Swain v. Callaway Brief for Appellants

    I n' the

£>ttprmp Court of tlje luitrfi ^tatra
October T erm, 1965 

No..........

R obert Swain,

—v.— 

A labama.

Petitioner,

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ALABAMA

Jack Greenberg 
J ames M. Nabrit, III  
Michael Meltsner 
F rank Heferon 
Melvyn Zarr 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Orzell B illingsley, Jr.
P eter A. H all

1630 Fourth Avenue North 
Birmingham, Alabama

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa.

Attorneys for Petitioner



I N D E X

PAGE

Opinions Below ................................................................... 1

Jurisdiction ........................................................................... 1

Questions Presented ........................................................... 2

Constitutional and Statutory Provisions Involved .....  3

Statement ............................................................................... 4

Exclusion of Negroes from Jury Panels ...............  5

The Solicitor’s Remarks to the J u r y .......................  6

The Application of the Death Sentence for Rape 
in Alabama ............................................................... 8

Cruel and Unusual Punishment ...............................  10

Exclusion of Women from Jury Service ...............  10

How the Federal Questions Were Raised and Decided 
B elow ..................................................................................  11

Reasons for Granting the Writ

I. Petitioner Adequately Alleged in His Petition 
for Writ of Error Coram Nobis Below That His 
Conviction Deprived Him of Due Process of Law 
and Equal Protection of the Laws as Guaranteed 
by the Fourteenth Amendment to the Constitu­
tion of the United States Because the Prose­
cutor Systematically Struck Negroes from Petit 
Jury Venires ............................................................  14



11

II. Petitioner Was Denied Rights Under the Consti­
tution When (A ) Denied the Opportunity to 
Offer Proof of Racial Application of the Death 
Penalty in Alabama and (B ) the Jury Which 
Convicted and Sentenced Him Had Unfettered 
Discretion to Impose Capital Punishment for 
All Offenses of Rape—in the Absence of Ag­
gravating Circumstances, Permitting Cruel and 
Unusual Punishment ......      19
A. Petitioner’s Equal Protection Contention

Which the Court Below Wrongly Refused 
to Permit Him to Establish Presents an Im­
portant Question for Consideration by this 
Court on Certiorari ...........................................  19

B. The Court Should Grant Certiorari to Con­
sider Petitioner’s Contention That His Sen­
tence Is Unconstitutional Under the Eighth 
and Fourteenth Amendments..................   29

TII. Petitioner Was Denied Rights Under the Fifth 
and Fourteenth Amendments When the Circuit 
Solicitor Was Permitted to Comment on His 
Failure to Take the Stand ...................................  32

IV. Petitioner Was Deprived of Due Process of Law 
and Equal Protection of the Laws in Violation 
of the Fourteenth Amendment Because Women 
Were Systematically Excluded from the Juries 
Which Indicted and Tried Him ........................... 34

Conclusion .............................................................................  38

A ppendix

Judgment of Supreme Court of Alabama ............ la

Coram Nobis Petition ...............................................  2a

PAGE



T a b l e  o f  C a se s

page

Aaron v. Holman (M. D. Ala., C. A. No. 2170-N) .......  22
Aaron v. State of Alabama, 273 Ala. 337, 139 So. 2d

309 ......................................................................................  26
Akins v. Texas, 347 U. S. 475 ........................................... 17
Alabama v. Billingsley (Cir. Ct. Etowah County,

No. 743) ............................................................................  26
Alabama v. Butler (Cir. Ct. Etowah County, No. 744) .. 26 
Alabama v. Liddell (Cir. Ct. Etowah County, No. 745) .. 26
Allen v. State, 137 S. E. 2d 711, 110 Ga. App. 56 .......  36
Anderson v. Martin, 375 U. S. 399 ...............................17, 23
Arnold v. North Carolina, 376 U. S. 773 .....................  17

Ballard v. United States, 329 U. S. 187 .....................  36
Brown v. Board of Education, 347 U. S. 483 .............. 23
Brown v. State, 277 Ala. 353, 170 So. 2d 504 ..............  15
Burstyn v. Wilson, 343 U. S. 495 ................................... 28
Bush v. Kentucky, 107 U. S. 110 ..................................... 24

Carr v. Montgomery County Bd. of Education, 232
F. Supp. 715 (M. D. Ala. 1964) .................................  27

Carter v. Texas, 177 U. S. 442 .......................................16,17
Cline v. Frink Dairy Co., 274 U. S. 445 ........................... 28
Coleman v. Alabama, 377 U. S. 129................................... 24
Connally v. General Construction Co., 269 U. S. 385 .... 28
Cox v. Louisiana, 379 U. S. 536 ....................................... 28
Craig v. Florida (Sup. Ct. Fla., No. 34,101) ................... 19

Dombrowski v. Pfister, 380 U. S. 479 ............................... 28

Ex parte Hamilton, 271 Ala. 88, 122 So. 2d 602, rev’d,
368 U. S. 52 coram nobis petition granted, 273 Ala.
504, 142 So. 2d 868 ......................................................  15

Ex parte Virginia, 100 U. S. 339 ................................... 16



IV

Ex parte Williams, 268 Ala. 535, 108 So. 2d 454, cert.

PAGE

den. 359 U. S. 1004 ..................... .......................... ..........  15
Eubanks v. Louisiana, 356 U. S. 584 ...............................  17

Fowler v. Rhode Island, 345 U. S. 6 7 ...............................  23
Freedman v. Maryland, 380 U. S. 51 ...............................  28

Gibson v. Mississippi, 162 U. S. 565 ...............................  16
Griffin v. California, 380 U. S. 609 .............................3, 32, 33

Hale v. Kentucky, 303 U. S. 613 .......................................  17
Hamilton v. Alabama, 376 U. S. 650 ......... ................ .17, 23
Hamilton v. State, 273 Ala. 504, 142 So. 2d 868 ...........  15
Hernandez v. Texas, 347 U. S. 475 .......................17, 24, 35
Herndon v. Lowry, 301 U. S. 242 ...................................  28
Hill v. Texas, 316 U. S. 400 ............................................... 17
Hoyt v. Florida, 368 U. S. 57 ...................................34, 35, 36

Lee v. Macon County Bd. of Education, 231 F. Supp.
743 (M. D. Ala. 1964) ...................................................  27

Louisiana v. United States, 380 U. S. 145 ...................  28
Louisiana ex rel. Scott v. Hanchey (20th Jud. Dist. Ct., 

Parish of West Feliciana) ........................................... 22

MacLaughlin v. Florida, 379 U. S. 184 .......................23, 29
Malloy v. Hogan, 378 U. S. 1 ........................................... 32
Martin v. Texas, 200 U. S. 316 .......................................16-17
Maxwell v. Stephens, ------  F. 2d ------  (8th Cir.), No.

429, October Term 1965 ...............................................22, 29
Mitchell v. Stephens, 232 F. Supp. 497 (E. D. Ark.

1964) ..................................................................................  22
Moorer v. MacDougall (E. D. S. C., No. AC-1583) .......  22

N.A.A.C.P. v. Alabama, 357 U. S. 449 
N.A.A.C.P. v. Button, 371 U. S. 415

23
28



V

Napue v. Illinois, 360 U. S. 204 .......................................  17
Neal v. Delaware, 103 U. S. 370 .......................................16, 24
Niemotko v. Maryland, 340 U. S. 268 ............................... 23
Norris v. Alabama, 294 U. S. 587 ................................... 17

Patton v. Mississippi, 332 U. S. 463 ............................... 17
Pennsylvania ex rel. Herman v. Clandy, 350 U. S. 116 .. 24 
Pierre v. Louisiana, 306 U. S. 354 ................................... 17

Ralph v. Pepersack, 335 F. 2d 128 (4th Cir. 1964) ....29-30
Reece v. Georgia, 350 U. S. 8 5 ........................................... 17
Rogers v. Alabama, 192 U. S. 226 ................................... 16
Ross v. United States, 180 F. 2d 160 (6th Cir. 1950) .... 34 
Rudolph v. Alabama, 375 U. S. 889 ...............................29, 31

Shelley v. Kraemer, 334 U. S. 1 ....................................... 23
Skinner v. Oklahoma, 316 U. S. 535 ............................... 31
Smith v. Cahoon, 283 U. S. 553 ....................................... 28
Smith v. Texas, 311 U. S. 128 .......................................17, 36
Strauder v. West Virginia, 100 U. S. 303 ...................16, 35
Swain v. State, 275 Ala. 508, 156 So. 2d 368 .......4,18, 30, 33
Taylor v. Alabama, 335 U. S. 252 ................................... 24

Viereck v. United States, 318 U. S. 236 ........................... 34

Watson v. City of Memphis, 373 U. S. 526 ...................  23
Wilson v. United States, 149 U. S. 60 ...........................32, 34
Winters v. New York, 333 U. S. 507 ............................... 28
Yick Wo v. Hopkins, 118 U. S. 356 ...............................14, 23

S tatutes

18 U. S. C. §3841 ..................................................................  32

28 U. S. C. §1257(3) (1948) .................................    1

PAGE



42 U. S. C. §2000(e)(2 ).......................................................  36

Rev. Stat. §1977 (1875), 42 U. S. C. §1981 (1964) .......  23

Civil Rights Act of 1866, Ch. 31, §1, 14 Stat. 27 .......22, 24

Enforcement Act of May 31, 1870, ch. 114, §§16, 18,
16 Stat. 140, 144 ............................................................... 22

Ala. Const. §102 ............................................................... . 27
Ala. Code Ann. Tit. 14, §395 (Recomp. Vol. 1958) ....3, 8,10,

