# Petitioners Brief — Sims v. Georgia

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1967
- **Citation:** 385 U.S. 538

## Text

——— —

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SUPPLE COURT,

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4 SEP sib shi ;

JOHN F. DAVIS, CLERK

In THE

Supreme Cot of the Huited States

October Term, 1966
No. 251

Isaac Sims, In.,

Petitioner,

—.—

State or Greoraia. ‘

ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF THE STATE OF GEORGIA

BRIEF FOR PETITIONER

JAck GREENBERG —
James M. NaRRTr, III
Cox RAD K. HARPER

10 Columbus Circle

New York, New York 10019

Antuony G. AmsTeRDAM
3400 Chestnut Street
Philadelphia, Pa. 19104

HowanD Moon, Jr.

WLAN H. ALxXANDRR
85914 Hunter Street, N. W.
Atlanta, Georgia 30314

Attorneys for Petitioner

—— . —äꝓ— ———— tats

&

INDEX

PAGE
Opinion Below ) 1
: —
Jurisdiction * 1
Questions Presented 2
Constitutional and Statutory Provisions Involved +
Statement of the Case 5
‘ 4 *
Summary of Argument 9

ARGUMENT

I. Petitioner’s Constitutional Rights Were Violated
by the Use at His Trial of Confessions Which
(A) Were Not Reliably Determined to Be Vol-
untary, in Violation of Jackson v. Denno, 378
U.S. 368; (B) Were Judged by Standards of
Voluntariness That Were Not in Accord Consti-
tutional Requirements; (C) Were Obtained in
Inherently Coercive Circumstances Following
the Physical Brutalization of Petitioner While
in Custody; and (D) Were Obtained in Violation
of Petitioner’s Sixth Amendment Right to the *

Assistance of Counsel 13

Introduction 13

A. The Decision Below Is in Plain Conflict With
Jackson v. Denno, 378 U.S. 368 14

B. The Standards Applied Below to Determine
Voluntariness Were Insufficient to Satisfy
the Constitutional Requirements 22

ii

PAGE

C. Petftioner’s Confession Was Obtained in In-
herently Coercive Circumstances and After
He Had Been Physically Brufklized While in
Custody, and Its Use to Convict Him Vio-
lates the Due Process Clause of the Four-
teenth Amendment

1. Facts and Circumstances Surrounding
the Confession

2. The Confessions Were Obtained in In-
herently Coercive Circumstances and
Their Use Violated the Due Process
Clause

3. The Physical Violence Inflicted on Sims
Is Sufficient by Itself to Invalidate the
Confessions

D. The Decision Below Violates Petitioner’s
Sixth Amendment Right to Counsel in Con-
flict With Escobedo v. Illinois, 378 U.S. 478,
and Other Decisions of This Court

II. Petitioner Was Denied Equal Protection of the
Laws by Rulings of the Courts Below Refusing
Evidence That Negroes Were Systematically

Excluded From Grand and Petit Juries in
Charlton County, and Overruling His Challenge
to Those Juries on Grounds of BG Discrimi-
nation in Their Selection

A. The Georgia Courts Unconstitutionally Re-
fused to Receive Petitioner’s Proffered Proof
of Racial Discrimination in the Selection of
Jurors

36

47

49

iii
PAGE

B. The Use of Tax Digests Containing Racial
Designations, As Required by Statute, in
Georgia’s System of Jury Selection is Un-
constitutional 52

C. The Results of Jury Selection in the Instant
Case Establish a Prima Facie Case of Racial

Discrimination 56
ConcLusiIon 61
Appendix on Computation on 63

4

: TaBLE oF CasEs:
Anderson v. Martin, 375 U.S. 399 53, 56
Arnold v. North Carolina, 376 U.S. 773 50
Asheraft v. Tennessee, 322 U.S. 143 25
Avery v. Georgia, 345 U.S. 559 12, 13, 55, 56, 59, 60
Blackburn v. Alabama, 361 U.S. 199 = 42
Bram v. United States, 168 U.S. 532 43

_ Brodie v. United States, 295 F.2d 157 (D.C. Cir. 1961) 21

Brooks v. Beto, No. 22,809, 5th Cir., July 29, 1968 50
Brown v. Allen, 344 U.S. 443 57
Brubaker v. Dickson, 310 F. 2d 30 (9th Cir. 1962), cert.
den. 372 U.S. 978 45
Bryant v. State, 191 Ga. 686, 13 S. E. 2d 820 (1941) ....16, 20
Carter v. Texas, 177 U.S. 442 ~....11, 50
Cassell v. Texas, 339 U.S. 282 52, 57
Chambers v. Florida, 309 U.S. 227 25
Cohens v. Virginia, 6 Wheat. (19 U.S.) 264. 14
Coker v. State, 199 Ga. 20, 33 S.E.2d 171 (1945) 16, 20
Coleman v. Alabama, 377 U.S. 129 . 11, 50

iv

— PAGE

Commonwealth v. Coyle, 190 Pa. Super. 509, 154 A. 2d
412 (1959) rae 21

Commonwealth ex rel. Gaito . Maroney, 416 Pa. 199,
204 A.2d 758 (1964) 22

Communist Party v. Subversive Activities Control
Board, 367 U.S. 1 ; ‘ 52
“Chromo rene nna eemseyonenineness: 14
Crooker v. California, 357 U.S. 433 45
Culombe v. Connecticut, 367 U.S. 568 38, 42, 43
Davis v. North Carolina, 384 U.S. 737 41
Davis v. State, 245 Ala. 589, 18 So.2d 282 (1944) 21
Downs v. State, 208 Ga. 619, 68 S.E.2d 568 (1952) ..16, 17, 20
Escobedo v. Illinois, 378 U.S. 478 2, 11, 14, 44, 45
Eubanks v. Louisiana, 356 U.S. 584 13, 50, 57
Fikes v. Alabama, 352 U.S. 191 2, 14, 36, 37, 38, 42

Garrett v. State, 203 Ga. 756, 48 S.E.2d 377 (1948) ....16, 20
Griffith v. Rhay, 282 F.2d 711 (9th Cir. 1960), cert. den.
364 U.S. 941 2 OP SL i SER 45

Haley v. Ohio, 322 U.S. 596 8 37, 38
Hamm v. Virginia State Board of Elections, 230 F.
Supp. 156 (E. D. Va. 1964), aff'd sub nom. Tancil v.

Woolls, 379 U.S. 19 12, 53, 54
Haynes v. Washington, 373 U.S. 503 25, 30, 37, 38
Henry v. Rock Hill, 376 U.S. 77—̃ 14
Hernandez v. Texas, 347 U.S. 475 50
Hill v. Texas, 316 U.S. 400 13, 57
Jackson v. Denno, 378 U.S. 368 2, 8, 9, 13, 14, 15, 16,

17. 18, 19, 20, 21, 22

Johnson v. New Jersey, 384 U.S. 719 41, 44

PAGE
Johnson v. Pennsylvania, 340 U.S. 88 38
Johnson v. Zerbst, 304 U.S. 458 i 38
Labat v. Bennett, No. 22,218, 5th Cir., Aug. 15, 1966 ... 50
Lisenba v. California, 314 U.S. 219 42
Lopez v. State, 384 S.W.2d 345 (Tex. Ct. Crim. App.
1964) 22
Malinski v. New York, 324 U.S. 401 37, 43
Marion v. State, 387 S.W.2d 56 (Tex. Ct. Crim. App.
1964) 0 22
Massiah v. United States, 377 U.S. 201 46
Maxwell v. Bishop, E. D. Ark., No. PB-66-C-52, decided
August 26, 1966 3
Miranda v. Arizonfi, 384 U.S. 436 41, 42, 44
Moorer v. South Carolina, 4th Cir., No. 10,526, Memo-
randum and Order of July 18, 1966 3
Neal v. Delaware, 103 U.S. 370 50
Norris v. Alabama, 294 U.S. 587 50. 54, 57
Opper v. United States, 348 U.S. 84 Ee ick 19
Payne v. Arkansas, 356 U.S. 560 2 37, 48
Payton v. United States, 222 F.2d 794 (D.C. Cir.
1955) 39, 42

People- v. Caruso, 246 N.Y. 437, 159 N.E. 390 (1927) .° 21
People v. Megladdery, 40 Cal. App. 748, 106 P.2d 84

(1940) 21
People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965) 22
Pierre v. Louisiana, 306 U.S. 354 50
Powell v. Alabama, 287 US. 45 .... 46

Rabinowitz v. United States, No. 21,256, 5th Cir., July
20, 1966 , 50, 53

r

PAGE
Reece v. Georgia, 350 U.S. 85 50
Rogers v. Richmond, 365 U.S. 534 -............. 10, 14, 19, 23,

24, 25, 43
Scott v. Walker, 358 F.2d 561 (5th Cir. 1966) 51
Sims v. Balkcom, 220 Ga. 7, 136 S. E.2d 766 (1964)

1, 5, 6, 50
Smith v. Texas, 311 U.S. 128 13, 50, 57
Smith v. United States, 348 U.S. 147 19
Spano v. New York, 360 U.S. 315 1 42, 46, 47
State v. Brewton, 395 P. 2d 874 (Ore. 1964) 22

State v. Burke, 27 Wis. 244, 133 N. W. 2d 753 (1965) — 22
State v. Costello, 97 Ariz. 220, 399 P. 2d 119 (1965) — 22

State v. Taylor, 133 N. W. 2d 828 (Minn. 1965) 22
Stein v. New York, 346 U.S. 156 17, 20, 21, 40, 42
Swain v. Alabama, 380 U.S. 202 61

Townsend v. Sain, 372 U.S. 293 8
Turner v. Pennsylvania, 338 U.S. 62 38

United States v. Atkins, 323 F.2d 733 (5th Cir. 1963) — 53
United States ex rel. Goldsby v. — 263 F. 2d 71

(5th Cir. 1959) 51
United States v. Louisiana, 225 F. Supp. 353 (E. D.

La. 1963), aff'd 380 U.S. 145 1 12, 53
United States ex rel. Seals v. Wiman, 304 F.2d 53

(5th Cir. 1962) 2 : Stott et 51
Wan v. United States. 266 U.S. 0... 14, 24
Ward v. Texas, 316 U.S. 547 i 25
Watts v. Indiana, 338 U.S. 49 37
Williams v. Georgia, 349 U.S. 375 56

Wong Sun v. United States, 371 U.S. 471. 19

vii

Srarurzs:

PAGE
Ga. Code Ann. §27-209 (1933) » 33, 45, 46
Ga. Code Ann. 527-212 (1933) a 33
Ga. Code Ann. 638-411 (1933) 4, 16, 20, 22, 23
Ga. Code Ann. 659-106 (1965 Rev. Vol.) 4, 12, 47, 48,

49, 52,

Ga. Code Ann. §59-108 (1965 Rev. Vol.) et
Ga. Code 692-6307 (1933) 5, 12, 47, 52, 55
N. . Code Crim. Proc. 5395 * 19
N. Y. Code Crim. Proc. 5465 21
28 U.S.C. §1257(3) 2

Orner AUTHORITIES:
Barron & Holtzoff, Federal Practice & Procedure
§2281 (Rules ed. 1958) 21
24 C. J. S., Criminal Law, 61452 (1961) 21

Finkelstein, The Application of Statistical Decision
Theory to the Jury Discrimination Cases, 80 Harv.

L. Rev. (1966) [to be published in Fall, 1966] ........ 58
Hoel, Introduction to Mathematical Statistics (1962) 59
7 Wigmore, Evidence §2071 (3d ed. 1949) .................... 19

~ BLANK
PAGE

In THE

Supreme Court of the United States
October Term, 1966
No. 251
Isaac Suts, J K.,
Petitioner,
—v.—

Srate or Grorciu.

ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF THE STATE OF GEORGIA

BRIEF FOR PETITIONER

Opinion Below

The opinion of the Supreme Court of Georgia and the
dissenting opinion of Justice Almand are reported at 221
Ga. 190, 144 S. E.2d 103. A prior conviction for the same
offense involved here was set aside in an opinion reported
as Sims v. Balkcom, 220 Ga. 7, 136 8.E.2d 766 (1964).

3

Jurisdiction

Judgment of the Supreme Court of Georgia was. entered
July 14, 1965 (R. 345) and rehearing was denied July 26,
1965 (R. 351). On October 19, 1965, Mr. Justice Black
e theetime for filing the petition for writ of cer-
tiorari to and including November 23, 1965 (R. 355). ‘The
petition for writ of certiorari and the motion for leave
to proceed in forma pauperis were filed November 22, 1965,
and granted June 20, 1966 (384 U.S. 998; R. 356-57). Re-

2

view was limited to the first five questions presented by
the petition (R. 356-57).

The jurisdiction of this Court is invoked pursuant to
28 U.S.C. §1257(3), petitioner having asserted below and
asserting here, the deprivation of his rights, privileges and
immunities secured by the yonntipation of the United
States. a

—

Questions Presented

1. Whether petitioner's Fourteenth Amendment rights
were violated by a conviction and sentence to death ob-
tained on the basis of a confession made under inherently
coercive circumstances within the doctrine of Fikes v.
Alabama, 352 U.S. 191.

2. Whether petitioner’s Fourteenth Amendment rights
were violated by the failure of the Georgia courts to afford
a fair and reliable procedure for determining the volun-
tariness of his alleged coerced confession is disregard of
the principle of Jackson v. Denno, 378 U.S. 368.

3. Whether petitioner’s Fourteenth Amendment right
to counsel as declared in Escobedo v. Illinois, 378 U.S. 478,
was violated by the use of his confession obtained during
police interrogation in the absence of counsel, or whether
petitioner’s right to counsel was effectively waived.

4. Is a conviction constitutional where:

(a) local practice pursuant state statute requires
racially segregated tax books and dounty jurors are selected
from such books;

(b) the number of Ne chosen is only 5% of the
jurors but they comprise about 20% of the taxpayers; and

3

(c) a Negro criminal defendant’s offer to prove a prac-
tice of arbitrary and systematic Negro inclusion or-exclu-
sion based on jury lists of the prior ten years is disal-
lowed?"

