Amicus Curiae Brief — Tollett v. Henderson

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Iy THE

Supreme Court of the United

Ocrosrr Term, 1972

No. 71-6481

Currrorp H. Davis,

Petitioner,

Untrep States or AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 72-95

Lewis 8. Totuerr, Warden,

Petitioner,

Write Lez Henperson, -

' Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

—— —

BRIEF OF THE NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC.,

AS AMICUS CURIAE

—=———

Jack GREENBERG

James M. Nasarr, III

Cuaries StepHen Ratston

10 Columbus Circle

New York, N.Y. 10019

Attorneys for the NAACP Legal

Defense and Educational Fund,

Interest of Amicus

Summary of Argument

ARGUMENT

I—The Requirements for Finding a Waiver of

a Fundamental Constitutional Right in Both

State and Federal Courts Require an Af-

firmative Showing That the Defendant Him-

self Acquiesced in Their Non-Assertion

Il—The Johnson-Fay Requirements Apply With

Fall Force to Jury Discrimination Claims in

Both State and Federal Courts

I1J—Any Rule Imposing an Automatic Forfeiture

for Failure to Comply With Rules of Pro-

cedure Is Particularly Inappropriate in Jury

Discrimination Cases

Conrciusion

TaBLE OF AUTHORITIES

Cases:

Alexander v. Louisiana, 405 U.S. 625 (1972)

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

Boykin v. Alabama, 395 U.S. ioe:

0 v. Craven, 457 F.24 582 (9th Cir. 1971)

i Garnley v. Cochran, 369 U.S, 506 (1962) rt

chr )

PAGE

Carter v. Jury Commission, 396 U.S. 320 (1970) -......... 2,13

Cassell v. Texas, 339 U.S. 282 (1950) 10

Cobb v. Balkcom, 339 F.2d 95 (5th Cir. 1964) ............... 20

Fay v. New York, 332 U.S. 261 (1947) 13

Fay v. Noia, 372 U.S. 391 (1963) passim

Fernandez v. Meier, 408 F.2d 974 (9th Cir. 1969) ........ 14

Frazier v. United States, 335 U.S. 497 (1948) ............... 13

Glasser v. United States, 315 U.S. 60 (1941) -.............. 16

Hanratty v. United States, 218 F.2d 358 (5th Cir. 1955) 13

Henderson v. Tollett, 459 F.2d 237 (6th Cir. 1972) ...... 7,8

Henry y. Mississippi, 379 U.S. 443 (1965) —.............. 7

Higgins y. United States, 160 F.2d 222 (D.C. Cir. 1946) 13

Hill v. Texas, 316 U.S. 400 (1942) a. |

Humphrey v. Cady, 405 U.S. 504 (1972) 3,7,8

Jackson v. Denno, 378 U.S. 368 (1964) 1

Johnson v. Zerbst, 304 U.8..458 (1938) ................... passim

‘Kaufman v. United States, 394 U.S. 217 (1969) ...... 6

Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966)... 6

MeNéeil v. North Carolina, 368 F.2d 313 (4th Cir. 1966) 8

Miranda v. United States, 255 F.2d 9 (1st Cir. 1958) ... 13

N.A.A.C.P. v. Button, 371 U.S. 415 (1963) 0... 18

Neal v. Delaware, 103 U.S. 370 (1881) 9

Norris v. Alabama, 294 U.S. 587 (1935) 9

Patton v. Mississippi, 332 U.9. 463 (1947) .......... 2,8

Peters v. Kiff, 407 U.S. 493 (1972) 16

Pierre v. Louisiana, 306 U.S. 354 (1939) 10

PAGE

Rabinowitz v. United States, 366 F.2d 34 (5th Cir.

1966)

Rice v. Olson, 324 U.S. 786 (1945)

Sanders v. Russell; 401 F.2d 241 (5th Cir. 1968)

Sanders v. United States, 373 U.S. 1 (1963)

Scales v. United States, 367 U.S. 203 (1961)

Shotwell Manufacturing Co. v. United States, 371 U.S.

341 (1963) 12, 13, 14, 15

Smith v. Yeager, 465 F.2d 272 (3rd Cir. 1972)

Sobol v. Perez, 289-F.Supp. 392 (E.D. La. 1968)

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

Thiel v. Southern Pacific Co., 328 U.S. 217 (1946)

United States ex rel. Goldsby v. Harpole, 263 F.2d 71

(5th Cir. 1959)

United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th

Cir. 1962)

Wade v. Yeager, 377 F.2d 841 (3rd Cir. 1967)

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

Winters v. Cook, 466 F.2d 1393 (5th Cir. 1972)

Statutes:

28 U.S.C. §§ 1861-1864

28 U.S.C. § 1867

28 U.S.C. § 2254

2 U.S.C. § 2255 4,12, 13, 15

- Fed, Rules Crim. Proc., Rule 12(b)(2) ....4, 12, 13, 14, 15, 16

In THE

Supreme Court of the United States

Ocroser Trrm, 1972

"+ No. 71-6481

Currrorp H. Davis,

Petitioner,

Untrep States or AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 72-95

Lewis S. Totzerr, Warden,

Petitioner,

Vv.

Wri Lez Henperson,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

‘UNITED STATES COURT OF APPEALS FOR THE SIXTH OIROUIT

| |

OF THE NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC., |

AS AMICUS CURIAE

Interest of Amicus*

The NAACP Legal Defense md Educational Fund, Inc.,

is a non-profit corporation, incorporated under the laws of

the State of New York in 193%. It was formed to assist

Negroes to secure their constitutional rights by the prosecu-

tion of lawsuits. Its charter de:lares that its purposes in-

elnde rendering legal aid gratuiously to Negroes suffering

injustice by reason of race who are unable, on account of

poverty, to employ legal counse! on their own behalf. The —

charter was approved by a New York Court, authorizing

the organization to serve as a legal aid society. The

NAACP Legal Defense and Edusational Fund, Inc. (LDF),

is independent of other organizations and is supported by

contributions from the public. For many years its at-

torneys have represented parties in. this Court and the

lower courts, and it has participated as amicus curiae in

this Court and other courts, in cases involving many facets

of the law.

Over a long period of time, LDF attorneys have han-

dled, here and in other courts, many cases involving the

unconstitutional exclusion of blacks from jury venires.**

Throughout this period, LDF has handled many jury dis-

crimination cases in which our help has been sought only

after blacks have been convicted and in which the issue

was not raised at trial by their then counsel. This experience

has demonstrated to us the vital importance of the avail-

ability of federal post-conviction remedies as often the only

aces See oe Sane sents, bare home with the Clerk

the Court.

$32 US. (1987) ; _Bims y

available mode to vindicate the most blatant violations of

a fundamental right. Therefore, LDF has a particular in-

terest in the outcome of these cases since they raise serious

questions as to the continued vitality of both habeas corpus

and motions under 28 U.S.C. § 2255 as vehicles by which

LDF may carry out its purpose. cee

Summary of Argument

: | L

‘This Court has held, in a consistent line of cases from

Johnson v. Zerbst, 304 U.S. 458 (1938), through Fay v.

Noia, 372 U.S. 391 (1963) and Sanders v. United States,

373 U.S. 1 (1963), to Humphrey v. Cady, 405 U.S. 504

(1972), that a waiver of fundamental constitutional rights

can not be presumed from a procedural default. Rather,

in a proceeding for post-conviction relief, a federal court

ean bar relief on the basis of waiver only upon a finding

that the defendant himself made a deliberate and under-

standing decision not to raise the issue at trial.

IT.

These principles apply with full force to claims of jury

_ discrimination arising under the Constitution. In neither

‘the two cases before the Court has such a deliberate

ce on the part of the defendant not to raise a challenge

to:the indictment on grounds of racial discrimination been

i, 01

ng considerations of public policy militate against

mposition of any rule of forfeiture that se 9 bar black

fendants from.ebtaining post-conviction relief from un-

constitutional jury selection procedures. Lower federal

courts have recognized that failure of defense counsel,

without acquiescence by defendants, to raise this issue

cannot constitute waiver. Any other holding would result

in the undermining of 90 years of efforts of this Court to

protect the rights of black defendants indicted and con-

victed by a white-dominated system of justice.

ARGUMENT

These two cases present to the Court the question whether

the rule regarding waiver established by Johnson v. Zerbst,

304 U.S. 458 (1938), and reiterated in Fay v. Noia, 372

U.S. 391 (1963), apply in cases raising the claim that blacks

have been excluded from grand juries in violation of the

Fifth and Fourteenth Amendments to the Constitution of

the United States.° Thus, they involve, in the context of

both federal and state prosecutions, the standards by which

a federal court on collateral relief should determine whether

there has been an effective waiver of the right to object

to the denial of this fundamental constitutional right by

failure to comply with procedural rules as to when such a

challenge should be made. In Davis v. United States, No.

