So.2d at 204.)

©

Reasons for Granting the Writ

I.

Certiorari Should Be Granted to Determine Whether

the Application to Petitioner of,Florida’s Death Pen-

. alty for Rape Is Unconstitutional Because an Unre-

\_batted -Prima Facie Showing Has Been Made of Its

Racial Application in Violation of the Equal Protec-

tion Clause of the Fourteenth Amendment.

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.'s The federal jurisdiction and the District of Colum-

‘Nev. Rev. Stat. §200.360 (1963). See also §200.400 (aggravated

assault with intent to rape).

. 5 The followizig seciicns punish rape or carnal knowledge unless other-

wise specified. Ala. Code §§14-395, 14-397, 14-398 (Recomp. Vol. 1958) ;

- Ark. Stat. Ann. §§41-3403, 43-2153 (1964 Repl. Vols.) ; see also §41-3405

(administering potion with intent to rape); §41-3411 (forcing marriage) ;

Fla. Stat. Ann. §794.01 (1964 Cum. Supp.); Ga. Code Ann. §§26-1302,

26-1304 (1963 Cty. Supp.); Ky. Rev. Stat. Ann. §435.090 (1963); La.

Rev. Stat. Ann. §M:42 (1950) (called aggravated rape but slight force

is sufficient to congtitute offense; also includes carna! wledge); Md.

Ann. Code, art. 27, §§461, 462 (1957); see also art. 27, §1 ult with

intent to rape) ; Miss. Code Ann. §2358 (recomp. Vol. 1956) FV ernon’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) (ineludes assault with attempt to rape as

well as rape and carnal knowledge) ; Tenn. Code Ann. §§39-3702, 39-3703,

11

bia, with its own strong southern traditions, also allow

the death penalty for rape.°

Between 1930 and 1962, two years before petitioner was

sentenced to die, 446 persons were executed for rape in

the United States. Of these, 399.4vere 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

similar 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. Together |

they executed 66 Negroes. Arkansas, Delaware, Florida,

Kentucky and Missouri each executed one white man for

rape between 1930 and 1962. Together they executed 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 whjfes and 333 Negroes for rape: a ratio of better than

one fo 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 century

principally as an instrument of racial discrimination.’

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). ;

618 U.S.C. §2031' (1964); 10 U.S.C. §920 (1964); D.C. Code Ann.

§§22-2801 (1961).

. o1 The figures in this paragraph are taken from Unrrep States Depart-

_ MENT oF JUSTICE, BuREAU OF Prisons, NaTIONAL Prisoner SraTistics,

No. 32; Executions, 1962 (April 1963). Table 1 thereof shows the follow-

12

If this be so—if the racially unequal results in these

States derive from any cause which takes account of race

ing executions under civil authority in the United States between 1930

and 1962:

MURDER

Total White Negro Other

Number 3298 1640 1619 39

Per Cent ——-:100.0 49.7 49.1 12

RAPE

Total White Negro Other

Number 446 45 399 2

Per Cent 100.0 10.1 89.5 04

OTHER OFFENSES

Total | White | Negro — Other

Number 68 37 31 0

Per Cent 100.0 54.4 45.6 0.0

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:

White Negro Other

Federal 2 0 0

—— 2 20 0

1 17 0

a a8 1 3 0)

ser of umbia 0 2 0

1 35

aa. 3 58 0

Kentucky 1 9 0

Louisiana 0 17 / 0

Maryland 6 = «6 0

Mississippi 0 21 0

Missouri 1 7 0

North Carolina 4 41 2

Oklahoma 0 4 0

South Carolina 5 37 0

Tennessee 5 22 0

Texas ~\ 13 66 0

Virginia 0 21 0

West Virginia 0 1 0

45 399 2

13

as a factor in meting out punishment—a Negro punished

by death is denied, in the most radical sense, the equal

protection of the laws.* One of the cardinal purposes of

the Fourteenth Amendment was the elimination of racially

. discriminatory criminal sentencing. The First Civil Rights

Act of April 9, 1866, ch. 31, §1, 14 Stat. 27, declared the —

Negroes citizens of the United States and guaranteed that

“such citizens, of every race and color, .. . shall be subject

to like punishment, pains, and penalties [as white citi-

zens], and to none other, any law, statute, ordinance,

regulation, or custom, to the contrary notwithstanding.”