In this brief petitioner will not urge reversal of the decision below
upon the ground presented by the fifth question in his petition for certi-
orari, relating to racially discriminatory application of the death penalty
for rape. Petitioner, a pauper, was tried in October, 1964. At that time
he had available, to support the contention urged in his plea in abatement
(R. 17-18) that Georgia juries discriminate against Negroes in capital
sentencing for rape, only the published United States Bureau of Prisons
figures showing that between 1930 and 1962 fifty-eight Negroes and three
whites were executed for rape in the State. His proffer of this evidence
was rejected by the trial judge (R. 93-95)—wrongly we believe—and
that ruling was preserved for review by the Georgia Supreme Court (R.
323, 333) and subsequently challenged in the petition for certiorari here.

However, since petitioner’s trial, substantial new evidence has become
available on the issue. Pursuayt to a rigorously conceived research design,
an empirical study of the effect of race upon capital sentencing for rape
in eleven Southern States including Georgia was undertaken in the sum-
mer of 1965 under the sponsorship of the N.A.A.C.P. Legal Defense and
Educational Fund. The results of that study are being subjected to
statistical analysis on a State-by-State basis and have been proffered or
presented through expert testimony in a number of pending cases. See
Maxwell v. Bishop, E.D. Ark., No. PB-66-C-52, decided August 26, 1966,
stay granted by Mr. Justice White, September 1, 1966; Moorer v. South
Carolina, 4th Cir., No. 10,526, Memorandum and Order of July 18, 1966
(describing the study). The study lays a firm factual foundation for the
attack made in this case, the cases cited, and others, challenging Southern
capital punishment for rape under the Equal Protection Clause of the
Fourteenth Amendment.

The study to date has involved the expenditure of considerably more
than $35,000. Since it supplies evidence supporting petitioner’s contention
which is vastly more illuminating than the meager showing petitioner
attempted to make on the present record in 1964 and—being plainly
without petitioner’s financial means—obviously will support a “substantial
allegation of newly discovered evidence” within the meaning of Townsend
v. Saim, 372 U.S. 293, 313 (1963), it will be available to petitioner in
subsequent proceedings, whether on remand following reversal of peti-
tioner’s conviction on the grounds urged in this brief or in state or federal
collateral attack proceedings. In these circumstances, petitioner’s counsel
would not urge this Court to premature consideration of a vitally signifl-
cant constitutional question on the scanty and relatively uninformative
record of the present proceeding. — Naty

4

Constitutional and Statutory
Provisions Involved

This case involves the Sixth and Fourteenth Amend-
ments to the Constitution of the United States.

j This case also involves the following Georgia Statutes:
Ga. Code §38-411 (1933) :

Confessions must be voluntary.—To make a confession
admissible, it must have been made voluntarily, with-
out being induced by another, by the slightest hope of
benefit or remotest fear of injury.

Ga. Code Ann. 659-106 (1965 Rev. Vol.):

Revision of jury lists. Selection of grand and traverse
jurors.—Biennially, or, if the judge of the superior
court shall direct, triennially on the first Monday in
August, or within 60 days thereafter, the board of
jury commissioners shall revise the jury lists.

The jury commissioners shall select from the books
of the tax receiver upright and intelligent citizens to
serve as jurors, and shall write the names of the per-
sons so selected on tickets. They shall select from these
a sufficient number, not exceeding two-fifths of the
whole number, of the most experienced, intelligent, and
upright citizens to serve as grand jurors, whose names
they shall write upon other tickets. The entire number
first selected, including those afterwards selected as
grand jurors, shall constitute the body of traverse
jurors for the county, to be drawn for service as pro-
“vided by law, except that when in drawing juries a
name which has already been drawn for the same term
as a grand juror shall be drawn as a traverse juror,
such name shall be returned to the box and another

5

drawn in its stead. (Acts 1878-79, pp. 27, 34; 1887, p.
31; 1892, p. 61; 1899, p. 44; 1953, Nov. Sess., pp. 284,
285; 1955, p. 247.)

Ga. Code §92-6307 (1933) :

Entry on digest of names of colored persons.—The
tax receivers shall place the names of the colored tax-
payers, in each militia district of the county, upon the
tax digest in alphabetical order. Names of colored and
white taxpayers shall be made out separately on the
tax digest. (Acts 1894, p. 31.)

Statement of the Case

Petitioner, Isaac Sims, an indigent, ignorant and illiter-
ate Negro, is under a sentence of death by electrocution
imposed by the Superior Court of Charlton County, Georgia
following his conviction for the crime of rape. His con-
viction was affirmed on appeal by the Supreme Court of
Georgia, which stayed execution pending this Court’s re-
view of petitioner’s claims that he was denied rights pro-
tected by the Constitution of the United States.

Petitioner had previously been indicted, convicted and
sentenced to death at the October 1963 Term of the Superior
Court for the same offense. That first conviction was set
aside on habeas corpus by the Supreme Court of Georgia,
which ordered a new trial on May 7, 1964. Sims v. Balkcom,
220 Ga. 7, 136 S. E. 2d 766 (1964). No appeal from the first
conviction had been taken by Sims’ court-appointed coun-
sel, the court reporter had destroyed his trial notes, exe-
cution had been scheduled for November 13, 1963, and a
commutation of sentence had been denied (R. 58, 250-251).
One of Sims’ present counsel, Mr. Moore, entered the case
and initiated the habeas corpus proceedings resulting in

. 6

the Sims v. Balkcom decision and obtained a stay on the
day before Sims’ scheduled execution.

The indictment leading to this conviction, returned Octo-
ber 6, 1964, charged that Sims raped Nola Jean Roberts
on April 13, 1963, in Charlton County (R. 1). The trial
commenced the next day, October 7, 1964, and a jury re-
turned a verdict of guilty without recommendation of
mercy on October 8, 1964 (R. 2).

The evidence upon which Sims was convicted consisted
principally of testimony by the prosecutrix that Sims
“forced her car off the road, dragged her into the woods,
pulled her clothes off, and raped her” (Opinion below, R.
334), and: hat he kept choking her and threatened to kill
her if she screamed” (ibid.). In addition, there was testi-
mony by Miss Roberts’ mother and her physician, Dr.
Jackson, as to her condition after the attack, and evidence
of several admissions and confessions by the defendant.
The circumstances of these admissions and confessions,
which Sims contends were involuntary and obtained by
coercion, are set forth in detail in Argument I below, pp.
26 to 36. The text of a written confession signed by Sims
while in custody appears at R. 226-227. Sims is unable to
read or write. The confession was written by a deputy
sheriff and read to Sims. The first three sentences and
last three paragraphs of the statement were admittedly
not statements by Sims but, rather, assertions of the vol-
untariness of the confession written by the deputy and
read to Sims (R. 100-101, 103-104, 218-219).

Petitioner denied understanding the import of the state-
ment and denied his guilt in sworn testimony at a voir dire
hearing and in an unsworn statement before the jury (R.
134-135, 248). Sims, in his mid-twenties at the time of
arrest, was a pulpwood worker who quit school at age
seventeen or eighteen, having completed only the third

7

grade (R. 128-130). His understanding is severely limited
as is illustrated by the following testimony, which is a
mere sample of his incapacity as revealed in the record:

Mr. Moore: Do you know what is meant by “the
statement can be used against you in court”?

Mr. Sims: Statement can be used against me?

Mr. Moore: Statement can be used against you in
court. Do you know what that means?

Mr. Sims: No, sir.

Mr. Moore: Do you know what it means to be in-
formed of your legal rights?

Mr. Sims: Well; that’s like being good or something?

Mr. Moore: Is that what it means to you, Isaac?

Mr. Sims: Yes, sir. (R. 136)

Mr. Moore: Isaac, do you know what “Constitutional
rights” means?
Mr. Sims: Do you mean good or something?
Mr. Moore: Is that what it means to you, Isaac?
Mr. Sims: Yes, sir. (R. 137) |
©
The facts of record with respect to petitioner’s claim of
racial discrimination in the jury selection process are set
forth below in Argument II, pp. 47 to 48, infra.

Petitioner objected to the confessions and the testimony
about them on federal constitutional grounds by a series
of oral and written motions and pleas, including a pre-
trial motion to suppress (R. 13), a motion to quash the
‘signed confession and to exclude the testimony concerning
it (R. 235), and motions to strike testimony (R. 212-213,
225). All the motions were overruled. An amended mo-
tion for new trial renewed the objections (R. 24-44) and
was denied (R. 317). The federal claims were preserved
by bill of exceptions (R. 319, 321-322), and on appeal the

8

Supreme Court of Georgia rejected all of petitioner’s con-
stitutional claims. and held the confession was properly
admitted in evidence (R. 334-343).

Petitioner’s objections to the standard used to determine
voluntariness under Georgia law were articulated in the
amended motion for new trial (R. 43-44). His objections, —
based on Jackson v. Denno, 378 U.S. 368, were overruled
by the Georgia Supreme Court in an opinion denouncing
the holding of Jackson as “illogical, impracticable and
utterly unsound” and expressing the hope that it would
be overruled, while at the same time attempting to show
that the Jackson holding was not applicable to this case in
view of certain Georgia laws (R. 337-342).

The federal objections based on jury discrimination were
also preserved throughout the proceedings below. Peti-
tioner’s motion for change of venue, first plea in abatement,
and challenge to the array in the Superior Court alleged
that his Fourth Amendment rights of equal protection of
the laws and due process of law had been violated in that
grand and petit jury panels were selected in a racially
discriminatory manner (R. 3-4, 6-8, 10-11). The pleadings
contended that Negroes were systematically and arbitrarily
included or excluded from jury panels and that no Negro
had ever served as a jury commissioner (ibid.). The first
plea in abatement and challenge to the array also alleged
that the Charlton County Tax Digest from which jurors
were selected listed taxpayers separately on the basis of
race (R. 4, 7-8). After hearing testimony the court over-
ruled petitioner's objections (R. 5, 6, 8, 12, 70. 93, 95).
Petitioner offered in evidence certified copies of the grand
and traverse jury lists from 1954 to 1963 (R. 254-98). The
trial court ruled them inadmissible (R. 72-73, 147). Peti-
tioner’s bill of exceptions in the Supreme Court of Georgia
assigned these various rulings on the jury discrimination
claim as error (R. 319-322).

9

The Supreme Court of Georgia affirmed, e e
tioner’s arguments on the merits (R. 330-332).

Petitioner offered to prove by certified copies of the
traverse and grand jury lists of 1954 to 1963 the pattern
in which Negroes had been systematically and arbitrarily
included or excluded from jury lists (R. 70-73). These
offers of proof were ruled inadmissible (R. 147) and this
ruling was upheld by the Georgia Supreme Court (R. 332-
33).

Summary of Argument :
I.

The use at trial of confessions obtained from petitioner
while in police custody violated his right against depriva-
tion of life without due process of law, for several reasons.

A. The issue of voluntariness of the confessions was
submitted to the trial jury without the prior judicial screen-
ing required by Jackson v. Denno, 378 U.S. 368. The Su-
preme Court of Georgia conceded as much, but took the
view that Jackson was inapplicable in Georgia by reason
of several aspects of Georgia confession practice—the re-
quirement that confessions be corroborated, the: require-
ment that they be shown voluntary as a condition of
admissibility, and the trial court’s power to set aside an
unjust verdict of conviction—said to provide safeguards
not provided by the New York practice condemned in Jack-
son. However, each of these practices has its exact ana-
logue in New York law and each is so obviously general,
if not universal, American practice in confession cases
that it blinks reality to suppose the Court in Jackson
imagined that any other practices would obtain in the trials

which Jackson was plainly designed to govern. Georgia

10

has here merely evaded, not distinguished, Jackson; and
its evasion should not be countenanced by the Court.

B. A standard was used to determine the voluntariness,
hence the admissibility, of petitioner’s confessions which
was not the standard imposed by the Fourteenth Amend-
ment. Inquiry respecting voluntariness below was confined
to the issues (delimited by Georgia statute) whether peti-
tioner’s statements were induced by promises or threats.
But under the Due. Process Clause, any cumulation of

. circumstances which saps the will of an accused and com-
pels him to a confession not freely self-determined renders
the confession inadmissible even though no threats or
promises have been made. The narrow view taken by the
Georgia courts of the constitutional obligation of a State
to protect criminal defendants against the use of invol-

untary confessions thus runs afoul of the holding in Rogers
v. Richmond, 365 U.S. 534, and compels reversal of peti-
tioner’s conviction...

C. Petitioner, an ignorant and illiterate Negro taken
into custody for the capital offense of rape of a white
woman, was subjected while surrounded by police to physi-
cal brutality requiring hospital treatment. A short time
thereafter, still surrounded by police, without the oppor-
tunity to see a friend or lawyer, and without effeciive
warning of his rights in view of his limited mentality, he
confessed the rape. Later, after he had been charged by
warrant, again surrounded by police and without having
seen a friend or received effective caution, he was asked
to reaffirm his confession and did so. On these uncontested
facts, his confessions were coerced as a matter of law.
Any confession made in police custody shortly after a
prisoner’s blood has been spilled is inadmissible consistent
with due process of law. When to the physical brutality

11

suffered by petitioner there is added his mental inadequacy,
his isolation in police confinement, and the terrorizing cir-
cumstance of his charge for rape of a white woman, the
totality of circumstances plainly makes out duress within
the prior forced-confession holdings of this Court.

D. The same circumstances firmly establish that peti-
tioner was denied the right to counsel given by Escobedo
v. Illinois, 378 U.S. 478. While petitioner did not request
counsel, Escobedo and cases decided prior to it make
plain that a request is not the invariable condition of the
protective right to counsel which Escobedo asstres, and
that in some cases fundamental fairness precludes use of
a confession taken from an ignorant and uncounseled state
criminal defendant. Petitioner’s is such a case. His in-
capacity to understand or protect his rights in the fearful
surroundings of his confinement by the police render the
taking of his initial confessions fundamentally unfair. And
the police stratagem of securing his reaffirmation after he
had been charged violates the command of the Sixth Amend-
ment, as incorporated in the Fourteenth, that a criminal
“accused” be provided a lawyer once the proceedings
against him have e rag to the post-investigative stage.

