Brief for the United States — Davis v. United States

1 55 trial and the appeal

8. The motion to vacate sentence

: Int. Assi and biichietotind

hs absence of a timely pretrial objection to

N detects} in the institution of the prosecution

or indictment as required by Rule 12(b)

e) of the Rules of Oriminal Procedure

bars a collateral attack based upon the

b - claim that Negroes were excluded from the

grand jury; unless there is “cause shown”

vem Le granting relief “from the waiver

A. Under Rule 12 (b) (2), all defects

~~: in the institution of the indiet-

ment, including constitutional de-

fects, are waived ane raised

5 the federal -habeas corpus statute

and the cases construing it do not

govern this case.

rm : pare the writ of habeas’ corpus

1 would be justified even under the

i : federal habeas corpus statute

C

—

E

Cases; - :

American Federation of Musicians v. Stein, a =

F. 2d 679, certidrari denied, 348 U.S. 873. 2

Ballard v. United States, $29 U.S. 187. 24, 49

Bain, er parte, 121 U.S. 111. 40

Barker v. Wingo, 407 U.S. 514. See

Beroun v. Allen, 344 U.S. 443. 28, 29, 36

8 Bulon Watch Co. v. United States, 365 U.S. a

ff!!! Ga 22

Burris v. United States, 430 F. 2d 399,

certiorari denied, 401 U.S. 92111. 12

Bastillo v. United States, 421 F. 2d 131. 8

Chambers v. Maroney, 399 U. S. 42 . 43,4

Chapman v. California, 386 U.S. 18. 41

Downey v. Peyton, 451 F. 2d 236. 43

Duncan v. Louisiana, 391 U.S. 1455 24

Dupoint v. United States, 388 F. 2d 3909. 32

Ethington v. United States, 379 F. 2d 965. 43

Fay v. Nota, 372 U.. 301. 28, 30, 31, 36, 37, 38, 39

des V. Meier, 408 F. 2d 74. 28

Hanna v. Phamer, 380 U.S. 460. 8 82,86

Henderson v. Tollet, 450 F. 2d 237, vertiorari

e ie 37

: qt; 35

4]

+

Tastes Allen Sor Le oe — 43

— Jol R Allen & Co. v. r 124

aL okey ee oe 2 32

Rauf ite Slates, 394 US. 317 —.— 13,

: pa 1" 14, 29, 30, 31, 33, 36, 39

co ae 1

x£ ns ontinued Page

Moore v. United States, 482 F. 2d 7390. 28

Myricts v. United States, 484 F. 2d 965 43

Veil v. Biggers, No. 71-586, decided Decem-

aa re 12

* O Connor v. Ohio, 385 U.S. 92 42

‘we Palko v. Connecticut, 302 U.S. 319 40

Parker v. North Carolina, 397 U.S. 790. 37

Peiers v. Kip, W 25,

Ss 37, 40, 41, 44

Poliaſico v. "United States, 237 F. 2d 97,

—*> . certiorari denied, 352 U.S. 1025..........- 28

“Rabinowitz v. United States, 366 F. 2d 34. 18

Sanders v. United States, 373 U.S. 1. 12, 28

Scales v. United States, 367 U.S. 2033. 17

“= Shotwell Mfg. Co. v. United States, 371 U.S.

3 10, 11, 21, 23, 24, 25, 35, 36, 42

1 Sibbach v. Wilson & Co., 312 U.S. 1. 32

Singer v. United States, 380 U.S. 24. 32

, © Snyder v. Massachusetts, 291 U.S. 97 40

Strauder v. Virginia, 100 U.S. 30. 41

Sunal v. Large, 332 U.S. 174. 30

enen 44

= — Throgmartin v. United States, 424 F. 2d 630 11

+ United States v. Dionisio, No. 71-1229, decided

. 0 40

United States v. Gale, 109 U.S. 65 28

United States v. Hayman, 342 U.S. 205. 31, 39

United States v. Kras, No. 71-749, decided

r 32

United States v. Polk, N.D..Miss., No. CRD.

6824, affirmed, 433 F. 2d 644. 8 18

United States v. Singer, 380 U.S. 24. 36

United States ex rel. DiRienzo v. Yeager, 443 F.

enen 43

- Constitution, ea rsh iv

4 Aet of February ö, 187, 0. 28,51 14 Stat 386,

now United States Constitution, Fourth

‘Avbendimante e eee 43

SP Gel Righta Act of 1957, 71 Stat. 686, et eg. 17

Jury Selection and Service Act of 1968, 82

85 Stat 53, wt gt e en A e eee 17, 18

„ 18. D., MBs. eds — — ee 18, 25

„ Me, innen 6, 12

18 U.S.C. 3771 8 18 U8. C. (1940 ed.)

f Kc le 3, 14, 31

a 28 U. C. (1964 ed: Nesse) d 4

28°US.C. (1004 ed) 1864.43.55 4

28 U.8.C. i e 29

eS 23 UBC; 2248) 6) O of paint l gy

; ͤ tae ee 30

WSC .0255'5 0/ A wt 5,

R 8,11 12,18; 10; 28,29, 80,30, 42

F. R. Grin? P.: : 1 is Gol ov esiot™ bs

Rule 1 . L ent M 22 9

© Bale 12(b)(3) 25! NL 2,

5 16112, 13, 14, 15¼16, 20, 21, 23, 24, 26, 28,

81.

— 2% 60 3 32, 337 34, 36 37, 3843 43

7

7

*

Federal Rules of Evidence: sees

ee 19

b 19

bb 19

Miscellaneous:

Amsterdam, Search, Seizure, and Section 2966:

A Comment, 112 U. Pa. L. Rev. (1964) 43

Bator, Finality in Criminal Law and Federal

Habeas Corpus for State Prisoners, 76 Harv.

See HOOD . ³ roco 43

Federal Rules of Criminal Procedure (Pre-

liminary Draft (1943))_.__._._.......___ 28

Federal Rules of Criminal Procedure (Second

Preliminary Draft (1944))_______..______ 28

Friendly, Is Innocence Irrelevant? Collateral

Attack on Criminal Judgments, 38 U. Chi.

ie Me AOU Siesta 31, 43

H. Rep. No. 1076, 90th Cong., 2d Sess. _____ 17, 18

Hearings Before the Subcommittee On Im-

provement of Judicial Machinery of the

Senate Committee of the Judiciary on S.

