Petition for Writ of Certiorari — QUICK V. HARRIS (No. 73-1800)

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IN THE

Supreme Court of the United States

Octoser TERM, 1973

No. ho : LS 0 0

=——

Frep WILLIAM Quick, Jr.,

Petitioner

v.

WituiaM M. Harris,

SHERIFF OF NELSON County

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

JoHN C. Lowe

F. GutHrie Gorpon, III

Lowe and Gordon, Ltd.

1111 West Main Street

Charlottesville, Virginia 22903

Attorneys for Petitioner

INDEX

PAGE

I a 1

A EERE Ne a 2

Cy ee ee ee ae 2

I A i sictalemlon 2

REASON FOR GRANTING THE WRIT .......ccccccccesceccecceceese 4

Petitioner had standing to raise the issue of sex

discrimination in the selection of trial jury.

REELED cee LOI A TSR et ORT EET 14

APPENDIX

Opinion of the Supreme Court of Virginia dated

I Mo ee la

Opinion and order of the Circuit Court of Nelson

County dated October 19, 1972 .......c.cccccsssssseseees 5a

TABLE OF AUTHORITIES

PAGE

Adams v. Illinois, 405 U.S. 278(1972) wee 7

Arsenault v. Massachusetts, 393 U.S. 5( 1968) ........ 8

Ballard v. United States, 329 U.S. 187, 195(1946) .... 5

Bruton v. United States, 391 U.S. 123(1968) ............ 8

Carter v. Jury Commissioners, 396 U.S. 320, 322,

eI ~ condishiitch onsthtetsissecsininsedecoanabiablecaasiapuaaimaneibcléices 5

Cleveland Board of Education v. LaFleur, 94 S.Ct.

Ck. | NRG Rn eye ele il 6, 7, 9

Desist v. United States, 349 U.S. 244, 249(1969) .... 8

Doughty v. Maxwell, 376 U.S. 202(1964) oc. 8

Douglas v. California, 372 U.S. 353(1963) oe. 8

Duncan v. Louisiana, 391 U.S. 145(1968) .....0...... 4, 6

Fernandez v. Texas, 347 U.S. 475, 477, 478(1954) ol #

Frontiero v. Richardson, 411 U.S. 677(1973) .... 6, 7, 9

Gideon v. Wainwright, 372 U.S. 335(1963) ............ 8

Goessart v. Cleary, 335 U.S. 464( 1949) occ 6

In Re: Murchison, 349 U.S. 133, 136(1955) ............ 5

Johnson v. Louisiana, 406 U.S. 385(1973) ....ccccccce. 4

Kahn v. Shevin, 42 U.S.L.W. 4591( April 24, 1974) .. 7

Labat v. Bennett, 365 F.2d 398, cert. denied 386

Bs RRA SAIN a SA 5

Lawson v. Edwards, unreported (Va. 1974) .......0..0.- 3

Linkletter v. Walker, 381 U.S. 618(1965) ...ccccccececee. 7

McConnell v. Rhay, 392 U.S. 2(1968) ......ecceeeeeeeess 8

Mempa v. Rhay, 389 U.S. 128(1970) wo.cecceccccesecesees 8

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ASTER, EP Paw emer rip aay rey, 2 ot Pees > |

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Miskumas v. Union Carbide Cuorp., 399 F.2d 847

Ok | RRs Ree eee ee 6

Peters v. Kiff, 407 U.S. 493( 1972) c..ccccccccceeecececeee 6, 10

Reed v. Reed, 404 U.S. 71(1971) cceccccccccce ce. 6, 7, 9

Roberts v. Russell, 392 U.S. 293(1968) ..cccccccccccsceceee 8

Smith v. Crouse, 378 U.S. 584( 1964) vo.cecccccccccsseees 8

Smith v. Texas, 311 U.S. 128( 1940) .o..ccecccccccscccceeee 4

Stephens v. Cox, 449 F.2d 657(4th Cir. 1971) .......... 10

Stovall v. Denno, 388 U.S. 293, 297( 1967) ..eccccccoceee 8

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

Triel v. Southern Pacific, 388 U.S. 217(1946) ......... 4

White v. Crook, 251 F.Supp. 4(M.D. Ala. 1966) .... 6

White v. Maryland, 373 U.S. 59(1963) c.ccccccccccoseeee 8

Williams v. United States, 401 U.S. 646(1971) ...... 7, 8

Witherspoon v. Illinois, 391 U.S. 510, 519(1960) .... 5

Constitutional Provision:

United States Constitution

Sixth Amendment ................-s:-ccscososeose Throughout

Fourteenth Amendment ..........0..:.ccc0000. Throughout

Federal Statute:

ee. Fee? 2

Other Authority:

The Defendent’s Challenge to a Racial Criterion

in Jury Selection: A Study in Standing, Due

Process, and Equal Protection, 74 Yale L. J.

gS RRM. RENE ARN SE 6

IN THE

Supreme Court of the United States

OctosBer TERM, 1973

Wee scenes

——

Frep WILLIAM Quick, JR.,

Petitioner

Vv.

WitiiaM M. Harris,

SHERIFF OF NELSON County

Respondent

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PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

The Petitioner prays that a Writ of Certiorari issue to

review a judgment of the Supreme Court of Virginia

entered on March 4, 1974, affirming an order dismissing

a Petition for Writ of Habeas Corpus entered by the

Circuit Court for Nelson County, Virginia, on October

19, 1972.

Opinion Below

On March 4, 1974 the Supreme Court of Virginia an-

nounced in an opinion that there was no reversible error

in the judgment of the Circuit Court for Nelson County,

thus affirming the judgment of the Circuit Court for Nel-

son County in this case. The opinion of the Supreme Court

of Virginia and the Circuit Court for Nelson County are

set forth in the Appendix, infra.

9

Jurisdiction

The judgment of the Supreme Court of Virginia was

entered on March 4, 1974. The jurisdiction of this

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

Questions Presented

1. Whether it was crror to rule that Petitioner, a white

male, had no standing to raise the issue of sysytematic ex-

clusion of women from his trial jury in violation of the

Constitution of Virginia and the Sixth and Fourteenth

Amendments to the Constitution of the United States?

- Statement of the Case |

On April 14, 1970, Petitioner Quick, a white male, was

tried by a Nelson County, Virginia jury for the crimes of

statutory burglary and grand.larceny. At that time, under

Virginia law, any Virginia housewife notified by the jury

commissioners that she had been chosen for the master

jury list, could advise the jury commissioners that she did

not wish to serve and her name would be’ removed from

the master jury list.

Quick was convicted by the jury and sentenced to serve

a term of one year in the penitentiary on the charge of

statutory burglary and twelve months on the charge of

grand larceny, said terms to run consecutively. Quick

noted appeal on several grounds not here relevant. His

Petition for Writ of Error was denied by the Supreme

Court of Virginia on June 15, 1971. Quick filed a Petition

for Writ of Certiorari with the Supreme Court of the

United States. On April 3, 1972, Quick’s Petition for

Writ of Certiorari was denied.

Quick then filed a Petition for Writ of Habeas Corpus

claiming that the jury that tried him had been unconsti-

PE SEAIMY, ORL S TS Tg MER IE PORE TS ete orn eee ee |

3

tutionally composed primarily in that the Circuit Court

for Nelson County and the laws of the Commonwealth of

Virginia discriminated against women.

At the time of Quick’s trial in 1970, the population of

Nelson County was approximately 50% women. The

Nelson County jury commissioners for 1970 were all

males. Of the grand jurors who indicted Quick, all six

were males. Of the jury panel summoned to Quick’s trial,

only three of the 28 persons were female. Of the twelve

jurors who tried Quick all were male. The statistics for

the number of males and the number of females on the

Nelson County master jury list for 1970-71 are unavail-

able as the master jury list was Jost by the Clerk of the

Circuit Court for Nelson County.

Quick’s Petition for Writ of Habeas Corpus was denied

by the Circuit Court for Nelson County. Petitioner Quick

then timely filed a Notice of Appeal and Assignment of

Error; his Petiition for Appeal was accepted for argument

by the Virginia Supreme Court.