II.

A. Georgia courts refused to permit petitioner to make
a full record on his claim that N egroes had been arbitrarily
barred from and limited in serving on Charlton County
grand and petit juries. In thus thwarting petitioner's
rights, the Georgia courts were in clear violation of the
principle announced in Coleman v. Alabama, 377 U.S. 129,
and Carter v. Texas, 177 U.S. 442. In jury discrimination
cases, this Court has long relied upon records covering a
number of years in order to appraise ‘present conduct i in
the context of past action.

12

B. The Charlton County jury commissioners’ use of seg-
regated tax digests, pursuant to Ga. Code §§59-106 and
92-6307, violates petitioner’s Fourteenth Amendment rights
to grand and petit juries selected without regard to race.
Hamm v. Virginia State Board of Elections, 230 F. Supp.
156 (E.D. Va. 1964), aff’d sub nom. Tancil v. Woolls, 379
U.S. 19, deprives the State of any justification for main-
taining racially separate tax lists, and Georgia’s process
of selecting jurors from those lists, together with Charlton
County's local practice of having the names of white tax-
payers on White paper and Negroes on yellow paper, vio-
lates the rule of Avery v. Georgia, 345 U.S. 559. Ga. Code
Ann. 559-106, specifying that jurors shall be chosen on the
basis of uprightness and intelligence, requires the jury
commissioners to employ vague, subjective criteria and
gives them a discretion in which the discriminatory oppor-
tunities provided by the segregated digests create an un-
constitutional Ae of racial exclusion. Cf. United
States v. ana, 225 F. Supp. 353, 396-97, aff’d, 380
U.S. 145.

C. Notwithstanding the Georgia courts refused to per-
mit petitioner to make a full record on his jury discrim-
ination claim, the facts shown—that only about 5% of the
jury list, from which his grand and petit juries were se-
lected, were identified as Negroes although N egroes com-
prised about 20% of the tax digest—made out a prima
facie case of racial discrimination. In support of this
claim, petitioner relies upon statistical computations which
show a high degree of improbability that Charlton County
juries were selected without regard to race in October, 1964.
A gross disparity between the number of Negroes avail-
able for jury service and those actually chosen appears,
and suffices to make the showing of improbability of color-
blind selection required by the jury discrimination cases

—

13

generally, e.g., Smith v. Texas, 311 U.S. 128, 131; Hill v.
Texas, 316 U.S. 400, 404; Eubanks v. Louisiana, 356 U.S.

584, 587. The instant case is controlled by Avery v. Georgia,

345 U.S. 559, where the Court, on a record quite similar
to petitioner’s regarding the jury selection process, held
that a prima facie case of racial discrimination had been
established. The probability that the selection process was
fairly used in Avery is much greater than the probability
that the process was fairly used in the instant case.

ARGUMENT
I,

Petitioner’s Constitutional Rights Were Violated by
the Use at His Trial of Confessions Which (A) Were
Not Reliably Determined to Be Voluntary, in Violation
of Jackson v. Denno, 378 U.S. 368; (B) Were Judged
by Standards of Voluntariness That Were Not in Accord
With Constitutional Requirements; (C) Were Ob-
tained in Inherently Coercive Circumstances Following
the Physical Brutalization of Petitioner While in Cus-
tody; and (D) Were Obtained in Violation of Peti-
tioner’s Sixth Amendment Right to the Assistance of
Counsel.

Introduction ;

At petitioner’s trial the State introduced testimony con-
cerning an alleged oral confession by petitioner Isaac Sims
to Deputy Sheriff Jones (R. 210), and a written confes-
sion signed by Sims purporting to give the details of the
crime (R. 226-27). Both the alleged oral confession (which
Sims denied making) and the signed statement were ob-
tained April 13, 1963, while petitioner was in custody in
the Ware County Jail, as the sole suspect in a capital
felony. The prosecution also introduced testimony of a

14

state investigator that on the afternoon of April 15, 1963,
he read the written confession to Sims who said it was
true (R. 238). Sims stated at trial that he did not under-
stand what he was doing when he signed the confession
and that he was innocent of the crime (R. 141, 248).

We urge that Sims’ rights under the Constitution were
violated by the use against him of these confessions, for
several distinct reasons grounded on decisions of this Court
decided prior to his trial, October 7, 1964 (R. 148, 249).
We submit first, that the procedure by which the trial
judge and jury determined the admissibility of petitioner’s
statements violated the due process requirements of Jack-
son v. Denno, 378 U.S. 368. Second, we urge that the
standards used to determine voluntariness were consti-
tutionally deficient under Rogers v. Richmond, 365 U.S. 534,
and Wan v. United States, 266 U.S. 1. Third, we argue
that the physical brutality and coercive circumstances sur-
rounding the confessions prohibit their use under Fikes v.
Alabama, 352 U.S. 191, and similar cases. Fourth, we argue
that use of the confessions violated petitioner’s Sixth
Amendment right to counsel under the principle of Esco-
bedo v. Illinois, 378 U.S. 478, and other decisions of this
Court.

A. The Decision Below Is in Plain Conflict With
Jackson ei Denno, 378 U.S. 368

The decision below is a frontal attack on the funda-
mental ‘premise of this Court’s rulings from Cohens v.
Virginia, 6 Wheat. (19 U.S.) 264, through Cooper v. Aaron,
358 U.S. 1, to Henry v. City of Rock Hill, 376 U.S. 776,
that under the Supremacy Clause, “the federal judiciary
is supreme in thé exposition of the law of the Constitution”
(Cooper v. Aaron, 358 U.S. at 18). On June 22, 1964, this
Court decided Jackson v. Denno, 378 U.S. 368, holding

15

that the Constitution forbids a state court procedure leav-
ing the determination of the voluntariness of a confession
to the same jury which is charged with deciding simul-
taneously the issue of guilt or innocence. The Court held
that such a procedure “did not afford a reliable determina-
tion of the voluntariness of the confession offered in evi-
dence at the trial, did not adequately protect . . . [the]
right to be free of a conviction based upon a coerced con-
fession and therefore . . [violated] the Due Process
Clause of the Fourteenth Amendment” (378 U.S. at 377 ).

Notwithstanding that petitioner was tried and convicted
in October 1964, almost four months after Jackson v.
Denno, and that decision was brought to the attention of
the Georgia trial and appellate courts, Georgia has ad-
hered to its settled practice in plain violation of Jackson
v. Denno. To be sure, the Georgia Supreme Court’s opinion
below makes a bow in the direction of the Supremacy
Clause (“Did we think that the Jackson case applied to
this case, we would unhesitatingly follow it despite our
firm conviction that it is illogical, impractical, and utterly
unsound”; R. 337), and attempts to distinguish Jackson
v. Denno on grounds we shall examine below. But the
primary emphasis of the opinion is an open denunciation
of this Court’s decision and an express call for it to be
overruled. 1 N oot 5

The court below decried “the unusual implication of
Jackson”; deplored the “strange speculation as to how
jurors might violate their oaths . . . all of which was pure
imagination without a scintilla of fact or law to support
it”; asserted it was based on “unfounded speculation” ;
said the “decision is so shocking. . every judge has a
duty to speak out loudly against it”; and voiced dismay
over the “new and strange rule with no basis of law but
established by a majority of one of the Supreme Court”

16

(R. 339-41). Indeed, that court saw the Jackson case as
one “shaking the foundations of orderly judicial trials
which can only be followed by chaos in the trial courts of
America” (R. 341), and expresses the hope that this Court
will “after more mature consideration overrule Jackson
v. Denno” (R. 341). Such vehemence was not merely
academic exhortation. Repudiation of Jackson is the only
ground on which the procedures employed in petitioner’s
case could be sustained. |

Nothing in the opinion below suggests that Georgia

procedure affords what Jackson v. Denno requires: a sys-

tem for determining the voluntariness of a confession on
the facts and law prior to its submission to the jury which
- decides the question of guilt or innocence. On the con-
trary, consistent with prior Georgia precedents, the trial
court submitted the issue of voluntariness to the trial
jury for decision (see charge to jury at R. 312). The trial
jury was left to resolve the conflicting testimony about
whether physical brutality was used against petitioner by
Dr. Jackson in the presence of a group of police officers at
the same time it was considering the issue of guilt on all
the evidence, including the disputed confessions: The func-
tion of the trial judge, under settled Georgia procedure,
was merely to determine whether the State made out a
prima facie case that a confession was voluntary. The
State can establish such a prima facie case under Georgia
law merely by its witness's assertion during preliminary
examination that (in the words of Georgia Code 638-411)
a confession was “made voluntarily, without being induced
by another, by the slightest’ hope of benefit or remotest
fear of injury.” Downs v. State, 208 Ga. 619, 621, 68 S. E.
2d 568, 569-70 (1952); Garrett v. State, 203 Ga. 756, 762-63,
48 S. E. 2d 377, 382 (1948) ; Coker v. State, 199 Ga. 20, 23-25,
33 S. E. 2d 171, 173-74 (1945); Bryant v. State, 191 Ga. 686,

W

Tt

17

710-11, 13 S.E.2d 820, 836-37 (1941). Once the state makes

this “prima facie” showing it is “for the jury to decide

on conflicting evidence whether [a confession! . . was
voluntary.” Downs v. State, supra, 68 S.E.2d at 570. The
trial judge overruled Sims’ motion to suppress the con-
fession without any explanation or elaboration of his rul-

ing and without any indication that he had attempted to

resolve the conflicting testimony presented to him (R. 147).
It is significant that during the hearing, out of the pres-
ence of the jury, Sims’ testimony that he was beaten and
pulled by the “privates” while in custody in Dr. Jackson’s
office was entirely unrebutted, Dr. Jackson’s partial de-
nials coming only in testimony to the jury after the con-
fessions ruled admissible.

All of the vices of the procedure which this Court thought
sufficient in Jackson to require it to overrule Stein v. New
York, 346 U.S. 156, are present here. The trial court’s
unexplained overruling of petitioner’s challenge to tlie
confessions in no way resolved the conflict between peti-
tioner’s testimony that he was questioned by Sheriff Lee
and Sheriff Lee’s denials, nor did it determine whether
credence was to be given petitioner’s then undisputed testi-
mony that he was beaten by Dr. Jackson in the presence
of armed peace officers. The trial court made no findings
concerning the weight to be given the testimony that peti-
tioner was “scolded” in the sheriff’s office (R. 139), or
the circumstances that the written statement contained
manufactured statements of voluntariness (R. 101, 103-
104). Similarly, it is impossible to know what the jury
decided on the question of voluntariness. Here, as in Jack-
son v. Denno (supra, 378 U.S. 379-80) : :

It is impossible to discover whether the jury found
the confession voluntary and relied upon it, or in-
voluntary and supposedly ignored it. Nor is there any

A

_—
. I e ] . , K LH EEE RE
— rr — r * * — —

18

indication of how the jury resolved disputes in the
= evidence concerning the critical facts underlying the
coercion issue. Indeed, there is nothing to show that 1
these matters were resolved at * one svn or the
other.

Thus, the ruling below is at war with the requirement
that the “procedures must . .. be fully adequate to insure
a reliable and clear-cut W of the voluntariness
of the confession, including the resolution of disputed facts
upon which the voluntariness issue may depend.” Jackson
v. Denno, 378 U.S. 368, 391.

The court below does not deny that Georgia practice
makes the trial jury the only trier of fact on the issue
of “admissibility” when a confession is challenged as in-
voluntary. It, rather, suggests three principal reasons,“ a
why it believes Jackson v. Denno is distinguishable from
this case (R. 337-338) :

1) That the Jackson opinion did not consider Georgia
Code §38-420 “which provides that a confession can not
rest upon a confession alone, but the confession must
be corroborated” ;

2) that the Jackson opinion did not consider Georgia
Code §38-411 “requiring as an indispensable founda-
tion to the introduction of an alleged confession a
showing that it was freely and voluntarily made and
that it was not induced by another by the slightest
fear of punishment nor the remotest hope of reward”; |

* The court below also suggested that Jackson did not cover this case
because “there was no evidence to make an issue of voluntariness” (R.
330). To the contrary, we shall submit at pp. 26 to 43, infra, that the
uncontradicted evidence establishes coercion as a matter of law. However
c

19

3) that the Jackson opinion did not consider “Geor- .
gia law investing the trial judge with unquestionable
power to review the case after conviction, and to set
the verdict aside if he is not satisfied with it.”

The general answer to these attempted distinctions is
that none of the rules of Georgia law which are cited are
rules which are different from the New York law con-
sidéred in Jackson. Indeed, all three rules are principles
of such general applicability that there is no reason at all
to believe that this Court. did not consider them or ever
thought any other principles applied when it decided
Jackson v. Denno, supra.

The Georgia Supreme Court’s first point—emphasizing
that confessions must be corroborated—is directly par-
alleled in New York law. See N.Y. Code Crim. Proc., §395
requiring “additional proof” other than a confession be-
fore conviction. The rule that confessions must be cor-
roborated is, of course, universal in American law. See
7 Wigmore, Evidence §2071 (3d ed. 1940). It has been
stated frequently in this Court’s opiniòns in federal cases.
Opper v. United States, 348 U.S. 84; Smith v. United States,
348 U.S. 147; Wong Sun v. United States, 371 U.S. 471,
488-489. One can hardly suppose that the Court forgot it
or did not know of it in deciding Jackson v. Denno, supra.