383, 90th Cong., Ist Ses. 18, 19

_ Mayers, The Habeas Corpus Act of 1867: The

Supreme Court as Legal Historian, 33 U.

i mtn 31

Oaks, Legal History in the High Court—

Habeas Corpus, 64 Mich. L. Rev. (1960) 31

The President’s Commission on Law En-

forcement and The Administration of Jus-

tice, Task Force Report: The Courts (1967) 43

a the Supreme dunn of the Whited States

Octroser TERM, 1972

No. 71-6481

Cumrorp H. Davis, PETITIONER

u.

Untrep States OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinions of the court of appeals affirming the

order of the district court (A. 33-35) and denying re-

hearing (A. 36-37) are reported at 455 F. 2d 919. The

opinion of the district court denying the motion for

collateral relief (A. 17-26) is unreported.

% JURISDICTION

‘ The judgment of the court of appeals was entered

en January 20, 1972 (A. 35). A petition for rehearing

_ Was denied on February 25, 1972 (A. 36). The petition

r eee was filed on April 6, 1972, and

ted on October 10, 1972. The jurisdiction of this

irt rests on 28 U.S.C. 1254(1).

(1)

*

system used for idles e Faber at the time of

his indictment systematically excluded Negroes from

grand juries, where petitioner failed to challenge the

grand jury array prior to trial as required by Rule

12(b) of the Federal Rules of Criminal’ Procedure

and made no . of cause re relief from

that rule. see : el

STATUTES AND RULE INVOLVED

Rule 12(b), of the Federal Rules of Criminal Pro-

cedure provides in pertinent part:

(b) The Motion Raising Defenses and Objections.

(1) “Defenses: iand: Objections: Which May

Be Raised. Any defense or objection which is

capable of determination without the trial of

the e issue da ‘We Fatised before trial by

2 motion.

ao 17 and Objections: Which Must

pole; Eaised. Defehses, and objections based on

5 defects in the institution of the prosecution

or in, = indictment or information other

it fails to show ‘jurisdiction in the

F

oe motion before trial, The motion shall

de all’ "ick defenses ‘and ‘objections then

available to the defendant. Failure to present

115 1 or ‘objection as ‘herein pro-

i eee constitutes a waiver. thereof, but the

eourt fon enuse shown may grant relief from

the waiver. Lack of, jurisdiction.or the failure

VUFHVHCN !!

lems sib ion, yh eo any

time during the pendency of the proceeding.

20 be made before the plea is Fas but the

court may permit it to be made within a rea-

‘54: ./ sonable time thereafter.

war ph) Hearing on Motion. A motion before

2 trial raising defenses or objections shall be

before trial unless the court orders

that it be deferred for determination at the

trial of the general issue. An issue of fact shall

be tried by a jury if a jury trial is required

under the Constitution or an act of Congress.

„„ All other issues of fact shall be determined

by the court with or without a jury or on

affidavits or in such other manner as the court

may direct. MG

* * * * *

N une 3771 provides:

The Supreme Court of the United States

= hall have the power to prescribe, from time

to time, rules of pleading, practice, and pro-

ceedure with respect to any or all proceedings

prior to and including verdiet, or finding

ol guilty or not guilty by the court if a jury

bas deen waived, or plea of guilty, in criminal

0 cases and proceedings to punish for eriminal

_ > * contempt of court in the United States district

#0 courts, in the distriet courts for the District of

tte Canal Zone and the Virgin Islands, in the

. Supreme Court of Puerto Rieo, and in proceed-

inmgs before United States magistrates: Such

i rules shall not take effect until they have been

reported to Congress by the Chief Justice at or

a P

but not later im me first! day of May, and

until the’ expiration of ninety days after they |

have been thus reported. All laws in conflict —

with such rules shall be of no further force or

effect after such rules have taken effect.

| Nothing in this title, anything therein to the

‘contrary ‘notwithstanding, shall in any way

limit, ‘supersede, or repeal any such rules here-

tofore prescribed by the Supreme Court.

* * * * *

28 U.S. d. (1964 ed.) 1863 (e), at the relevant times,

provided:

J Me aitidiexishall-baaxcheded:foven service 8

grand or petit juror in any court of the United

States on aceount of race or color.

28 U.S.C. (1964 ed.) 1864, at the relevant times,

provided :

5 r eee

be publicly drawn from a box containing the

names of not less than three hundred qualified

persons at the time of each drawing.

The jury box shall from time to time be re-

filled by the e lerk of eohrt, or his deputy, and

a jury eo ler, appointed by the court.

Such jury commissioner shall be.a citizen of

W standing, residing in the district and a

well known member of the prineipal political

party in the distriet, opposing that to which

the elerk, or his deputy. then acting, may

belong. He shall receive $5, per day for each

= hee e employed in the performance

0

The e e een and the clerk, or his

deputy, shall.alternately place one name in the

jury box without reference to party affiliations,

. until the box shall contain at least 300 names

or such larger number as the court determines.

This section shall not apply to the District of

Columbia.

5 U.S. C. 2255 provides in pertinent part:

4

pee

‘

A prisoner in eustody under sentence of a

court established by Act of Congress claiming

‘the right to be released upon the ground that

“the sentence was imposed in violation of the

Constitution or laws of the United States, or

that the court was without jurisdiction to im-

pose such sentence, or that the sentence was in

excess of the maximum authorized by law, or

is otherwise subject to collateral attack, may

move the court which imposed the sentence to

vacate, set aside or correct the sentence,

A motion for such relief may be made at any

Be )

Unless the motion and the files and records

of the case conclusively show that the prisoner

is entitled to no relief, the court shall cause

notice thereof to be served upon the United

States attorney, grant a prompt hearing

thereon, determine the issues and make findings

of fact and conclusions of law with respect

thereto. If the court finds that the judgment

was rendered without jurisdiction, or that the

sentence imposed was not authorized by law or

otherwise open to collateral attack, or that

there has been such a denial or infringement

of the constitutional rights of the prisoner as

to render the judgment vulnerable to collateral

attack, the court shall vacate and set the judg-

05 ment aside and shall discharge the prisoner or

ann 9 1201 ta Aietitoy Hate vod,

ee the e of the

e akin

“ful OF gofeibebtyur 4

1. Pha: Poe biet rvcsadinos, afte

Au indictment returned in the United States Dis-

pig Court’ for ‘the’ Northern ‘District’ of Mississippi

on larged | ioner, a Negro, and

alg Ge Pl Pak entry, into. a federally

120 ase ir intent to commit larceny in

violation of 18 U. S. C. 2113 (a), On February 18, 1968,

petitioner appeared with his appointed ‘counsel for

ment * and entered a plea of not guilty. At the

e

re- tr Ae t On Marek 6, 1968, petitioner

1 e 1 a tha fround

Ghat wee ws the result;of: an illegal arrest

— ou s metorandum opinion refers to arraign-

21, 1068 (A. 10). This is obviously an in-

355

att 10 Lal, b's on ted

14 1

arn other pre-trial mapions 9 the in-

ment Were filed. °

On May 6, 1968, following voir dire of th ity m

‘court (II T. 1-86), the district court ruled on

tho ‘pretrial motions in chambers (II T. 30-83),

5 that the motion to dismiss the indietment on

bee of illegal arrest would be carried with the

% (IT T. 33-24). The trial judge then twice asked

7 | and his counsel if there was anything else

d, receiving no response, the proceedings where re-

41 to open court and the trial commenced (II T.