13,19, 29
Ala. Code Ann. Tit. 14, §360-61 .......................................  27
Ala. Code Ann. Tit. 14, §§397, 398 ...................................  19
Ala. Code Ann. Tit. 15, §305 ...........................................4, 33
Ala. Code Ann. Tit. 30, §21 .......................................3,10, 34
Ala. Code Ann. Tit. 45, §248 ............................................... 27
Ala. Code Ann. Tit. 46, §189 ........................................... 27
Ala. Code Ann. Tit. 48, §§186, 196, 464 .......... ................  27
Ala. Code Ann. Tit. 51, §244 ........................................... 27
Ark. Stat. Ann. §§41-3403, 432153 (1964 Repl. Vols.) .... 19
Ark. Stat. Ann. §41-3405 ................................................... 19
Ark Stat. Ann. §41-3411 ..................................................... 19

Fla. Stat. Ann. §794.01 (1964 Cum. Supp.) ...................  19

(la. Code Ann. §26-1302 (1963 Cum. Supp.) ...................  19
Ga. Code Ann. §26-1304 (1963 Cum. Supp.) ...................  19

Ky. Rev. Stat. Ann. §435.090 (1963) ...............................  19

La. Rev. Stat. Ann. §14:42 (1950) ...............................  19

Md. Ann. Code, art. 27, §12 ............................................... 19
Md. Ann. Code, art. 27, §§461, 462 (1957) .......................  19
Miss. Code Ann. 1942 (Recomp. Vol. 1958), §1762 .......  35
Miss. Code Ann. §2358 (Recomp. Vol. 1956) ...................  19
Vernon’s Mo. Stat. Ann. §559.260 (1953) .......................  19

vi

PAGE



Nev. Rev. Stat. §200.360 (1963) ....................................... 19
Nev. Rev. Stat. §200.400 (1963) ....................................... 19
N. C. Gen. Stat. §14-21 (Recomp. Vol. 1953) ...............  19

Okla. Stat. Ann., tit. 21, §§1111, 1114, 1115 (1958) .......  19

S. C. Code Ann. §§16-72, 16-80 (1962) ........................... 19
S. C. Code, 1952 §§38-52 ................................................... 35

Tenn. Code Ann. §§39-3702, 39-3703, 39-3704, 39-3705 
(1955) ................................................................................  20

Tex. Pen. Code Ann., arts. 1183, 1189 (1961) ............... 20

Va. Code Ann. §18.1-16 (1960) ....................................... 20
Va. Code Ann. §18.1-44 (Repl. Vol. 1960) ...................  20

Oth er  A uthorities

Weihofen, The Urge to Punish, 164-165 (1956) ...........  27

Bullock, Significance of the Racial Factor in the Length 
of Prison Sentences, 52 J. Crim. L., Crim. & Pol.
Sci. 411 (1961) ................................................................  27

Fairman, Does the Fourteenth Amendment Incorporate 
the Bill of Rights, 2 Stan. L. Rev. 5 (1949) ...............  22

Hartung, Trends in the Use of Capital Punishment,
284 Annals 8 (1952) ....................................................... 27

Lewis, The Sit-In Cases: Great Expectations, [1963] 
Supreme Court Review 101 ........................................... 28

Packer, Making the Punishment Fit the Crime, 77 
Harv. L. Rev. 1071 (1964) .........................................30,31

tenBroek, Thirteenth Amendment to the Constitution 
of the United States, 39 Calif. L. Rev. 171 (1951) .... 22

vii

PAGE



PAGE

viii

Wolfgang, Kelly & Nolde, Comparison of the Executed 
and the Commuted among Admissions to Death 
Row, 53 J. Crim. L., Crim. & Pol. Sci. 301 (1962) .... 27

Note, 109 U. Pa. L. Rev. 67 (1960) ...................................  28

Cong. Globe, 39th Cong., 1st Sess. 475 (Jan. 29, 1866)
1759 (4/4/1866) ............................................................... 24

Cong. Globe, 39th Cong., 1st Sess. 1758 (April 4, 1866) 24

New York Times, July 24, 1965, p. 1, col. 5 ...................  31

United States Department of Justice, Bureau of 
Prisons, National Prisoner Statistics, No. 32: Ex­
ecutions, 1962 (April 1963)  .......................................  21



I n  t h e

(Eourt uf %  llnitth States
October T erm, 1965 

No..........

R obert Swain, 

— v.—  

A labama.

Petitioner,

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF ALABAMA

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of Alabama entered 
in the above-entitled case on June 25, 1965.

Opinions Below

The order of the Supreme Court of Alabama denying 
petition for leave to file petition for writ of error coram 
nobis is unreported and is set forth in the appendix, infra, 
p. la. No opinion accompained that order. The opinion 
of the Supreme Court of Alabama affirmed by this Court 
March 8, 1965, 380 U. S. 202, rehearing denied 381 U. S. 
921, is reported at 275 Ala. 508, 156 So. 2d 368 (1963).

Jurisdiction

The judgment of the Supreme Court of Alabama was 
entered June 25, 1965. The jurisdiction of this Court is 
invoked pursuant to 28 U. S. C. § 1257(3), petitioner



2

having asserted below and asserting here deprivation of 
rights secured by the Constitution of the United States.

Questions Presented

1. Whether petitioner was denied Fourteenth Amend­
ment rights when tried and convicted by a jury chosen by 
systematic and arbitrary exclusion of Negroes from jury 
service as a result of an unvarying practice of the state’s 
attorney who for 12 years always struck Negroes from 
the petit jury or sought agreements with defense counsel 
to strike all Negroes at the outset of the jury selection 
procedure.

2. Whether petitioner, a Negro sentenced to death for 
the rape of a white woman, was denied rights guaranteed 
by the Fourteenth Amendment when he has shown that 
11 times as many Negroes as whites have been executed 
for rape in Alabama, a proportion at great variance with 
the number of Negroes in the state’s population, or who 
committed the crime of rape, and offers to show the grossly 
disproportionate number of Negro executions can be ex­
plained only by race.

3. Does Alabama’s grant to juries of unfettered dis­
cretion to impose capital punishment for all offenses of 
rape irrespective of the existence of aggravating circum­
stances, permit cruel and unusual punishment in violation 
of the Eighth and Fourteenth Amendments.

4. Whether petitioner was denied rights guaranteed by 
the Fourteenth Amendment when the circuit solicitor 
commented on petitioner’s failure to take the stand in his



3

own defense contrary to this Court’s decision in Griffin v. 
California, 380 U. S. 609.

5. Whether petitioner was convicted in violation of his 
Fourteenth Amendment rights when the State of Alabama 
by statute makes women totally ineligible for jury service.

Constitutional and Statutory Provisions Involved

This case involves the Eighth Amendment and Section 1 
of the Fourteenth Amendment to the Constitution of the 
United States.

This case also involves the following statutes of the State 
of Alabama:

Ala. Code Ann., Title 14, §395

Punishment of Rape. Any person who is guilty of the 
crime of rape shall, on conviction, be punished, at the 
discretion of the jury, by death or imprisonment in 
the penitentiary for not less than ten years.

Ala. Code Ann., Title 30, §21

Qualifications of Persons on Jury Roll. The jury com­
mission shall place on the jury roll and in the jury 
box the names of all male citizens of the county who 
are generally reputed to be honest and intelligent men 
and are esteemed in the community for their integrity, 
good character and sound judgment; but no person 
must be selected who is under twenty-one or who is 
an habitual drunkard, or who, being afflicted with a 
permanent disease or physical weakness is unfit to 
discharge the duties of a juror; or cannot read English 
or who has ever been convicted of any offense involving 
moral turpitude. I f a person cannot read English and



4

has all the other qualifications prescribed herein and 
is a freeholder or householder his name may be placed 
on the jury roll and in the jury box. No person over 
the age of sixty-five years shall be required to serve 
on a jury or to remain on the panel of jurors unless 
he is willing to do so.

Ala. Code Ann., Title 15, §305

The Defendant in Criminal Cases a Competent Witness 
for Himself. On the trial of all indictments, complaints, 
or other criminal proceedings, the person on trial shall, 
at his own request, but not otherwise, be a competent 
witness; and his failure to make such a request shall 
not create any presumption againt him, nor be the 
subject of comment by counsel. I f the solicitor or other 
prosecuting attorney makes any comment concerning 
the defendant’s failure to testify, a new trial must be 
granted on motion filed within thirty days from entry 
of the judgment.

Statement

The petitioner was indicted for rape by the Grand Jury 
of Talladega County, Alabama and convicted in the Circuit 
Court of the County, May 25, 1962. The jury fixed his 
punishment at death by electrocution. On appeal, the 
judgment was affirmed by the Supreme Court of Alabama, 
Swain v. State, 275 Ala. 508, 156 So. 2d 368 (1963). 
Subsequently, on writ of certiorari, this Court affirmed 
the judgment of the Supreme Court of Alabama finding 
petitioner had failed to prove (1) exclusion of Negroes 
from county grand and petit jury venires and (2) exclu­
sion of Negroes from jury venires by the state’s misuse 
of peremptory strikes in violation of the Fourteenth



5

Amendment, 380 U. S. 202, rehearing denied 381 U. S. 921 
(1965).

On June 25, 1965, petitioner filed in the Supreme Court 
of Alabama petition for leave to file petition for writ of 
error coram nobis in the circuit court of Talladega County 
(hereafter referred to as coram nobis petition) and peti­
tion for stay of execution. Argument was heard imme­
diately following filing by the full court, and on the same 
day both petitions were denied. The coram nobis petition 
and the order of the Supreme Court appear in the 
appendix, infra, pp. la-25a. On July 2, 1965, Mr. Justice 
Black granted a stay of execution pending the disposi­
tion of this petition.

The verified coram nobis petition alleges that petitioner 
has been tried, convicted and sentenced in violation of 
the Constitution of the United States on a number of 
grounds set forth in the petition, with supporting 
affidavits.1 A  summary of these allegations follows.