The Fourteenth Amendment was designed to elevate the

Civil Rights Act of 1866 to constitutional stature. See, e.g.,

tenBroek, Thirteenth Amendment to the Constitution of

the United States, 39 Caurr. L. Rev. 171 (1951); Fairman,

Does the Fourteenth Amendment Incorporate the Bill of

Rights, 2 Stan. L. Rev. 5 (1949). The Enforcement Act

of May 31, 1870, ch. 114, §§16, 18, 16 Stat. 140, 144, im-

plemented the Amendment by re-enacting the 1866 act and

extending its protection to all persons. This explicit stat-

utory prohibition of racially discriminatory sentencing sur-

vives today as Rev. Stat. $1977 (1875), 42 .C. §1981

(1964).

8 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, e.g., Mitchell v.

Stephens, 232 F. Supp. 497, 507 (E.D. Ark. 1964), appeal pending;

Moorer v. MacDougall, U.S. Dist. Ct., E.D.S.C., No. AC-1583, appeal

pending; Aaron v. Holman, U.S. Dist. "Ct, M.D. “Ala., C.A. No. 2170-N, |

proceedings on petition for writ of habeas corpus stayed pending ex-"

haustion of state remedies July 2, 1965; Swain v. Alabama, Ala. Sup. Ct.,

7 Div. No. 699, petition for leave to file petition for writ of error

coram nobis denied June 25, 1965, cert. denied, —— U.S. ——, 15

L.ed.2d 353; Mazwell v. Stephens, 348 F.2d 325 (8th Cir. 1965), cert.

denied, —— U.S. , 15 L.ed.2d 353; Alabama v. Billingsley, Cir. Ct.

Etowah County, No. 1159, motion for new trial and motion for reduction

of sentence pending; Sims v. Georgia, 144 S.E.2d 103, petition for cert.

pending, Misc. 918; Louisiana ex rel. Scott v. Hanchey, 20th Jud. Dist.

Ct., Parish of West Feliciana, petition for habeas corpus pending.

14

For purposes of the prohibition, it is of course im-

material whether a State writes on the face of its statute

books: “Rape shall be punishable by imprisonment... .,

except that rape by a Negro of a white woman, or any other

aggravated and atrocious rape, shall be punishable by 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

is more difficult to prove, but no less violates the State’s

obligation to afford all persons within its jurisdiction the

equal protection of the laws. See, e.g., Yick Wo v. Hopkins,

118 U.S. 356; Niemotko v. Maryland, 340 U.S. 268 (alter-

nate ground) ; Fowler v. Rhode Island, 345 U.S. 67; Hamil-

ton v. Alabama, 376 U.S. 650 (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

responsibility internally, the State is federally obligated to

assure the equal application of its laws. This Court has

long sustained claims of discriminatory jury exclusion 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; Bush v. Kentucky, 107 U.S. 110;

Hernandez v. as, 347 U.S. 475. Congress, when it en-

acted the 1866 Civil Rights Act knowing that “In some com-

munities in the South a custom prevails by which different

punishment is inflicted upon the blacks from that meted

out to whites for the same offense,” * intended precisely by

the Act, and subsequently by the Fourteenth Amendment,

to disallow such “custom” as it operated through the sen-

tences imposed by particular judges and juries.

* Cong. Globe, 39th Cong., Ist Sess. 1758 (4/4/1866) (remarks of ,

Senator Trumbull, who introduced, reported and managed the bill which

became the act.) See also, Id., at 475 (1/29/1866) and 1759 (4/4/1866).