Of course, even if the Georgia rule on corroboration of
confessions was unique, it would not justify rejection of
Jackson v. Denno. The emphasis on the corroboration of
the confession is merely another way of urging that it is
reliable or truthful. But Rogers v. Richmond, 365 U.S. 534,
makes it plain that the Constitution requires a determina-
tion that a confession is voluntary and that the reliability
of the confession is not properly considered in determining
voluntariness. . b

20

The Georgia Court’s second point merely focuses on the
verbiage of Georgia Code 638-411 and is largely rhetoric.
Of course, Georgia law requires that a foundation be laid
for a confession. But so does New York’s law as this
Court observed in Jackson v. Denno, 378 U.S. 368, 377-378,
and Stem v. New York, 346 U.S. 156. The Georgia rule is
like the New York rule described in Jackson v. Denno, 378
U.S. at 377-378:

Under the New York rule, the trial judge must make
a preliminary determination regarding a confession
offered by the prosecution and exclude it if in no cir-
cumstances could the confession be deemed voluntary.
But if the evidence presents a fair question as to its
voluntariness, as where certain facts bearing on the
issue are in dispute or where reasonable men could
differ over the inferences to be drawn from undisputed
facts, the judge “must receive the confession and leave
to the jury, under proper instructions, the ultimate
determination of its voluntary character and also its
truthfulness.” Stein v. New York, 346 U.S. 156, 172,
97 L.ed. 1522, 1536, 73 S. Ct. 1077. If an issue of coer-
cion is presented, the judge may not resolve conflicting
evidence or arrive at his independent appraisal of the
voluntariness of the confession, one way or the other.
These matters he must leave to the jury.

And the opinion below nowhere hints at a disavowal of the
line of prior Georgia decisions interpreting §38-411 to re-

quire only a decision by the judge whether there was a
prima facie showing of voluntariness with all factual dis-

putes being left to the jury. Downs v. State, 208 Ga. 619,

621, 68 S.E.2d 568, 569-570 ( 1952) ; Garrett v. State, 203 Ga.

756, 762-763, 48 S. E. 2d 377, 382 (1948); Coker v. State, 199

Ga. 20, 23-25, 33 8.E.2d 171, 173-174 (1945) ; Bryant v. State,

191 Ga. 686, 710-711, 13 $.E.2d 820, 836-837 (1941).

*

*

21 }

Thus, the court’s second point plainly begs the question
in its assertion that Georgia law requires that confessions
be voluntary. The question decided in Jackson v. Denno,
supra, is who must determine that confessions are volun-
tary. Georgia has not shown that its procedure in this re-
gard differs from that condemned in Jackson.

The Georgia court’s third point is that the trial judge
can grant a new trial if he is not satisfied with or does not
approve the verdict. Again, New York has the same rule,
and this Court was aware of it as indicated by Stein v.
New York, 346 U.S. 156, 174, footnote 18. This Court de-
scribed the New York trial judge’s powers in Stein saying
that he can “set aside a verdict if he thinks the evidence
does nét warrant it,” citing N. V. Code Crim. Proc. §465.
Indeed, in a New York capital case such as Jackson the
state Court of Appeals also has statutory power to order a

new trial “if the conviction is found to be ‘against the

weight of evidence,’ or if the court is satisfied for any
reason whatever ‘that justice requires a new trial’” (Stein
v. New York, 346 U.S. 156, 171-172). See People v. Caruso,
246 N.Y. 437, 159 N.E. 390 (1927). With respect to the
trial judge’s powers to order a new trial, the notion that a
trial judge may act as a “thirteenth juror” is general. in
our law and not at all peculiar to Georgia. See, for example,
Brodie v. United States, 295 F.2d 157, 160 (D.C. Cir. 1961) ;
Davis v. State, 245 Ala. 589, 18 So.2d 282 (1944) ; People v.
Megladdery, 40 Cal. App. 748, 106 P.2d 84 (1940) ; Common-
wealth v. Coyle, 190 Pa. Super. 509, 154 A.2d 412 (1959) ;
24 C. J. S., Criminal Law, 61452 (1961); Barron & Holtzoff,
Federal Practice & Procedure, 62281 (Rules ed. 1958).

We submit that the Court should reject the invitation in
the opinion below (R. 341) to overrule Jackson v. Denno,
and should reaffirm that the decisions of the nation’s highest

Court interpreting the Constitution are as binding in

—— — —— :

22

Georgia as they are in the other States. There is no reason
why Georgia cannot conform to Jackson, as the other States

have done,’ The State’s brief in opposition to certiorari in
this case has understandably made no argument on the

Jackson v. Denno question.

B. The Standards Applied Below to Determine
. Voluntatiness Were Insufficient to Satisfy the
Constituional Requirements N

In his Amended Motion for New Trial petitioner set
forth constitutional objections to the charge to the jury
on the issue of voluntariness (R. 43-44). The charge on
this issue (R. 312) did little more than reiterate the lan-
guage of Ga. Code 638-411 that confessions must be vol-
untary “without being induced by another, by the slightest
hope of benefit or remotest fear of injury.” The motion
asserted that the charge violated constitutional require-
ments in that it was “wholly inadequate to have insured
a reliable and precise determination of the voluntariness
of the alleged confession” and that the “instructions leave
it entirely to the impressionistic determination of the jury
whether a voluntary confession was in point of fact made
without delineating any constitutionally adequate standards
or definitive criteria upon which and by which the jury
could resolve said issue” (R. 43-44). 4

4

Whatever was the scope of the trial judge’s function
in appraising the issue (we have submitted in part A above

The following jurisdictions have altered their rules to conform to
Jackson v. Denno, 378 U.S. 368: State v. Costello, 97 Ariz. 220, 399 P.2d
119 (1965); People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965) ;
State v. Brewton, 395 P.2d 874 (Ore. 1964); Commonwealth b rel. Gatto
v. Maroney, 416 Pa. 199, 204 A.2d 758 (1964) ; Lopes v. State, 384 8.W.2d
345 (Tex. Ct. Crim. App. 1964), on remand from 378 U.S. 567; State v.
Burke, 27 Wis. 244, 133 N.W.2d 753 (1965).

State law grounds barred consideration of Jackson on its merits in
State v. Taylor, 133 N.W.2d 828 (Minn. 1965); Marion v. State, 387 S. W.
24 56 (Tex. Ct. Crim. App. 1964).

23
~

|
that he did not resolve any disputed facts), it seems ap-

parent that he did not use any different standard than
the one he gave the jury. This is clear not only from the
jury instruction but from the manner in which the Court
repeatedly treated objections to the confessions, permitting
them to go before the jury on nothing more than conclusory
affirmative answers by police witnesses to questions phrased

in ithe 1 of the statute (R. 211, 224-225).

| Finally, the Georgia Supreme Court seems to fave taken
the same narrow view of the test for vountariness. Its
opinion gives little evidence of an examination of the to-
tality of the circumstances surrounding the confession.
There is, for example, no mention of the physical brutality
to which Sims was subjected while in custody during the
investigation process. This is described in detail, infra at
pp. 26 to 30. Nor was there any discussion of the many
other factors such as Sims’ mental condition, injuries,
education, isolation, ete., which aré& delineated below at
pp. 30 to 36. Rather, the court below apparently found it
sufficient to resolve the issue that there was testimony
that petitioner was advised of certain rights; that the
Sheriff testified “that no threats or promise of hope or
benefit or reward were made to induce Sims to make a
statement” (R. 335); that there Was thus, a “prima facie
showing that the statement was freely and voluntarily made

and admissible in evidence. Code §38-411” (R. 336); and

that “even without this confession, the above-mentioned

evidence was sufficient to support the verdict” (R. 334).

It is, we submit, clear that. petitioner never had a deci-
sion of the issue of voluntariness made with reference to
the appropriate constitutional standards at any level—
neither by the trial judge, jury, or state appellate court.

His conviction should be reversed on the N of

Rogers v. Richmond, 365 U.S. 534.

4 : é 0

*

—

*

24

In Rogers, supra, the Court invalidated a conviction rest-
ing on a confession which the trial judge and the State’s
highest court had approved, since it was plain they both
“failed to apply the standard demanded by the Due Process
Clause of the Fourteenth Amendment for detérmining the
admissibility of a confession” (365 U.S. at 540). The error
of the Connecticut courts was in determining admissibility
cy reference to a legal standard which took into account
the circumstance of probable truth or falsity” (365 U.S.

at 543). ;

In Isaac Sims case, it is apparent that the State’s high-
est court made the same error. It relied on the fact that

there was other evidence corroborating the confession in
considering its admissibility. Whether the other evidence
of guilt was thought pertinent as assuring the confession’s
truth or as warranting its non-prejudicial character, this
simply is not Fo nth Amendment law. See Payne v.
Arkansas, 356 U.S. 560, and authorities ci

The Supreme Court of Georgia, moreover (and the trial
court insofar as its basis of judgment can be gleaned from
this record), appraised the case only in terms of the pres-
ence or absence of threats or promises—the Georgia statu-
tory standard. Similarly, the skeletal instructions to the
jurors in the bg of the statute directed the jury’s atten-
tion to “hope . . fear” and wholly failed to equip
the jurors to 4 W e in accord with federal
constitutional standards requiring scrutiny of all the co-
ercive or overbearing circumstances of the case.

This Court long ago condemned as unduly restrictive a
review of confessions that was limited to determining
whether they were induced by promises or threats. Mr.
Justice Brandeis wrote in Wan v. United States, 266 U.S.
1, 14-15:

©

25
The court of appeals appears to have held the prison-
er’s statements admissible on the ground that a con-
fession made by one competent to act is to be deemed
voluntary, as a matter of law, if it was not induced by
a promise or a threat; and that here there was evi-
dence sufficient to justify a finding of fact that these
statements were not so induced. In the Federal courts,

the requisite of voluntariness is not satisfied by estab-

lishing merely that the confession was not induced by
a promise or a threat. A confession is voluntary in
law if, and only if, it was, in fact, voluntarily made.
A confession may have been given voluntarily, al-
though it was made to police officers, while in custody,
and in answer to an examination conducted by them.

But a confession obtained by compulsion must be ex-

cluded, whatever may haye been the character of the
compulsion, and whether the compulsion was applied
in a judicial proceeding or otherwise. Bram v. United
States, 168 U.S. 532.

And at least since Chambers v. Florida, 309 U.S. 227,
239, the rule of Wan has been the law of the Fourteenth
Amendment. See also Ward v. Texas, 316 U.S. 547, 555;
Ashcraft v. Tennessee, 322 U.S. 143, 154.

Petitioner has not had a determination of voluntariness
in the courts below which is consistent with the constitu-
tional standards. Rogers v. Richmond, 365 U.S. 534; Wan
v. United States, 266 U.S. 1; ef. Haynes v. Washington, 373

U.S. 503, 516-517, note 11.

LEO GLO IEG

.
—

C. Petitioner’s Confession Was Obtained in Inherently
_ Coercive Circumstances and After He Had Been Phys-
dcally Brutalised Whilé in Custody, and Its Use to

Convict Him Violates the Due Process Clause of the
Fourteenth Amendment

1. Facts and Circumstances Surrounding the Confession

Isaac Sims was taken into custody by Sgt. George
Sims and Trooper Peacock of the State Patrol at about
3:00 pm. on April 13, 1963 (R. 184-185). On orders
from Sheriff Sikes, petitioner was taken by Sgt. Sims to
the medical office of Dr. Joseph M. Jackson (R. 185).
He was taken directly to Dr. Jackson’s office from the
place where the police took him in custody (R. 184-185).
It is clear that the officers took Sims to Dr. Jackson’s
office as a part of their investigative process, so that his
clothes might be removed and examined for evidence of
the crime (R. 205, 206-207). |

Petitioner Sims testified very clearly that he was brutal-
ized while in custody at Dr. Jackson’s office. He gave
such testimony both in the pre-trial hearing outside the
presence of the jury (R. 131), and in his unsworn state-
ment, before the jury (R. 248). Sims stated that he was
in Dr. Jackson's office with seven or eight white state
patrolmen. When asked what happened to him there,
Sims said (R. 131):

Well, Dr. Jackson, he knocked me down and kicked
me over my eye lid and busted my eye on the right
side. :

Q. Did anything else happen to yout A. And he
grabbed me by my private and drug me on the floor.

statement before the jury was to the same effect
N. 248):
*

8

27

Well, they brought me over to Dr. Jackson's office
they carried me in there, about six or seven

State Patrols, and Dr. Jackson beat me, and taken
my clothés off, and then carried me over to the bigger
hospital and stitched my eye up where they kicked
me over the eye, and put me on some white clothes
—white pants, but I kept my shirt [ had on.

Q. While you were in Dr. Jackson's office did he
drag you around the floor? A. Yes, sir.

* * 2 0 a ‘. :

Q. (By the Defendant’s Attorney) What happened
to you while you were in Dr. Jackson’s office? A.
Well, he pulled me by the privates.

When Sims testified in the pre-trial hearing he was
cross-examined, but the prosecutor never asked Sims a
single question about what happened to him in Dr. Jack-
son 8 office (R. 137-143). In addition, the prosecutor put
on no testimony at all to rebut Sims’ claim that he was
beaten, kicked over the eye, and pulled by his private
parts in the presence of six to eight officers.

The prosecutor never asked any witness a single ques-
tion about what happened in Dr. Jackson's office. Sgt.
George Sims, the “officer who took petitioner to and from
Dr. Jackson’s office (R. 185), was never asked what hap-
pened in the office.“ The other officers who were present
were never called to testify or identified by name.“ The
prosecutor did not ask Dr. Jackson a single question (on
direct or re-direct) about what happened while Sims was
in his office (R. 189-197, 208). *

Dr. Tackson said that be presumed that the oflcers in the office with
Sims were the ones who brought hich there (R. 202).

5 The exception was Trooper Peacock who was mentioned by Sgt. Sims
(R. 184) but did not testify.

Defense counsel did cross-examine Dr. Jackson about
the events in his office (R. 202-207). Certain aspects of
Sims’ testimony were confirmed by Dr. Jackson, who said:

(a) that Sims was brought to his office (R. 202);

(b) that ‘police officers and troopers were there and he
was not alone with the defendant (R. 202);

(e) that Sims’ clothes were removed (R. 202);

(d) that he (Dr. Jackson) “assisted him slightly” and
gave him “a little help” in removing his clothes, including
his pants and his underpants (R. 202-203, 206-207) ;

(e) that Sims was down on the floor while in the office
(R. 203, 204) ;

(f ) that by the time Sims left the office he “had a place
over his eye that required some treatment” (R. 204) ;*

(g) that when Sims left “he was taken over to the
hospital and the place was treated that I told you about”
(R. 207);

(h) that at the hospital Dr. Aztui put four stitches in
the injury over Sims’ eye (R. 207).