Exclusion of Negroes from fury Panels

Petitioner contends that he was deprived of due process 
of law and the equal protection of the laws as guaranteed 
by the Fourteenth Amendment by reason of systematic 
and arbitrary exclusion of Negroes from service on petit 
juries in the Circuit Court of Talladega County, as a 
result of a consistent and unvarying practice of the circuit 
solicitor who during a period of 12 years (1) always 
struck Negroes from petit jury venires or (2) sought or

1 The coram nobis petition prayed that the Supreme Court of Alabama 
grant an evidentiary hearing on those issues as to which attached affida­
vits did not suffice (17a).



6

entered into agreements with defense counsel to strike all 
Negroes at the outset of the jury selection procedure.

No Negro has served on a petit jury in the County 
between 1950 and the date of petitioner’s trial in 1962 
in either a civil or criminal case and petitioner offered 
to prove “that the Circuit Solicitor of Talladega County 
was responsible for the total absence of Negroes . . .  in 
that he consistently struck all Negroes remaining on the 
venire if he was unable to obtain the agreement of defense 
counsel to the elimination of Negro veniremen” (6a). It 
was alleged that this Court “ indicated in its opinion in 
this case [380 U. S. 202] that such a practice, if proved, 
would constitute a violation of the Fourteenth Amend­
ment” and that the issue “had not been adequately heard” 
(6a).

Petitioner also alleged that he was “unable to present 
proof of misuse of peremptory strikes by affidavit because 
the individual best able to execute such an affidavit would 
be the Circuit Solicitor who represented the State of 
Alabama at petitioner’s trial and who is adverse to the 
interest of petitioner. The peremptory strike issue, there­
fore, can only be decided after a full hearing with com­
pulsory process, examination and cross-examination of 
witnesses” (6a).

The Solicitor’s Remarks To The Jury

Petitioner contends that he was deprived due process 
of law and equal protection of the laws as guaranteed by 
the Fourteenth Amendment because the circuit solicitor 
(1) unfairly commented on his failure to take the stand 
in his own defense and (2) aroused racial prejudice and 
inflamed the minds of the jury (3a). It was alleged that 
the transcript of petitioner’s trial revealed the circuit



7

solicitor made the following comments during his argu­
ment before the jury (7a, 8a) :2

Gentlemen do you think we have proved these ele­
ments? I submit to you it is not denied, there is not 
a word come from this stand that denied the charge 
of rape. We have proved it to you, gentlemen, beyond 
a reasonable doubt that this prosecuting witness was 
raped. Now the only question that the defendant has 
raised here by his attorneys is the question of 
identify (sic). (Emphasis added.) (Transcript p. 354.)

The solicitor further remarked:

Do you think this young lady, Jimmie Sue Butter- 
worth, consented to have this defendant have the 
rough and rugged intercourse where this impact 
against her body caused loose hairs to come out of 
his privates? You gentlemen know the way a colored 
person—you have seen them you have seen their hair. 
You know, gentlemen, it is coarse. You know that 
it is rough. You know from your own experiences 
with everyday life that when any two forces meet 
each other and that there is a rubbing or banging 
there are going to be hairs lost. Most of you men 
are married men. You have had everyday experiences. 
You know from your own knowledge that people shed 
hairs and they lose them, but gentlemen how many 
of you if they took us out and shook our clothes would 
find negroid hairs falling from our privates? (Tran­
script p. 354.)

2 The transcript of petitioner’s trial is part o f the certified record of 
petitioner’s original appeal on file with the Court.



8

The Application of the Death Sentence For Rape In Alabama

The Alabama Code, Tit. 14 §395, punishes rape, at the 
discretion of the jury, by death or imprisonment in the 
penitentiary for not less than ten years. Petitioner was 
sentenced to death upon conviction of raping a white woman.

The petition alleged that the State arbitrarily and dis- 
criminatorily imposes the sentence of death upon Negroes 
charged with rape, but does not impose the same penalty 
upon white men charged with rape under the same circum­
stances in violation of the Fourteenth Amendment and that 
§395 violates the Fourteenth Amendment because it affords 
the jury unlimited, unrestricted and unreviewable discre­
tion in choice of sentence and does not establish any pro­
cedure to permit separate consideration of guilt and sen­
tence (4a).

The population of Alabama between 1930 and the present 
according to the U. S. Census, has been 35.7% nonwhite 
in 1930, 34.7% in 1940, 32.1% in 1950, and 30.1% in 1960. 
Between January 1, 1930 and December 31, 1964, the State 
of Alabama executed 134 persons, of whom 107 or 79% 
were Negroes and 27 or 20.2% were white. Between Jan­
uary 1, 1930 and December 31, 1964 the State of Alabama 
executed 22 persons for the crime of rape. Twenty or 90.9% 
of these were Negroes while 2 or 9.1% were white (11a).

Records on file in the Supreme Court of Alabama show, 
to the extent that they reveal information concerning the 
victims’ race, that in every case involving the execution 
of a Negro or white man for the crime of rape, the victim 
has been a white woman.3 Eleven of these case records 
contain explicit statements that the victim was white. In

3 Allegations were supported by case citations, docket numbers, dates 
ot decision as well as affidavits of attorneys who had examined the records 
of the cases cited (20a-24a).



9

five other cases involving the execution of Negroes, a rea­
sonable inference may be drawn that the victim was white. 
Five other cases resulting in the execution of Negroes do 
not disclose the race of the victim. There is information 
in the records on file of the only two cases resulting in 
execution of white persons from which the inference may 
reasonably be drawn that the victim was white (lla-13a).

As of March 17, 1965, eighteen persons were committed 
to Kilby Prison in Alabama awaiting execution, of whom 
eleven were Negroes. Both of the men under sentence for 
rape were Negroes convicted of raping white women (13a- 
14a). At the time the petition was filed the only other 
cases of defendants known to be presently under sentence 
of death for rape were three Negro men separately tried 
and convicted for rape of a white woman in Etowah County, 
Alabama (13a).

The gross disparity shown between the proportion of 
Negroes in the population and the proportion of Negroes 
sentenced to death and executed for the crime of rape is 
the result of a racially discriminatory system of justice 
and is not explainable by other factors reasonably related 
to a rational system of imposing sentence. Negroes have 
been sentenced to death for a crime which, if committed by 
persons of the white race, would not have resulted in im­
position of the death penalty (14a).

Petitioner offered to prove that race is the sole explana­
tion for this disproportion by reference to judicial records 
and testimony of attorneys in rape cases in all counties of 
Alabama, or a representative sample of Alabama counties. 
He sought “ a full hearing with opportunity to prove his 
allegations with the benefit of compulsory process of wit­
nesses, production of records, examination and cross-exami­
nation of witnesses,” and alleged that “ proper development



10

of this fundamental issue of constitutional law requires an 
evidentiary hearing with the full opportunity for full and 
effective preparation” (14a).

Cruel and Unusual Punishment

Petitioner alleged that he was deprived of Eighth and 
Fourteenth Amendments rights in that (1) he was sen­
tenced to death for the crime of rape without consideration 
of aggravating or mitigating circumstances; and (2) on its 
face and as applied Ala. Code Ann. Title 14, §395 prescribes 
cruel and unusual punishment for the reason that it pro­
vides for a jury verdict which simultaneously determines 
guilt and fixes sentence at death without permitting separate 
consideration of guilt and sentence (4a-5a).4

Capital punishment is retained for the crime of rape in 
only 17 states and 4 countries. Petitioner alleged that 
imposition of such a penalty for rape violates evolving 
standards of decency which are almost universally accepted. 
The taking of human life to protect a value other than 
human life is inconsistent with the constitutional prescrip­
tion against punishments which are greatly dispropor­
tionate to the offense charged. Permissible aims of punish­
ment, such as deterrence, isolation, and rehabilitation can be 
achieved as effectively by punishing rape less severely than 
by death and this penalty constitutes unnecesary cruelty 
(15a-16a).

Exclusion of Women From Jury Service

Petitioner was indicted, tried and convicted by a jury 
selected pursuant to Ala. Code Ann. Tit. 30 §21 which pro­
vides that women are ineligible for service on grand and

In addition, petitioner alleged that he was deprived of the opportunity 
to present evidence in mitigation without taking the stand in his own 
defense and forfeiting the privilege against self incrimination (15a).



11

petit juries in violation of his rights under the Fourteenth 
Amendment (5a, 6'a, 17a).

How the Federal Questions Were Raised and 
Decided Below

Before his trial in the Circuit Court of Talladega County, 
petitioner made motions raising the issue of racial dis­
crimination in violation of his Fourteenth Amendment 
rights in the selection of persons for the jury roll, the grand 
jury venire, the grand jury, the petit jury venire and the 
petit jury as sworn. These motions were denied by the 
trial court and denial was affirmed by the Supreme Court 
of Alabama, 275 Ala. 508, 156 So. 2d 368 (1963). On certio­
rari, this Court affirmed, 380 U. S. 202, rehearing denied, 
381 U. S. 921 (1965), on the ground that petitioner had 
failed to prove racial discrimination in the selection of the 
venires or of trial jury panels in violation of the Four­
teenth Amendment, but indicated additional evidence might 
show systematic misuse of peremptory strikes in violation 
of the Constitution.

In affirming petitioner’s conviction, the Supreme Court 
of Alabama also found (156 So. 2d at 378) that the circuit 
solicitor had not violated Alabama law and commented on 
the failure of petitioner to testify when during summation 
to the jury he stated:

Gentlemen, do you think we have proved these three 
elements? I submit to you that it is not denied the 
charge of rape. We have proved it for you, gentlemen, 
beyond a reasonable doubt that this prosecution wit­
ness was raped. Now the only question that the defen­
dant has raised here by his attorneys is the question 
of identify (sic).