%)

15

The petitioner asks this court to consider whether he has

not made a showing of racially discriminatory capital sen-

tencing under Florida’s rape statute sufficient to throw some

burden of explanation on the state. Because of the Four-

teenth Amendment’s overriding purpose to secure racial

equality, “racial classifications [are] ‘constitutionally sus-

pect,” . . . and subject to the ‘most rigid scrutiny’.”

McLaughlin v. Florida, 379 U.S. 184, 192. This principle

has as its corollary that a sufficient initial showing of un-

equal treatment of the races is made whenever it appears

that the races are substantially disproportionately repre-

sented in groups of persons differently disposed 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 dis-

proportion. See, e.g., Norris v. Alabama, 294 U.S. 587;

Hernandez v. Texas, 347 U.S. 475; Gomillion v. Lightfoot,

364 U.S. 339; ef. Oyama v. California, 332 U.S. 633.

Here the demonstrated disproportion is extreme. Over

a twenty-five year period, between January 1, 1940 and

December 31, 1964, 48 of the men sentenced to die for rape

were Negroes and only 6 were white—a: ratio of eight to

one. The evidence also shows that this disparity cannot be

accounted for by a greater number of Negroes being con-

victed for rape, since in the same period 152 Negroes, 132

Whites, and 1 Indian were so convicted.

The Florida statistics take on added poe ae when the

race of the rape victim is considered. In the twenty-five

year period only one white man was actually executed and

that was for the rape of an eleven year old white child

under extremely aggravated circumstances. “Of the five

other whites sentenced to death (but whose sentences were

either reversed or commuted) three had raped white chil-

16

dren ranging in age from nine to five, and the other two

had raped a single white adult.

All twenty-nine of the Negroes who have been executed,

and ten of the twelve presently awaiting execution, were

convicted of raping white women. (The other seven Ne-

groes sentenced to die have had their sentences of death

reversed by a higher court, or have had their death sen-

tences commuted by the Pardon Board.) A total of forty-

four of the forty-eight Negro defendants have been sen-

tenced to death or electrocuted for the rape of white adult

women. No Negro or white, to date, has been electrocuted

_ for the rape of a Negro adult or child. Three other Negroes

have been sentenced to death for raping Negro children,

with one having his conviction reversed by the Supreme

Court of Florida. (See Statement, supra.)

This is at least sufficient evidence to make an initial

showing of racial discrimination and to transfer the burden

of explanation to the State. While determination of the

relative influence of the racial factor, as opposed to factors

arising from the circumstances of the individual cases,

would be aided by data detailing the facts of each prosecu-

tion for rape, the burden should be on the state to demon-

strate the countervailing influence of such factors since it

should have the responsibility of rebutting the inference

raised by the above statistics, and since if such a showing

can be made, the state has the resources available to do so.

‘The trial court, and the Supreme Court of Florida, al-

though accepting the correctness of petitioner’s statistical

showing, held that the Florida statute was constitutional

both on its face and as applied to petitioner without dis-

cussion. No attempt was made by'the state at any part of

the proceeding to explain or justify the discrepancy in the

application of the death penalty clearly demonstrated by

the statistics summarized above.

»

17

This Court should hold that the State may not thus re-

main silent in the face of such a record. Several considera-

tions support the holding.

First, the hypothesis of racial discrimination is particu-

larly likely in view of the coincidence between the Florida

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 crimi-

nal process tend to support the hypothesis of discrimina-

tion. E.g., Bullock, Significance of the Racial Factor in the

Length of Prison Sentences, 52 J. Crim. L., Crim. & Pot.

Scr. 411 (1961); Wolfgang, Kelly & Nolde, Comparison of

the Executed and the Commuted among Admissions to

Death Row, 53 J. Crim. L., Crim. & Pow. Scr. 301 (1962) ;

Hartung, Trends in the Tie of Capital Punishment, 284

Annats 8, 14-17 (1952); Wetnoren, Tue Urnce Tro PunisH

164-165 (1956).