On March 4, 1974, in an opinion that is included in

the Appendix, the Supreme Court of Virginia found there

to be no reversible error in the judgment of the Circuit

Court for Nelson County. By this opinion, the Virginia

Supreme Court affirmed the judgment of the Nelson Coun-

ty Circuit Court.

On this same date, the Virginia Supreme Court affirmed

judgement in the case of Lawson v. y Fresca unreported

(Va. 1974). A Petition for Writ of Certiorari is filed

this day in Lawson as well.

ities seetseeennecsanits EE RENN ET OP AIR BS TSN ERLE TATION ov mR R eG ee fae: PATRON EEE POON OIE TN OE BS MT TES

REASON FOR GRANTING THE WRIT

Petitioner had sianding to raise the issue of sex

discrimination in the selection of his trial jury.

The Court below ruled that, as a male, Quick had no

standing to raise the issue of systematic exclusion of

women from his jury. Petitioner contends that the law

is plainly in support of his challenge to the exclusion of

women from his jury; thus the lower courts erred in deny-

ing him standing.

Central to Petitioner’s argument is the case of Duncan

v. Louisiana, 391 U.S. 145(1968), holding that a trial by

jury in serious criminal cases is fundamental to the Amer-

ican scheme of justice, and that the Fourteenth Amend-

ment extends to the citizens of the states the Sixth Amend-

ment guarantee of trial by jury. When the Sixth Amend-

ment was extended in its application to the citizens of the

states in Duncan, it brought with it the full force of this

Court’s past Sixth Amendment interpretations. Johnson

v. Louisiana, 406 U.S. 385(1973). These past decisions

serve to interpret and clarify the minimum requirements

below which no constitutionally permissible jury may fall.

It is Quick’s position that his jury was constitutionally

defective in that women had been systematically excluded

from participation. A brief review of the holdings of parti-

nent decisions by this Court supports Plaintiff's conten-

tion.

In a successful challenge to the exclusion of women

from jury service, this Court held that not only the sys-

tematic and intentional exclusion of a racial group, Smith

v. Texas, 311 U.S. 128(1940), or an economic class,

Thiel v. Southern Pacific, 388 U.S. 217(1946), but also

of one of the sexes, deprives the jury system of the broad

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»

base it was designed to have in our demccratic society.

Ballard v. United States, 329 US. 187, 195( 1946).

Despite thc Court’s reliance on its supervisory powers

of the federal courts and the resulting absence of a con-

stitutional footing, there can be no doubt about the essen-

tial quality attributed by he holding in Ballard to women’s

participation in jury processes. At page 194 of the

Ballard opinion, the Court suggests that participation by

women may be even more important than that of a racial

group or economic or social class. “. . . a distinct quality

is lost if either sex is excluded. Exclusion of one may

indeed make the jury less representative of the community

than would be true if an economic or racial group were

excluded.”

{

_ See also the line of cases beginning with Fzrnandez v.

Texas, 347 U.S. 475, 477, 478(1954); Brown v. Allen,

344 U.S. 443, 474(1953); In Re: Murchison, 349 U.S.

133, 136(1955); Labat v. Bennett, 365 F.2a 398, cert.

denied 386 U.S. 991(1967); Witherspoon v. Illinois. 391

U.S. 510, 519( 1968); Carter v. Jury Commissioners, 396

U.S. 320, 322, 333(1970).

But out of these affirmations by the Supreme Court as

to the impermissibility of systematic exclusion of racial

groups, economic classes, or a sex grew questions of

standing. Who had standing to challenge the exclusion

of a black person, a working person, or a woman? Must

the Petitioner be a member of the excluded group in order

to complain and seek redress in the courts?

Ballard v. United States, supra settled that women have

a right to be tried under a jury system free from discrimi-

nation against women, and it has been long settled that

the Equal Protection Clause of the Fourteenth Amend-

ment protects blacks from being tried by juries chosen by

discriminatory selection procedures against blacks. Strau-

der v. West Virginia, 100 U.S. 303( 1880); see also

6

White v. Crook, 251 F. Supp. 41(M.D. Ala. 1966). But

it had been widely held by state and federal courts that a

white defendant did not have standing to raise procedural

defects that related to jury discrimination against blacks.