71-6481, the issue is whether the simple failure to comply

_ with Rule 12(b)(2) of the Federal Rules of Criminal

Procedure in and of itself constitutes a waiver barring

relief in a 28 U.S.C. § 2255 proceeding. Tollett v. Hender-

son, No. 72-95, involves the question as to whether the

failure to comply with a similar Tennessee court rule also

militates against a defendant being able to raise the claim

on habeas corpus brought pursuant to 28 U.S.C. § 2254.

- Despite the fact that one case is a federal and the other

on, amicus urges that both are governed

by: the rale laid down in Jonson ¥. Zerbst, supra, that

“‘eourts indulge every reasonable presumption against

waiver’ of fundamental constitutional rights” and that

they “‘do not presume acquiescence in the loss of funda-

mental rights.’ A waiver is ordinarily an intentional re-

linquishment or abandonment of a known right or privi-

lege.” 304 U.S. at 464.

> Requirements for Finding a Waiver of a Funda-

mental Constitutional Right in Both State and Federal

Courts Require an Affirmative Showing That the De

fendant Himself Acquiesced in Their Non-Assertion.

Johnson v. Zerbst itself was a collateral attack on a

federal conviction, the issue being whether the defendant

had waived his right to representation by counsel guar-

anteed by the Sixth Amendment to the Constitution of

the United States. The lower courts had essentially held

that the procedural default of the defendant in failing to

request appointment of counsel at trial barred relief in

the collateral proceeding. This Court unequivocally re-

jected such a view. Rather, it held that in any case the

question was whether there had been “an intelligent

waiver” of the right involved and that that finding could

be made only after an examination of the particular facts

nd circumstances surrounding the case demonstrated that

the defendant affirmatively decided to forego the right

in question. Thus, the mere failure affirmatively to assert

the right was not enough to bar collateral relief. 304 U.S.

¢ Johnson rule was reaffirmed in the strongest pos-

terms in Fay v. Nota, supra, which involved a state

cution, and which held that in a proceeding for col-

lateral relief in federal court, waiver could not be pre-

sumed by failure to pursue or follow a particular rule of

procedure. ‘To follow sucha rule of forfeiture would be

to “introduce: legal fictions into federal habeas corpus.” '

Thus, the inquiry required by a federal court is to deter-

mine:

If a habeas applicant, after consultation with compe-

tent counsel or otherwise, understandingly and know-

ingly forwent the privilege of seeking to vindicate his

federal claims in the state courts, whether for stra-

tegic, tactical, or any other reasons that can fairly

be described as a deliberate bypassing of state pro-

372 U.S. at 439.

Then, and only then, “it is open to the federal court on

habeas to deny him all relief.” Ibid. The court reempha-

sized that the standard required “the considered thoice of

the petitioner. ... A choice made by counsel not partici-

pated in by the petitioner does not automatically bar relief.”

Shortly after the decision in’ Fay, this Court completed

the circle by making it clear that the Fay standards ap-

plied equally in a 28 U.S.C. § 2255 proceeding. Sanders

v. United States, 373 U.S. 1, 18 (1963). And see, Kauf-

man V. United States, 394 0.8. 217, 228 (1969). As recently

as last term, this Court, by a unanimous seven-member

panel, reaffirmed that the requirements of Johnson and

Fay were still the law and stated: “If the District Court

cannot find persuasive evidence of a knowing and intel-

1 As the Fifth Circuit has in involving jury dis-

oeiaeaton Heap ‘waist’ contol te this kaes ty ueaply' di

ligent“@aiver on the part of petitioner himself, then the

Court should proceed to consider petitioner’s constitutional

claims.” Therefore, a defendant “is not necessarily bound

by the decision or default of his counsel.” Humphrey v.

Cady, 405 U.S. 504, 517 (1972).

The Johnson-Fay Requirements Apply With Fall

Force to Jury Discrimination Claims in Both State and

Federal Courts.

We have set out above the general rule for determining

whether there has been a waiver of a fundamental consti-

tutional right. In its terms, the Johnson-Fay rule applies

to all such rights without exception,? and it has in fact

been applied in a variety of circumstances, See, ¢.9.,

Jackson v. Denno, 378 U.S. 368, 370 n. 1 (1964) (chal-

lenge to procedural rules governing admission of confes-

sions; the Fay rule provides “the only ground for which

relief may be denied in federal habeas corpus for failure

to raise a federal constitutional claim in the state courts”

(emphasis added)); Henry v. Mississippi, 379 U.S. 443,

450 (1965) (objettion to unconstitutionally seized ev-

_ idence) ; Humphrey v. Cady, supra (objection to procedures

for commitment as a sex crime offender).

_ It is clear that the same principle also must apply in

eases involving the right to object to discrimination in

_ the selection of juries. It is no overstatement to assert

that perhaps no other constitutional right has been recog-

., —_————

‘Nothing in Fay v. Noia

ded to establish a hierarchy

nized by this Court for so long as being absolutely funda-

mental to the requirements of due process and equal pro-

tection. From Strauder v. West Virginia, 100 U.S. 303

(1880) through Alewander v. Louisiana, 405 U.S. 625 (1972),

this Court has held repeatedly that racial discrimination

in the selection of juries violates the most fundamental

right to be tried by a system of justice free of racial bias.

See also, Patton v. Mississippi, 332 U.S. 463 (1947), and

cases cited at 465 n. 3..The right fully encompasses in-

Se ee Louisiana, 405 U.S.

at 626 n. 3.

The applicability of Johnson and Fay has been duly rec-

ognized by federal courts when faced with questions of

jary discrimination by states in violation of the Fourteenth

Amendment. Indeed, the circuit courts have been unanimous

in holding that the right is of the fundamental-character

contemplated by Johnson, and that therefore the failure to

comply with state procedural rules will not in and of itself

result in a waiver of the right to object to discrimination.

Rather, the burden is on the state to demonstrate by affirma-

tive evidence that the decision not to challenge the com-

position of either the grand petit jury was deliberately

camayaie lyn cute be mp ar aber

the consequences thereof, free from any countervailing co-

ercive pressures. Seo, ¢.g., Wade v. Yeager, 377 F.2d 841

(8rd_ Cir. 1967); McNeil v, North Carolina, 368 F.2d 313

(4th Cir. 1966) ; Whitus y. Balkcom, 333 F.2d 496 (5th Cir.

1964) ; Henderson v. Tollett, 459 F.2d 237 (6th Cir. 1972) ;

Carmical v. Craven, 451 F.2d 582 (9th Cir. 1971).

: We urge, therefore, that the Sixth Cirouit in Tollett was

Coalaly im vw of tho tects of thn ase. Both the Sat

found that not only the petitioner, but his counsel were

unaware of even the possibility of challenging the composi-

tion of the grand jury, and that the idea would not have’

‘occurred to any Tennessee lawyer at the time. Therefore,

there was clearly no decision at all on the matter, let alone

one made for tactical reasons.’

None of the State’s grounds for escaping the application

of Johnson and Fay are persuasive. The argument that

the jury selection methods used in 1948 were not uncon-

stitutional under the prevailing law at the time is simply

wrong. No blacks ever served on a grand jury in the his-

. tory of the county until 1953, five years after Henderson’s

indictment, in a county more than 25% black. This was

precisely the kind of facts held to establish a prima facie

case of jury discrimination in Norris v. Alabama, 294 U.S.

587 (1935), and Neal v. Delaware, 103 U.S. 370 (1881), de- ,

cided thirteen and sixty-seven years, respectively, before

the indictment was handed down in this case.

The argument that Henderson’s counsel may not have

raised the issue because he decided it would be futile to

do so because of recent decisions of the Tennessee Supreme

Court is not supported by the record. To the contrary, it

4 Indeed, with one exception, it is difficult to imagine any con-

acceptable tactical reason for not challenging racial

in the composition of juries. Fear of arousing

simply never occurred to counsel that any such claim

existed.‘

Finally, the fact that Henderson pleaded guilty to the

crime charged does not put him in a different position

vis-a-vis his right to challenge his indictment than a de-

fendant who has gone to trial. This Court has repeatedly

held that the right to challenge an unconstitutional grand

jury is independent of the right to challenge the petit jury,

and that the same principles apply to each. See, Alexander

v. Lowisiona, 405 U.S. at'626, n. 3. Thus, it has rejected the

position that discrimination in the selection of the grand

jury ‘is of no moment ‘since an indictment is not a convic-

tion and any defect is cured by trial before a constitu-

tionally acceptable petit jury. Pierre v. Louisiana, 306 U.S.

354 (1989). See also, Hill v. Texas, 316 U.S. 400, 406 (1942).

No more than does a judgment of guilty by a jury, after

& full trial (see, Cassell v. Texas, 339 U.S. 282 (1950), does

a plea of guilty wipe out the action of an unconstitutional

grand jury.'