Second, put in the context of the broader picture of

Florida life and law, the inference that these death penalties

wére racially motivated becomes overwhelming. Florida

still by statute forbids the intermarriage of whites with

Negroes, (Fla. Const., Art. 16, §24; Fla. Stat. Ann. §§741.11-

741-16), and only recently was its statute prohibiting inter-

racial cohabitation struck down by this Court. McLaughlin

v. Florida, 379\U.S. 184. (Fla. Stat. Ann. §798.05. See also,

§798.04.) The lesson the State thus officially teaches its citi-

zens ‘respecting’ the abhorrence in which even voluntary

interracial sexual relations 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; Lombard v. Louisiana, 373 U.S. 267; Robin-

son v. Florida, 378 U.S. 153.

d by any rational standards for making that deci-

ee part II infra), invites the influence of arbitrary

and discriminatory 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. See, e.g., Smith v.

Cahoon, 283 U.S. 553; Cline v. Frink Dairy Co., 274 US.

445; Connally v. General Construction Co., 269 U.S. 385;

Winters v. New York, 333 U.S. 507.° The .vice of such

statutes is not alone their failure to give fair warning of

prohibited conduct, 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, 482-433; Freedman v.

Maryland, 380 U.S. 51, 56; Lewis, The Sit-In Cases: Great

Expectations, [1963] Supreme Court Review 101, :110;

Note, 109 U.Pa.L.Rev. 67, 90 (1960), including racial con-

siderations, see Louisiana v. United States, 380 U.S. 145;

Dombrowski v. Pfister, 380 U.S. 479; Cox v. Louisiana, 379

U.S. 536. Unlimited sentencing discretion in a capital jury

presents this vice in the extreme. To paraphrase Joseph

Burstyn, Inc. v. Wilson, 343 U.S. 495, 505: “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 to re-

view and reverse the judgment of the Supreme Court of

Florida, which left. the sentence of death standing after

petitioner had made an unrebutted prima facie showing that

he had been denied equal treatment in the most grievous

penalty known to law.

@

19

Ii. —

The Court Should Grant Certiorari to Consider

Petitioner’s Contention That His Sentence Is Uncon-

stitutional Under the Eighth and Fourteenth Amend-

ments.

Petitioner alleged that he was unconstitutionally sen-

tenced without consideration of aggravating or mitigating

circumstances, pursuant to §794.01 of the Florida Statutes

Annotated, which statute on its face and as applied pre-

scribes the imposition of cruel and unusual punishment in

violation of the Fourteenth Amendment. This question,

which three Justices of the Court thought deserving of

certiorari in-Rudolph v. Alabama, 375 U.S. 889, has been

deemed by both the Fourth and Eighth circuits as one

which “must be for the Supreme Court in the first instance.”

Maawell v. Stephens, 348 F.2d 325, 332 (8th Cir. 1965)

cert. denied, ........ EA sie , 15 L.Ed. 2d 353. The Fourth

Circuit has taken the same view. Ralph v. Pepersack, 335

F.2d 128, 141 (4th Cir. 1964), cert. denied, 380 U.S. 925.

Petitioner respectfully requests. the judgment of the Court

on the issue.

The question posed is not whether on any rational view

which one might take of the purpose of criminal punish-

ment, the defendant’s conduct as the jury might have found

it at its worst on this record could support a death sen-

tence consistent with civilized standards for the adminis-

tration of criminal law. As the issue of penalty was sub-

mitfed to the jury in their unlimited discretion under

Florida procedure, their attention was directed to none

of the purposes of criminal punishment, nor to any aspect

or aspects of the defendant’s conduct. Théy were not in-

vited to consider the extent of physical harm to the prose-__

&

20

cutrix, the moral heinousness of the defendant’s acts, his

susceptibility or lack of susceptibility to reformation, the

extent of the deterrent effect of killing the defendant “pour

decourager les autres.” Cf. Packer, Making the Punish-

ment Fit the Crime, 77 Harv. L. Rev. 1071 (1964).