See The Defendant’s Challenge to a Racial Criterion in

Jury Selection: A Studu in Standing, Due Process, and

Equal Protection, 74 V are L. J. 919(1965); Peters v.

Kiff, 407 U.S. 493, n4(1972). And further it had been

argued by many, and upheld in some courts that the Equal

Protection Clause of the Fourteenth Amendment protected

against racial discrimination but not discrimination based

on sex. Goessart v. Cleary, 335 US. 464(1949); Mis-

kumas v. Union Carbide Corp., 399 F.2d 847(7th Cir.

1968). -

Then in June of 1972 this Court ruled that a white

state court defendant had an absolute right to trial by a

jury selected without racia! discrimination against blacks.

Peters v. Kiff, 407 U.S. 493(1972). The lead opinion

of three justices also plainly implies that any criminal

defendant would have standing to object to the systematic

exclusion of women from his jury:

Thus, if the Sixth Amendment were applicable here,

and Petitioner were challenging a post-Duncan petit

jury, he would clearly have standing to challenge

the systematic exclusion of any identifiable group

from jury service.

Peters v. Kiff, supra.

This language butressed by the Supreme Court deci-

sion in Reed v. Reed, 404 U.S. 71(1971) making it clear

that the Equal Protection Clause extends protection to

women from discrimination based on sex leads to the in-

escapable conclusion that a male has standing to raise

female exclusion from the jury process. See also Fron-

tiero v. Richardson, 411 U.S. 677( 1973), and Cleveland

Board of Education v. LaFleur, 94 S.Ct. 791( 1974)

7

This Court has recently decided the case of Kahn v.

Shevin, 42 U.S.L.W. 4591 on April 24, 1974, ruling that

a Florida statute giving widows, but not widowers a $500

property tax exemption does not unconstitutionally dis-

criminate against widowers on the basis of sex. This hold-

ing is distinguished from Reed, Frontiero and Cleveland

Board of Education, supra, in that Florida was not denying

substantive and procedural benefits to one sex and not the

other. Further, the challenged Florida statute in Kahn

is a state tax law. The Court has long recognized that

the States have large leeway in making classifications and

drawing lines which in their judgment produce reasonable

systems of taxation.

However, the question has been raised as to whether or

not Peters v. Kiff should be accorded retroactive effect so

as to extend coverage to convictions taking piace before

its decision date as is true in the instant case.

Retroactivity

Peters v. Kiff plainly falls within that category of cases

hich should be given retroactive application. This

Court has fashioned a rule stating that in cases “where the

major purpose of new constitutional doctrine is to over.

come an aspect of the criminal trial that substantially im-

pairs its truth finding function and so raises serious

questions about the accuracy of guilty verdicts in past

trials, the new rule has been given complete retroactive

effect.” Williams v. United States, 401 U.S. 646, 653

(1971); Adams v. Illinois, 405 US. 278, 280(1972).

Nothing is more essential to the reliability of the fact-find-

ing or truth-determining process than a properly selected

jury.

In other opinions dealing with retroactivity, the ap-

proach mandated by Linkletter v. Walker, 381 U.S. 618

(1965) has come to be summarized in terms of a three-

fold analysis directed at discovery of:

8

1. the purpose to be served by the new standard,

2. the extent of reliance of law enforcement

authorities on old standards, and

3. the effect on administration of justice of

retroactive application of the new standards.

Stovall v. Denno. 388 U.S. 293, 297(1967), Desist v.

United States, 394 U.S. 244, 249(1969). By either the

test of Williams v. United States, 401 U.S. 646(1971)

or Stovall v. Denno, 388 U.S. 293, 297( 1967), Peters v.

Kiff is appropriate for retroactive application.

Among the rules that have been held to be appropriate

for retroactive application are:

Gideon v. Wainwright, 372 U.S. 335(1963) (right to

counsel), held retroactive in Doughty v. Maxwell, 376

U.S. 202(1964);

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

confront and cross examine witnesses), held retroactive

in Roberts v. Russell, 392 U.S. 293(1968):

Douglas v. California, 372 U.S. 353(1963) (right to

counsel on appeal ), held retroactive in Smith v. Crouse,

378 U.S. 584(1964);

Mempa v. Rhay, 389 U.S. 128(1970) (right to counsel

at sentencing) held retroactive in McConnell v. Rhay,

392 U.S. 2(1968);

White v. Maryland, 373 U.S. 59(1963) (right to coun-

sel at preliminary hearings in which substantial rights

may be adversely affected), held retroactive in Arsen-

ault v. Massachusetts, 393 U.S. 5(1968).