12

Subsequent to this Court’s affirmance of the judgment 
of the Supreme Court of Alabama petitioner filed in that 
court a petition for leave to file petition for writ of error 
coram nobis in the Circuit Court of Talladega County 
following recognized post-conviction procedure under Ala­
bama law. After oral argument, the petition was denied 
without opinion by the Supreme Court of Alabama, June 
25, 1965 (la ).

The coram nobis petition alleged deprivation of peti­
tioner’s rights under the Eighth Amendment and the due 
process and equal protection clauses of the Fourteenth 
Amendment to the Constitution by reason o f :

(a) systematic and arbitrary exclusion of Negroes from 
jury service as a result of a systematic practice of the cir­
cuit solicitor, who always struck Negroes from the petit 
jury venire or sought or entered into agreements with de­
fense counsel so that all Negroes would be struck;

(b) argument of the circuit solicitor before the jury 
which unfairly commented on petitioner’s failure to take 
the stand in his own defense;

(c) argument of the circuit solicitor before the jury 
which aroused racial prejudice and inflamed the minds of 
the jurors;

(d) arbitrary and discriminatory imposition of the pen­
alty of death against Negroes charged with the crime of 
rape against white women and not imposing the same pen­
alty against white men charged with rape in similar circum­
stances ;

(e) determination of sentence by a jury which had un­
limited, undirected and unreviewable discretion in choice 
of sentence;



13

(f) a jury verdict which simultaneously determined peti­
tioner’s guilt and fixed his sentence at death and did not 
permit separate consideration of the issues of guilt and 
sentence;

(g) sentence of death for the crime of rape without con­
sideration of aggravating or mitigating circumstances pur­
suant to Title 14, §395, Ala. Code Ann., which statute on 
its face and as applied prescribes the imposition of cruel 
and unusual punishment;

(h) total exclusion of women from the jury which tried, 
convicted and sentenced petitioner.

In support of these allegations, petitioner set forth facts 
appearing on the record of his trial, and the records and 
files of the Supreme Court of Alabama and reports of 
agencies of the United States. Attached to the petitions 
were affidavits which attested to the accuracy of those alle­
gations founded on public records and government reports. 
Certain of the allegations raised questions of fact as to 
which petitioner requested an evidentiary hearing and the 
opportunity to present proof.



14

Reasons for Granting the Writ

I.

Petitioner Adequately Alleged In His Petition For 
Writ Of Error Coram Nobis Below That His Conviction 
Deprived Him Of Due Process Of Law And Equal Pro­
tection Of The Laws As Guaranteed By The Fourteenth 
Amendment To The Constitution Of The United States 
Because The Prosecutor Systematically Struck Negroes 
From Petit Jury Venires.

In its earlier opinion in this case, the Court implied5 
that persistent use by a prosecutor of peremptory chal­
lenges to totally exclude Negroes from petit juries would 
constitute a violation of the Fourteenth Amendent, saying 
(380 U. S. 223-24):

[W]hen the prosecutor in a county, in case after 
case, whatever the circumstances, whatever the crime 
and whoever the defendant or the victim may be, is 
responsible for the removal of Negroes who have been 
selected as qualified jurors by the jury commissioners 
and who have survived challenges for cause, with the 
result that no Negroes ever serve on petit juries, the 
Fourteenth Amendment claim takes on added signif­
icance. Cf. Yick Wo v. Hopkins, 118 IT. S. 356. In 
these circumstances, giving even the widest leeway 
to the operation of irrational but trial-related suspi­
cious and antagonisms, it would appear that the pur­
poses of the peremptory challenge are being perverted. 
If the State has not seen fit to leave a single Negro 
on any jury in a criminal case, the presumption pro­

•' Petitioner was not alone in reading this implication. See Mr. Justice 
Harlan’s concurrence (380 U. S. at 228).



15

tecting the prosecutor may well be overcome. Such 
proof might support a reasonable inference that Ne­
groes are excluded from juries for reasons wholly 
unrelated to the outcome of the particular case on 
trial and that the peremptory system is being used 
to deny the Negro the same right and opportunity to 
participate in the administration of justice enjoyed 
by the white population. These ends the peremptory 
challenge is not designed to facilitate or justify.

Petitioner asks the Court to now make explicit what 
it suggested earlier. Faced with this Court’s holding that 
the record before it was insufficient to support petitioner’s 
constitutional claims, petitioner attempted below to docu­
ment the prosecutor’s abuse of the peremptory challenge 
system.6 The court below refused to permit such a showing, 
necessarily holding that petitioner’s allegations in his coram 
nobis petition did not state a federal claim.7 Petitioner 
contends the contrary.

The petition alleged (3a, 6 a ):

Petitioner, who is a Negro, was deprived of due 
process of law and equal protection of the laws as

6 Petitioner averred that he was unable to offer conclusive evidence in 
affidavit form, since only through a full evidentiary hearing, featuring the 
testimony o f the circuit solicitox-, could he prove his federal claim (6a).

7 Writ of error coram, nobis is available in Alabama as a post-conviction 
remedy for the hearing and determination of claimed denials of federal 
constitutional rights. Ex parte Hamilton, 271 Ala. 88, 122 So. 2d 602 
(1960), rev’d, 368 U. S. 52, coram nobis petition granted, Hamilton v. 
State, 273 Ala. 504, 142 So. 2d 868 (1962); Brown v. State, 277 Ala. 353, 
170 So. 2d 504 (1965). Where conviction has been appealed to the Su­
preme Court of Alabama and affirmed, a petition for writ o f error coram 
nobis may not be filed in the trial court without leave granted by the 
Supreme Court o f Alabama. See, e.g., Ex parte Williams, 268 Ala. 535, 
108 So. 2d 454 (1959), cert. den. 359 U. S. 1004. Thus, Swain petitioned 
the Alabama Supreme, Court for leave to file a coram nobis petition in 
the trial court.



16

guaranteed by the Fourteenth Amendment to the Con­
stitution of the United States by reason of systematic 
and arbitrary exclusion of Negroes from service on 
petit juries in the Circuit Court of Talladega County, 
as the result of a consistent and unvarying practice 
of the Circuit Solicitor, who during a period of twelve 
years always struck Negroes from the petit jury venire 
and sought or entered into agreements with defense 
counsel so that all Negroes would be struck at the 
outset of the jury selection procedure.

#  *  *

No Negro served on a petit jury in Talladega County 
between 1950 and the date of petitioner’s trial in 1962 
in either a civil or criminal case. Petitioner offers to 
prove that the Circuit Solicitor of Talladega County 
was responsible for the total absence of Negroes on 
petit juries in criminal cases in that he consistently 
struck all Negroes remaining on the venire if he was 
unable to obtain the agreement of defense counsel 
to the elimination of Negro venireman.

Surely these allegations were sufficient to support proof 
of the kind required by this Court, viz., proof to “ show 
the prosecutor’s systematic use of peremptory challenges 
against Negroes over a period of time” (380 U. S. at 227). 
This proof, erroneously disallowed below, would document 
a violation of the Fourteenth Amendment.

In an unbroken line of cases since 1880, this Court 
has consistently held that a state cannot systematically 
exclude persons from juries because of their race. Strauder 
v. West Virginia, 100 U. S. 303; Ex parte Virginia, 100 
U. S. 339; Neal v. Delaware, 103 U. S. 370; Gibson v. 
Mississippi, 162 U. S. 565; Carter v. Texas, 177 U. S. 442; 
Rogers v. Alabama, 192 U. S. 226; Martin v. Texas, 200



17

U. S. 316; Norris v. Alabama, 294 U. S. 587; Hale v. Ken­
tucky, 303 U. S. 613; Pierre v. Louisiana, 306 U. S. 354; 
Smith v. Texas, 311 U. S. 128; Hill v. Texas, 316 U. S. 400; 
Akins v. Texas, 347 U. S. 475; Reece v. Georgia, 350 U. S. 
85; Eubanks v. Louisiana, 356 U. S. 584 and Arnold v. 
North Carolina, 376 U. S. 773. Whether by statute or by 
administrative action, overtly or covertly, the unlawful 
discrimination has been flushed out and condemned. “I f 
there has been discrimination, whether accomplished in­
geniously or ingenuously, the conviction cannot stand” 
Smith v. Texas, 311 U. S. 128, 132. Abuse of the peremp­
tory challenge system presents systematic exclusion of 
Negroes from juries in a somewhat altered form; never­
theless, the discrimination is substantial and poses the 
same danger to “basic concepts of a democratic society 
and a representative government.” Smith v. Texas, 311 
U. S. 128, 130. The decisions of this Court do not say 
that Negroes may be systematically excluded by state ac­
tion from jury service as long as they are called for jury 
service. The constitutional duty of state officers is clear 
and unequivocal: “not to pursue a course of conduct in 
the administration of their office which would operate to 
discriminate in the selection of jurors on racial grounds.” 
Hill v. Texas, 316 U. S. 400, 404; see also Hamilton v. 
Alabama, 376 U. S. 650; Napue v. Illinois, 360 U. S. 204; 
Anderson v. Martin, 375 U. S. 399. The equal protection 
clause demands no less than recognition that Negroes may 
not be systematically excluded by the state from jury ser­
vice simpliciter. Carter v. Texas, 177 U. S. 442, 447; 
Norris v. Alabama, 294 U. S. 587, 589; Patton v. Missis­
sippi, 332 U. S. 463, 466; Hernandez v. Texas, 347 U. S. 
475, 479; and Eubanks v. Louisiana, 356 U. S. 584, 585, 587.