Furthermore, it cannot be maintained that the plea of

guilty itself operated as a waiver of all objections to con-

stitutional infirmities in the proceeding. Such a contention

“

‘ Mee if nayiceer By the evidence, the

was specifically rejected by this Court in Rice v. Olson, 324

U.S. 786 (1945). There, the Court rejected the position

that when a defendant pleads guilty it can be presumed that -

he “ ‘absolutely’ and finally” waived his right to be repre-

sented by counsel. 324 U.S. at 788. It was noted that the

holding of the state court was based on the proposition that

such a plea “‘operates as a waiver of any defense, and

.. . With it, of course, the constitutional guarantees with

respect to the conduct of criminal prosecutions.’” Id., n. 2.

This Court held to the contrary, pointing out that such

& presumption could not be maintained in the face of an

allegation by the defendant in his petition for collateral

relief that he ¢jd sot waive the right in question. That

allegation “equarely raised a question of fact” that could

not be resolved by any presumption drawn from the bare

fact of a guilty plea. Rather, it must be “determined by

evidence” going to the issue, inter alia, of whether the de-

fendant waived his right “intelligently and understand-

ingly.” Id. at 788-789. See also, Carnley v. Cochran, 369

U.S. 506, 515-516 (1962); Boykin v. Alabama, 395 U.S. 238

(1969).

In Tollett, of course, the precise issue is whether Hen-

derson “intelligently and understandingly” gave up his

right to challenge the composition of the grand jury. No

more than was the case in Rice y. Olson can that question

be resolved by reliance on a presumption attaching to a

plea of guilty. Rather, the courts below made the inquiry

mandated by Rice and determined on the basis of the ev-

idence that no understanding waiver had been made. Win-

ters v. Cook, 466 F.2d 1393 (5th Cir. 1972).

In summarizing our position with regard to Tollett, we

urge that the courts of appeals have been correct in decid-

_ ing waiver questions pursuant to the standards estab-

lished in Johnson and Fay. This court should therefore

affirm the Sixth Circuit’s decision, and uphold the courts

of appeals’ approach in cases raising the issue of the

availability of habeas corpus relief in state jury discrim-

ination cases.

Paradoxically, in cases involving federal prosecutions,

where relief under § 2255 is sought on the basis of jury

discrimination, the lower courts have been much less con-

sistent in applying the standards of Johnson and Fay.

The Fifth Circuit in particular, which has been diligent

in protecting the rights of sfate prisoners from the appli-

cation of a strict rule of waiver for non-compliance with

procedural rules, has, on the other hand, rigidly applied a

rule of forfeiture in federal prosecutions regardless of the

circumstances. Thus, in the Davis case the court, relying

on @ series of earlier decisions, held simply that failure to

comply with Rule 12(b) (2) of the Federal Rules of Crim-

inal Procedure, operated as an automatice forfeiture of the

right of a black defendant to object on constitutional

ee ier

that indicted him. +"

Amicus urges that there is no basis in law or reason for

this' inconsistent result, but that it flies in the face of this

Court’s decisions from Johnson through Humphrey. The

Fifth Cireuit has mechanically applied the decision in

Shotwell Manufacturing Co. v. United States, 371 U.S. 341

(1963), to all instances where a federal defendant has not

challenged his jury prior to the time of trial, and we cor-

tend that this automatic reliance on Shotwell is misplaced

and that that case is distinguishable.

In Shotwell, corporate defendants raised a question as

to the legality of the composition of tHe jury on the appeal

itself some years after the original trial. The grounds for ,

the challenge in Shotwell were based on alleged violations

of the federal jury statutes and the defendants relied upon -

this Court’s supervisory power over the administration of

those statutes in the lower federal courts. See, Ballard v.

United States, 329 U.S. 187 (1946). The claim was ap-

parently not made that members of the defendants’ own

class were excluded from jury service, but that, because

of improper administrative action, the statutes’ require-

ment that a cross-section of the community be empanelled

was not met. ‘Thus, under the law prevailing at the time,

the claim made in

Ballard v. United States, supra, and Thiel v. Southern

Pacific Company, 328 U.S. 217 ( 1946).”

"York, 882 U.S. 261 (1947).

_ "The cases cited with

948) and

. 1946) chall

On procedures alleged to be inconsistent with the statutes ;

Rule 12(b) (2) was referred to, the trial court, the Court

\ppeal; and this Court all also rejected the claim on the merits.

Thus, this Court in Shotwell was not presented with a

case raising the question of whether the Johnson standard

of waiver applied in a collateral proceeding by a black

defendant seeking to challange jury discrimination on con-

stitutional grounds arising from the exclusion of blacks

from juries. Therefore, it is not surprising that the same

court that decided Fay two months later and that in the

same term held in Sanders v. United States, 373 U.S. 1

(1963) that the Johnson-Fay standards applied in federal

collateral proceedings, did not discuss the applicability of

Johnson v. Zerbst in Shotwell. For if Shotwell and Rule

12(b)(2) are read the Fifth Circuit’s way, as creating a

rule of forfeiture, they are clearly in conflict with J ohnson,

Fay and Sanders.

Sanders involved the standards for deciding whether a

defendant was barred from raising a constitutional claim

in a second § 2255 petition that might have been raised in

an earlier one. The district court applied what was essen-

tially a rule of forfeiture, and held that the failure to

raise the issue at the earlier opportunity operated as a bar.

Such a ruling is precisely analogous to the Fifth Circuit’s

position that a failure to, eomply with Rule 12(b)(2)

operates as a similar bar. This Court in Sanders rejected

such a rule, and applied the Fay holding that a deliberate

decision on the part of the defendant not to raise the issue

for a tactical or other reason must be shown. Thus, the

Ninth Circuit correctly recognized that Sanders controlled

in its holding that a failure to comply with 12(b)(2) did

not operate as an automatic forfeiture of the right to chal-

lenge jury discrimination. Fernandez v. Meier, 408 F.2d

974 (9th Cir. 1969).

The same ground we have discussed for distinguishing

Shotwell also leads to a@ conclusion that 12(b)(2) does not

conflict with Johnson and Fay. The rule by its terms allows

a court to find no waiver “for cause shown.” That language

must be read in conformity with the Johnson-Fay rule to

mean that sufficient cause is established by: (1) the asser-

tion of a constitutional challenge to the grand jury; and

(2) the determination by the court that the defendant

himself did not participate “knowingly and understand-

ingly” in a deliberate, decision not to raise the issue before

trial. Thus, whatever the validity of a rule that would

require that ordinarily statutory challenges to a grand

jury be made pursuant to 12(b),* challenges on constitu-

tional grounds must be subject to a different standard.

The Fifth Circuit apparently gave no consideration to

this distinction in Davis, for his motion filed under § 2255

specifically challenges his grand jury “as being an uncon-

stitutional array” since it did not meet the requirements

of “the Fifth Amendment of the United States Constitu-

tion” as well as those of the federal jury statutes, 28 U.S.C.

§§ 1861-1864. Thus, the Fifth Circuit has adopted precisely

the rule rejected by this Court in Johnson v. Zerbst, and

its reliance on Shotwell and its reference to Rule 12(b)

amounts to a holding that the simple failure to comply

* We note in passing that the 1968 Amendments to the federal

jury statutes seem to recognize the distinction between a challenge

based on noncompliance with the statutes and challenges based on

other grounds and the procedural requirements for mounting such a

challenge. 28 U.S.C. é 1867 sets forth the required procedure for

challenging noncompliance with sections 1861-1864 and -reqtires

that such challenges be made before the voir dire examination be-

gins or earlier if the noncompliance was or could have been dis-

covered. Section 1867(e) states that “the procedures prescribed

by this section shall be the execlusive means by which a person

accused of a Federal crime . . . may challenge any jury on the

ground that such jury was not selected in conformity with the

eee of this title.” The section then goes on to state that it

not preclude the pursuit of other remedies to vindicate any

other law, including the Fifth Amendment to the Constitution,

racial discrimination in the selection of juries.

with that rule in’and of itself constitutes a waiver of the

constitutional right. involved. :

It is clear that the lower courts did not make the inquiry

or find the facts required by Johnson, Fay and Sanders.

The district court placed the burden on the defendant

to prove somehow that he was not aware of his constitn-

tional rights, and presumed that because of his present

legal knowledge and the fact that he had a capable lawyer,

he must have known of them. Such a presumption stands

Johnson on its head, and is, of course, improper. See,

Glasser v. United States, 315 U.S. 60, 70-72 (1942), holding

that an assistant United States attorney could not be pre-

sumed to know of his right to be represented by inde.

pendent counsel and to have waived it by inaction.

Finally, the lower court's holdings that some special

prejudice must be shown in a racial exclusion case in order

to escape the requirements of 12(b)(2) cannot be sus-

tained. Whatever may be the validity of that part of the

Shotwell holding as it relates to the right of persons not

of the excluded class to challenge noncompliance with the

federal jury statutes, it cannot be the rule in the case of

a black defendant challenging the unconstitutional exclu-

sion of blacks.