le The Trial and the Appeal.

| The evidence at trial was overwhelming. The record,

“Which is detailed in the opinion of the court of ap-

peals on direct appeal, 409 F. 2d 1095, 1096-1098 (C. A.

5); ‘showed that petitioner and his two accomplices

‘Were apprehended about 4:30 A.M. attempting to flee

‘tron | the scene of a bank burglary in Hickory Flat,

“Mississippi. Petitioner’s clothes and shoes were found

to contain residue from the break-in of the bank and

pane gt eae

Other evidence connected petitioner’s two accomplices

T ge tole c's

the bank during the burglary. Petitioner

Dur ee ae 8 Chis det fury; paddebines

tally asked whether any juror would feel any prejudice

Sea { 4). OI”

eee A proceedings in the record on

conviction. A copy of the record in four vol

iged with the Clerk.

8 =

B aa eed and one-half days of trial, no ote

question, was raised with respect to the indictment

(I T. 37-IV F. 521), The jury found petitioner

guilty, On May 21, 1968, he filed a written motion for

new, trial alleging nine grounds, none of which went

to the: indictment, (A. 29). After a hearing on May 23,

1968, the motion for new trial and the earlier motion

to, dismiss the indictment were denied (IV T. 522, 561-

564). An oral motion for new trial which did not go

to the indictment was then presented and denied (IV

T. 564-604). Petitioner was later sentenced to im-

prisonment for fourteen years."

On appeal, petitioner’s assignments of error did

peg relate. to the alleged exclusion of Negroes. from

the grand jury. On April 14, 1969, petitioner's con-

viction was affirmed. 409 F. 2d 1095 (C. A. 5). (The

‘court of appeals commented. at that time: “We have

rarely witnessed a more thorough or more unstinted

e ee ee

elient.“ 409 F. ae) .

5 . Tu Motion te vasats Scelbnse

on J anuary, 19, 1971, petitioner filed a motion (A.

6-8), pursuant to 28 U.S.C. 2255 asking the court to

dismiss the indictment’ on the ground that the grand

jury that had returned it was an unconstitutional

array, innamneh as it did not meet the mandatory

op — —

numbered n of sentencing weine of May 24, 1968).

fequirement of the statute laws set forth * * * in

title — munen

zn amendment of the United States Constituti

_ He specified that the jury commissioner and Clerk

ol Court for the Northern District of Mississippi for

the past 20 years implementing the ‘Keyman’ and

: Salectors, system cause nought to [sic] token in their

selection of prospective qualifying Negro jurymen

because of their race in violation of Section 1863”

und “that the Northern District Court has by its

’ affirmative action taken for the past 20 years has

» pequiesced to systematically, purposefully, unlawfully

and unconstitutionally excluded [sic] the prospective

Aualiffed resident Negroes from the Grand Jury box

in violation of Section 1864. (A. 6-7).

Petitioner also alleged that he had neither waived

a | er abandoned the right to contest the array under

Kule 12, Fed. R. Crim. P., that “the court’s appointed

Las Student, who was researching the Grand Jury

Array question within, , was stopped from see-

ung petitioner by the Latayetto County Sheriff” and

that “a timely oral motion was made in open court

“Before trial by his Court appointed lawyer” (A. 8).

In an accompanying motion for discovery and inspec-

tis | (A. 9-12), petitioner sought any documents

21 pr ive jurors, and copies of questionnaires mailed

4 5 to pronpctv jurors over the prior saa years. He

e reer

cay ——

a re dune 14, 1971 the district court filed an opin-

ion nd ‘the’ motion without a e (A. 17.

eee Hee e i

| : to, i the

“matt relying on ‘Bhotwell Mfg. Co. ¥.

and jury because this was a contention that, under

. of the Pederal Rules of Criminal

Procedure; is waived unless raised by motion prior

Aris 4. 19-22). The court further concluded that

ere was nothing in the facts of the case or in the

mre of the claim justifying the exercise of the

n power under Rule 12(b)(2) to “grant relief”’

the waiver for cause shown.” In so ruling, the

eurt noted that the system for selection of grand

zurors hed been openly followed for many years prior

(petitioner's indictment, that the same grand jury

indicted petitioner indicted his two white accom:

serety 408 Wat the ense, against him was “a atpang

On appeal, the court below affirmed on the basis of

Bhotwell and Rule 12 (b) (2) (A. 33-34), finding that

any objection to the composition of the grand jury

2 been waived. In denying petitioner’s motion for

ring, the court independently found, as had the

Hurt, that no oral pre-trial motion challeng-

grand jury had been made (A. 36-37, note 1).

The court had previously rejeeted an bal phew claim raised

by 5 of leaded guilty. See

eme e Haan ke oe F. 94 630 (C.A. 5).

Alt il ni hon for swt of ota a

12

bim tail) lte Nr NA ha aie a

loctunit) ho satus, Arb A 20 0 171 4

‘ORME 12¢b) () ö the Pederal Rules of ‘Oriminal

Prbebdure provides that *fd}etenses and objections

e eee ee eee ‘of the ‘prosecution

mdietmemt dr information” may be raised

é‘trial”\ and that the failure

boy en rg ene ae objections” ‘as provided

‘gonstitates: a) Waiver thereof” (but the court “for

dative ‘shiown’” mah grünt relief from the waiver). The

AdWisdity“Conitittes Notes, the comments of the

draftamen, and the construction and application Rule

1205) (2) by this Court and the courts of appeals,

e orl the langunge of Rule 12(b) (2) makes

Plain, waiver provisions apply to objections

bo dae weed of tg rand 0 8 1

we 5

iti me sateen tiled: e e of illegally en-

onan fe nk. neo

Tha ate 5 writ N t's

* 4 a

not lightly ove @ cohicurrent fin e

1 — Sip on v. Bigger, No. 71-686, decided

December 6, 1 op. p. 4, n. 3) / That rule ig full

plicable here. : | 0 —

bene in violation, of. 19:;U.S.C,.2113(a)«.‘Rhe eri-

N e against him was overwhelming. and.., uncon:

erted. Although he: was represented by’ diligent

wee eee we 8 the'seleation, of the

1 jury: that “indicted him. Despite the clear re-

re of Rule 12 (b) (2), petitioner: and the

Curiae argue that failure to comply with

aral rules will not in and of itself result in a

** of ‘the right to W to the composition of

iene v. United States, ‘aie did not in-

2 C

Rule 12(b) (2). The case turned principally on the

. of the federal habeas corpus statute (See-

2955 af the Judicial Code for federal prisoners).