To permit the insulation of abuses of peremptory chal­
lenges from judicial scrutiny would be an exaltation of



18

form over substance so mischievous as to seriously weaken 
the administration of justice in this country; it would 
encourage state officials to accomplish by indirection what 
they have been carefully taught by this Court over the last 
85 years is forbidden by the equal protection clause of the 
Fourteenth Amendment.

By denying the coram nobis petition, the Supreme Court 
of Alabama failed to understand this Court’s opinion in 
Swain v. Alabama, supra, which expressly provides for 
petitioner to seek relief if he proves systematic Negro 
exclusion by means of the prosecutor’s peremptory strikes. 
If the Alabama Supreme Court misreads this Court’s 
opinion in Swain, supra, there is every reason to expect 
that a United States District Court on habeas corpus may 
do likewise. Thus, this Court should grant certiorari to 
free the matter from doubt rather than remitting petitioner 
to an uncertain and probably futile habeas forum.



19

n.
Petitioner Was Denied Rights Under The Constitu­

tion When (A ) Denied The Opportunity To Offer 
Proof Of Racial Application Of The Death Penalty In 
Alabama And (B ) The Jury Which Convicted And 
Sentenced Him Had Unfettered Discretion To Impose 
Capital Punishment For All Offenses Of Rape— In The 
Absence of Aggravating Circumstances, Permitting 
Cruel And Unusual Punishment.

A. Petitioner’s Equal Protection Contention Which The Court 
Below Wrongly Refused To Permit Him To Establish 
Presents An Important Question For Consideration By 
This Court On Certiorari.

Seventeen American States retain capital punishment 
for rape. Nevada permits imposition of the penalty only 
if the offense is committed with extreme violence and 
great bodily injury to the victim;8 the remaining sixteen 
jurisdictions—which allow their juries absolute discretion 
to punish any rape with death—are all southern or border 
states.9 The federal jurisdiction and the District of

8 Nev. Rev. Stat. §200.360 (1963). See also §200.400 (aggravated as­
sault with intent to rape).

9 The following sections punish rape or carnal knowledge unless other­
wise specified. Ala. Code §§14-395, 14-397, 14-398 (Recomp. Vol. 1958); 
Ark. Stat. Ann. §§41-3403, 432153 (1964 Repl. Y o ls .); see also §41-3405 
(administering potion with intent to rape) ; §41-3411 (forcing marriage); 
Fla. Stat. Ann. §794.01 (1964 Cum. S u pp.); Ga. Code Ann. §§26-1302, 
26-1304 (1963 Cum. S u pp.); Ky. Rev. Stat. Ann. §435.090 (1963); La. 
Rev. Stat. Ann. §14:42 (1950) (called aggravated rape but slight force 
is sufficient to constitute offense; also includes carnal knowledge); Md. 
Ann. Code, art. 27, §§461, 462 (1957); see also art. 27, §12 (assault with 
intent to rape) ; Miss. Code Ann. §2358 (Recomp. Vol. 1956); Vernon’s 
Mo. Stat. Ann. §559.260 (1953); N. C. Gen. Stat. §14-21 (Recomp. Vol. 
1953); Okla. Stat. Ann., tit. 21, §§1111, 1114, 1115 (1958); S. C. Code 
Ann. §§16-72, 16-80 (1962) (includes assault with attempt to rape as



20

Columbia, with its own strong southern traditions, also 
allow the death penalty for rape.10

Between 1930 and 1962, the year in which petitioner 
was sentenced to die, 446 person were executed for rape 
in the United States. Of these, 399 were Negroes, 45 
were whites, and 2 were Indians. All were executed in 
Southern or border States or the District. The per­
centages—89.5% Negro, 10.1% white—are revealing when 
compared to similar racial percentages of persons executed 
during the same years for murder and other capital 
offenses. Of the total number of persons executed in the 
United States, 1930-1962, for murder, 49.1% were Negro; 
49.7% were white. For other capital offenses, 45.6% 
were Negro; 54.4% were white. Louisiana, Mississippi, 
Oklahoma, Virginia, West Virginia and the District of 
Columbia never executed a white man for rape during 
these years. Together they executed 66 Negroes. Arkan­
sas, Delaware, Florida, Kentucky and Missouri each 
executed one white man for rape between 1930 and 1962. 
Together they executed 71 Negroes. Putting aside Texas 
(which executed 13 whites and 66 Negroes), sixteen 
Southern and border States and the District of Columbia 
between 1930 and 1962 executed 30 whites and 333 Negroes 
for rape; a ratio of better than one to eleven. Clearly, 
unless the incidence of rape by Negroes is many times 
that of rape by whites, capital punishment for rape

well as rape and carnal knowledge); Tenn. Code Ann. $§39-3702, 39-3703, 
39-3704, 39-3705 (1955); Tex. Pen. Code Ann., arts. 1183, 1189 (1961); 
Va. Code Ann. $18.1-44 (Repl. Vol. 1960); see also $18.1-16 (attempted 
rape).

10 18 U. S. C. $2031 (1964) ; 10 U. S. C. $920 (1964); D. C. Code Ann. 
$22-2801 (1961).



21

survives in the twentieth century principally as an instru­
ment of racial repression.11

11 The figures in this paragraph are taken from United States Depart­
ment of Justice, Bureau o f Prisons, National Prisoner Statistics, No. 32; 
Executions, 1962 (April 1963). Table 1 thereof shows the following 
executions under civil authority in the United States between 1930 and 
1962:

Murder

Total White Negro Other
Number ............... 3298 1640 1619 39
Per cent ............. 100.0 49.7

Rape

49.1 1.2

Total White Negro Other
Number ............... 446 45 399 2
Per Cent ............. . 100.0 10.1 

Other Offenses

89.5 .04

Total White Negro Other
Number ............... 68 37 31 0
Per Cent ............. 100.0 54.4 45.6 0.0

Table 2 thereof shows the following executions under civil authority in
the United States between 1930 and 1962, for the offense of rape, by State:

White Negro Other
Federal ........... ............  2 0 0
Alabama........... ............  2 20 0
Arkansas ......... ............  1 17 0
Delaware ......... ............  1 3 0
District o f Columbia ................  0 2 0
Florida ............. ............  1 35 0
Georgia ........... ............  3 58 0
Kentucky ......... ............  1 9 0
Louisiana ......... ............  0 17 0
Maryland ......... ............  6 18 0
Mississippi....... ............  0 21 0
Missouri ........... ......... . 1 7 0
North Carolina ...........  4 41 2
Oklahoma......... ............ 0 4 0
South Carolina ............ 5 37 0
Tennessee......... ............  5 22 0
Texas ............... ...........  13 66 0
Virginia ........... ...........  0 21 0
West Virginia ...........  0 1 0

45 399 2



22

If this be so—if the racially unequal results in these 
States derive from any cause which takes account of 
race as a factor in meting out punishment—a Negro 
punished by death is denied, in the most radical sense, 
the equal protection of the laws.12 One of the cardinal 
purposes of the Fourteenth Amendment was the elimina­
tion of racially discriminatory criminal sentencing. The 
first Civil Rights Act of April 9, 1866, ch. 31, § 1, 14 Stat. 
27, declared the Negroes citizens of the United States 
and guaranteed that “ such citizens, of every race and 
color , . . . shall be subject to like punishment, pains, and 
penalties [as white citizens], and to none other, any law, 
statute, ordinance, regulation, or custom, to the contrary 
notwithstanding.” The Fourteenth Amendment was de­
signed to elevate the Civil Rights Act of 1866 to constitu­
tional stature. See e.g., tenBroek, Thirteenth Amendment 
to the Constitution of the United States, 39 Calif. L. Rev. 
171 (1951); Fairman, Does the Fourteenth Amendment 
Incorporate the Bill of Rights, 2 Stan. L. Rev. 5 (1949). 
The Enforcement Act of May 31, 1870, ch. 114, §§ 16, 18, 
16 Stat. 140, 144, implemented the Amendment by reenact­
ing the 1866 act and extending its protection to all persons. 
Fhis explicit statutory prohibition of racially discrimina­

The contention that racially discriminatory application o f the death 
penalty in rape cases denies equal protection has been raised in a number 
of cases now pending in state and federal courts, including this Court.
See^e.g., Maxwell v. Stephens,------ F. 2 d -------- (8th Cir., decided June 30,
1965), petition for Writ of Certiorari pending No. 429, October Term, 
1965; Mitchell v. Stephens, 232 F. Supp. 497, 507 (E. D. Ark. 1964) 
appeal pending; Moorer v. MacDougall, U. S. Dist. Ct„ E. D. S. C., No! 
AC-1583, petition for writ o f habeas corpus pending; Aaron v. Holman, 
U. S. Dist. Ct., M. D. Ala., C. A. No. 2170-N, proceedings on petition for 
writ o f habeas corpus stayed pending exhaustion of state remedies July 
2, 1965; Alabama v. Billingsley, Cr. Ct. Etowah County, No. 1159, motion 
for new trial and motion for reduction of sentence pending; Craig v 
Florida, Sup. Ct. Fla., No. 34,101, appeal from denial of motion for re­
duction of sentence pending; Louisiana ex rel. Scott v. Hanchey, 20th Jud. 
Dist. Ct., Parish of West Feliciana, petition for habeas corpus pending.



23

tory sentencing survives today as Rev. Stat. §1977 (1875), 
42 U. S. C. §1981 (1964).