Indeed, it is clear that a defendant of any race can chal-

lenge the exclusion of blacks without any -showing of

particularized prejudice to him, Peters v. Kiff, 407 US.

493. (1972). In Peters, this Court rejected, in the context

of a state prosecution, the argument that a white defen-

dant had to show such prejudice because he had not

challenged the exclusion ‘of blacks from his jury until he

sought collateral relief. The Court held that the funda-

mental impossibility of demonstrating such prejudice made

it unfair to place such a burden on the defendant in a

situation where the state was responsible for the continua-

tion of practices that were unconstitutional. :

‘Any Rule Imposing an Automatic Forfeiture for _

Failare to Comply With Rules of Procedure Is Partic-

ularly Inappropriate in Jury Discrimination Cases.

In parts I and II of this brief, we lave set out the

general rule regarding the waiver of constitutional rights

and have explained why it applies to jury discrimination

eases under the rationale of Johnson and Fay since they

involve a fundamerfal constitutional right as contemplated

by those Aecisions. Here we urge that other considerations

pecaliar to the problems raised by racial discrimination

in the selection of juries dictate that as a matter of.policy

a strict rule of forfeiture may not be permitted. This is

because jury discrimination by its nature has been a

systematic, institutionalized defect in the administration

of justice in this country, despite 90 years of pronounce-

ments by this Court.

Amicus has a special concern with the problem of racial

discrimination in the selection of both grand and petit

juries, not only in the South but throughout the United

States. In our statement of interest, supra, we have noted

a long-standing involvement in jury discrimination prob-

lems in cases before not only this Court but in lower courts,

both state and federal. Because of our experience, we are

often contacted by black prisoners who wish assistance in

challenging their indictments or convictions because of

such discrimination. These requests for help show a con-

sistent pattern which is typified by the two cases before

the Court.

A black defendant, without resources and with little

knowledge of his legal rights at the beginning of his prose-

‘a ag is represented by either retained or court-appointed

prom “5 usually white. He is indicted and goes to trial,

at which point he may for the first time realize that he is

faced with an all or virtually all-white jury array. Of

course, he has had no way of knowing the racial composi-

tion of the grand jury that indicted him. In most instances,

his counsel does not mount a challenge to the jury system

as it relates either to the grand or petit jury and the black

defendant becomes aware of his right to do so only after

he has been convicted and incarcerated and subsequently

becomes more acquainted with his legal rights.

_ The reasons why jury discrimination challenges have not

been made more often, despite the evident fact that they

could have been in virtually every prosecution brought in

southern states and in a substantial portion of those

brought ‘in northern states, are not difficult to ascertain.

The number of black lawyers and white lawyers cognizant

of civil rights issues, those who would be most apt to be

concerned about the problem, has been and remains small,

particularly in southern states. See, N.A.A.C.P. v. Button,

871.U.S. 415, 443 (1963), Sanders v. Russell, 401 F.2d 241

(5th Cir. 1968), Sobol v. Perez, 289 F.Supp. 392 (E.D. La.

1968). ;

Thus, black defendants are in the main represented in

the first instance by white attorneys whose main experience

is with representing white clients. Unfortunately, these

lawyers simply do not raise jury discrimination issues in

the large run of cases. In the northern states, and now in

some southern states, this may be because of the failure to

recognize that there in fact may be a problem. This is not

surprising because the typical northern situation involves

not so much the kind of deliberate discrimination typical

of many southern jurisdictions, but rather the use of vari-

ous devices that have the effect of excluding black jurors.

See, Carmical v. Craven, 457 F.2d/582 (9th Cir. 1971),

Smith v, Yeager, 465 F.2d 272 (8rd Cir. 1972). With few

exceptions, it has only been in recent years that such prac-

tices have come to light and their constitutional significance -

The same pattern, we believe, also explains the relatively

few challenges on racial exclusion grounds to jury selection

methods in federal‘courts. The pattern there again has not

been by and large deliberate exclusion of blacks but rather

the utilization of selection methods, such as the key-man

system, which, however inadvertently, have had the effect

of exeluding blacks. See, Rabinowite v. United States, 366

F.2d 34 (5th Cir. 1966). In Davis v. United States, of

course, precisely such a contention, together with allega-

tions of deliberate exclusion, was made.’

* In southern jurisdictions ignorance of the possibility of

challenging grand and petit juries has in the past, unfor-

tunately, been coupled with the deliberate neglect or tacit

acquiescence of white attorneys in the maintenance of an

exclusionary jury system. Tollett v. Henderson presents

a vivid example of such a case. Counsel who represented

Henderson in Tennessee in 1948 frankly admitted that it

simply never occurred to him to challenge racial discrimi-

nation in the jury selection system. Similarly, Judge Gal-

breath of the Court of Criminal Appeals of Tennessee, in

his concurring opinion in respondent’s collateral’ proceed-

ing-in that court, stated:

* Congress itself has long grappled with problems arising from

the racially exclusionary effects of key-man and similar systems

No lawyer in this State would have ever thought of

objecting to the fact that Negroes did not serve on

the Grand Jury in Tennessee in 1948, just as scarcely

anyone objected to the complete segregation of all pub-

lic and private facilities of any kind in the State until

the next decade. 459 S.W.2d 176, 179-180.

Similarly, the Fifth Circuit has taken judicial notice of

the fact that white lawyers simply would not raise the

issue because of ignorance of the issue, because of fear of

raising hostility in the community, or because of acquiese-

ence in the system. See, United States ex rel. Goldsby v.

Harpole, 263 F.2d 71, 82-83 (5th Cir. 1959) ; United States

ex rel. Seals v. Wiman, 304 F.2d 53, 68-69 (5th Cir, 1962);

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

v. Balkcom, 339 F.2d 95 (5th Cir. 1964) ; Winters v. Cook,

466 F.2d 1393 (5th Cir. 1972).

In light of these realities, a rule that essentially operates

as a forfeiture of the right to challenge discrimination in

the selection of grand, and presumably petit, juries would

mean that blacks would be gondemned to remain in prison

without recourse even though they were indicted and con-

victed under procedures blatantly unconstitutional, ad-

hered to in the face of decisions of this Court going back

to 1880. These defendants would be placed in this situation

through no fault of their own but simply because of de-

fense counsel’s essential acquiescence in the system, or their

ignorance of the possibility of challenging it.

Thus, these cases concern a fundamental and institv-

tionalized defect in the system of justice that simply can-

not be compared to, for example, a decision in a particular

case to forego challenging evidence as unconstitutionally

seized, or a statement as unconstitationally coerced. It

would be unconscionable to place the burden of the legal -

profession’s failure to attack this problem on the shoulders

of the very persons that this Court has been endeavoring .

to protect for 92 years. -

These considerations also require that the prosecution’s

claim of an interest in the finality of criminal convictions |

be rejected. The .problem of jury discrimination is one

peculiarly within the state’s power to correct. It is not

a question of the malfeasance or mistake of one police

officer in seizing evidence, or of an interrogator or prose-

cutor overstepping the bounds set by the Constitution in

obtaining a confession, on a single judge making an er-

roneous decision as to a constitutional question arising

from the particular facts of a particuldr case. Rather,

an entire system has been maintained with full knowledge

of its unconstitutionality, with the active participation of

all elements of the very institutions supposed to be on

the side of justice, including judges, district attorneys,

court personnel, and, unfortunately, in many cases defense

counsel. The institutions of government have chosen to

violate the Constitution of the United States, not in one

individual case, but in every case involving every defendant

brought before it. If any party has waived or forfeited its

right to insist on a particular interest it is the government

itself, and this Court should ensure that all persons con-

vieted under unconstitutional systems of jury selection be

able to gain relief, unless they themselves, with full knowl-

edge of the consequences, deliberately chose to forego

their rights.

CONCLUSION

For the foregoing reasons, the decision in No. 71-6481

should be reversed and that in No. 72-95 affirmed.

Respectfully submitted,

JacK GREENBERG

James M. Nasarrt, II

Cuaries STEPHEN RaLston

10 Columbus Circle

New York, N.Y. 10019

Attorneys for the NAACP Legal

Defense and Educational Fund,

Tnc., as Amicus Curiae

FOR ©

SPONDENT

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 72-95

- LEWIS S. TOLLETT, Warden

Tennessee State Prison,

Petitioner,

WILLIE LEE HENDERSON,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT

(i)

TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY PROVI.

ETN aac a ae

SUMMARY OF ARGUMENT .....................

ARGUMENT:

I. Blacks Were Unconstitutionally Excluded

Systematically From Grand Jury Duty in

Davidson County, Tennessee When Respondent

Was Indicted, and Petitioner Admitted This

Fact in Both the District Court and the Court

of Appeals, Thereby Abandoning and Waiving

His Right to Argue That Issue Before this Court .....