nly basis for the claim of waiver asserted there

«limitation inherent in the nature of the writ

ibeas corpus. e., that the writ. could not be

where the petitioner had failed to assert the

on appeal. The rejection of that argument

on the construction of the general provisions

have “expanded” the scope of the writ to permit re-

fief in all cases where the: petitioner is restrained of

his or her liberty: in violation of the Constitution.

ue general: provisions of the habeas corpus statute,

beser must be read alongside the specifie provi-

sions of the Federal Rules of Criminal Procedure,

not discussed in NTunfmam. Rule 12 (b) (2) does not

simply afford a procedure for asserting an objec-

tion to the ‘composition of the grand jury. Rather, it

requires that such an objection must be timely. raised

or is waived, The provisions of the Federal Rules of

Criminal Procedure, promulgated by this Court and

accepted by Congress, are explicitly given the force

of law, modifying pro tanto any laws ineonsistent

with them (18 U.S. C. 3771). Under well established

exnohs of statutory construction, Rule 12(b)(2)

governs the timeliness of asserting the kind of objec-

wteuing the reach of the habeas corpus statute, such

as Kaufman v. United States, supra, and Fay v. Nota,

$72 US, 801, ane’inappliteble: hare, because the ex-

press waiver provision of Rule 12 (b) (2), not involved

in such bases, limits the non-jurisdictional claims that

dan be raised for the first time on collateral attack.

We do not argue here that this Court may pro-

mulgate ‘a rule; or that Congress may enaet a statute,

barring’ collateral: relief on all claims not timely: as-

rtd’ without regard 40 the effet of the alleged

vonstitutional ‘violation on a defendant's right to a

fair trial er the ‘reasons for the failure to make 8

timely’ ‘objéction. But Rule 126002) is not such a

. J.

ts guilt determining p er which affect

trial in any way. Rather it is applicable only to

i.

Re eR i IO geg.

Ax“waiver” eee eee eee

th defenses, because a defendant generally has lit-

2 to gain by making a timely objection. While an

— objection to the admissibility. of evidence will result

un its permanent suppression, an objection to a de-

tot in the institution of the proceeding will gen-

Ferally result only in a new indictment. Thus, without

ti risk of waiver, there is great incentive for a de-

kendant to delay his objection in the hope of an

5 and assert the objection only as another

basis for upsetting a valid judgment of conviction.

eiRule 12 (b) (2) permits a district court judge to

~ §tant relief from the waiver provisions for “cause

thown.’’ The record is uncontroverted here that with

ne diligence the claims advanced here could have

an discovered and asserted before trial, and that

2” has not been shown by petitioner for the

ure to make a timely objection. The denial of the

petition was therefore justified. re

ad ib a also warrant aenial

＋ ‘pets even if Rule 12(b)(2) were not ap-

ble. Under the habens corpus statute, the dis-

*

F

ness of the trial: In the instant case, petitioner's

cdaim dose not in any way affect the determination

or gullt or inmoeenoe, ‘but ‘alleges only a curable de-

fect in the initiation of the prooeeding. Given the

nature of the claim; the three year delay before the

petition ‘was filed; the absence of any ersüse for the

delay as well as the lack of any possible prejudice,

the district’ court would be warranted in exercising

its discretion to deny the ‘petition; “without regard

to the express waiver (provision of Rule 12 (b) (2).

When, along’ with these fubts, it is not alleged that

there wäs deliberate exclusitn of Negroes from the

petit jury,’ and since the system ised for the selection

ot Juerg which petitioner’ attack; has heen replaced

the exsreise of the eourt's dee ee to wee the

collateral motion is ompehing.

87 401 Tete Hitec wd rere ds 419 ght

od v0 rah T ee rs nites oF <

This case involves the right of a federal prisoner to

complain, for. the first, time in 6 collateral, proceeding

3 years after his convic-

tien, about, — 9f Negroes from. the

wal grand jury which had returned the indietment

whieh he was ound guilty by a petit jury whose

sh he does not challenge. In resolving this ques-

ot,” the Court may find it helpful to consider the

éonitext:in*which the question arises in this case, and

which’ n er Eren ese was not needed to

l When petitioner was indicted in the Northern Dis

iet of Mississippi in 1968, jury selection was governed

bythe Civil Rights Act of 1957, 71 Stat. 635, et seq.

in enen Congress adopted uniform federal jury qual.

_ Méations but left jury selection largely to the disere-

1

_ Appointed by the district court. As petitioner alleges,

me bey man“ system was employed in the selection

et grand jurors. Under this system, which was (em:

ployed in Im Jost federal jurisdictions” prior to the

- soption of the Jury Selection and Service Act of

108 (28 U.. C. 1861-1860), and which was expressly

__ approved by this Court in Scales v. United States,

en U.S. 203, 259,* “key men” who are “the

we extensive contacts throughout the community,

95 be names of prospective jurors” ta the clerk

“commissioner (H. Rep. No. 1076, 90th 7

3 ‘Phe use of the system; aa dhe A Amicus

100 aan ‘has nat *.* by. and large

ited in] “deliberate erelusion of black“ (Br.

‘he 1 1 instead on Oeäsion resulted. in “tnin-

on. *wander-representation of Negroes and other

BS 114

8 r 3 F esi tog

eee en, va é

* 5 *

States, 806. F. 2d 34 (CA. 3) H. Rep. No. 1076,

Aet provided that each district court must adopt a

plan for jury selection: that ineludes detailed pro-

cedures designed to ensure the random selection of a

fair cross section of the persons ee in the com-

munity in which the eourt:colivenes. N

2 Tb manner in which grand — petit jurors

were selécted:utider the key man“ system in the

Northern Distriet of Mississippi was detailed by the

elerk of the distriet eburt to the Senate ‘Judiciary

Zubeommittee on Improvements in Judicial Machinery

(see: Hearing on S. 383, 90th Cong., Ist Sess. 993-

996), and in an affidavit filed in response to an attack

by à defendant indieted by the same grand jury that

indiieted petitioner (United States v. Polk, N. D. Miss.,

ne ge ce RS G44 (OA. 5)).”

