Reply Brief

    IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 

NO. 645 Misc. 

  

WILLIAM HENRY FURMAN, 

Petitioner, 

—v. 

STATE OF GEORGIA, 

Respondent. 

  
  

  
  

JACK GREENBERG 

MICHAEL MELTSNER 

JACK HIMMELSTEIN 

ELIZABETH B. DUBOIS 

oe 10 Columbus Circle 
oo New York, New York 10019 

ANTHONY G. AMSTERDAM 

Stanford University 
Law School 

Stanford, California 94305 

B. CLARENCE MAYFIEID 

910 West Broad Street 
Savannah, Georgia 31401 

ATTORNEYS FOR PETITIONER 

      
 



  
    

IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 

NO. 645 Misc. 

  

WILLIAM HENRY FURMAN, 

Petitioner, 

—V 

STATE OF GEORGIA 

Respondent. 

  

REPLY BRIEF 

  

PETITIONER'S CLAIM THAT GEORGIA'S PRACTICE 
OF ALLOWING CAPITAL TRIAL JURIES ABSOLUTE 
AND UNCONTROLLED DISCRETION TO IMPOSE THE 
DEATH PENALTY VIOLATES THE DUE PROCESS 
CLAUSE OF THE FOURTEENTH AMENDMENT TO THE 
UNITED STATES CONSTITUTION WAS PROPERLY 
RAISED BELOW AND WAS RULED UPON BY THE 

GEORGIA SUPREME COURT. 

In a brief in opposition filed by the Attorney General of 

the State of Georgia, Arthur K. Sat the argument is made 

that petitioner's federal constitutional challenge to the 

sentencing discretion accorded Georgia's capital trial juries was 

not explicitly presented to the Georgia Supreme Court and was not 

2/ 
ruled upon by that court. In fact, as was pointed out in our 

  

1/ No such argument was made in the brief in opposition filed 

by the District Attorney for the Eastern Jud.cial Circuit of 

Georgia, Andrew J. Ryan, Jr. 

2/ Respondent also noted that he had not heen served with a 

copy of the brief for petitioner filed in M~xwell v. Bishop, O.T. 

1969 No. 13, incorporated by reference in petitioner's petition 

in the instant case in the section relating to capital jury 

sentencing discretion. On Nov. 6, 1969, copies of the Maxwell v. 

  

  

Bishop brief were sent to the Honorable Arthur K. Bolton and to 

the Honorable Andrew J. Ryan, Jr., and a letter was sent to the 

Clerk of this Court so informing him. 

  

 



  
    

Petition for Writ of Th pL a at pp. 6-8, this claim was pro- 

perly raised below and was ruled upon by the Georgia Supreme 

Court. 

Petitioner's Amended Motion for New Trial (R. 37-48) 

explicitly presented the claim that the grant to the jury of the 

power 

"to give a life sentence in their discre- 

tion, without reference to the evidence or 

the record is vague, uncertain and in- 

definite and in violation of the Fourteenth 

Amendment of the Constitution of the United 

States in that the jury is not limited in 

the consideration of the evidence or of the 

factors leading to the imposition of said 
sentence" (R. 45; see also R. 41-42). 

This motion was denied by the trial court without opinion on 

February 24, 1969 (R. 49). Petitioner's Enumeration of Errors 

filed in the Supreme Court of Georgia (R. 410-413) presented the 

claim to that Court by challenging the federal constitutionality 

of his death sentence and alleging specifically that "the trial 

Court erred in one and all of the respects set out in the amended 

Motion for a New Trial and for the reasons set forth thereon" 

(R. 411). 

Petitioner's Brief in the Supreme Court of Georgia argued at 

some length that his rights under the Fourteenth Amendment to 

the United States Constitution had been violated because "a 

capital jury in Georgia lacks standards of any sort in [sic] 

guide it in imposing the death penalty." (Brief of Plaintiff in 

Error, Part Two, para. 4). 

The Supreme Court of Georgia rejected summarily petitioner's 

various attacks on the federal constitutionality of his death 

sentence, relying on cases which dealt sveaiiianily with the 

issue of the federal constitutionality of uncontrolled jury dis- 

cretion in capital sentencing (see R. 416-417 citing Sims Vv. 

Balkcom, 220 Ga. 7, 36 S.E. 24 766 (1964): and Manor v. State, 
  

  

 



  
    

223: Ga. 594,157 S.B. 248 431 (1967)). Moreover, the Court 

specifically noted in its opinion that, "having considered every 

enumeration of error argued by counsel in his brief and finding 

no reversible error, the judgment is affirmed." (R. 418). 

Respectfully submitted, 

JACK GREENBERG 

MICHAEL MELTSNER 

JACK HIMMELSTEIN 

ELIZABETH B. DUBOIS 

10 Columbus Circle 
New York, New York 10019 

ANTHONY G. AMSTERDAM 

Stanford University 
Law School 
Stanford, California 94305 

B. CLARENCE MAYFIELD 

910 West Broad Street 
Savannah, Georgia 31401 

Attorneys for Petitioner