- A. The Rule Requiring Challenge Before Plea ...__.

~_B. The Rationale of the State Prisoner Habeas

Ks DE ite Seong ae

(ii)

C. The Facts in the Instant Case Clearly Show

that the Judgment Below Should Be

“eaten GES Pip 17

i. Does Systematic Exclusion of Members of a

" Particular Race from Jury Service Constitute a

7 Jurisdictional Defect? ..................... 24

CMA iets, fh A. 25

TABLE OF CITATIONS

Cases:

Avery v. Georgia, 345 U.S. 559(1963) ............... 10

Bannister v. United States, 446 F.2d 1250 (3d Cir.

NFU), Mina e ss MRR iad isl « ooeoce'es one cc. 18n

Bonds v. State, 421 S.W:2d 87 (1967) .............. 8, 24

Brady v. United States, 397 U.S. 742 (1970) ........ 17, 18n

Carley v. Cochran, 369 U.S, 506 (1962) .............. 18

Cobb v. Balkcom, 339 F.2d 95 (Sth Cir.1964) ....... 15, 16n

Colson v. Smith, 315 F. Supp. 179, 438 F.2d 1075

WC TFS 88s 6 Se ey, 14, 24, 25

Drop Dead Co, v. S.C. Tohnsonwé! Sons, 326 F.2d 87

(9th Cir. 1963), cert. den.377U.S.907 ............ 9

Bubanks v, Louisiana, 356:U.S. 584(1958) .......... 10, 24

Fay v. Noia, 372 US. 391(1963) 2 .........2... passim

Henry v. Mississippi, 379 US. 443 (1965) ............. 17

Humphrey v, Cady, 405 U.S, 504(1972) .............. 18

In re Donnelly’s Estate, 397 U.S.286(1970) ........... 9

Johnson v. Zerbst, 304 U.S. 458 See os Se gees passim

Kennedy v. State, 186 Tenn. 310, 210 S.W2d 132

(1948) cert. den. 333 US.846 ................. 9-11

Labat v. Bennett, 365 F.2d 698 (Sth Cir. on. eee eS 15

McMann y. Richardson, 397 U.S. 759 (1970) ........ 17, 180

(iti)

MN ikke SE oes, 5 15, 16n, 17

Norris v. Alabama, 294 U.S. 587 Es oak ee 10

Patton v. Mississippi, 332 U.S. 463 (1947) ........___ 10, 24

Peters v. Kiff, 407 U.S. kohte paling Dn. POCO Passim

Scogin v. United States, 446 F.2d 416 (8th Cir. 1971)... . 18n

State ex. re]. Henderson v. Russell, 459 S.W.2d 176

ee 21

State ex. rel, Lawrence v. Henderson, 433 S.W.2d 96

co a ME ER eS 6 oo ae esa, , 13

- State v. Kagabein, (Ark. S.Ct. #5665) ............. 12

Strauder v. West Virginia, 100 U.S. 303 (1880) .....__. 10, 12

United States v. Harpole, 263 F.2d 71 (Sth Cir. 1959),

<5 ge ul a lag a ge 15, 21

United States v. Liquori, 430 F.2d 842 (2d Cir. 1970)... . 18n

United States ex rel. Rogers v. Warden, Attica State

Prison, 381 F.2d 209 (2d Cir. 1967) ............_.. 17

United States y, Spector, 343 U.S. 169 (1952) ........_. 9

Wade v. Yaeger, 377 F.2d 841 (3d Cir. SR eee 15

Walters v. City of St, Louis, Mo., 347 U.S. 231 (1954)... ... 9

Washington v. United States, 401 F.2d 915 (DC 1968)... ... 14

Whippler v. Balkcom, 342 F.2d 388 (Sth Cir. 1965) ....... 15

Whitus v. Balkcom, 333 F.2d 496 (Sth Cir. WOE sip gck 21

Whitus v. Georgia, 385 U.S. 545 ye 8, 10

inters v. Cook, 466 F.2d 1393 (Sth Cir. 1972) . .12, 21-23, 25

lom v. Cook, 423 F.2d 721 Geeee 190 |. 3S 15

Constitution of the United States

Fourteenth Amendment bai ath eabia’s : 1 a A Passim

Federal Rules of Criminal Procedure, Rule 12(b)(2)....... 13

IN THE

~ SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

No. 72-95

LEWIS S. TOLLETT, Warden

Tennessee State Prison,

Petitioner,

¥.

WILLIE LEE HENDERSON,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE'RESPONDENT

OPINIONS BELOW

o ; The opinion of the United States Court of Appeals for

! - Circuit is reported, at 459 F.2d 237, and

ee of Tennessee is reported at 342 F. Supp.

IL ‘the Petition for Certiorari at page 13a, and in the

ppendix at page A. 21.

ges

JURISDICTION

Jurisdiction is vested’ in this Court by virtue of the

order herein granting certiorari on October 16, 1972, and

is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

_ PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution of

the United States provides in pertinent part:

No state shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any

person of life, liberty, or property, without due

process .of law; nor deny to any person within its

jurisdiction equal protection of the laws.

The Federal habeas corpus statute, Title 28, United

States Code, § 2241, provides in pertinent part:

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district

courts and any circuit judge within their respective

jurisdiction . . . oe ae

prisoner unless—

(3) He is in custody in violation of the

Constitution or laws or tréaties of the United States.

QUESTION PRESENTED

Whether ‘a semiliterate’ black youth of 20, unaware of

his tight to object to his 1948 indictment for first degree

murder by a grand jury from which members of his race

had been’ systematically excluded in violation of the

Fourteenth Amendment 'to the United States Constitu-

ti 4

tion, has waived his right to object in a subsequent habeas

corpus action by pleading guilty to that indictment on

the advice of counsel who was himself unaware of, and

did not advise the defendant of, his right to object.

STATEMENT OF THE CASE

Respondent ‘and two-other men were arrested in

Nashville, Tennessee for the armed robbery and shooting

of a liquor store employee, which occurred on January

22, 1948. When the victim died on February 12, 1948

[Of pneumonia, according to Respondent; See Petition

_ for Writ of Habeas Corpus, A. 9], first degree murder

- indictments were retumed by the Davidson County,

Tennessee Grand Jury. The Grand Jury was at that time

an all-white body; the first Negro to serve on said grand

jury was not called until 1953.

Respondent signed a confession, but later claimed that

the confession had been coerced. His mother retained

counsel, and a plea of guilty was entered in March, 1948,

tesulting in a 99 year sentence. Neither he nor his

attomey was aware at the time of the plea that blacks

had been systematically excluded from grand jury service

in Davidson County, nor that he had a right to object to

_ the indictment on those grounds (A. 95-96).

In 1968, Respondent filed a habeas corpus action in

the state court, alleging for the first time that he had

i _ been denied the equal protection of the laws in violation

the Fourteenth Amendment to the United States

_ Oomistitution in that members of his race had been

» Systematically excluded from the grand jury which had

» Mdicted him. (A. 45-46) Proof at the evidentiary hearing

Mished that no black was to serve on the Davidson

at grand jury until 1953 (A. 102, A. 123, A. 142).

: Sis ubiha abasic dain stent enate Yaas

Negroes on the jury list were designated by a mark of

“colored” following their names, or merely “John Jones,

C.” (A. 105). The state trial judge in the habeas corpus

action denied the petition, (A. 63-65), the Tennessee

Court of Criminal Appeals:affirmed (A: 143-A. 169), and

the Tennessee*Supreme Court, denied certiorari (A. 143).

Thereafter, Respondent filed a petition for a writ of

habeas corpus in the United States District Court for the

Middle District of Tennessee, Nashville Division, alleging

the systematic exclusion issue. The District Court, relying

on the records in the state proceeding, found for the

Respondent on. the issue of systematic exclusion (which

was conceded by Petitioner to Respondent) and on the

issue of whether Respondent had waived his right to

object by entering a plea of guilty without first objecting

to the indictment. The District Court granted the petition

and ordered the release of Respondent (A. 21-A. 33). The

United States Court of Appeals for the Sixth Circuit

(Pet. cert. la-12a; 459 F.2d 237). This Court

certiorari on October 16) 1972.

jase”

SUMMARY OF ARGUMENT

The evidence adduced herein completely substantiates

the findings below of systematic exclusion of blacks from

the grand jury which indicted Respondent, a black man.

Further, the Petitioner conceded in both the District

Court, and in the Court. of Appeals for the Sixth Circuit .

that blacks had been systematically excluded from that

grand jury, and is thereby foreclosed from denying that

fact before this Court.