For purposes of the prohibition, it is of course im­
material whether a State writes on the face of its statute 
books: “Rape shall be punishable by imprisonment . . ., 
except that rape by a Negro of a white woman, or any 
other aggravated and atrocious rape, shall be punishable 
by death by electrocution,” or whether the State’s juries 
read a facially color-blind statute to draw the same racial 
line. Discriminatory application of a statute fair upon 
its face is more difficult to prove, but no less violates the 
State’s obligation to afford all persons within its juris­
diction the equal protection of the laws. E.g., Yick Wo v. 
Hopkins, 118 U. S. 356 (1886); Niemotko v. Maryland, 
340 U. S. 268 (1951) (alternative ground); Fowler v. 
Rhode Island, 345 U. S. 67 (1953); Hamilton v. Alabama, 
376 U. S. 650 (1964) (per curiam).13 And it does not 
matter that the discrimination is worked by a number of 
separate juries functioning independently of each other, 
rather than by a single state official. However, it may 
divide responsibility internally, the State is federally 
obligated to assure the equal application of its laws.14 * 
This Court has long sustained claims of discriminatory

13 It is also immaterial whether a State imposes different penalties for 
classes of cases defined in terms of race, or whether it imposes a penalty 
of death in all cases of a given crime, subject to the option of the jury 
in some racially defined sub-class of the cases. The Fourteenth Amend­
ment’s obligation of equality extends not only to those “rights” which a 
State is federally compelled to give its citizens, but also to any benefits 
the State may choose to give any class of them, however gratuitously. 
Brown v. Board of Education, 347 U. S. 483 (1954); Watson v. City of 
Memphis, 373 U. S. 526 (1963) ; McLaughlin v. Florida, 379 U. S. 184.

14 Execution by the State of the death sentence which it has given juries
discretion to impose clearly provides that “ interplay of governmental and 
private action,”  N.A.A.C.P. v. Alabama, 357 U. S. 449, 463 (1958), quoted 
in Anderson v. Martin,..375 U. S. 399, 403 (1964), which makes the State 
responsible for the discrimination. Shelley v. Kraemer, 334 U. S. 1 (1948).



24

jury exclusion upon a showing of exclusion continuing 
during an extended period of years, without inquiry 
whether the same jury commissioners served throughout 
the period. See e.g., Neal v. Delaivare, 103 U. S. 370 
(1881); Bush v. Kentucky, 107 U. S. 110 (1882); Hernandez 
v. Texas, 347 U. S. 475 (1954). Congress, when it enacted 
the 1866 Civil Rights Act knowing that “In some com­
munities in the South a custom prevails hy which different 
punishment is inflicted upon the blacks from that meted 
out to whites for the same offense,” 15 intended precisely 
by the Act, and subsequently by the Fourteenth Amend­
ment, to disallow such “custom” as it operated through 
the sentences imposed hy particular judges and juries.16

Because Alabama has foreclosed petitioner’s opportunity 
to establish racially discriminatory application of the 
death penalty by denial of his coram nobis petition, the 
only question is whether his allegations are reasonable 
and sufficient if true to state a constitutional violation. 
Pennsylvania ex rel. Herman v. Clandy, 350 TJ. S. 116; 
Coleman v. Alabama, 377 U. S. 129,133; Taylor v. Alabama, 
335 U. S. 252.

Examination of petitioner’s cor am nobis petition reveals 
distinct, precise and positive allegations which place 
beyond question petitioner’s reliance on a substantial 
claim under the equal protection clause. Petitioner is a 
Negro:

Who is charged with the rape of a white woman 
and sentenced to death for that crime in the State

15 Cong. Globe, 39th Cong., 1st Sess. 1758 (4/4/1866) (remarks of 
Senator Trumbull, who introduced, reported and managed the bill which 
became the act).

16 See the text o f the act supra; see also, e.g., Cong. Globe, 39th Cong., 
1st Sess. 475 (1/29/1866), 1759 ( 4/4/1866) (remarks of Senator Trum­
bull).



25

of Alabama which State, its subdivisions, instrumen­
talities, officers and agents, through policy, practice, 
custom and usage, arbitrarily and discriminatorily 
imposes the death penalty against Negroes charged 
with the crime of rape against white women but does 
not impose this same penalty against white men 
charged with the crime of rape in similar circum­
stances (4a).

United States Census statistics show that Alabama’s 
population from 1930 to the present consisted of a non­
white population ranging from 30.1% to 35.7%. Between 
1930 and 1964 the State executed 134 persons of whom 
107 or 79.8% were Negroes and 27 or 20.2% were white. 
As of March 17, 1965, 18 persons were committed to Kilby 
Prison awaiting execution of whom 11 were Negroes and 
seven were white. During this 24 year period, 1930-1964, 
the State executed 22 persons for the crime of rape of 
whom 20 or 90.9% were Negroes and two or 9.1% were 
white. Two persons presently committed to Kilby Prison 
awaiting execution for the crime of rape are both Negroes.

To the extent records on file in the Supreme Court of 
Alabama, involving execution for rape indicate the race 
of the victim they show that for the crime of rape, the 
victim of the crime was a white woman in every case.17

17 Eleven of the cases reveal the race of the victim expressly. In five 
other cases in which Negroes were executed for the crime of rape, infor­
mation in the record leads to a fair inference that the victim was white. 
In five of the cases resulting in the execution of Negroes for the crime of 
rape, the transcript of trial does not disclose the race of the victim. In 
the only two cases resulting in the execution of white persons for the crime 
of rape, there is information in the record on file in the Supreme Court 
of Alabama from which the inference may be fairly drawn that the victim 
o f the crime was white. The docket numbers, dates o f decision or cita­
tion of these cases are set forth in the petition. The two men presently 
awaiting execution in Kilby Prison both have been convicted of the rape 
of a white woman. One is petitioner in this case, and the other is



26

The petition expressly alleges that “ the gross disparity 
shown above between the proportion of Negroes in the 
population and the proportion of Negroes sentenced to 
death and executed for the crime of rape is the result 
of a racially discriminatory system of justice and is not 
explainable of other factors reasonably related to the ra­
tional system of imposing sentence” and that “ Negroes 
have been sentenced to death for crimes which if com­
mitted by persons of the white race would not have re­
sulted in imposition of the death penalty” (14a). Peti­
tioner offered to prove that race is the sole explanation 
for the grossly disproportionate number of Negro execu­
tions for rape by reference to judicial records and the 
testimony of attorneys in rape cases in all counties of 
Alabama or a representative sample of Alabama counties 
(14a), and sought a “hearing with opportunity to prove 
his allegations with the benefit of compulsory process of 
witnesses, production of records, examination and cross- 
examination of witnesses” (14a).

Petitioner should be accorded an opportunity to estab­
lish these substantial allegations. Several considerations 
support the holding.

First, the hypothesis of racial discrimination is par­
ticularly likely in view of the coincidence between the 
Alabama figures and those of the other jurisdictions— 
all southern—which have executed persons for rape dur-

Drewey Aaron, Jr., a Negro also convicted of the rape of a white woman. 
See Aaron v. State o f Alabama, 273 Ala. 337, 139 So. 2d 309, 1961. In 
the only other case known to the petitioner of defendants presently under 
sentence of death for the crime of rape in Alabama, three men were sep­
arately tried, convicted and sentenced to death for the crime of rape 
against a white woman in Etowah County. Motions for new trial and for 
reduction of sentence are pending in the cases of Alabama v. Billingsley, 
Jr., Cir. Ct., No. 743; Alabama v. Butler, Cir. Ct., No. 744; Alabama v. 
Liddell, Cir. Ct., No. 745.



27

ing the past thirty years. For all jurisdictions, the Negro- 
white ratio is nine to one— although for other crimes 
than rape it is about one to one. Studies and observa­
tions by students of the criminal process tend to support 
the hypothesis of discrimination. E.g. Bullock, Significance 
of the Racial Factor in the Length of Prison Sentences, 
52 J. Crim. L., Crim. & Pol. Sci. 411 (1961); Wolfgang, 
Kelly & Nolde, Comparison of the Executed and the 
Commuted Among Admissions to Death Row, 53 J. Crim. 
L., Crim. & Pol. Sci. 301 (1962); Hartung, Trends in the 
Use of Capital Punishment, 284 Annals 8, 14-17 (1952); 
Weihofen, The Urge to Punish 164-165 (1956).

Second, Alabama Law has long accorded differential 
treatment in sexual matters on the basis of race. The 
Alabama Constitution prohibits the legislature from per­
mitting interracial marriages. Ala. Const. § 102. Marriage, 
adultery and fornication between Negroes and whites are 
felonies and an officer issuing a license for an interracial 
marriage commits a misdemeanor. Ala. Code Ann. Tit. 
14, § 360-61. In addition, Alabama public policy still sup­
ports segregation of the races and the statute books of 
the state still carry provisions which enforce segregation. 
See Ala. Code Ann. Tit. 48, §§ 186, 196, 464 (intrastate 
buses); Tit. 46, §189 (hospitals); Tit. 45, § 248 (schools 
for the mentally deficient); Tit. 51, §244 (poll books must 
indicate race). See also Lee v. Macon County Board of 
Education, 231 F. Supp. 743 (M. D. Ala. 1964); Carr v. 
Montgomery County Board of Education, 232 F. Supp. 715 
(M. D. Ala. 1964).

Third, the absolute discretion which Alabama law gives 
jurors to decide between life and death, undirected by any 
rational standards for making that decision, see part 
11(B), infra, invites the influence of arbitrary and dis­
criminatory considerations. This Court has long been con­



cerned with a vagueness of criminal statutes which “ licenses 
the jury to create its own standard in each case.” 18 Hern­
don v. Lowry, 301 U. S. 242, 263 (1937), See, e.g., Smith, 
v. Cahoon, 283 U. S. 553 (1931) ;  Cline v. Frink Dairy Co., 
274 U. S. 445 (1927); Connolly v. General Construction Co., 
269 U. S. 385 (1926); Winters v. New York, 333 U. S. 507 
(1948). The vice of such statutes is not alone their failure 
to give fair warning of prohibited conduct, but the breadth 
of room they leave for jury caprice and suasion by imper­
missible considerations, N.A.A.C.P. v. Button, 371 U. S. 
415, 432-433 (1963); Freedman v. Maryland, 380 U. S. 51, 
56 (1965); Lewis, the Sit-In Cases: Great Expectations, 
[1963] Supreme Court Review 101, 110; Note 109 U. Pa. 
L. Rev. 67, 90 (1960), including racial considerations, see 
Louisiana v. United States, 380 U. S. 145 (1965); Dom- 
browski v. Pfister, 380 U. S. 479 (1965); Cox v. Louisiana, 
379 U. S. 536 (1965). Unlimited sentencing discretion in 
a capital jury presents this vice in the extreme. To para­
phrase Burstyn v. Wilson, 343 U. S. 495, 505 (1952): “ Un­
der such a standard the most careful and tolerant [lay 
juror] . . . would find it virtually impossible to avoid 
favoring one [race] . . . over another.”