The right to a jury selected without systematic exclusion

9

on the basis of sex in the instant case rises to at least

the level of importance of the above-mentioned rights.

A Case of First Impression

Although the Peters v. Kiff decision involved a three,

three split among the six majority justices, the plurality

lead opinion in Peters provides the basis for the result

Petitioner seeks here. This Court is facing squarely for

the first time the question of whether a male Defendant

may challenge the systematic exclusion of women from

his or her jury. This case also presents the larger question

of whether any Defendant may challenge the systematic

exclusion of any identifiable group from his or her jury.

Petitioner contends that the state cannot subject him

to a jury that is plainly illegal and give him no recourse.

Just as this court had never before considered a white

defendant’s challenge to systematic exclusion of blacks

from his jury prior to Peters v. Kiff, so too, this Court has

never before considered a male's challenge to the systema-

tic exclusion of women from his jury prior to the instant

case. In this first case the Court should grant Petitioner

® writ, reverse the decision of the Virginia Supreme Court

and announce the rule that a man has standing to challenge

the systematic exclusion of women from his jury.

Two important and emerging doctrines meet in this

case. The first, of course, is the non-member standing rule

of Peters, supra. The other is the growing recognition of

sex discrimination as forbidden by the Fourteenth Amend-

ment. Reed v. Reed, 404 U.S. 71(1971); Frontiero v.

Richardson, 411 U.S. 677(1973); Celevland Board of

Education v. La Fleur, 94 S.Ct. 791(1974. Here, curi-

ously enough, a male suffers the sex discrimination com-

plained of. Were the Petitioner a woman, the Common-

wealth of Virginia would not dispute that Petitioner would

have standing to raise the issue of jury selection which is

ASTI E Seta? Ripon: BERGER. OE RES

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EEL LEN OC NE tat ra eee ore, ——

10

the subject of this attack. Because Petitioner is a male, he

was not permitted by the Virginia courts to raise the issue.

There is no valid reason for this distinction.

Granted Standing, Petitioner Should Prevail on the Merits

Once it is conceded by the retroactive application and

construction of Peters v. Kiff or by the announcement of a

new rule from this case of first impression that Quick is

entitled to raise the sex discrimination question, we must

turn our attention to the merits of the claim. Op thc merits,

the case is plainly made. At the time of Quick’s trial in

1970, the population of Nelson County was <pproximately

50% women. The Nelson Courty jury commissioners for

1970 were all males. Of the grand jurors who indicted

Quick, all six were males. Of the venire summoned to

Quick’s trial, only three of twenty-eight persons were

female. And of the twelve jurors who tried Quick, all were

male. The disparity is severe and this is lainly a showing

of discrimination. The Commonwealth bears the burden

of refuting it and, having failed to do 0, the Petitioner is.

entitled to relief. Stephens v. Cox, 449 F.2d 657(Ath

Cir. 1971).

é

1]

CONCLUSION

For the reasons set forth above, this Petition for

Certiorari should be granted.

Respectfully submitted

Joun C. Lowe

Lowe and Gordon, Ltd.

1111 West Main Street

Charlottesville, Virginia 22903

F. Guturie Gorpon, III

Lowe and Gordon, Ltd.

1111 West Main Street

Charlottesville, Virginia 22903

Attorneys for Petitioner

June 2, 1974

MAILING CERTIFICATE

I hereby certify that on or before the 2nd day of June,

1974, I mailed three true copies of the foregoing Petition

for Writ of Certiorari to The Honorable Andrew P. Miller,

Attorney General of Virginia, Supreme Court Building,

Richmond, Virginia, and three copies to Robert E. Shep-

herd, Jr., Esquire, Assistant Attorney General, Life of

Virginia Building, Richmond, Virginia.

/s/ John C. Lowe

John C. Lowe

Attorney for Petitioner