Pr 5 nacted Sn 1507, — it ‘an of-

p A eser br Sher pation charged

ner anne to

Sakina —

2 ah rial ns challenged the composition of

19

me Cle: in answer to the Committee’s question-

6; said that he gave the following instructions

; he men“ (Hearings, sepra, p. 994): “I tell

po that I need names of males and females, white

a anil non-white.” Once the names of the potential

grand and petit jurors were obtained, they were di-

_ -yided into four wheels“ for selection of petit jurors

u düivisions within the distriet; a combined list from

all four divisions was placed in a fifth wheel for se-

lection, of grand jurors. This difference accounts for

vetit challenge only to the grand jury rather

man to tde petit jury which convicted him (see Peti-

+ fioner’s: Response to the Opposition to the Petition

for Oertiorari, p. 3). Under this system the pro-

portion of blacks represented on the four petit juror

‘ists would not necessarily be the same as on the dis-

t wide grand jury list.

5 We, Teiterate at this introductory juncture that

20 :

had to Stand trial The challenge is to a method of :

selection~now superseded by other statutory proce-

dures—which may have resulted in under-representa-

tion of “blacks on grand juries. These facts, as we

show, are significant in determining whether the dis-

trict court could in the exercise of its discretion

under Rule 12 (b) (2) and 28 U.S. C. 2243, decline to

permit petitioner to challenge an otherwise valid judg-

ment of conviction, three years after his trial, where

the issue was not timely raised, where the error does

not involve the guilt determining process, but only a

defect in the institution of the proceeding, and where

the composition of the grand jury that indicted him

ee ee have affected its decision to accuse

THE ABSENCE OF A TIMELY PRETRIAL OBJECTION 10 DE-

1 _FEOTS IN THE INSTITUTION OF THE PROSECUTION OR

_ INDIOTMENT AS REQUIRED BY RULE 12(b) (2) OF THE

’ PEDERAY RULES OF CRIMINAL PROCEDURES BARS OOLLAT-

‘jet aT’ BASED Ufo. THE CLAIM THAT NEGROES

WERE EXCLUDED PROM ‘THEGRAND JURY, ‘UNLESS THERE

Fe eer sere veanacieedie ipmntee FROM THE

WAIVER”, e aK

as Uniess —— 12(b) (20 of the Fed-

eral Rules of Criminal Procedure unconstitutional, the

decision. below. must be sustained, Rule 12 (b) (2) pro-

vides that: “defenses nae e eee eee ee

W d = en elne br (emphasis

6 W ö |

5

5

de all such defenses and objections then available

the defendant.” The Rule then expressly establishes

hat “[f]ailure to present any such defense or objec-

| ag herein provided constitutes a waiver thereof,

sept that “the court for cause shown may grant

from the waiver.“ The plain wording of this

is applicable to all defenses including alleged

stitutional defects in the institution of an indict-

as this Court has ruled and as the history of

Rule indicates. The Rule, therefore, by its terms

uired the rejection of petitioner’s collateral claim,

e the courts below found that there was no suffi-

tient cause to relieve him from the effect of the

UNDER RULE 12(b) (2), ALL DEFECTS IN THE INSTITU-

‘TION OF THE INDICTMENT, INCLUDING CONSTITUTIONAL

_DEFEOTS, ARE WAIVED UNLESS RAISED BEFORE TRIAL.

In Shotwell Mfg. Co. v. United States, 371 U.S.

41, 362, the defendants attacked the composition of

he grand jury and petit jury for the first time in a

0 viction motion made four years after their

and conviction. They alleged inter alia that their

constitutional. rights were violated because the

a0 he ; ‘used i in the selection of grand and petit juries

8 861-982), The district court held a hearing to

! 25 nine whether “cause” was shown warranting re-

*

.

dus diligence) before trial, [since] [t]he same er

ot selesting, jurors: had been followed by the clerk and

the jury commissioner for years’’, (871, 0.8, at 368).

The fare eee — said dili-

in the selection of the juries“ (371 U.S. at 363) was

held to naan age meatier issue

nne eee

he court of appsals ‘affirmed the. finding. of the

eee een Oourt affirmed the application

of the waiver: provisions of Rule 420) (2), poling

* 982) x rat Sth order ‘04

0 e eben dd, that

petitioners have lost these eee by rom

eue PEPE NA AS

. er’ e

eee his failure to timely make his

RAR eee ee eee e waivet

or doe objection: (A. 2 50 7 ec

The method of selecting e ee then

oct in use was the same system atid by

Bu ser pc rang pe ea

05 eg.

16 eee xt Ah et 210

ä

_ Should stand trial for the offense with which he

ae! 8 was ee The government did not

require the assistance of racial prejudice in

oe “order to 7 — an indietment against peti-

ce n petitioner does not contend

by Rule 12 (b) (2) FR. Crim. P., and Shot-

u Mfg. Co. v. United States, 371 U.S. 341 (Br.

), seeks to distinguish the instant proceeding from

well on several grounds: (1) that the “concession”

Ofthe defendants in Shotwell that Rule 12 (b) (2)

lied to objections to the grand jury array de-

ived this Court of any adversarial perspective on

issue and cannot be deemed conclusive against

itiorier here” (Br. 18); (2) that the Oourt in

otielt said that “both courts below have found

4 petitioners were not prejudiced in any way by

the alleged: illegulities in the selection of the grand

artes ) While „iin the case at bar prejudice is pre-

7 i? (Br. 20); (3) that “the trial eourt in Shot

* eee 0 re eee e ag £8 and

ee hotel * * * Gi ot it to the

jeusion: of the fundamental e

*

2¹ N.

aertad Wy petitioner: at: bar (Br. 1840). These

eecnelled wittt the opfnion in

es eee, MaRu bang yg es

Grosso at SPS erry 5

8 althoug “the dete 10 ts in Shotwell *

ceded: hat ‘he, chailenge te the, composition of the

grand jury was barred; by their failure to, comply

with Rule :12¢b)(2);xtheyexpressly contested its ap-

plication to their challenge to the petit jury; but with

the benefit of that; ‘tadversarial perspective, the

Court nevertheless held that both such elaims were

barred by Rule 12(b) (2) (371 U.S. at 362). The

present case follows d for tion. While the ultimate

fact finding ‘functions served by the petit jury might

have warranted a less restrictive ‘application of the

requirements of Rule 12(b) (2), when the challenge

is to the ‘selection of the trial jury,” the application

of the Rule even to those challenges leaves no room

fer argument that Shotwell is “nob conelusive’’ against

petitioner's belated. eme = _ une of select-

an a grand jury here.,

Second, Suh enge W is petitioner's claim

that this cas is: distinguishable from Shotwell be-

req .