The absence of these or any other standards to guide a

Florida jury in determining whether a defendant should

live or die render the procedure violative of due process

under the rationale of Giacco v. Pennsylvania, —— U.S.

—., 34 U.'S.L.W. 4099. There this Court struck down the

Pennsylvania statute allowing a jury to assess the costs

of a criminal proceeding on an acquitted defendant, be-

cause of an absence of any standards on which the jury -

could rationally base its decision. The Court said:

Certainly one of the basic purposes of the Due

Process Clause has always been to protect a person

against having the Government impose burdens upon

him except in accordance with the valid laws of the

land. Implicit in this constitutional safeguard is the

premise that the law must be one that carries an un-

derstandable meaning with legal standards that courts

must enforce. 34 U.S.L.W. 4100.’°

Under the Florida procedure the jurors 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 peti-

tioner’s skin if that did not please them. In making the

determination to impose the death sentence, they acted

10 Petitioner recognizes that the Court disclaimed any implications as

to the validity of established sentencing procedures. However, he submits

that the combination of the evident intrusion of race as a factor in the

decision, the imposition of the extreme penalty, and the simultaneous

decision as to verdict and sentence (see Part III, infra) involved here

make the rational of Giacco particularly applicable.

v

21

wilfully and unreviewably, without standards, and without

-direction. Nothing assured that there would be the slight-

est thread of connection between the ‘sentence they exacted

and any reasonable justification for exacting it. Cf. Skinner

v. Oklahoma, 316 U.S. 535.. A judgment so unconfined, so

essentially erratic, is per se cruel and unusual because it

is purposeless, lacking in any relationship by which its fit-

ness 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 ar-

bitrary. To concede the complexity and interrelation of

sentencing goals, see Packer, supra; is no reason to sustain

a statute which ignores them all. It is futile to put for-

ward justifications for a death so inflicted; there is no as-

surance that the infliction responds to the justification or

will conform to it in operation. Inevitably under such a

sentencing regime, capital punishment in those few, arbi-

trarily selected cases where it is applied both is “ ‘dispro-

portioned to the offenses charged’” and constitutes “ ‘un-

necessary cruelty.’” Rudolph v. Alabama, supra, 375 U.S.

at 891:

4

~

11The 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 domestic crime.” Letter.of Deputy Attorney Gen-

eral Ramsey Clark to the Honorable John L. McMillan, Chairman, Dis-

trict of Columbia Committee, House of Representatives, July 23, 1965,

reported in New York Times, July 24, 1965, p. 1, col. 5.

a

22

The Court Should Grant Certiorari to Decide Whether

| Florida’s Single Verdict Procedure Allowing the Jury

Which Determines Guilt Simultaneously to Fix Capital

° Punishment for Rape Violates the Due Process Clause

~of the Fourteenth Amendment.

Under the procedure here employed by the State of

Florida, the jury which found petitioner guilty of rape was

required simultaneously to determine by its vote whether

he should be electrocuted or suffer imprisonment. Section

794.01, Florida St S, provides:

Whoever ravishes and carnally knows a female of the

age of ten years or more... shall be punished by

, unless a majority of the jury in their verdict

commend mercy, in which event punishment shall be

by imprisonment in the state prison for life, or for

any term of years within the discretion of the

judge....

‘The Florida courts read this statute as requiring a single

verdict: a jury which finds guilt determines sentdnce with-

out receiving further evidence or instruction, indeed, with-

out even returning to the courtroom.