Dr. Jackson's explanation of what happened to peti-
tioner in his office was highly evasive and partly in the
form of denials of knowledge about what happened to
Sims. A whether the State Patrolman “put the-place
over his eye Jackson answered, I don't know who put
it there“ (R. 204). When 2 if the officers were beating
Sims he said:

A. You'll have to ask the ‘officers.
Q. Tm asking you, Dr. Jackson. I’m asking you

€.A state investigator observed the injury on his face two days later
(R. 242).

— —

5 Le

whether or not the officers were beating the defendant. -

A. I will say that I wasn’t there all the time (R. 204).

Referring to the “place” over Sims’ eye, Jackson was
asked :

Q. He didn’t have it over his eye when he came
~@into your office, did he! A. I didn’t see him till after
he got in.

Q. And when you first saw him in your office he
didn’t have it? A. I couldn't see it. He was sort of
slumped over, sort of falling around, like. Most any-
thing could have happened to him (R. 204). 5

Dr. Jackson denied that he knocked Sims down (R.
204) or that he kicked him (R. 205). But when asked
whether Sims was kicked he said only: “I don't know
that he was” (R. 205). Earlier, Dr. Jackson was asked
whether Sims was knocked down and he said: “I don’t
know whether he was knocked down or fell down” (R.
203).

Pr. Jackson was asked:

Q. Did you find him down on the floor?! A. He
sort of fell in the floor.

Q. He just sort of fell? Where were ei standing
at the time he sort of fell? A. I was standing on my
feet.

Q. Were you standing near him? A. Fairly close.

Q. Were you standing as close as I am to you, or
closer? A. Probably a little closer.

Q. Where you could touch him? A. I think he
could touch me.

Q. And you could touch him? Right! A. Yes. R.
204).

U

30

Thus, Dr. Jackson’s testimony was that Sims was close
enough to touch him when he fell on the floor, but Dr.
Jackson did not know “whether he was knocked down or
fell down” (R. 203). Later Jackson said Sims was on the
floor when he entered the room (R. 205). In Jackson’s
own words, “Most anything could have happened to him”
(R. 204). Despite all this, throughout the entire trial the
prosecutor avoided any inquiry into what happened to
Sims in Dr. Jackson’s office. Although Dr. Jackson denied
on cross that he knocked Sims down or kicked him, the
prosecution asked no questions about this and called none
of the policemen to corroborate the doctor’s denial. Plainly
Sims was injured while in custody. There was no sug-
gestion that he resisted arrest or anything of that nature.

Moreover, the doctor gave no testimony denying Sims’
claim that he was pulled by his private parts and dragged
on the floor. There was no rebuttal or denial of this
testimony at all and it stands uncontradictéd and uncon-
tested in the record. The language of the Court in Haynes
v. Washington, 373 U.S. 503, is pertinent in appraising
the State’s failure to rebut Sims’ claim of brutality:

We cannot but attribute significance to the failure of
the State, after listening to the petitioner’s direct
and explicit testimony, to attempt to contradict that
crucial evidence; this testimonial void is the more
meaningful in light of the availability and willing
cooperation of the policemen who, if honestly able
to do so, could have readily denied the defendant’s
claims. (373 U.S. at 510.)

In addition to the evidence of physical Brutality, there
are, of course, a variety of other facts to be considered in
appraising the totality of circumstances surrounding the

confessions. They reveal that Sims was bewildered, help-

„

31

less, alone, hungry, in pain and in fear when he signed
his written statement. -

Isaac Sims is an indigent, ignorant, iba Negro, who
cannot read and can write only his name (R. 130). He has
spent most of his life in Charlton County in the southeast
part of Georgia (R. 129). Both of his parents are dead;
his closest relatives in Charlton County were two sisters
(R. 128). At the time of his arrest he was in his twenties;
the record leaves his exact age unclear.“ Sims was unable
to tell what year he was born (R. 128). ‘He went to the third
grade in school, quitting when he was “seventeen or eigh-
teen” (R. 130)” He testified, “Well, I didn’t go [to school]
too much on account of I had to help my father work, and
he taken me out of school” (R. 129). He worked as a pulp-
wood worker, earning forty to sixty dollars a week. He
is indigent, had appointed counsel at his first trial, and
has proceeded in forma pauperis throughout the case.

The record reveals his limited mental capacity in many
instances. He did not know the year he was born; nor could
he state when his father died (R. 128). He was totally un-
able to explain words and phrases such as “normal and
ordinary” (R. 144), “legal rights” (R. 136), “constitutional
rights” (R. 137), “freely and voluntarily” (R. 136), “the
right to have a lawyer” (R. 137), or that “a statement can
be used against you in court” (R. 136). Sims “stutters”
when he speaks (R. 122).

Sims was a Negro charged with the rape of a white
woman—a capital felony in Georgia. The prosecutrix was
the unmarried daughter of the local postmaster (R. 61).
At about 2:00 or 2:30 p.m. Sims was taken into custody and
held at gunpoint some five miles from the scene of the

The confession stated that he was 27 on the day of arrest in April
1963 (R. 226); he testified that he was 29 at the trial in October 1964
r

22

crime by two Negro men who had been ordered by their
boss, a local white man, to look for any “stray man” (R. 169,
175-176). He was then taken by this white man, Noah
Stokes, accompanied by several other men, to state troopers
who carried him to Dr. Jackson’s office where Sims was
brutalized as we have described above. After Sims was
treated at the hospital for his eye injury, the police took
him to the Ware County Jail in Waycross, some thirty or
thirty-five miles away from Folkston and located outside
the county where the crime occurred, for “safe keeping”
(R. 233-234, 242).

The police testimony is that at about 6:30 p.m., while con-
fined in a cell at the Ware County Jail, Sims orally admitted
“raping” or “molesting” a white woman in Folkston in a
conversation with Deputy Sheriff Dudley Jones whom Sims
had known for more than a dozen years previously® (R. 113,
209-210, 214-216). Jones did not testify that he gave Sims
any warnings prior to eliciting this admission, either as to
Sims’ right to remain silent, that his statementewould be
used against him, or as to his right to counsel. Jones testi-
fied that Sims then agreed when asked if he wanted to make
a statement to the sheriff (R. 113, 210).*

Sims remained alone in a cell until about 10:00 or 10:30
that evening when he was taken to the “interview room”
in the jail (R. 210, 223). Sims had not been fed since he
was taken into custody some 8 hours earlier and he was
still in pain from the injury sustained in Dr. Jackson’s
office. There were four white Officers in the “interview

* Sims denied making this oral confession (R. 134, 138-139).
Sims also denied this (R. 133).
1° Sims destifled at R. 135-136:
A. Well, I felt pretty rough for about two or three weeks, more on
my private than I did on my face.
Q. When you said you felt pretty rough, what did you mean, Isaac?
A. Well, I was paining a right smart.

*

33

room“ with Sims: they were the Sheriff and Deputy Sheriff
of Ware County, the Chief of Police, and the Constable.“
Sims testified that he was “scared” (R. 143). As to his
treatment, he said, “they didn’t beat me, but they kind of
scolded me a little” (R. 139). None of Sims’ testimony in
these regards was rebutted.

Since his arrest, petitioner had not been in touch with
any relative, friend or attorney. He had not been offered
the use of a phone (R. 222) and he had not been taken be-
fore a magistrate in accordance with Georgia law (R. 235-
236). He was in jail in the adjoining county some 30 or
35 miles from Folkston (R. 67, 242).

Q. Were you paining a right smart when you were in the room
with Sheriff Lee and Deputy Sheriff Jones? A. Yes, sir.
Q. Now, after you were taken into custody up until the time you
were taken upstairs had you been given anything to eat? A. No, sir.
Q. Were you hungry? A. Yes, sir; I could have eat.
11 The Police Chief and Constable were not called as witnésses.
12 Georgia law specifically required bringing petitioner promptly before
a magistrate where, as here, the arrest was made without a warrant:
“Duty of person arresting without warrant.—In every case of an
arrest without a warrant the person arresting shall without delay
convey the offender before the most convenient officer authorized to

Even if the arresting officers had a warrant, they were similarly obli-
gated: 7
“Officer may make arrest in any county. Duty to earry prisoner to
county im which offense committed.—An arresting officer. may arrest
any person charged with crime, under a warrant issued by a judicial
officer, in any county, without regard to the residence of said arrest-
ing Officer; and it is his duty to carry the accused, with the warrant
under which he was arrested, to the county in which the offense is
alleged to have been committed, for examination before any judicial
officer of that county. :

“The county where the alleged offense is committed shall pay the
the arresting officer in carrying the prisoner to that
the officer may
enable him

:
12

ty

—U—b— —ͤ—

— — 2 2 Ded

1
i
4
'

34

The record does not make it clear how long Sims was in
the interview room before the confession was given and
signed,“ or to what extent, if any, Sims was interrogated.
When asked whether he questioned Sims, Sheriff Lee said,
“I don’t think so,” then, “I could have,” and finally, “I just
don’t recall right now” (R. 105). Sims said he was ques-
tioned by Lee (R. 135, 140), and also that he was “scolded”
(R. 139).

Deputy Sheriff Jones wrote out the confession and read
it to Sims. He admittedly wrote out some matter which
Sims did not say. The Sheriff, and his deputy who actually
wrote the confession, testified petitioner did not say that
the statement had been made freely and voluntarily or that
he had been informed of his legal rights, although the writ-
ten statement includes those words. In fact, petitioner-does
not even knw the meaning of “freely and voluntarily”
(R. 136). wey word in the confession asserting its volun-
_ tarjness and its having been made with knowledge of the
’ legal consequences was inserted not by petitioner but by
his inquisitors. The deputy sheriff crossed out several
words im the original statement, including the words, “I

_ fea ey (R. 104) :

Q. Do you, know what time on the evening of April 13, 1963, that
you started taking this statentent? A. Well, the statement was short.
It wouldn't have taken but just a few minutes.

2. How many minutes? A. Ob, ten or fifteen minutes.

Q. Did you you start taking the statement at 10:30 or did you conclude
it at 10:30? c
at 10:30. It was approximately 10
8.0 So you questioned him from 10 to 10:30 7 A. How is that?

2. You questioned him from 10 to 10:30 A. I didn’t say that.

C. You started at 10% A. I didn’t say that.

. You started at 10:30, then? A. I said that we could have
finished at 10:30 or adi at 10:90. 1 don’t reeall

Deputy Sheriff Jones said that Sims was brought down at 10:30 (R. 113);
that it took him approximately twenty to thirty minutes write down
et ee ee ee ee one to him (R.
121-122

. \

&
*

35

have read” when it was learned the petitioner could not
read (R. 229).

The sheriff testified that he told petitioner that before
he made a statement he was entitled to an attorney and
that petitioner said he did not want one (R. 99-100, 224).
The sheriff also said that he told petitioner “that the state-
ment he was going to give could be used against him in
court“ (R. 99-100, 225). On each of the occasions at trtal
when Sheriff Lee recounted his warning to Sims, he failed
to mention that he advised Sims of his right to remain
silent (R. 99-100, 224-225). However, a sentence at the
end of the confession written by the deputy recites: “I have
been informed of my legal rights by Sheriff Robert E. Lee
that I did not have to make any statement whatsoever,
knowing that this statement can be used against me in a
court of law” (R. 227).¢No one offered Sims the use of a
phone or advised him that a lawyer would be appointed if”
he could not afford one.

£

On Monday afternoon, April 15, 1963, Agent F. F. Cor-
nelius of the Georgia Bureau of Investigation brought Sims
in handcuffs from the jail in Waycross back to the sheriff’s
office Folkston (R. 237,.241). Cornelius questioned Sims
in the sheriff's office in the presence of five other police of-
ficers““ (R. 239-240). Cornelius read the statement Sims had
signed on Saturday night to Sims, asked him if it was true,
and Sims said, “Yes, sir“ (R. 238). Cornelius did not cau-
tion Sims that he was not required to answer and could re-
main silent, or otherwise advise him of his rights (R. 241).
Sims apparently still had no attorney. and had not seen any
friends or relatives during the period since his arrest (R.
241-242). He was first taken before a magistrate on April
15th (R. 66). The record is silent on whether the question-

14 None of these five officers testified at the trial.

—

36

ing by Cornelius came before or after that proceeding.
But a warrant charging Sims with the crime had been
issued at some time before he was brought back to Folkston
and made the admissions to Cornelius (R. 239).

2. The Confessions Were Obtained in Inherently
' Coercive Circumstances and Their Use Violated
the Due Process Clause _

The Court has consistently held that the voluntariness
of ‘a confession must be determined in the context of all
the surrounding circumstances as they appear from the
Court’s independent examination of the uncontested facts
on the entire record. Examination of the record in this
case makes it plain that each of the confessions allegedly
given by Sims to the law authorities while he was in cus-
tody were given in inherently coercive circumstances and
were not voluntary.