25

ine case (329 U.S. at 195). The Court agreed

“Wht where the challenge is timely raised no showing

pipréjudics’ is required (371 US“ at 363):

sa However, where, as here, objestion to the jury

a selection has not been timely raised under Rule

1205) (2), it is entirely proper to take absence

ol prequdice into aceount in determining

becher 8 sufficient showing bas been made to

= 8 A relief from the effeet of. that Rule.

iance on Peters v. Kiff, 407 U.S. 493, to avoid this

BE xh x

presumed” . (Br. 20) is ‘misplaced. ‘ta Peters, the

maaan gail aang ee

— ground. tin, —

er chonn; and three Justices who concurred in the

je t allowing relief did so on the narrow ground

N U.S. at 507) that to allow the claim to be raised

ren. by a white defendant would implement the

ng statutory policy” of the federal Civil Rights

8 (is U.S. 0. 248 supra, p. 18, n. 9). Nothing was

id or done to undercut the continuing vitality of the

0 eee eee eee

de is relevant in determining whether a federal

r seeking collateral review should be relieved

! . —

= there is no basis. for: petitioner’s alaim that

hecause the trial court in Shotwell held a hearing on

6 objection to the jury, the waiver finding was

*

it

6

daly en alternative basis for decision,” The hearing!

beld by: the trial eaurt, to which the Shotwell opinion

alluded (dt U.8eat 969), related to whether facts

could he addueed: to: warrant the exercise of the dis-

ttigt oourt's diseretion: to grant relief from the

waiver’’ (871: U.. at 302). Because this Court found

that the distriet oourt had properly applied the waiver

mn Of Rule 1200 (2), it ‘expressly refrained

be dean claim,

despite the tact that the therits were raised and ae

in ‘thie’ tits nel US. a at 364):

AN . ‘e. a * US

that % | hid 0 error in the two lower courts’

holding that the objection has been lost.

. ee thee the waiver

„Tourtm and: fnany while the Court in 3 did

not ach the merits of the challenge to the jury selec-

eee: dant *olain | that the case involved

more than ikatities m the method of selec-

ed faa ses and that just as here, their “con-

18 en U.S. at e had allegedly

ii We 2714 Ff

Bot eww 5 cle, deren. of Rule

tos 8 eee that

in “I rete it, the kind of

e These two paragraphs ese into two

pPoted by motion prescribed by — 12(a), In

ane group are defenses and objections whieh

~~ must be raised by motion, failure to do so con-

oe Stituting a waiver. * * *

In [this group] are included all defenses and

objections that are based on defects in the in-

stitution of the prosecution or in the indiet-

9 Among the defenses:and objections in this group

re the following; Illegal selection or organsea-

| tion of the grand jury, disqualification of in-

_ *dividual grand j jurors, presence of unauthorized

persons in the grand jury room, other irregu-

larities in grand jury proceedings. The

provision that these defenses and objections are

«waived if not raised by motion substantially

eontinues existing n

present unless raised before trial by

abatement, demurrer, motion to q a

118 U.S. C. A. (F. R. Crim. P., Rules 1205

P. 607; emphasis added.] mare

i can be no claim ‘that the waiver provisions

s to be applicable to mere “irregularities in grand

proceedings“ not involving constitutional ques-

8. The Advisory Committee Notes to the prelimi-

y drafts, containing detailed discussions of Rule

2(b) (2), included a table (Table IT) ilkustrating the

nots “in the institution of the . prosecution’? in-

unde to be covered by the Rule. Among the illestra:

ve cases were those involying claims that Negroes

ere. unconstitu : excluded r grand juries

See, Als, ‘Michel. . Lowisiana, 350 DS, 91, 99.

Moreover, the law . chica oie a failure to

%%% —

which have onsidered the issue have held that the

failure to make 1 timely challenge to the array of the

grand jury, an racial or other grounds, constitutes

1 of the ection! unless good cause is shown

0 comply ‘with Rule 12 (b) (2). See

tame, 421 F. 20 529, 582 (C.A.

i z 432, F. 2d 730, 740 (C. A.

ited e 2d 131

the Advisory — Notes, the application

the Rule in Shotwel, and the consensus of the

ot appeals combine to refute petitioner’s as-

eee Rule a 2) is not e, to one

f dem asserted here.

= 2 CC

f 80 avs “ConstiurNa rr po Nor coven rents c n

: at ee contention that “[t]his case is con-

trolled by Kaufman v. United States, 394 U.S. 217”

* r. 10) ignores the crucial distinctions between the

2 0 ‘eases. In Kaufman the defendant, who was tried

and and convicted of bank robbery, sought collateral re-

alleging that illegally seized evidence had been

itted against him at trial, over a timely objection

U.S. 220, n. 3), and that this evidence resulted

the rejection of his only defense to the charge.

distriet court and the court of appeals denied the

1 ics ation on the ground that this claim. was not

ised. on appeal from the judgment of conviction

„ “that a motion under § 2255 cannot be used in

0 of, an appeal“ (394 U.S. 223).

nstitutional claims (394 U.S. 227), and that col.

a relief under 28 U.S.C, 2255 was not barred

eld thet despite the provisions of Rule 12 (b) (2), which

© plain - applicable, collateral relief could be denied under

80

eee eee ve en e ‘the: aue on

appeal. bs 8 2 12

22 ˙ ebionis Utaeiniahieciordliat Mout.

man involved a claim that the applicant had been

convieted ‘on the ‘basis of unconstitutionally seized

evidence. Here, however, without in any way minimiz-

ing the importance.of insuring that grand juries are

selected without racial discrimination, petitioner’s col-

lateral claims do not relate to the trial itself, or to

the fairness and accuracy of the guilt-finding process,

and thus the need to preserve post-conviction remedies

to vindicate his (alleged) rights is not nearly as

strong,

But beyond this factor, Kaufman did not involve

the application of the express waiver provisions of

Rule 20 65 The case turned principally on the

language of the federal habeas corpus statute (Section

255" ; 0 Code, for federal prisoners). The

only basis for the claim of Waiver asserted there was

a limitation, ‘inherent ‘in the nature of the writ of

hi 1 e, that the writ could not be asserted

where the prigoner bad filed assert the claim on

ppeal. Ses eg, Sunal v. Large, 332 U.S: 174, 179;