_ Further, it is clear that Racpoodént sid aot. wnve: his

right to object by pleading seg without first objecting __

“aa ;

fi SE

i ae 5

to the indictment. The rights involved, to the equal

_ protection of the laws and to due process of law, are

- fights conferred on Respondent by the Fourteenth

. Amendment to the federal Constitution, and are

therefore federal rights. Waiver of federal rights is a

‘federal question, and the federal definition of waiver

‘must be applied to the particular facts. Where, as here,

Respondent is without knowledge of these rights, and his

_ attorney is also unaware, and did not advise Respondent

_ of the violation of his rights and of his right to object

__ thereto, there cannot be an intentional relinquishment or

» abandonment of a known right or privilege, and, absent a

‘showing of a deliberate trial strategy to intentionally

bypass state procedural requirements, no waiver can be

inferred or presumed. Further, where an indictment is

retumed by an unconstitutionally constituted grand jury,

that indictment should be declared void rather than

voidable, thereby rendering any plea thereto ineffective

for any purpose, including as a basis for an inferred

waiver of the defendant's rights.

ARGUMENT

BLACKS: ‘WERE UNCONSTITUTIONALLY

JURY DUTY IN DAVIDSON COUNTY, TENNESSEE

. WHEN. RESPONDENT WAS. INDICTED, AND PETI-

TIONER ADMITTED THIS FACT IN BOTH THE

DISTRICT COURT AND THE COURT OF APPEALS,

THEREBY ABANDONING AND WAIVING HIS

pr TO ARGUE THAT ISSUE BEFORE THIS

- Petitioner contends herein that blacks were not

systematically excluded from grand jury duty in

Davidson County, Tennessee in 1948. Yet Petitioner

conceded in both the District Court and in the Court of

_ Appeals that blacks were systematically excluded from

jury duty in violation of law, and elected to proceed in

both courts solely on the issue of waiver.

‘The following is excerpted from Petitiofier’s brief in

the Court of Appeals: 1, '

STATEMENT OF THE CASE

The petitioner-appellee, hereinafter referred to as

Henderson, was a black youth about twenty years of

age when he was indicted by the Davidson County,

Tennessee Grand Jury in 1948 on a charge of

murder in the first degree. Black people had been ©

systematically excluded from grand jury duty prior

to the time of Henderson’s indictment and for some

time after his indictment in 1948...

Henderson filed a petition for, writ of habeas

corpus in the United States District Court, Middle

District of Tennessee, Nashville, Tennessee, on

December 29, 1970, alleging among other things

that his constitutional rights had been violated

because blacks had been systematically excluded

from the grand jury which indicted him. The

respondent [Petitioner herein] agreed that blacks

had been systematically excluded and that the only

issue before the court was whether or not

Henderson had waived his right to question the

composition of the indicting grand jury by failure to

object to the composition prior to entering the plea.

[Brief of Petitioner herein, respondent in the Court

of Appeals, Lewis S. Tollett, Warden, Sixth Circuit,

pages 1-3; (Emphasis supplied). ]

In the first excerpt from Petitioner’s brief in the Court

of Appeals, Petitioner admits as fact to the Court of

Appeals that blacks were in fact systematically excluded

from grand jury duty at the time Respondent was

indicted, and Petitioner also admits that Respondent is

black. In the second excerpted paragraph of that brief,

Petitioner is admitting that he had conceded the same

points in the District Court, and that Petitioner elected in

the District Court to proceed solely on the issue of

waiver.

The District Court found that not only had Henderson

established his claim that blacks had been systematically

excluded from the grand jury which indicted him, but

that Petitioner had conceded the issue in Henderson’s

- favor:

_~ {Tennessee} concedes—as it is apparent it

~<“must—that Henderson has proved everything neces-

_ Saty fully to support his contention that members of

| were systematically excluded from the

jury. which indicted him. [Tennessee] thus

asserts. “... that the only. (remaining) issue is

whether or not [Henderson] has waived his right to

question the composition of the-indicting grand

jury ...,°” (A. 25-A. 26; Emphasis supplied).

Further, on appeal, |

The Court of Appeals found that the evidence adduced in

the District Court completely and fully supported

Henderson's contentions, ‘and the District Court’s finding

of impermissible exclusion under the standards set by this

Court in Whitus v. Georgia 385 U.S. 545 (1967), and by

the Tennessee Supreme Court ‘in Bonds v. State, 421

S.W.2d 87 (1967).! oe

Respondent respectfully suggests that Petitioner,

having conceded in Respondent’s favor the issue of

systematic exclusion in both the District Court and the

Court of Appeals, has abandoned and waived his right to

raise the issue in this Court, and is estopped from so

doing. United States v. Spector, 343 U.S. 169, reh. den.

343 U.S, 951 (1952).

It has been decided that if an issue is conceded in the

ialahcediet tt conuot-be ralsedon appeal, Drop Dead Co.

’v. $C. Johnson & Sons, Inc., 326 F.2d 87 (9th Cir.

1963), cert. den. 377 U.S. 907. Further, issues not

. briefed nor ‘argued in lower courts will not be considered

by higher courts on appeal, Walters v. City of St. Louis,

Mo., 347 U.S. 231 (1954); In re Donnelly’s Estate, 397

U.S. 286 at 294, n. 5 (1970).

The arguments made on pages 7-14 of Petitioner’s brief

herein concerning the term “systematic exclusion as it

was understood in 1948,” his citation of Kennedy vy.

State, 186 Tenn. 310; 210 S.W.2d 132-(1948), and his

gratuitous suggestion that, due to Kennedy, supra, a

challenge by Respondent to the illegal indictment would

have been an “exercise in futility,” were not raised,

briefed nor argued in the District Court nor in the Court

of Appeals. Petitioner now asks this Court to reverse two

distinguished lower courts because they ruled adversely

to.him on issues which he had conceded to Respondent

from the outset.

: ~-Petitioner’s decision to concede to Respondent the

tom of systematic exclusion in the lower courts was a

: sical concession, fully supported by the evidence. But

iets ‘It is apparent from the absence of any Negroes on the

d jury panels that the means were used and the

m end of exclusion accomplished.

Petitioner cannot now raise the issue for the first time

before the Supreme Court. He elected to proceed below

on the sole issue of waiver, tnd should 'be'limited thereto

here as well.

Respondent, nevertheless, feels constrained to respond

to some of Petitioner’s arguments on the systematic

exclusion issue. For nearly a century, it has been

fundamental that a criminal defendant is denied the equal

protection of the laws if indicted by a grand jury from

which members of his race have been systematically

excluded. solely on racial grounds. Strauder v. West

Virginia, 100 U.S. 303 (1880); Whitus v. Georgia, supra. ;

Patton v. Mississippi 332 U.S. 463 (1947); Avery y.

Georgia, 345 U.S: 559 (1953); Norris v. Alabama, 294

U.S. 587 (1935); Eubanks vy. Louisiana, 356 U.S. 584

(1958); Peters v. Kiff, 407 U.S. 493 (1972).

This was the law when Respondent was indicted, and it

was’ the law earlier that year when the case of Kerinedy v.

State, -supra., was decided by the Tennessee Supreme

Court. Petitioner claims that the failure of the defendants

in» Kennedy to overturn (their convictions on the

systematic exclusion issue presented Respondent with a

fait-accompli which would have rendered any challenge

by Respondent to his grand jury an “exercise in futility.”

‘Petitioner i is mistaken. The facts in Kennedy showed at

best disproportionate representation of Negroes on the

grand jury of Maury County, Tennessee, not systematic

exclusion, although that was the claim. The opinion.

clearly ‘shows that of one-hundred nine prospective

jurors, ten (about 9%) were Negroes. Further, several

Negroes testified at the Kennedy hearing that they had

served’ as jurors at the same term at which Kennedy was

tried, and earlier, and that their names, d been placedin

Supreme Court quoted on

Pp. 10-12 of Petitioner’s Brief.)

ig to object there could not be, as Petitioner implies, a

mon where “the attorney merely failed to inform his

pent of a single possible. constitutional claim which he

sit

thought best to use as coin for barter with the

prosecution,” Judge Clark dissenting in Winters-v. Cook,

466 F.2d 1393 at 1402 (5 Cir. 1972).

Petitioner’s analogy of the present case with the

Kagabein case [State v. Kagebein, Arkansas Supreme

Court #5665, presently pending on appeal], in which a

fifteen year old boy was sentenced to death, is misplaced.

Petitioner states: “‘Who is to say 24 years from now, an

‘enlightened’ society will not consider the exclusion of

young people from grand juries as constitutionally infirm

as the exclusion of any other minority?” The difference

is, that when Respondent was indicted in 1948, the United

States Supreme Court’s ruling in Strauder v. West Virginia,

supra, had already been the law of the land for sixty eight

years! The present case does not involve the application

of recent standards to an old case; it involves the

enforcement of fundamental and long standing constitu-

tional principle upon a state which had seen fit to

disregard that principle for almost three quarters of a

century.

Petitioner has divided his argument in his brief into

; four sections. Respondent feels that there are actually

two questions presented in Petitioner’s brief and will

discuss those issues accordingly, although Respondent

will add a third issue which was briefed and argued in

both lower courts, the validity of the indictment itself.