1 etitioner requests the Court to grant certiorari, that 
it may review and reverse the judgment of the Supreme 
( ourt of Alabama which denies petitioner’s right to demon-

*S l lle Petition alleges deprivation of petitioner’s rights in that (a) his 
sentence to death was determined by a jury which had unlimited, un­
directed and unreviewable discretion in choice of sentence to impose any 
penalty between a term of 10 years to death, (b) no rational, fair, or 
uniform standards were set by the statute and the trial judge gave the 
jury no directions as to choosing among allowable sentences permitting the 
jury to consider discriminatory racial factors and (c) that the jury’s ver­
dict simultaneously determined his guilt and fixed the sentence at death 
( ep riving petitioner of the opportunity to present evidence in mitigation 
without taking the stand in his own defense and forfeiting the privilege 
of himself against self incrimination (4a-15a).



29

strate that he had been denied equal treatment in the most 
grievous penalty known to law. He seeks only a fair oppor­
tunity to demonstrate that his present incarceration under 
sentence of death is the product of a long continued and 
continuing system of discriminatory administration of jus­
tice operating in every gap of discretion left by the state’s 
written law to deny him equal treatment and subject him 
to extreme punishment which in practice is virtually never 
applied to the white man but is reserved as the ultimate 
weapon of terror to hold the Negro in his place. Peti­
tioner asks this Court to consider whether he has the right 
to demonstrate discrimination because of the Fourteenth 
Amendment’s overriding purpose to secure racial equality 
and because “ racial classifications [are] ‘constitutionally 
suspect’ . . . and subject to the ‘most rigid scrutiny.’ . . . ” 
MacLaughlin v. Florida, 379 U. S. 184, 192 (1964).

B. The Court Should Grant Certiorari To Consider Peti­
tioner’s Contention That His Sentence Is Unconstitutional 
Under The Eighth And Fourteenth Amendments.

Petitioner alleged that he was unconstitutionally sen­
tenced without consideration of aggravating or mitigating 
circumstances, pursuant to Title 14, §395 of the Alabama 
Code, which statute on its face and as applied prescribes 
the imposition of cruel and unusual punishment in vio­
lation of the Fourteenth Amendment (4a, 15a). This ques­
tion, which three Justices of the Court thought deserving 
of certiorari in Rudolph v. Alabama, 375 U. S. 889 (1963), 
has been deemed by both the Fourth and Eighth circuits 
as one which “must be for the Supreme Court in the first
instance.”  Maxicell v. Stephens,------  F. 2 d ------  (8th Cir.
decided June 30, 1965) petition for certiorari pending, No. 
429, October Term, 1965. The Fourth Circuit has taken 
the same view. Ralph v. Pepersack, 335 F. 2d 128, 141



30

(4th Cir. 1964). Petitioner respectfully requests the judg­
ment of the Court on the issue.

The question posed is not whether on any rational view 
which one might take of the purpose of criminal punish­
ment, the defendant’s conduct as the jury might have found 
it at its worst could support a death sentence consistent 
with civilized standards for the administration of criminal 
law. For here the issue of penalty was submitted to the 
jury in their unlimited discretion under Alabama pro­
cedure. Their attention was directed to none of the pur­
poses of criminal punishment, nor to any aspect or aspects 
of the defendant’s conduct as they related to imposition 
of sentence.

The charge of the trial judge to the jury which con­
victed petitioner set forth the elements of the crime of rape 
and the evidence which must be found to convict but as 
to sentence merely stated:19

As I have told you, the punishment for the crime of 
rape is either death or imprisonment in the peniten­
tiary for not less than 10 years. The limit is on the 
minimum sentence and not on the maximum.

The jury was not invited to consider the extent of physical 
harm to the prosecutrix, the moral heinousness of the de­
fendants’ acts, his susceptibility or lack of susceptibility 
to reformation, the extent of the detrrent effect of killing 
the defendant “ pour decourager les autres.” Cf. Packer, 
Making the Punishment Fit the Crime, 77 Harv. L. Rev. 
1071 (1964). They were permitted to choose between life 
and death upon conviction for any reason, rational or ir- 
i ational, or for no reason at a ll: at a whim, a vague

19 See p. 361 certified record on file with the Court in Swain v. Alabama, 
380 IT. S. 202.



31

caprice, or because of the color of petitioner’s skin if that 
did not please them. In making the determination to im­
pose the death sentence, they acted wilfully and unreview- 
ably, without standards and without direction. Nothing as­
sured that there would he the slightest thread of connection 
between the sentence they exacted and any reasonable jus­
tification for exacting it. Cf. Skinner v. Oklahoma, 316 
U. S. 535 (1942). A judgment so unconfined, so essentially 
erratic, is per se cruel and unusual because it is purposeless, 
lacking in any relationship by which its fitness to the of­
fense, or to the offender or to any legitimate social pur­
pose may be tested. It is cruel not only because it is 
extreme but because it is wanton; and unusual not only 
because it is rare, but because the decision to remove the 
defendant from the ordinary penological regime is arbi­
trary. To concede the complexity and interrelation of sen­
tencing goals, see Packer, supra, is no reason to sustain 
a statute which ignores them all. It is futile to put for­
ward justifications for a death so inflicted; there is no 
assurance that the infliction responds to the justification 
or will conform to it in operation. Inevitably under such 
a sentencing regime, capital punishment in those few, ar­
bitrarily selected cases where it is applied both is “  ‘dis- 
proportioned to the offenses charged’ ” and constitutes 
“ ‘unnecessary cruelty.’ ” Rudolph v. Alabama, supra, 375 
U. S. at 891.20

20 The United States Department of Justice has taken the following 
position on continued imposition of the death penalty: “ We favor the 
abolition of the death penalty. Modern penology with its correctional and 
rehabilitation skills affords greater protection to society than the death 
penalty which is inconsistent with its goals. This Nation is too great in 
its resources and too good in its purposes to engage in the light of present 
understanding in the deliberate taking of human life as either a punish­
ment or a deterrent to domestic crime.”  Letter of Deputy Attorney Gen­
eral Ramsey Clark to the Honorable John L. McMillan, Chairman, District 
o f Columbia Committee, House of Representatives, July 23, 1965, reported 
in New York Times, July 24, 1965, p. 1, col. 5.



32

III.

Petitioner Was Denied Rights Under The Fifth And 
Fourteenth Amendments When The Circuit Solicitor 
Was Permitted To Comment On His Failure To Take 
The Stand.

The constitutional privilege against self-incrimination, 
which is available in state as well as federal proceedings, 
Malloy v. Hogan, 378 U. S. 1, includes the right of a crim­
inal defendant to be free from “ comment by the prosecu­
tion on the accused’s silence or instructions by the court 
that such silence is evidence of guilt.” Griffin v. California, 
380 U. S. 609. In Griffin, the Court held that the standards 
imposed upon federal courts and prosecutors by 18 
lT. S. C. §3841, prohibiting such comment, reflect “ the 
spirit of the Self-Incrimination Clause.” 380 U. S. at 
613-614. In Wilson v. United States, 149 U. S. 60, 65 the 
leading case under §3841, the Court stated: “ Comment, 
especially hostile comment, upon such failure must neces­
sarily be excluded from the jury. The minds of the jurors 
can only remain unaffected from this circumstance by 
excluding all reference to it.” Further, “ Counsel is for­
bidden by the statute to make any comment which would 
create or tend to create a presumption against the defen­
dant for his failure to testify.” 149 U. S. at 67.

During his summation to the jury, the circuit solicitor 
stated:

Gentlemen, do you think we have proved these three 
elements? I submit to you it is not denied, there is 
not a word come from this stand that denied the 
charge of rape. Now the only question that the de­
fendant has raised here by his attorneys is the ques­
tion of identify [sic]. (Tr. 354; App. p. 7a.)21

Objection to these remarks was made by defendant’s counsel and 
overruled. An exception was reserved (Tr. 355).



33

This was unfair comment on petitioner’s exercise of his 
constitutional right to remain silent and rely on the pre­
sumption of innocence. The Supreme Court of Alabama, 
affirming the conviction, held that the solicitor’s remarks 
did not violate Alabama’s statute forbidding comment, 
Ala. Code, Tit. 15, §305, because they merely stated that 
the evidence was uncontradicted or undenied. Swain v. 
Alabama, 275 Ala. 508, 156 So. 2d 368, 378 (1963).22 How­
ever, the solicitor did not merely state that evidence was 
uncontradicted; he said that no word of denial had come 
from the stand, in obvious reference to the defendant.

The comment alone is enough to invalidate petitioner’s 
conviction under Griffin v. California, but it need not be 
considered alone. Not content with allusion to petitioner’s 
failure to testify, the solicitor proceeded to attack him as 
a bootlegger without any justification in the record23 and 
to arouse racial antagonism before the all-white jury. His 
earthy description of the crime, with its patent racial 
overtones,24 not only raises a question of elemental fair­

22 Affirmance by the Supreme Court o f Alabama preceded this Court’s 
decision in Malloy v. Hogan and Griffin v. California.