The recitation of the facts above should demonstrate con-
clusively that Fikes v. Alabama, 352 U.S. 191, requires re-
versal of the conviction.- The similarities between this
case and Fikes are numerous and significant. In both cases
the petitioner was a Negro in his mid-twenties charged
with a sexual assault upon the daughter of a local public
official in a southern community. Both Fikes and Sims had
attained only third grade educations when they quit school
in their late teens. Sims, like Fikes, is of limited mentality. ~
in this case, as in Fikes, the petitioner was first arrested
by civilians; was not arraigned or taken before a magis-
trate prior to his confession; was carried to a jail far from
the scene of the crime; and was allegedly advised of some
of his legal rights by a law enforcement officer before con-
fessing. Sims saw no friend, relative or counsel; Fikes
saw his employer, but his father and a lawyer were denied
access to him. The. Fikes record contained “no evidence of
physical brutality” (357 U.S. at 197). But Isaac Sims made
a strong and largely uncontested showing that he was

%.,

ry

37

brytalized and suffered injury requiring medical treatment
while in the custody of officers who were wp ye in an
investigative process. | °

The Fikes case involved a — period of ‘custody and
questioning before the confession, viz., five days in Fikes
as against 7 or 8 hours in this case. But even a short period
of time may be sufficient to overpower a suspect’s will
(Haley v. Ohio, 332 U.S. 596), and the denial of food to
petitioner during his confinement bears directly upon the
confggsion’s alleged en een, {Watts v. Indiana, 338
US. 49, 53; Payne v. Arkansas, 356 U.S. 560, 567), as does
the stripping of petitioner in Dr. Jackson's office (Malins i
v. New York, 324 U.S. 401). The physical beating suffered
by Sims is sufficient to counterbalance the comparatively
short period of questioning revealed by the record. As Mr.
Justice Frankfurter (joined by Mr. Justice Brennan) said
concurring in Fikes v. Alabama, 352 U.S. 191, 198:

It is, I assume, common ground that if this record had
disclosed an admission by the police of one truncheon
blow on the head of petitioner a confession following

such a blow would be inadmissible because of the Due
Process Clause.

Sims has more than met the e that he show
“one blow.” It is not disputed that while engaged in their
investigation the police took Sims to Dr. Jackson's office
where he sustained injuries requiring medical treatment
(four stitches over the eye), which he claimed were received

rom blows and ki x in the presence of the police, an
pisode the prosecution has never troubled to deftly or re-

but. We submit that it is plain that the prose@utor never

asked a question or put on a witness to deny Sims’ version
of this incident because he could not honestly do so (ef.
Haynes v. Washington, 373 U.S. 503, 510),

=

38

The element of violence in this case makes it as strong,
if not stronger than Fikes, supra, and similar cases where
the Court has viewed the circumstances as sufficiently coer-
cive to strike down convictions. See, particularly, Haynes
v. Washington, 373 U.S. 503; Culombe v. Connecticut, 367
* US. 568; Turner v. Pennsylvania, 338 U.S. 62; Johnson v.
Pennsylvania, 340 U.S. 881 (per curiam; facts’ stated in
Culombe v. Connecticut, 367 U.S. 568, 628).

And, of course, the fact that Sims’ signed statement con-
tains assertions of voluntariness, composed by the police,
does not suffice to save the confession in view of the other
circumstances. A strikingly similar recital also dictated
by the police was disregarded by the Court in striking down
the conviction in Haley v. Ohio, 332 U.S. 596, 598, 601.
Sims’ testimony indicates he did not even comprehend the
meaning of the recitals of voluntariness or understand the
significance ofthe warnings he was given. His supposed
waiver of the right to counsel could not, given his lack of
understanding and inability to understand common legal
terms expressed in ordinary language, be regarded as “an
intentional relinquishment or abandonment of a known
right or privilege,” Johnson v. Zerbst, 304 U.S. 458, 464.
Plainly, petitioner did not know a lawyer’s function or
understand how a lawyer could be of assistance to him.

Here, as in Fikes, “The totality of the circumstances that
- preceded the confessions . . . goes beyond the allowable
limits” (352 U.S. at 197). The conclusion applies equally
to the alleged oral admission to Deputy Jones, the signed
statement, and the testimony that the signed statement was
reaffirmed two days later.

— xy > — nN : ae a. .

39

3. The Physical Violence Inflicted on Sims Is Suffi-
cient by Itself to Invalidate the Confessions

We submit that the physical violence inflioted on Sims
while in castody, during a police effort to find evidence of
the crime by examination of his clothes, is alone sufficient
to vitiate the confessions obtained thereafter. It is con-
ceded that he was stripped of his pants and underpants in
a room full of men. No witness has denied his story that
he was pulled by his private parts and dragged across the
floor. His version was not even challenged by cross-exami-
nation. It is conceded that he sustained injuries requiring
medical treatment while in a room containing a doctor and
policemen. No one told any story about how Sims received
his injuries except Sims. Dr. Jackson’s evasions are plain
on the record; he offered no explanation of Sims’ injury.

In Payton v. United States, 222 F.2d 794, 796-97 (D.C.
Cir. 1955), a confession was obtained while an accused had
blood on his shirt, having been recently bleeding as the
result of force reasonably used by the officers to effect his
arrest and confinement. The Court excluded a confession
and reversed a conviction on the ground that admission of
a confession following so shortly after violence upon the
prisoner—albeit reasonably necessary violence—was im-
proper. “Judge Fahy wrote for the Court (at 797):

We assume the officers had authority to use the force
reasonably necessary to effect the arrest and confine-
ment. But when a confession is elicited so soon after
the use of violende upon the prisoner, resulting in
bloodshed, the compelling inference is that the confes-
sion is not the free act of the prisoner. It is imma-
terial that other coercion, did not occur at the very
moments he was questioned and signed the statement.
Violence at the hands of the Police admittedly had oc-

40

curred within about an hour. A confession made in
such circumstances, and thereafter repudiated by the
accused, should not be admitted in a criminal trial in
a Federal court. “The undisputed facts showed that
compulsion was applied. As to that matter there was
no issue upon which the jury could properly have been
required or permitted to pass.“ aR Sung Wan v.
United States, 266 U.S. 1, 16-17; . . . {other citations
omitted]. : :

—

Judge Fahy quotes (222 F. 2d at 797, note 5), from the
opinion in Stein v. New York, 346 U.S. 156, 182, as fol-
lows:

“Physical wae or threat of it by the custodian of a
prisoner during detention serves no lawful purpose,
invalidates confessions that otherwise would be con-
vineing, and is universally condemned by the law.
When present, there is no need to weigh or measure
its effects on the will of the individual victim.”
*

The Stein opinion further states in language that is
relevant here:

Slight evidence, even interested testimony, that it
{defendant’s injury] occurred during the period of
detention or at the hands of the police, or failure by
the prosecution to meet the charge with all reasonably
available evidence, might well have tipped the scales
of decision below. ‘Even here, it would have force
if there were any eyidence whatever to connect the
admitted injuries with the events or period of inter-
rogation. But there is no such word in the record.
(346 U.S. at 183, emphasis added.) 4

As we have seen, there is ample evidence to show that
‘Sims’ injury occurred during detention and the prosecu-

41

tion has made no effort to meet the charge with any evi-
dence. Nor can it matter that the same officers who later
obtained Sims’ confessions were not shown to have been
present when he was mistreated. There was no showing
that the coercive impact of his mistreatment during the
investigative process (in the presence of seven or eight
officers by Sims’ account) was at all eliminated by his be-
ing transported thirty or more miles to another county and
turned over to other officials. Sims testified as to his con-
tinuing pain for a prolonged period far beyond the last of
the confessions. The oral admission to Deputy Jones was
said to have occurred at about 6:30, less than three hours
after Sims was injured. The written statement followed a
few hours later after a period of isolated confinement.
The final admission of the accuracy of.the signed statement
to state investigator Cornelius must obviously fall if the
statement itself is excluded. It is clearly tied to the written
statement. In any event, it occurred after petitioner had
been returned to Folkston, the scene of his original beat-
ing and again in a room with six policemen.

If the confession involved here had been introduced at
a trial held after June 13, 1966, the conviction would plainly
be summarily reversed on the authority of Miranda v.
Arizona, 384 U.S. 436; Johnson v. New Jersey, 384 US.
719; ef. Davis v. North Carolina, 384 U.S. 737, 739. The
courts below did not have the benefit of the specific guide-
lines set forth in Miranda, and concededly the full panoply
of protections given by that decision are not available to
Sims. But in an important sense Miranda—apart from
its specific guidelines—represents a distillation of the les-
sons learned through the long experience of this Court in
the review of in-custody confession cases. It plainly reflects
sensitive awareness of a problem the Court has recognized
before, namely, that:

42

What actually happens to them [prisoners] behind the
closed door of the interrogation room is difficult if not
impossible to ascertain. Certainly, if through excess
of zeal or aggressive impatience or flaring up of temper
in the face of obstinate silence a prisoner is abused,
he is faced with the task of overcoming, by his lone
.testimony, solemn official denials. (Culombe v. Con-
necticut, 367 U.S. 568, 573-574, opinion of Justice
Frankfurter, joined by Justice Stewart.)

We urge that in light of this consideration, the Court
now firmly declare that any in-custody confession which
follows close upon the spilling of the prisoner’s blood
while he is alone in the hands of officers (Payton v. United
States, supra)—a confession following a blow (Fikes, supra,
Justice Frankfurter, concurring) or unexplained evidence
of injury to a prisoner during detention (Stein, supra)—
must be excluded without further inquiry whether the pris-
oner’s will was overborne by the brutality.

We recognize that this rule has not been uniformly fol-
lowed in the past and that confessions have been sustained
notwithstanding physical violence as in Lisenba v. Cali-
forma, 314 U.S. 219. But we urge such a general prin-
ciple as consistent with the spirit and learning of Miranda
v. Arizona, 384 U.S. 436. Lisenba dates from an era when
this Court’s concern in state criminal cases was with the
performance of the state courts, not the police. Long before
Miranda, that concern had broadened. See Blackburn v.
Alabama, 361 U.S. 199; Spano v. New York,,.260.U.S. 315.
There can be no justification for police brutality upon a
prisoner, and no legitimate police interest in beatings.
There will be explanations offered, of course (although not
even those were offered here), and speculation that the
prisoner was hard-headed and remained unaffected. Mi-
randa counsels that no ear be given to these unlitigable

— —— een

43

matters. Where blood has flowed, no confession made soon
after should be tolerated consistent with due process of
law.

Even in the absence of such a general principle, how-
ever, the violence upon Sims must vitiate his conviction
when considered in conjunction with his limited inentality
and general helplessness in the hands of experienced in-
vestigators. Plainly Sims had no:

. .. powers of resistance comparable to those which the
Court found possessed by the defendant Cooper in
Stein v. New York, 346 U.S. 156, who haggled for terms
with the officials to whom he confessed, or the defend-
ant James in Lisenba v. California, 314 U.S. 219, who
bragged immediately before his confession that there
were not enough men in the District Attorney’s office
to make him talk. (Culombe v. Connecticut, 367 U.S.
568, 625, opinion of Justice Frankfurter, joined by
Justice Stewart.)

Extraction of confessions from Sims, in his circumstances,
and their use to convict him anne the Due Process
Clause.“

15 The assertion of the court below that the conviction may be justified
because “even without this confession, the . . . evidence was sufficient to
support the verdict” (R. 334) deserves only brief reply. First, it should
be mentioned that the sole significant corroboration of the prosecutrix’s
testimony was the confession. Georgia law and the trial court’s charge
below required “other evidence independent of hers, sufficient to connect
the accused with the offense chafged” (R..313) to corroborate her testi-
mony. Literally nothing in the record except the confessions connect Sims
with the offense. Furthermore, the victim never identified Sims as her
attacker until his first trial some 5 months after the crime (R. 157-158).
Second, and more fundamentally, the voluntariness of a confession must
be examined without regard to the other evidence of guilt, and a defen-
dant’s constitutional rights are violated by use of a coerced confession to
convict, even if there is other convincing evidence of guilt. Rogers v.
Richmond, 365 U.S. 534, 544; Malinski v. New York, 324 U.S. 401, 404;
Bram v. United States, 168 U.S. 532, 540-542; Payne v. Arkansas, 356
U.S. 560.

44

7.

D. The Decision Below Violates Petitioner’s Sixth
Amendment Right to Counsel in Conflict With
Escobedo v. Illinois, 378 U.S. 478, and Other
Decisions of This Court

Petitioner’s trial commenced some four months after the
decision in Escobedo v. Illinois, 378 U.S. 478; thus that
decision may be applied in judging his case. Johnson v.
New Jersey, 384 U.S. 719. The Escobedo decision focused
on the right to counsel under the Sixth Amendment in ap-
praising in-custody confessions. This Sixth Amendment
emphasis is in contrast to the reliance upon protection of
the Fifth Amendment privilege against self incrimination
in Miranda v. Arizona, 384 U.S. 436.

Most of the elements present in Escobedo were present
in this case. When Sims’ confessions occurred “the investi-
gation [was] . . . no longer a general inquiry into an un-
solved crime but ha[d] begun to focus on a particular sus-
pect, the suspect ha[d] been taken into police custody, the
police carried] out a process of interrogations that lends
itself to eliciting incriminating statements, . . and the
police have not effectively warned him of his absolute
constitutional right to remain silent .. (378 U.S. at 490-
491).

However, it could not be said on this record that Sims
had “requested and been denied an opportunity to consult
with his lawyer.” Sims never requested a lawyer for he
was incapable of understanding how a lawyer might help
him, had no funds to hire a lawyer, was given no opportun-
ity to consult with friends or family, or even to use a
telephone, and was not informed of his right as an indigent
to appointed counsel.

We submit that in these circumstances the general prin-
ciple enunciated in Escobedo and in cases decided earlier

>

5

45

require. the conclusion that Sims was denied the assistance
of counsel in violation of the Sixth Amendment as made
applicable to the States by the Due Process Clause of the
Fourteenth Amendment. Even beforeEscobedo, it had been
recognized that the right to counsel might be violated by
in-custody interrogation in the absence of counsel. The
Ninth Circuit so held in Griffith v. Rhay, 282 F.2d 711 9th
Cir. 1960), cert. den. 364 U.S. 941. The Ninth Circuit
adopted the reasoning of Crooker v. California, 357 U.S.
433, 438-440, that apart from voluntariness interrogation
in the absence of counsel might deny due process if any
accused “is so prejudiced thereby as to infect his subse-
quent trial with an absence” of fundamental fairness, this
is to be determined by all the circumstances including the
education and mentality of the accused. The Ninth Cir-
cuit found Griffith’s confession inadmissible despite a fail-
ure to request coumsel. See also the opinion of Judge
Browning in Brubaker v. Dickson, 310 F.2d 30 (9th Cir.
1962,) cert. den. 372 U.S. 978, generally in accord with
Griffith v. Rhay, supra.