This procedure thrust upon petitioner, at the outset of

the trial, an intolerable choice: On the one hand, he could

decide not to testify, relying on his privilege under the

Fifth and Fourteenth Amendments.’ Malloy v. Hogan, 378

‘U.S. 1. But were he convicted, the jury would determine

his sentence with no knowledge whatsoever of his back-

ground or personality or of any mitigating circumstances;

the jury would know none of the information which settled

views of penology consider indispensable to a rational sen-

23

tencing decision. See Williams v. New York, 337 U.S. 241,

247-8. Indeed, the full consideration of the circumstances

of a crime may be necessary for “the exercise of a sound

discretion” as required by due process. See, Williams v.

Oklahoma, 358 U.S. 576, 585.

On the other hand, the petitioner could at the outset of

the trial decide to take the stand, so that, in the event of

a guilty verdict, his jury could impose sentence based on

some quantum of information. But petitioner could thus

purchase a rational sentence only by surrender of his privi-

lege against self-incrimination. The surrender could be

costly: the prosecution would be permitted to counter with

otherwise inadmissible evidence, e.g., evidence of bad char-

acter, including unrelated crimes, Section 921.13, Florida

Statutes; Williams v. State; 110 So.2d 654, 661 (1959);

Davis v. State, 123 So.2d 703 (1960). Even were a jury

given cautionary instructions that such evidence should be

considered on the issue,of —— the determina-

tion of guilt would’ inevitably prejudiced. As Judge

Learned Hand remarked, such cautionary instructions are

only “the recommendation to the jury of a mental gym-

nastic which is beyond, not only their powers, but any-

body’s else.” See Nash v. United States, 54 F.2d 1006, 1007

(2d Cir. 1932), cert. denied, 285 U.S. 556.

In sum, the Florida single-verdict procedure here em-

ployed requires a defendant to choose between a procedure

that threatens a fdir trial on the issue of guilt and one

that detracts from a ratiénal determination of the sentence.

See, A.L.L, Mopzt Penau Copz, Tent. Draft No. 9 (May

8, 1959), Comment to $201.6, at 74-76.

Other procedures employed by Florida in rape prosecu-

tions exacerbate, rather than mitigate, the harshness of -

the Yi which allefendant is required to make. The jury

24

is given no instruction by the court on the manner in which

it should proceed in imposing sentence; it is left completely

without guidance. The juror’s oath offers no help: on the

subject of sentence, it is silent.’? Thus deterred by neither

instruction nor oath, the jury is free to vote its prejudices.

(The comparative record of death sentences imposed on

Negro and white defendants in rape cases suggests that

Florida juries make full use of this freedom.) Moreover,

if the jury is unable to decide by majority vote whether a

defendant shall live or die, the statute requires that he

die—only the vote of a “majority” for mercy permits the

court to impose a jail sentence rather than death. Finally,

the sentence resulting from these procedures may not be

reviewed or modified on appeal; as long as it is within the

statute, review of the sentence is outside the jurisdiction

of any appellate court, Davis v. State, 123 So.2d 703 (1960).

Florida’s simultaneous submission of guilt and sentence

to a jury is much akin to New York’s former practice of

simultaneously submitting to a jury the two issues of the

voluntary nature of a confession and the guilt of the ac-

eused. The former New York practice was, of course, struck

down by this Court in Jackson v. Denno, 378 U.S. 368,

where the Court recognized the prejudice inevitable when

guilt and another issue are determined simultaneously:

. an accused may well be deterred from testifying

on the voluntariness issue when the jury is present

because of his vulnerability to impeachment by proof

of prior convictions and broad cross-examination. . . .

12 The oath administered to jurors in Florida reads, Section 913.11,

Florida Statutes Annotated :

“You do solemnly swear (or affirm) that you will well and truly

try the issues between the State of Florida and the defendant whom

you shall have in charge and a true verdict render according to the

law and evidence, so help you God.”

25

Where this occurs the determination of volufitariness

is made upon less than all of the relevant evidence.

(378 U.S. 368, 389, n. 16.)

And see also, Whitus v. Balkcom, 333 F.2d 496 (5th Cir.

1964), holding that a Negro defendant may not constitu-

tionally be required to choose between trial to a jury from

which Negroes are excluded an@ trial to a jury prejudiced

by defendant’s demand for Negro participation.