Brown . Alen, 3⁴⁴ US. 443,487. The rejection

argume 1 in Kaufman and Fay v. Noia, supra,

turned on the construction’ of the provisions of 28

ic haga ieee Seg which the court con-

cluded ™ the writ of habeas corpus to

lief in Ho Ul Poem BES AO,

— restrained of his or her liberty in violation

th itution (Kauf man v. United States,

pr, 394 U.S. at 221, quoting Act of February 5,

867 6. 28, 6 1, 14 Stat. 385, now 28 U. S. C. 2254). The

lappli¢ant in Kaufman alleged that he was “restrained

in violation of the constitution”, and the Court found

3 basis for withholding the remedy, simply because

tds elaim was not asserted on appeal, where the record

clearly indicated that there was not a knowing and

‘deliberate bypass of the procedures provided by way

> tire”

The general provisions of the habeas corpus statute,

. however, must be read alongside the specific provisions

e the Federal Rules of Criminal Procedure, not dis

eussed in Kaufman. Rule 12(b)(2) does not simply

afford a procedure“ for asserting an objection to the

- seomposition of the grand jury. The Rule, which has

8 id The common law principles which initially determined the

. of the writ (504 U.S. at 221) precluded collateral attack

es v. Hayman, 342 U.S. 205, 211. See, also, Oaks, Legal

ory in the High Court—Habeas Corpus, 64 Mich. L. Rev.

452-456, 461-468 (1966) ; Friendly, Je Innocence Irrelevant?

late Attack on Criminal. Judgments, 38 U. Chi. L. Rey.

148, n. 13, 170-172 (1970); Mayers, The Habeas Corpus Act

867: The Supreme Court as Legal Historian, 38 U. Chi. I.

1 Cf. Fay v. Noia, 372 U.S. 301, 405, noting

e of “respectable authority” for a contrary view.

ie “deliberate by-pass rule” is likewise based on the Court's

or pp.. er

F

— N

‘the force and effect of a statute,“ b

‘the failure ta raise timely objections regarding defects

in the ‘itistitution’ of the proesedings ‘constitutes a

re re Having been promulgated by this

Court atid “adopted” by Congress (Singer v. United

States, 380 U. S. 24, 37), under well established ‘canons

of statutory construction, it is plain that Rule .12(b)

(2) provides the sole and exclusive remedy for viola-

tanto. modifles the statutory expansion“ of the

grounds on which collateral relief could otherwise have

been sought. See Bulova Watch Co. v. United States,

365 U.S. 753, 788, and cases: cited; United States v.

Tras, No. nen decided N 10, 1973, slip op.

ne DET 8 | ‘

Lüge ure not suggesting that this Court my pro

‘gate a rule, or that Congress may enact a statute,

barring collateral relief in all circumstances where a

éelaim of constitutional dimension was not asserted at

‘or before trial A statute or rule mich failed to take

.

18 U. 80, 8TH, formerly" US. (1940 ed.) 687, provides

that upon taking — after submission to Congress, a Ill

iwd in odufliet wich uch rules shall be of no further force and

effbet See Sibdbaoß y. Wilson & Co, 312 U.S. 1, 10, holding

that the Federal Rules of Civil Procedure operated to “repeal

lan inconsistent} statute”; Dupoint v. United States, 388 F. 2d

ste Gry eee that. the Federal Rales of Criminal

Prosedure “have the force and effect of Inw: Just as u statute, *

3 ust be obeyed.” Avcird: Hannay. Plume; 380 U.S. 460,

3 > v Weinstein; 409 F. 2d 704, 715, certiorari de-

Grunberger vl United States, 405 U.S. 91T; Winsor v.

1 ian Ay B18 0 cr

Aba. J 2

33

ant of the reasons for failure to assert the claim,

the nature of the constitutional claims asserted,

“@ticounter problems under the Due Process

lause or the Suspension Clause. But neither on its

6e nor as applied to the present case is Rule 12(b)

(2) an overly broad or unduly inflexible requirement.

the Rule applies to challenges to the commencement

the proceeding that are “then available“, and pro-

_ Vides that a tardy defendant can be relieved from the

walver of such challenges if there is cause“ to do 80.

This procedural requirement is reasonably calculated

protect a defendant’s legitimate interests while at

e same time encouraging him to assert any chal-

iges to pretrial proceedings before the trial, when

sy can be determined and cured, rather than years

er, after the government, the court, and the wit-

_ “fiésses have gone to the burden and expense of trial,

ud when retrial may be practically impossible.

The express waiver provisions of Rule 12 (b) (2) do

ot purport to apply to all constitutional claims, but

ly to claims “based on defects in the institution of

d prosecution or in the indictment.” Such claims,

ike claims relating to the admissibility of evidence

volved in Kaufman, generally have no effect on the

Proeéss by which guilt or innocetice is determined and

Aer significantly are capable of being easily cured.

hile nothing can undo an illegal search or à ‘coerced

8 fe, Co aptly observed in Barker v. Wingo, 407 US.

J

s the time between the commission of the crime

a N . bi.

PONTE RT oad” .

2 a Eee

may fade. Ef the witnesses support the prosecution,

will be weakened, sometimes seriously so.”

sy rom in a. new in-

BPRS

Eu . 3

1 (te

Seen th 4

iy aK? ae 7471

i tc — 535

atter the grand jury form expired or before

raignmes ‘There, as in the present case, the Court

W a i

6850 U.S. at 97 footnote’

fitipating its later he in Shotwell, supra,

x ur 15 Even in tederal felony cases ‘where,

id prosecutions, indietment by a grand jury

5 i of right, this Court has stritly”elroum

: ed the time within which motions addressed to thé

position of the grand jury may be made,” citing

eee (880 U.S. at 99). -

mnout the deterrent effect of a waiver provision,

0 i every incentive for à defendant to delay the

a m the hope of an acquittal, and to assert the

d only. as another ground for upsetting an other-

e ‘Valid conviction, perhaps thereby achieving im-

ity for the crime because of the effect of delay

the ability to re- indiet or reprosecute. The incen-

e 1. particularly great if, as petitioner claims no

ejudic ‘need be shown. The’ instant ease is illustra:

. Had petitioner asserted bis claim prior to trial,

and had it resulted in dismissal of the indictment after

i b proceedings, the only consequence would

e, as the courts below noted, a dreh indict!

me by 2 differently constituted grand jury.

hotigh an absolute waiver rule might thus ‘be

dec Rule 12 (b) (2) does not go so far. Rather,

ts discretion in the district court to grant relief

85 ne 379 U. 448, 448

: the 5 e state rule berger

objection to the introduction of edly

——— —— —ñ

claim) ; Williams v. Florida, 300 U.S.