An additional point may be made with respect to Sims“
confession to state investigator Cornelius on Monday, April
15. This took place after a warrant against Sims had been
issued by a judicial officer. The warrant is not in the record
and it cannot be determined on this record whether it was
issued upon the basis of the prior confession (though this
seems likely) or some other showing against Sims. In
any event, at this stage Sims was, though not yet indicted,
plainly in the position of an “accused” being held in antici-
pation of trial. See Ga. Code §27-209, quoted supra note 12.
He still had no lawyer, but following his confession and the
issuance of a warrant against him he was plainly accused
and, for every relevant purpose, in a position exactly
comparable to a man under indictment. He surely was in

- * 1 os 2 2 : = — . a * N

J Vd

n

—

46

need of a lawyer to prepare for the inevitable trial and to
advise him. |

The premise of Spano v. New York, 360 U.S. 315, 324- ;
327 (concurring opinions) and Massiah v. United States,
377 U.S. 201, is that indictment marks the point in the
criminal process when investigation is completed and trial
preparation begins. At this point, when consultation,
thoroughgoing investigation and preparation [are] vitally
important, the defendants ... [are] as much entitled to such
aid [of counsel] ... as at the trial itself.” Massiah v.
United States, 377 U.S. 201, 205.“ Obviously, in the pro-
ceedings in petitioner’s case the period following issuance |
of the warrant rather than that following indictment Was
the stage envisaged by this language. It should be noted
that petitioner was formally indicted no earlier than a few
days before trial on each of the two occasions on which he
was tried.

We submit that the principles of Spano v. Neo Fork,
360 U.S. 315, 324-327 (concurring opinions), and Massiah ~
v. United States, 377 U.S. 201, require that this confession
be excluded under the principles of the Sixth Amendment.
To be sure, unlike Spano and Massiah, Sims had not yet
been formally indicted at the time of the admission to
Cornelius. But he was more than a suspect at this point.
In every realistic sense he was “the accused” (Ga. Code
§27-209) and was “scheduled to be tried” once the police
had obtained his signed confession and a warrant against
him. The subsequent interrogation by Cornelius was more

16 Quoting from Powell v. Alabama, 287 U.S. 45, 57. |

17 The exact dates of the first indictment and of commencement of the
first trial are not in this record. But Sims was indicted at the October
1963 term and the date of sentencing October 9, 1963, appears ae
256). The second indictment was filed October 6, 1964 (R. 1); trial
commenced October 7, 1964 (R. 46, 198, 249) and the verdiet was returned
October 8, 1964 (R. 2).

47

than an interrogation focusing on a suspect. Cornelius
sought a final nail in the coffin which was already almost
closed by the signed confession. This final confession closed
the case, and after it effective aid and advice by counsel
“at the only stage when legal aid and advice would help”
(Spano, supra, 360 U.S. at 326) became impossible.

II.
* crag Was Denied Equal Protection of the Laws
Rulings of the Courts Below Refusing Evidence
. Negroes Were Systematically Excluded From
Grand and Petit Juries in Charlton County, and Over-

ruling His Challenge to Those Juries on Grounds of
Racial Discrimination in Their Selection.

Georgia’s general procedure for selecting grand and petit
jurors is as follows: The jury commissioners are directed
by statute to examine the tax digest for the names of no
more than two-fifths of the most intelligent and upright
taxpayers. The names selected are put on tickets and
placed in jury boxes, one for grand and one for petit juries,
from which the judge later draws the names of those who
are to serve for a particular term of court. The names
drawn by the judge are placed on grand and petit jury lists
(R. 76-80, 84, 86-87). See Ga. Code Ann. 559-106, 59-108
(1965 Rev. Vol.).

Ga. Code §92-6307 provides that “Names of colored and
white taxpayers shall be made out separately on the tax
digest.” Under local practice in Charlton County, where
petitioner was tried and convicted, separate sections of the
tax digest are maintained for white and Negro names, the
whites listed on white paper, the Negroes on yellow paper
(R. 82). The jury commissioners, all of whom are white
(R. 83), rely upon their personal knowledge of the persons

48

listed in the tax digest and their personal. opinions of those

persons’ character and intelligence, in selecting “upright
and intelligent citizens to serve as jurors.” Ga. Code Ann.
§59-106. In practice, they first examine white yers’
names, then Negroes’ names. Despite a commissioner’s
testimony that no consideration is given to race, the sepa-
rate lists make it clear whether any particular taxpayer is
white or Negro (R. 80-81, 84, 91-92).

The 1960 United States Census for Charlton County
shows 2,656 persons over twenty-one, of whom 728 or 27.4%
are non-white (R. 75). The tax digest books show 1,838
Charlton County taxpayers in 1961, of whom 367 or 19.9%
are Negroes (R. 74), and 1,908 taxpayers in 1962, of whom
420 or 22% are Negroes (R. 74). There were 1,959 Charlton
County taxpayers in 1963, of whom 410 or 20.4% were
Negroes (R. 74). Of the 99 jurors chosen by the judge for
the October 1964 Term of the Charlton County Superior
Court, from which the grand and petit jurors were selected
in petitioner’s case, only 5 or about 5% were identified as
Negroes (R. 74, 89-90, 297-98).

Petitioner offered to prove a consistent and continuing
practice under which Negroes had been unconstitutionally
barred from or selected in limited numbers for jury service
in Charlton County (R. 34, 6-8, 11, 70-71). In support of
this claim he proffered in evidence certified copies of the
grand and petit jury boxes and lists for the period 1954-
1963 (R. 72-73, 254-98) but the trial court ruled them in-
admissible (R. 72-73, 147). This ruling was affirmed by the
Georgia Supreme Court (R. 330-32).

1 NO statisties regarding the number of taxpayers in 1964 were intro-
duced apparently because such stastistics were not available at the time
of trial (see R. 74).

19The names and racial identification of taxpayers selected for the
1964 jury boxes were not proffered at trial.

1

49

Petitioner makes three contentions here with regard to
racial discrimination in jury selection: He first submits
that the Georgia courts unconstitutionally refused to re-
ceive evidence proferred by him to show jury discrimination
in years prior to his trial. This Court has often relied on
evidence of jury discrimination going back as far as ten,
twenty or thirty years and has held that one Seeking to
prove jury discrimination is entitled to offer evidence to
support his claim (see Part A, infra, p. 49).

Petitioner also contends that the jury commissioners’ use
of segregated tax digests in selecting prospective jurors is
unconstitutional. The segregated tax digests and the vague,
subjective criteria for juror selection mandated by Ga. Code
Ann, §59-106 encourage discriminatory use of the commis-
sioners’ discretion. (See Part B, infra, p. 52.)

Petitioner finally urges that a prima facie case of racial
discrimination was made out by the fact that Negroes com-
prised 20% of the taxpayers but only 5% of the 1964 jury
list. In support of this contention, petitioner will show that
there is an extremely small probability that, assuming a
fair selection process, so few Negroes would have appeared
on the 1964 jury list (see Part C, infra, p. 56).

A. The Georgia Courts Unconstitutionally Refused to Receive
Petitioner’s Proffered Proof of Racial Discrimination in
the Selection of Jurors

Petitioner offered to prove by certified jury boxes and
lists covering the period 1954-1963 a pattern of arbitrary
exclusion or limitation of Negroes on the jury lists of Charl-
ton County. “Jury lists for a ten year period were offered
in evidence. All were excluded except for the lists of jurors
from which the juries who indicted and convicted were
taken.” Opinion of Georgia Supreme Court (R. 331). Peti-
tioner also offered these lists to prove that the presence of a

ety

ERITREA SIT EAE e

50

Negro on the grand jury which reindicted petitioner follow-
ing the reversal of his conviction in Sims v. Balkcom, 220
Ga. 7, 136 S.E.2d 766 (1964), was the result of arbitrary
inclusion on the 1964 jury list. These offers of proof were
ruled inadmissible apparently on the ground that the grand
and petit jury lists in the County had been revised during
the summer of 1964, immediately prior to petitioner’s re-
indictment and trial (R. 5, 8, 12, 70, 93, 95). The ruling
was affirmed by the Georgia Supreme Court on the ground
that no showing had been made of discrimination in the
composition of the grand and petit juries involved in the
instant case (R. 331).

It is a principle needing no elaboration that in a jury
discrimination case, . this Court must reverse on the
ground that the defendant ‘offered to introduce witnesses
to prove the.allegations . . . and the [state trial] court de-
clined to hear any evidence on the subject.. Coleman
v. Alabama, 377 U.S. 129, 133, quoting with approval, in a
unanimous opinion, from Carter v. Texas, 177 U.S. 442,
448-49. With the notable exceptions of Coleman and Carter,
this Court has consistently reviewed jury discrimination
cases on a record covering a number of years. E.g., Neal v.
Delaware, 103 U.S. 370, 397 (no Negro had ever served as
juror); Norris v. Alabama, 294 U.S. 587, 591 (no Negro had
served within witnesses’ memory) ; Pierre v. Louisiana, 306
U.S. 354, 361 (ibid.); Smith v. Texas, 311 U.S. 128, 129 (7
years); Eubanks v. Louisiana, 356 U.S. 584, 586 (18 years);
Hernandez v. Texas, 347 U.S. 475, 482 (25 years); Reece v.
Georgia, 350 U.S. 85, 87 (18 years); Arnold v. North Caro-
lina, 376 U.S. 773, 774 (24 years); and see, Rabinowitz v.
United States, No. 21256, 5th Cir., July 20, 1966. p.8 of slip
opinion (more than 35 years) ; Labat v. Bennett, No. 22218,
5th Cir., August 15, 1966, p. 37 of slip opinion (8 years);
Brooks v. Beto, No. 22809, 5th Cir., July 29, 1966, pp. 14-15

sa a % õÜͤ e d! ⅛¹ißdʃẽͥü᷑ '' —..—i ˙⁰wůww;Y ⅛ 8ͤ-VV ʃÄ ⏑ʃẽ -14ÿ. ::

— rr ck
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51

of slip opinion (no“negro had ever served as grand juror);
Scott v. Walker, 358 F.2d 561, 572 (5th Cir. 1966) (6 years);
United States ex rel. Seals v. Wiman, 304 F.2d 53, 63, n.5
(5th Cir. 1962) (11 years); United States ex rel. Goldsby
v. Harpole, 263 F.2d 71, 78 (5th Cir. 1959) (no Negro had
served within witnesses’ memory). 8

Notwithstanding this substantial body of precedent, es-
tablishing beyond peradventure the pertineney of a pattern
or practice of past discrimination as a basis for interpreting
the significance of the composition of particular juries in
the case at issue, the state trial court refused to permit
petitioner to examine a jury commissioner regarding the
number of Negroes in a petit jury box compiled just two
years prior to trial.

| The Solicitor General: Your Honor, we will make
our objection . . . as to going into a [1962] jury
list that doesn’t have anything to do with the present
grand jury or petit jury.... We say under the law
he [petitioner] is entitled to a cross section of petit
jurors and grand jurors, but that could only per-
tain to this petit jury and this grand jury—not
some that used to be.

The Court: I am of the opinion that would be
right (R. 88-89).

Petitioner was thus thwarted in his attempt to make a
full record upon which a continuing pattern or
of racial discrimination in jury selection in Charlton
County might have been based. His contention of sys-
tematic exclusion or limitation of prospective Negro jurors
in selection of his grand and petit juries was thus de-
prived of the evidentiary support which derives from
placing present practices in the meaningful context of
past actions. As this Court has recognized, “Institutions,

52

like other organisms, are predominantly what their past
has made them. History provides the illuminating context
within which the implications.of present conduct may be
known.” Communist Party v. Subversive Activities Con-
trol Board, 367 U.S. 1, 69. Petitioner seeks nothing more
than to have his day in court on his federal constitutional
claims. This he has been denied, and with it the equal pro-
tection of the laws.

B. The Use of Tax Digests Containing Racial Designations,
As Required by Statute, in Georgia’s System of Jury
Selection is Unconstitutional.

This Court has long made clear that “Jurymen should
be selected as individuals, on the basis of individual qualifi-
cations, and not as members of a race.” Cassell v. Texas,
839 U.S. 282, 286. Petitioner contends that the jury selec-
tion procedures established by state law and used in
Charlton County, Georgia, encourage and permit the selec-
tion of jurors on the basis of race, in violation of the

Fourteenth Amendment.

In Charlton County grand and petit jury lists are selected
by a jury commission of white commissioners. At the
time of petitioner’s trial only two-fifths of the most in-
telligent, upright and experienced citizens on the . tax
books were eligible to be jurors pursuant to Ga. Code
Ann. §59-106. The jury commissioners checked the tax
books to determine who was qualified for jury service.
In accordance with local practice under Ga. Code 592-6307,
which requires that the tax books separately list white
and Negro taxpayers, white taypayers were listed on white

paper and Negro taxpayers separately on yellow paper.