- All arguments advanced by Petitioner will be met in

: oie brief.

“A. The Rule Requiring Challenge Before Plea.

Bs Fe ieat concedes that ordinarily, under both

“Tennessee law and federal law, a defendant must object

_ abatement before entering a plea. State ex rel. Lawrence

¥. Henderson, 433 S.W.2d 96 (1968) and cases cited

erein, Federal Rules of Criminal Procedure, Rule

+ tit oner relies heavily upon the federal rule, and cites

inity to the effect that a federal criminal defendant

led to object to the venire before plea waived his

right to object to an improperly constituted grant or petit

jury. But the constitutional right herein held to have been

violated is the right to the benefit of the Equal Protection

Clause of the Fourteenth Amendment, which states, in

part: “... {no} state shall deny to any person within its ’

jurisdiction the equal protection of the laws.” This

prohibition is only operative against the states. There is

no federal right to the equal protection of the laws,

Washington v. United States, 401 F.2d 915, 922 (DC,

1968). — ,

As the District Court below concluded, the Equal

Protection Clause “is thus inapplicable to the Federal

Government, the Federal Judiciary and the Federal Rules

of Criminal Procedure . . . whatever it may be that a

federal defendant waives under Rule 12(b)(2), it is clearly

not the right to complain of a denial of equal protection

of the laws by virtue of racially exclusive grand jury

selection. . . . It follows that the waiver provision of Rule

12 is necessarily not analogous to the waiver which

{Petitioner} asserts was made by this { Respondent] : the

practice in federal court’ has no bearing whatever on the

issue presently before this ‘court, and the cases cited by

[Petitioner] are. inappropriate in the present context.

[A. 30].” The District Court also pointed out that even

Rule 12 provides that the court may grant relief from the

implied waiver. [A. 28] ;

B. The Rationale of the State

The fact situation inivolved herein is not a situation of

first impression in the Federal Courts. Four circuits have

been confronted with federal habeas corpus actions by

state prisoners challenging convictions in which members

of their races were tematic ede from their

grand or petit juries, or both, and in which no objection 4

was made to the venire before plea or trial in the state

_ gourts. The objections in each were first raised in habeas

- gorpus or other post-conviction proceedings, and in each

_ ease, were countered with allegations that the state

prisoner had waived his right to raise the issue by virtue

_ of proceeding to plea or trial in the state court without

taising the issue. Wade v. Yeager, 377 F.2d 84] (3d Cir.

- 1967); McNeil v. State of North Carolina, 368 F.2d 313

(4th Cir. 1966); Cobb y. Balkcom, 339 F.2d 95 (Sth Cir.

1964); Winters v. Cook, supra., and the instant case,

Henderson v. Tollett, supra. (6th Cir. 1972). The Fifth

Greuit, encompassing most of the deep South, has

decided many cases involving the questions presented

herein. See ¢.g., Colson v. Smith, 438 F.2d 1038 (1971);

United States ex. rel, Goldsby v. Harpole, 263 F.2d 71

(1959), cert. den. 361 U.S. 838; Labat v. Bennett, 365

F.2d 698 (1966), cert. den. 386 U.S. 991; Windom y.

Cook, 423 F.2d 721 (1970); Whippler v. Balkcom, 342

F.2d 388 (1965).

_ The. cases decided have certain facts in common. In

‘each, there was systematic exclusion of members of the

_ @efendant’s race from either the grand jury which

indicted him, the petit jury which tried him, or both.? In

_ €ach, the defendant was unaware of the denial of his

. fights at the time when the state procedure require him

_ 0 mise his objection. In some cases the defendant’s trial

- counsel was aware of the violation of the defendant’s

fights in time to make the objection, and in others

iding the instant case] trial counsel was unaware of

‘ft

SE ers

ecaiise Negroes had been systematically excluded. The Fifth

_Seeuit ruled that he had not been prejudiced; the Supreme Court

‘.

Se ght

pt in Peters v. Kiff, supra. , in which a white man objected

’

the violation, of ‘the right to object, or both. In all of the

cases, the tight was first asserted after conviction and

sentence and after the time required by the respective

state procedural rules and statutes had expired.

In all cases where the defendant himself was unaware

of the fact that he had been denied the equal protection

of the laws because members of his race were

systematically excluded from his grand or petit jury, the

federal courts have granted him the relief he sought.

These courts have used the same rationale: the right

asserted is to the equal protection of the laws guaranteed

by the Fourteenth Amendment;? since waiver of federal

rights is a federal question, Fay v. Noia, 372 U.S. 391

(1963), the federal courts have jurisdiction and have

applied the “classic” definition of waiver of federal rights

which was announced in Johnson yv. Zerbst, 304 U.S. 458

at 464 (1938): did the defendant’s conduct amount to

“an intentional relinquishment or abandonment of a

known right or privilege?”

To the ubiquitous objection by state authorities that

the habeas applicant shoulfi,te bound by the failure of

his trial counsel, in pleading guilty or proceeding to trial

without making a timely objection to the tainted

indictment, the courts have held that “‘a choice made by

counsel not participated in by the [habeas] petitioner

does. not automatically bar relief,” Fay v. Noia, supra. ,

and have held that the habeas petitioner is not bound by

acts of counsel unless “at a minimum counsel’s actions

should involve ‘a deliberate choice of strategy’ amounting

‘an intentional ‘bypassing’ of state procedures. Henry

_ Mississippi 379 U.S. 443,451 (1965); Fay v. Noia,

_ supra.” Henderson v, Tollett, Opinion, Pet. Cert. 7a.

> Generally, a voluntary guilty plea, entered upon the

--wAyice of competent counsel, implies an intentional and

know abandonment of rights, United States ex. rel

Rogers v. Warden of Attica State Prison, 381 F.2d

209 (2d Cir. 1967). This Court has also held that

Where the advice given by counsel was “within the

“range of competence demanded of attorneys in criminal

‘cases,” the plea of guilty would not be set aside, McMann

_& Richardson, 397 U.S. 749 at 771 (1970).

As the Sixth Circuit said below, however, “That line of

cases [referring to McMann, supra., and Brady v. United

_ States, 397 U.S. 742) did not establish a new general test

- for examining conduct alleged to constitute a waiver of

federal rights; in fact, it reemphasized the importance of

_ Johnson v.-Zerbst (supra.} as the governing authority on

_ the subject.” (Pet. Cert. 10a-11a, n.5). The Sixth Circuit

indicated that Brady, supra., and its related cases dealt

with inaccurate legal advice and its effect upon a guilty

_ Plea which was sought to be vacated because it was

nvoluntary, and are thus distinguishable from the case at

ar, in which no challenge to the plea itself has been

ra,, and its related cases to the present situation at length [Pet.

- 11a n.S (Continued from page 10a)] :

That line of cases did not establish a new general test for

mining conduct alleged to constitute a waiver of federal

Fay v. Noia, supra., established that mere failure to

comply with a state procedural requirement does not

constitute, necessarily, a waiver of rights bestowed by the

United States Constitution. It also established that the

finding of such a..waiver by a state court does not bar the

federal courts from independently determining the issue

of waiver in a federal habeas corpus proceeding, since

waiver of federal-rights is a federal question; that a choice

of counsel not participated in by the defendant would

not automatically bar relief; and that actions or inaction

of counsel would be imputed to the defendant alleged to

have waived the state procedural requirement only where

it appears affirmatively that the acts or omissions

constituting the purported waiver were knowingly and

voluntarily participated in by the accused as a deliberate

strategy intended as a bypass of a known state procedural

requirement. Further, the showing of the defendant's

participation must be affirmative, as “acquiescence in the

loss_of fundamental rights is not to be presumed,” and

the Courts must “indulge every reasonable presumption

it did right at the time

's 3 y the time and place

it was given, but

. vo mera» ala

established law of the period.

Brady line of cases dealt with challenges to the

; no such. » has been made here. For

, tt waiver,” Johnson v, Zerbst, supra. ; waiver cannot

resumed from a silent record, Carnley v. Cochran,

Us. 506 (1962).

* Recen » these principles were reaffirmed by this

Cour dn Humphrey y. Cady, 405 U.S. 504 (1972). That

i decision [In which, however, Justices Powell

a _ Rehnquist did. not participate] reiterated that a

% Purported waiver of a federal Constitutional right by not

Pursuing state remedies must be “the product of an

and knowing decision by the [federal

“habeas corpus] Petitioner himself, who is not necessarily

: bound by the decision or default of his counsel.” The

, Court went on to hold that there can be a waiver only

"where the Petitioner himself “made a deliberate, strategic

_Waiver of his claim in State Court.”

coteally, in its most recent jury exclusion case, Peters v.