The single-verdict procedure not only thrusts upon the

defendant an intolerable choice between unfairnesses, but

it operates also to insure that, if found guilty, he will be

sentenced upon less than all pertinent information. For as

this Court recognized in Williams v. New York, 337 US.

241, 247-8, the exclusionary rules customary and appro-

priate to trial of the issue of guilt will bar receipt of much

evidence properly to be er on sentence.

As pointed out infthe dissent nelow, a simple alternative

to the single-verdict procedure is available under the Flor-

ida statutes: the issue of innocence or guilt could be tried

first, with all appropriate evidentiary safeguards observed.

Should the jury return a guilty verdict, it could then hear

all material pertinent to sentence, and then render a just,

informed determination.

-For Florida to insist upon the single’verdict under these

circumstances constitutes, petitioner submits, a denial to

petitioner of due process of law.

The procedure employed by Florida is used by many

states, and 18 U.S.C. §2113(e) permits federal juries to

impose the death penalty.” The question of whether this

1218 U.S.C. §2113(e): “Whoever, in committing any offense defined

in this section, or in avoiding or attempting to avoid apprehension for

the commission of such offense, or in freeing himself or attempting to

26

procedure violates the requirements of due process of law

has been raised often in the Third and Second Circuits

and in the District of Columbia Circuit. See, United

States ex rel. Rucker v. Myers, 311 F.2d 311 (3rd

Cir. 1962), cert. denied, 374 U.S. 844; United States

ex rel. Scoleri v. Bonmiller, 310 F.2d 720 (3rd Cir. 1962),

cert. denied, 374 U.S. 828; United States v. Curry, ——

F.2d (2nd Cir. No. 29000, Dec. 22, 1965); Frady

v. United States, 348 F.2d 84 (D.C. Cir. 1965). Although

the procedure has been upheld, its validity was seriously

questioned in Frady and Curry, supra, and one jus-

tice of the Supreme Court of Florida urged in the present

case that it violates constitutional standards; in all in-

stances the case of Jackson v. Denno, supra, was cited.

Therefore, the issue of due process here presented is of

general importance and interest and warrants the grant of

certiorari. Moreover, in the present case the vice of the

procedure is demonstrated in its starkest form. Florida

allows the jury, unguided by any standards or instructions

and exercising a discretion not reviewable by any court, to

send a defendant to his death; it permits the jury to exer-

cise freely the prejudices called up by the race of the de-

fendant and the victim; and it does not even give the defen-

dant an opportunity freely to present evidence to mitigate

the penalty.

free himself from arrest or confinement for such offense, kills any person,

or forces any person to accompany him without the consent of such per-

son, shall be imprisoned not less than ten years, or punished by death if

the verdict of the jury shall so direct.”

However, federal courts have pointed out that having the jury decide

the sentence after rendering the verdict is fully consistent with §2113(e)

and is more compatible with Rule 32(a) of the Federal Rules of Criminal

Procedure. (“Before imposing sentence the court shall afford the defen-

dant an opportunity to make a statement in his own behalf and to present

any information in mitigation of punishment.”) United States v. Curry

(2nd Cir. No. 29000, Dec. 22, 1965, Slip Opinion at 3560).

$

27

CONCLUSION

| For the foregoing reasons the petition for writ of

certiorari should be granted.

Jay H. Topxis

575 Madison Avenue

New York, New York

AntHony G. AmMsTERDAM

3400 Chestnut Street

Respectfully submitted,

JacK GREENBERG

James M. Naszit, III

Leroy D. CiarKx

Micuart Me.rsner

Cuartes SterHen Ratston

10 Columbus Circle

New York, New York 10019

Tosrus Smmon

H. W. Drxon

Mavzice Rosen

223 Southeast First Street

Miami 32, Florida

Attorneys for Petitioner

Philadelphia, Pennsyivania

Of Counsel‘

a