At the time they select persons from the tax digest,

therefore, the jury commissioners have actual knowledge

2 FFP

all

53

of the race of each taxpayer.“ Except for specifying the
maximum number of persons who may be selected, i. e.,
two-fifths of the whole number of taxpayers, Ga. Code
Ann: §59-106 gives no specific guidance to the commis-
sioners. Rather, the statute requires the commissoiners
to employ vague, subjective criteria: uprightness and
intelligence. Such criteria, of course, allow broad discre-
tion which may be exercised in a discriminatory manner.
Cf. United States v. Louisiana, 225 F. Supp. 353, 396-97,
aff’d, 380 U.S. 145; United States v. Atkins, 323 F.2d 733
(5th Cir. 1963), and cases there cited; Rabinowitz v. United
States, No. 21256, 5th Cir., July 20, 1966, pp. 37-38 of
slip opinion. 4

In the recent case of Hamm v. Virginia State Board of
Elections, 230 F. Supp. 156 (E. D. Va. 1964), aff’d sub nom.
Tancil v. Woolls, 379 U.S. 19, a three-judge district court
declared that Virginia statutes requiring that lists of
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 can directly dictate or casually
promote a distinction in the treatment of persons solely
on basis of their color. To be within the condemna-
tion, the governmental action need not effectuate
segregation of facilities directly. Cf. Anderson v.
‘Martin, 375 U.S. 399, 402, 84 S.Ct. 454, 11 L.Ed. 430
1964. The result of the statute or policy must not
tend to separate individuals by reason of difference

20 Among the evidence proffered by petitioner but excluded by the trial
court (R. "5, 8, 12, 70, 93, 95) were jury boxes clearly indicating the race
of prospective jurors : The traverse or petit jury box for August 9, 1954,
showed seven persons following 321 names, who were given special num-
bers, i. e., “1C through 707% (R. 279) and the petit jury box for August 1.
1960, showed six persons, following 331 names, who were listed as
“eolored” (R. 288).

in race or color. No form of State discrimination, no
matter how subtle, is permissible under the guaran-

tees of the Fourteenth Amendment Freedom. 230 F.
Supp. at 157-158. » *

And when used as the basis for jury seleetion, the dis-
eriminatory effect of segregated tax lists is far from
“subtle.” The vice of using such lists is two-fold under
Charlton County practice. First, the jury commissioner
has the means of willful racial discrimination ready to
hand. Second, even if a commissioner wishes not to dis-
eriminate, he is nonetheless required to make a judgment
as to the proportions in which white and Negro taxpayers
shall be chosen for jury service. For it is only after con-
sidering the white list that the white jury commissioner
turns to the Negro list; and under compulsion of the two-
fifths statutory limitation upon the maximum number
of persons to be chosen, he obviously must make the
conscious decision at some point that there are enough
whites and that Negroes shall now be selected. It will not
do to say that this result is the inevitable product of a
selection process that starts with tax lists that the State,
for other legitimate reasons, may require to be kept in
segregated form. For the precise holding of Hamm is
that the State has no interests which justify the segre-
gated lists and that they are unconstitutional in them-
selves. By refusing to give full weight to the Hamm deci-
sion and to this Court’s affirmance of it, the Georgia Su-
preme Court, in a capital case, has permitted one uncon-
stitutional practice to spawn a more vicious one. :

The Georgia Supreme Court tried to minimize the signif-
icance of the racially segregated tax lists on the ground
that the jury commissioners acted without regard to race
(R. 330). But such protestations of good faith are not

— ———— gn — nS — — — —

55

in these circumstances sufficient. Norris v. Alabama, 294
U.S. 587. A selection procedure which provides unnces-
sary opportunities for discrimination violates the Four-
teenth Amendment, whether or not those opportunities
are proved to have been seized. 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 regard to color, but Chief Justice Vinson
stated that “Even if the white and yellow tickets were
drawn from the jury box without discrimination, oppor-
tunity was available to résort to it at other stages in the
selection process.” Id. 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 opportunities to discriminate, as experience
tells us there will inevitably be when such differentiating
slips were used.” Id. at 564. ;

No significant distinction can be made between the selec-
tion process in Avery and the process used here. In Avery
the jury commissioners selected Prospective jurors for
the jury list from the county tax returns.“ The list was
printed with the names of white persons on white tickets
and the names of Negroes on yellow tickets. The tickets
were then placed in a jury box from which a jitdge drew
the- names of those selected to serve on a given panel. A
clerk arranged the drawn tickets and typed in final form
the list of persons for a panel. 345 U.S. at 560-61. In
petitioner’s case, the jury commissioners chose prospec-
tive jurors from the tax digest having the names of white
persons on white paper and the names of Negroes on

21 These returns presumably were segregated beeause Ga. Code §92-6307,
which is under attack here, was in effect when Avery was decided.

r

56

yellow paper. The names chosen were put into the jury
box from which the superior court judge drew the names
for a particular jury list or panel (R. 79, 86). Both in
Avery and here the use of a procedure relying upon racial
differentiation of prospective jurors denies equal protec-
tion. As this Court concluded in Williams v. Georgia,
349 U.S. 375, 382, “it was the system of selection and the
resulting danger of abuse which was struck down in Avery
and not an actual showing of discrimination on the basis
of comparative numbers of Negroes and whites on the
jury lists.” That conclusion is no less applicable here.
Cf. Anderson v. Martin, 375 U.S. 399.

C. The Results of Jury Selection in the Instant Case Establish
a Prima Facie Case of Racial Discrimination

The principal evidence of racial discrimination in jury
selection which petitioner was permitted to present below
consisted of the facts that Negroes constituted approxi-
mately 20% of the Chariton County taxpayers in 1963, and
only about 5% of the jury list from which the jurors were
selected who indicted and convicted petitioner.“ Notwith-
standing the trial court’s refusal to permit petitioner to
make a full record regarding jury discrimination, it is re-
spectfully submitted that this evidence alone established
an unrebutted prima facie case of racial discrimination.

It is well settled that a showing of the total exclusion
of Negroes from jury lists in jurisdictions where they con-

22 The only jury commissioner who testified stated that the commissioners
only selected persons whom the commissioners knew (R. 78) and that he
eould only identify 5 Negroes on the October, 1964 jury list (R. 89-90).
Under ordinary rules for establishing a prima facie case, petitioner has
thus elicited evidence tending to fix the number of Negroes on the list at
five. If there were more, the other jury commissioners were available to
the State to prove it. No attempt to present such proof was made here
and petitioner submits that this record, therefore, establishes that there
were but 5 Negroes on the list in question.

ws

eatin tints —

—— — ee ee ee „444 „„

57

stitute a substantial percentage of the population makes
out a prima facie case of discrimination. Norris v. Alabama,
294 U.S. 587. The reason is that it is extremely unlikely
that a fair selection proceduré would produce no Negroes
on such lists where there is a substantial number of Ne-
groes available for service. For the same reason, a signifi-
cant disparity between the percentage of Negroes selected
for jury lists and their percentage in the population from
which the lists are drawn also makes a compelling showing
of discrimination. Like cases of total exclusion of Negroes,
the existence of a substantial disparity in representation
is highly unlikely if the selection process has been a fair
one. Cf. Cassel v. Texas, 339 S. 282, 289-90; Brown v.
Allen, 344 U.S. 443, 471. A disparity exists in the instant
case: Negroes comprise 20% of the taxpayers but only
5% of the October, 1964 jury list. The question, there-
fore, is whether this disparity is substantial enough to con-
stitute a prima facie showing of racial discrimination.

The test of the significance of disparities is the proba-
bility that they would have occurred by chance. This is the
implicit basis for the decision in Norris v. Alabama, 294
U.S. 587, and the other jury discrimination cases in which
statistical evidence has been used. On occasion this Court
has made this explicit. Thus, in Smith v. Texas, 311 US.
128, 131, the Court held that “Chance and accident alone
could hardly have brought about for listing for grand jury
service of so few Negroes from among the thousands shown
by the undisputed evidence to possess the legal qualification
for jury service.” Similar statements appear in Hill v.
Texas, 316 U.S. 400, 404 and Eubanks v. Louisiana, 356
U. S. 584, 587. In these and other jury discrimination cases,
this Court has defined the problem as that of determining

the probability that, assuming the selection was made with-

out.regard to race, so few Negroes would have been chosen
for jury service. When the probability is small that so few

Oe PS et

„ „ ˙ tee we ee ee: . +? aw
SIA oe > sa eg FOF =

58

Negroes would be chosen, the jury discrimination cases in
substance hold it proper to reject the assumption that jury
selections were made without regard to race.

The determination of these probabilities need not be left
to the uncertain guide of common sense. There is a sci-
entific method for solving problems of this type which has
been widely used in many branches of science, economics,
and social science. This is the mathematical method known
as statistical decision theory. The application of this
method to jury discrimination problems is fully discussed
in an article to be published in the fall of 1966 in the Har-
vard Law Review. See Finkelstein, The Application of
Statistical Decision Theory to the Jury Discrimination
Cases, 80 Harv. L. Rev. (1966). In terms of statistical
theory the issue before the Court is: What is the proba-
bility that no more than 5 Negroes would appear on a jury
list of 99 when Negroes constituted 20% of the tax list
from which the names of jurors were selected and the se-
lection was made without regard to race ?**

7

The answer is provided by an accepted mathematical
formula, the derivation of which is discussed in detail in
Finkelstein, supra. Applying that formula to the facts of
this case: If a jury list of 99 is selected from a larger list
which is 20% Negro, the probability that no more than
5 persons selected for the jury list would be Negro, if the
selections were made without regard to race, is approxi-

Because the selection of names for the jury list was made in two
for the jury boxés and the judge selected names from the boxes for the

of ‘the sclestion processes, ie., the racial composition of the October 1964
jury

59

mately 0.00002. In other words, on only one occasion in
50,000, on the average, would a jury list selected at random
under these conditions yield the observed results.“ The
probability of this occurrence is so minute that statisticians
would uniformly reject the hypothesis that selection was
made without regard to race. See e.g., Hoel, Inrropvction
to MarnematicaL Statistics, 49 (1962).

The probability of the result observed in this case is
vastly smaller than the probability of the result observed
in Avery v. Georgia, 345 U.S. 559, where this Court held
that the statistical evidence made out a clear case of racial
discrimination. The evidence in Avery showed that al-
though Negroes comprised 5% of the jury list from which
the venires were selected, no Negro had been selected for
a venire of sixty.“ This fact, together with the use of yel-
low slips for the names of Negro jurors—a method similar
to the use of the segregated tax list in the instant case—

*4 The requisite computations for this result are given in the Appendix.

25 The only jury commissioner who testified stated that jurors were
selected on the basis of being “intelligent, upright and good citizens”
(R. 78). In order to sustain the state’s contention that these factors rather
than race accounted for the disparity between the number of Negroes on
the tax list and those selected for the jury lists, it would be necessary to
assume that on the average three to four times as many whites met these
subjective qualifications than did Negroes. See Finkelstein, supra, where
the method of analyzing the subjective qualifications issue is discussed.
rern
white taxpayers was introduced by State nor is there any evidence
ee enn ²˙ » rn
result of the application of the statutory eriteria.

Mr. Justice Reed, concurring, 345 U.S. at 563, gave the following
statisties: “The population of Fulton County is 691,797. The Negroes

25% or 165,814. The tax receiver’s digest, from which the jury
list is selected has 105,035 white cifizens and 17,736 Negroes—14%. The
st eee n white ois and 17706 , be
5%. From that list a number, 150 to 200, were drawn for service on each
of the divisions of the court. Evidently, these were for a week or a term's

*

—— — ————— — —

—. * Ss — *
rere Wa

% ²˙ ¶ . %⅛ —ͤ U.. «⅛˙inu. ⁰r;. ⁵ diu ß a ROR ,,,,

60

was held to make a prima facie case of discrimination.
Mr. Justice Frankfurter, concurring, observed that “The
mind of Justice, not merely its eyes, would have to be
blind to attribute that occurrence to mere fortuity.” 345
US. at 564.

The probability of the result observed in Avery, i. e., that
no Negroes would be selected for a venire of 60 where they
comprise 5% of the jury list, was 0.046. This means that,
on the average, venires without any Negroes would have
appeared in Avery approximately five times in every 100.
See Finkelstein, supra, for the computations. The proba-
bility that the venire in Avery was fairly chosen was ap-
proximately 20,000 times greater than the probability that
the jury list in the instant case was fairly compiled.“ Thus,
although Avery involved total exclusion of Negroes from
a particular venire and in the instant case some Negroes
were included on the jury list, the probability that so few
Negroes would be chosen in the instant case is vastly
smaller than the probability that no Negroes would have
been chosen in Avery.“ If in Avery the results were suffi-

ve
f°

n * 9 e eee

ic g — a — — '

61

ciently improbable to constitute a prima facie case of dis-
crimination, the evidence here must amply postatn peti-
tioner’s burden of proof.“

\

CONCLUSION
For the foregoing reasons the judgment below should
be reversed. a 1
Respectfully submitted,

Jack GREENBERG
James M. Nasarrt, III
Conrap K. Harper ,
10 Columbus Circle
* New York, New York 10019

AntHony G. AmsTERDAM
3400 Chestnut Street
Philadelphia, Pa. 19104

Howarp Moors, In.

Wrius H. Atexanver
85914 Hunter Street, N.W.
Atlanta, Georgia 30314

Attorneys for Petitioner

probability that only a few Negroes would be chosen. The second reason
is that the group selected in the instant case (99 on the jury list) was
substantially larger than the group in Avery (60 on the venire). The
larger the group considered, te smaller the probability of a substantial
disparity in racial proportions.

29 Swain v. Alabama, 380 U.S. 202 is not authority for a contrary re.
sult. Statistical computations of the type given above were not presented
to the Court and Swain did not involve the use of a segregated tax digest
in the selection of jurors. See Finkelstein, supra, for an analysis of Swain.

63

APPENDIX ON COMPUTATION

The probability that no more than five Negroes would be
selected out of 99 when Negroes constituted 20% of the tax
list from which the selections were made may be computed
by using a formula known as the cumulative binomial dis-
tribution. The value of this formula can be determined
either by using ready-made tables or approximation meth-
ods. We have used the table appearing in Harvard Com-
putation Laboratory, Tables of the Cumulative Binomial
Probability Distribution (1955). Using that table we have
the following for the probability P that no more than five

Negroes would be selected:
ve=5 ; p¥gn-¥
P(v #5) = > vi (n-v):
v=0

v=5 : v 99 —
v=

= 0.00002+

A description of the derivation and terms of the formula
and the use of the tables appears in Finkelstein, The Ap-
plication of Statistical Decision Theory to the Jury Dis-
crimination Cases, 80 Harv. L. Rev. ........ (1966). [To be
published in the Fall of 1966.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386412_0062%3A2. Public record. Not legal advice.