‘ Kf, supra., the Supreme Court upheld a federal habeas

Petitioner's claim of racial exclusion even though the

dlaim was not raised at any time in the state courts.*

_» ‘Respondent concludes from Peters v, Kiff, supra., that

failure to object to the composition of the grand or petit

. jury in the state court does not constitute waiver of the

tight to object in a later federal habeas corpus proceeding.

C. The Facts in the Instant Case

Clearly Show that the Judgment

Below Should Be Affirmed.

| ‘There is no real dispute that in the instant case blacks

were. “unconstitutionally excluded from the grand jury

Which ~ indicted Respondent; that Respondent was

“that systematic exclusion was first raised in the

corpus action was only briefly noted in footnote |

te a of Mr. Justice Marshall, and was briefly commented

int p footnote to the Chief Justices dissent.

unaware of the violation of his rights and of his right to

object ‘there to until years after the conviction and

sentence (A.88); that his trial counsel was unaware that

blacks had ‘been systematically excluded from grand jury

service; and that counsel did not advise Respondent of his

rights, that the rights were violated, and that he had a

right to object to the indictment. Both Respondent and

counsel were without knowledge of this “substantial

constitutional right. ” (Pet. Cert. 10a-1 1a).

The Respondent at the time of his indictment was a 20

year old black youth who had had less than a sixth grade

education. His failure to object to the indictment cannot

be held to have been an intentional abandonment of a

known ‘right or privilege. One cannot be said to have

waived a right, the existence of which was unknown to

him at the time of the alleged waiver.

Waiver cannot be imputed to Respondent due to the

acts or omissions of his counsel. Since counsel was

unaware of the right or its violation, he cannot be said to

have made a deliberate decision to waive the right to

object as a matter of trial strategy in an attempt to

bypass: state procedural requirements; and, at any rate,

such an attempt to bypass state procedures will not be

construed as a waiver unless it is shown that Respondent

had knowingly participated in’ the decision to proceed

without making the objection, while fully aware of his

right to object. Fay v. Noia, supra.

Petitioner's argument assumes. what has not been

proven: that. Respondent’s counsel knew of the right and

deliberately failed to object to its violation. There is no

evidence whatsoever to permit such an inference, Yet

even if such were the case, would counsel have advised |

Respondent of the right? Ms Judge Galbreath said in the i

ating opinion of the Court of Criminal Appeals of

“Tennessee, which denied relief to Respondent, “No

lawyer in this state would ever have thought of objecting

to,the fact that Negroes did not serve on the grand jury in

munessee in 1948,” State ex. rel. Henderson v. Russell,

z ) S.W.2d 176, 179 (1970).

“Moreover, as stated by the Fifth Circuit in United

States v. Harpole, supra. , at page 82:

Nah AS Judges of a circuit comprising six states of the

» deep South, we think that it is our duty to take

judicial notice that lawyers residing in many southern

+5 ctions rarely, almost to the point of never, raise

_ the issue of systematic exclusion of Negroes from

Several years later, in Whitus y, Balkcom, 333 F.2d 496

(1964), at 507, the same Circuit stated:

- 9 The fact, standing alone, that no Negro has ever served

9 a jury in the particular county where his case is

ca afl y indicates, if it does not create a

ters v. Cook, supra. , the Fifth Circuit ruled that

the habeas petitioner], who had no idea that he

object to the jury composition, did not waive his

} Taise the issue later, even though the right was

) his counsel, who did not object, ostensibly on

grounds. The Court said, at 1396, “That white

| Fepresenting black clients often fail to raise an

ection to jury composition has been recognized as a\

plem in this circuit.” In footnote 2 on the same page,

pourt stated “. . . such an extreme discrimination

Rot exist without the knowledge of the State trial

ai ‘

% ys “igs

judge. It was his duty ‘to ascertain that Winters had

knowledge of his relevant rights.” (Emphasis supplied.)

{The Fifth Circuit ‘based’ its decision in part on the

invalidity of Winters’ guilty plea which was given without

knowledge of the right to object. That issue is not

relevant herein, the validity of Respondent’s plea not

having been challenged below.]

The language quoted from the State court herein and

the Fifth Circuit cases raises sinister implications: that

even if Respondent's lawyer knew of the violation of his

client’s right in time to object, as Petitioner incorrectly

argues, does it necessarily follow that the failure to object

was a trial tactic? It would seem more likely that failure

to object in Tennessee in 1948 resulted from a

conspiracy, however tacit {perhaps even subconscious]

among the bar and even the bench, to refrain from

anertios this right which was peculiar to Negroes at that

tine? ik 5;

Petitioner relies on the reasoning of Judge Clark in his

dissent in Winters v. Cook, supra. That reasoning does not

apply herein, as in the Winters case trial counsel was fully

aware of the impermissible exclusion of blacks from jury

service in time to make an objection, and in the instant

case, Respondent’s trial counsel had no idea of

‘Respondent’s rights, much less of the fact that they were

violated. In Winters, trial counsel used the possibility of

objecting to the venire as a negotiating lever to obtain a

favorable plea bargain for the defendant. Such was not

- the €ase herein. Judge Clark wrote, at page 1399:

| ie Coun sel testified that these constitutional objections

_ were the “pry bar” that he used in getting the state to

_ allow the defendant to enter a guilty plea. ....

oy beds Peter ax” Mth eee : y,

--SUntil June 22, 1972, when Peters v. Biff, supra., was decided.

‘

Where, as here, a privately retained lawyer who is

wel prsed in the defense of murder charges

_ «-fdeliberately refrains from making a known consti-

__.sfutional objection to the composition of the jury in

exchange for important and material concessions

from the prosecution, there has been a deliberate

by-pass and waiver under Fay and Henry. (Emphasis

ona:

- procedure by Respondent’s counsel. There is absolutely

“nothing in the evidence that shows an intent to waive a -

Tight to achieve a strategic advantage. There is no showing

“that counsel had made positive use of the constitutional

_ fight in any manner. There is no showing that either

__ Respondent or his attorney were aware of the right or of

_ its violation. There is consequently no waiver of

_ Respondent's right to raise the systematic exclusion issue

in federal habeas corpus proceedings, which he has done.

“‘itowas established beyond doubt in the evidentiary

hearings below that Respondent was not aware of his

- fight to object to the composition of the indicting grand

y at any stage of the proceedings. There was no

yetate choice by either Respondent or his counsel

nh could conceivably be interpreted as an intentional

lishment of a known right, nor was there any

m of any _ intentional bypassing of state

om. ©

thé indictments and

of impermissibly / constituted juries void ab _y

a ruling would simplify cases such as the instant

case. If indictments returned by such juries were void, the

ight to object could never be waived by pleading to a

‘indictment. Public policy might be served by

compl what 18 U.S.C. $243 [providing criminal

for public officials convicted of discriminatory

selection] has apparently failed to do—terminate

and for all’ the deplorable practice of excluding

nority groups from jury service. At least one circuit is

ting for a determination of this issue. In note 1 of its

mn “in Winters y. Cook, supra., the Fifth Circuit said:

do not reach the issue whether a jury from

which blacks are systematically excluded constitutes a

‘ nal or a nonjurisdictional defect. Although

_. jt was strongly intimated in Colson [v. Smith, 438

Opa 1075] that where Negroes are excluded from

~ the:jury the defect is nonjurisdictional, the Supreme

_ » Court has recently ascribed such fundamental status

: enna sigooon to be tried by a jury from which

» are void. Yet this Court has not yet so ruled

y. Precedent and public policy would seem to

i e such a ruling.

CONCLUSION

It is respectfully submitted that the facts of this case

all squarely within the purview of Fay v. Noia, supra.,

son v. Zerbst, supra. In order to give Petitioner

the relief demanded, this Court will necessarily have to

overrule Fay and Zerbst, on which countless decisions

have ‘been based. Zerbst alone has been cited in more

than” three thousand reported cases~ since it was

announced. The Court will also have to redefine waiver

and will have to reéxamine and determine new standards

for federal review of allegedly unconstitutional state

action. A ‘reversal here will effectively remove the

jurisdiction of the federal judiciary in areas where state

and local government will have the last word in

_ interpreting its own alleged violation of the United States

Constitution. Past experience indicates that, if such

occurred, the Bill of Rights would soon be rendered

meaningless in many jurisdictions.

The. Petitioner insists that if Respondent prevails

herein, “the floodgates would be open,” and a horde of

convicts would descend upon Davidson County, Tennes-

see, creating an intolerable burden on that County to

retry or release these prisoners. It is somewhat ironic that

the very authority, which deliberately violated Respond-

ent’s: rights in imprisoning, him for almost a quarter

century, now begs the Court for relief because such a

result would inconvenience that authority. The judgment

below should be affirmed, and Respondent ordered

released or retried within a reasonable time.

Respectfully submitted,

H. FRED HOBFLE

409 Second National Building

Cincinnati, Ohio 45202 . .

Telephone: 513/241-1268.

/ / re

/ Attorney for Respondent

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