“the ‘prosecution before trial of D

8 ee neering of “canse””, Where, the :

‘ati 37? ” (Shotwell: v. United States,

: sel, V or ie eue tai “incapacity, or

erference d j officials” (et. Brown v. Allen,

of discretion, if not a yiolation of due process, to deny

relief from the waiver provisions of Rule 12 (b) (2).

Here, as both courts below found, no justification has

been advanced for non-compliance with Rule. 12(b)

O and no prejudice has been shown. Thus, the

| mm. of the waiver provisions was plainly

The court of appeals a i cited by petitioner

(Br. 25-28), which have granted relief in the face

o state common lew or statutory procedural rules

similar to Rule 12(b)(2), are inapposite here. While

as this, Opurt held in Foy u. Nota, 372 U.S, 391, under

Su) Clause, ‘‘[s]tate procedural rules

plainly must yield to 5 [the] overriding federal

poliey” that the Court found und was expressed in the fed-

eral habeas corpus statute (372 U.S, at 426-427), Rule

shee oP): ees pevapel gated by this Court and apneptod

by, and thus sets forth the “overriding fed-

cl ply an fa as the claims asserted here by this

— ee 263 F. od fl,

33-6 See S38 holding tet the

37

dor similar reasons, the standard for holding peti-

or: to have waived his claim cannot be the one he

ances (see Br. 21-23)—that of a knowing

“deliberate by-pass” by petitioner personally. That

standard, drawn from the habeas corpus statute (see

infra; pp. 38-39), and wholly inconsistent with the

language, history and interpretation of Rule 12(b) (2),

would virtually nullify the provisions of the Rule. For

i must be recognized that, while competent counsel

Will thoroughly review with his client the basic factual

igsues.in the case and his general trial strategy, the

constitutional right to legal counsel presupposes that

he basic operative judgment on what procedural and

gal objections should be made must be essentially

_ the professional judgment of the lawyer. As Justice

irlan pointed out in his dissenting opinion in Fay v.

bin, supra, 372 U.S. at 471, willingness to respect

du those waivers made by the “defendant himself ex-

2 coll. challenge to the grand jury, but not the petit jury.

OF . m v. Tollet, 459 F. 2d 237 (C.A. 6), certiorari

tional system.” That comment is espetinliy apt here

where: an appeal ‘from’ petitioner's: conviétion; the

colt” k appel ““iiderséored the “exbeptionally

nd unstinted“ representation petitioner:

received’ Trom his able counsel” (409 F.2d at 1101).

We submit that it enhnot be the law that Rule 12(b)

(2) is ot rio’ Forte und effect! unless ‘the government

Shots That Echse fully discussed | this: particular

can ‘with’ petitioner, and that petitioner’ himself

* und “intelligently” decided that there

were no ‘eufficient ee g to make it

Tae ee N ood Sart 4

e

above, we; submit, would warrant a denial of habeas

corpus relief even if Rule.12(b)(2) were not controll-

ing here. Under the habeas corpus statute the district

judge has discretion to, deny: ne to an en

Duet Bt e Smith e Be, 34a US

5; ber an e opinion). “Among: them is

40

sot pipe ot justiew so rooted in the traditions 3

and cor Of our People as to be ranked! us funda-

atal.’”” Palko v. Connecticut, 902 U.S. 319, 325,

tin “Bnyder v. “Méissachiisetts; 201 U.S. 97, 105;

Hurtado v. California, HO U. 8. 5163 Peters v. K.

Mus 498, . e e ORY

netion betiren the Aae of the claim

asserted here and in ‘other Habeas’ corpus éases pro-

vides a basis’ for the exercise” of the district’ court’s

discretion even when no “deliberate by-pass” by peti-

psonaitly has been shown. To the extent that

the grand jury is designt as u means, not only of

bringing to trial persons nhbeused of ‘public offences,

but also as means of protecting the citizen against

untounded accusation ** *” (Ee parte Bain, 121 U. S. 1,

11, quoting a grand jury charge of Justice Field);

United States v. Dionisio, No. 71-229, ‘decided Jan-

uary 22, 1973 (slip op. p. 15, u. 15), the district

court can readily determine from a review of the

record: whether the indictment was “unfounded.” In

the instant ease for ezaniple, It is plain that peti-

tioner, who was caught in the act of burglarizing a

bank, has suffered no prejudice, from the manner in

which the grand jury was selected. Any grand juror,

Wa cae

Pog

a true bill” "dss

Grama Petre Kip, . en erg

in » selection 8 BD gd * petit Jury 8 as,

The Court Tap ng api attack, stressed

5 fie i ew ew 2 te: oat. of the e 2 1

41

olass of potential jurors the “privilege of partici-

pating equally = in the administration of justice”

Ki , Supra, 407 U.S. at 499. Po withhold any remedy

for such a violation, even if a timely objection were

ermining “what jury would have been selected under 3 oon.

utionally ‘selection or how that jury would

mye decided the case” (407 U.S. 504). The grand jury and

Dit jury, however, perform significantly different functions in

Mice of racial prejudice against him as a Negro is the fact

5 ey “tin : ng nna tei

2

lity of judgments of convictions become com-

ke President's Commission on Law Enfores-

and ‘the ‘Administration ef ‘Justice,

ort: Phe Courts, 45-47 (

3 . ‘Harv,L. Rev. 441, 452 (1963) ;

Fendi, Is Innocence Irrelevant

Criminal Judgments, 38 U. Chi,

In sum

ertion ,

Ugr

— —

A

inal ‘cdnvietion

Mon, 451 F. 2d 236 (C. A. 4

N 281 (C. A. 5); Myricks v. United

eA. 6); Ethington v. Uni

Ctropolis v. Turner,

Med States, 406

0 wes e

—_

* * , ee a 3

7 pats: 5th . 2 8 : — .

o A 8) na bs

te eee naa a ae vag S oz

B18 ob Ra! * as fae, ae by

tip eng: se L Adi: ae

a ated 0 att Ris

5% Ree 2

e mp di gi