23 ‘‘Mr. Hollingsworth: Think what it has done to that child’s life. 
When will she ever forget the day of February 7, 1962, when a bootlegger 
was riding the road and decides he wants to stop and rape somebody in 
that community right near the county line.

Mr. H all: I f  your Honor please, we object to the use of the term ‘boot­
legger’ . We don’t recall any testimony, any evidence coming from this 
witness stand that this man was a bootlegger.

The Court: I ’ll sustain the objection and I ’ll instruct the jury not to 
consider it.

Mr. Hall: We move for a mistrial, your Honor.
The Court: I ’ll overrule the motion for a mistrial.
Mr. Hall: We take exception.
Mr. Hollingsworth: The way I understand it, he said he was going to 

get a load from Opelika”  (Tr. 354).

24 “ Do you think this young lady, Jimmie Sue Butterworth, consented 
to have this defendant have that rough and rugged intercourse where this 
impact against her body caused loose hairs to come out of his privates? 
You gentlemen know the way a colored person— you have seen them, you



34

ness of the trial, see, Viereck v. United States, 318 U. S. 
236; Ross v. United States, 180 F. 2d 160 (6th Cir. 1950), 
but shows that the solicitor’s remarks constituted “ hostile 
comment” on petitioner’s failure to testify. See Wilson v. 
United States, 149 U. S. at 65.

IV.

Petitioner Was Deprived Of Due Process Of Law 
And Equal Protection Of The Laws In Violation Of 
The Fourteenth Amendment Because Women Were 
Systematically Excluded From The Juries Which In­
dicted And Tried Him.

The grand jury which indicted petitioner and the trial 
jury which convicted and sentenced him were chosen pur­
suant to Ala. Code Ann., Tit. 30, §21 which confines jury 
service to males over twenty-one years of age. By exclud­
ing the female population of Talladega County from any 
participation in the jury system, Alabama has discrim­
inated on the basis of sex in violation of petitioner’s Four­
teenth Amendment right to an impartial jury selected from 
a cross-section of the community.

In Hoyt v. Florida, 368 U. S. 57, the Court affirmed the 
conviction of a woman for second degree murder in the 
face of her claim that Florida excluded women from jury 
service in violation of the Fourteenth Amendment. The 
Court found that Florida had not arbitrarily undertaken

have seen their hair. \ou know, gentlemen, it is coarse. You know that 
it is rough. You know from your own experience with everyday life that 
when any two forces meet each other and that there is a rubbing or bang­
ing there there are going to be hairs lost. Most o f you men are married 
men. You have had everyday experiences. You know from your own 
knowledge that people shed hairs and they lose them, but gentlemen how 
many of you if they took us out and shook our clothes would find negroid 
hairs falling from our privates?” (Tr. 355-56).



35

to exclude women from jury service because the state 
granted women an automatic exemption, subject to service 
on a voluntary basis. The Chief Justice, Mr. Justice 
Black and Mr. Justice Douglas concurred upon finding a 
“good faith effort to have women perform jury duty with­
out discrimination on the basis of sex.” Id. at 69. The 
Court expressly reserved decision of whether a state may 
confine jury duty to males consistent with the Fourteenth 
Amendment. Id. at p. 60. Cf. Strauder v. West Virginia, 
101 U. S. 303, 310.

Alabama is one of three states which exclude women 
from jury service by statute.25 In the remaining states 
women either serve on the same basis as men or are granted 
an exemption based on their sex; of these, two states, other 
than Florida, grant an exemption which is automatic, un­
less a woman volunteers for service. Hoyt, Id. at p. 62. 
The Court in Hoyt recognized that the “Fourteenth Amend­
ment reaches not only exclusion of a class from jury ser­
vice based on race, but also any other exclusions which 
‘single out’ any class of persons ‘for different treatment 
not based on some reasonable classification’, Hernandez v. 
Texas, 347 U. S. 475, 478.” Id. at p. 60.

The question before the Court is, therefore, whether 
total exclusion of women from jury service is an arbitrary 
exclusion not based on a reasonable classification. In con­
sidering this question, it is at first apparent that dic­
tum in Strauder v. West Virgina, 101 U. S. 303, 310, to 
the effect that a state may constitutionally confine jury 
duty to males is scant authority for exclusion of women 
at the present time. In the 80 years since Strauder, the 
status of women and the character of female participation 
in society has been drastically altered. To name two ob­
vious examples, the right to vote and to obtain employ­

25 See Miss. Code Ann. 1942 (Recompiled Vol. 1958), 51762; South 
Carolina Code 1952, 5538-52.



36

ment no longer may be abridged on the basis of sex. U. S. 
Const. Amend. XIX(1920); 42 U. S. C. §2000(e)(2).

There is no apparent reason why women are any less 
qualified to render service as jurors than men. Perhaps 
the only justification for their exclusion, one may suggest, 
is that women are more likely to have family responsibil­
ities which make jury serivce a hardship; but granting 
the premise, the conclusion that women may be declared 
ineligible for jury service as is the ease in Alabama, Mis­
sissippi, and South Carolina does not follow. The regis­
tration procedure approved in Hoyt v. Florida, supra, as 
well as the practice of granting an absolute exemption to 
women which is now employed by 17 states present an 
appropriate manner in which the states’ interest in miti­
gating hardships flowing from jury service may be met.

Petitioner, a male, has standing to challenge the total 
exclusion of women from jury service in Alabama. First, 
he is entitled to a jury impartially drawn from a cross- 
section of the community. See Smith v. Texas, 311 U. S. 
128. A jury system which excludes women certainly does 
not represent the attitudes and points of view of the com­
munity as a whole. See Allen v. State, 137 S. E. 2d 711, 
110 Ga. App. 56 (1964) (white may complain of Negro 
exclusion from jury). As the Court said in Ballard v. 
United States, 329 U. S. 187, 193-94:

The truth is that the two sexes are not fungible; a 
community made up exclusively of one is different 
from a community composed of both; the subtle in­
terplay of influence one on the other is among the 
imponderables. To insulate the courtroom from either 
may not in a given case make an iota of difference. 
Yet a flavor, a distinct quality is lost if either sex 
is excluded. The exclusion of one may indeed make



37

the jury less respesentative of the community than 
would be true if an economic or racial group were 
excluded.

Secondly, petitioner was charged and convicted of the 
crime of rape. Females certainly possess attitudes with 
respect to such a crime not possessed by men. The addi­
tion of their point of view makes the jury system as a 
whole more suitable to impartial evaluation of the evidence 
against petitioner than a jury chosen from males exclu­
sively. This is not to suggest that the scope of the right 
to an impartially selected jury entitles one accused of 
crime to a jury tailored to the circumstances of the particu­
lar case. Petitioner does not here ask for a jury favor­
able to him, but contends that a jury chosen by excluding 
women injures him by excluding a distinct class in the 
community, one which has a perspective more likely to, 
if included, help produce a jury system which renders 
impartial and unbiased verdicts and sentences.



38

Wherefore, 
prays that the

CONCLUSION

for the foregoing reasons, petitioner 
writ of certiorari be granted.

Respectfully submitted,

J ack  Greenberg

J am es M . N abrit , I I I
M ic h a e l  M eltsner

F ra n k  H effron

M elvyn  Z arr 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Orzell  B illin g sley , J r .
P eter A. H all

1630 Fourth Avenue North 
Birmingham, Alabama

A n t h o n y  (I. A m sterdam  
3400 Chestnut Street 
Philadelphia, Pa.

Attorneys for Petitioner



A P P E N D I X



APPENDIX

Judgment of the Supreme Court of Alabama

June 25, 1965

THE SUPREME COURT OF ALABAMA 

J udicial  D epartm ent  

O ctober T er m , 1964-65 

7th Div. 699

Ex parte:

R obert S w a in ,
Petitioner.

P etition  for L eave to F ile  P etition  for W rit of E rror 
C oram  N obis in  th e  C ircuit  C ourt of T alladega C o u n ty , 

A labam a  and P etition  for S tay  of E xecution

(Re: Robert Swain v. State)

The Petitions having been considered by the entire Court, 
after argument of counsel,

It Is Ordered that they are each hereby denied.

I, Richard W. Neal, Deputy Clerk of the Supreme Court 
of Alabama, do hereby certify that the foregoing is a full, 
true and correct copy of the instruments herewith set out 
as same appears of record in said Court.

Witness my hand this 25 day of June, 1965.

/ s /  R ichard  W. N eal 
R ichard  W. N eal 
Deputy Clerk,
Supreme Court of Alabama



2a

IN THE SUPREME COURT OF ALABAMA

Coram Nobis Petition

E x  P arte R obert S w ain

P etition for L eave to F ile  P etition  for W rit of E rror 
C oram N obis in th e  C ircuit  C ourt of T alladega C ounty

Now comes Robert Swain, by his attorneys, and re­
spectfully petitions for leave to file a petition for writ 
of error coram nobis in the Circuit Court of Talladega 
County, and in support of said petition, petitioner alleges 
as follows:

1. Petitioner was indicted and convicted for rape in 
the Circuit Court of Talladega County, Alabama. He was 
sentenced to death on June 12, 1962. Motion for new trial 
was overruled and appeal was taken to this Court, which 
affirmed the judgment of the Circuit Court on September 
5, 1963, Robert Swain v. State of Alabama, Special Term 
1963, 7 Div. 581, 275 Ala. 508, 156 So. 2d 368. On Sep­
tember 26, 1963, this Court overruled petitioner’s applica­
tion for rehearing. The United States Supreme Court 
granted a petition for writ of certiorari on April 27, 1964, 
Swain v. Alabama, 377 U.S. 915, and the judgment of this 
Court was affirmed by the United States Supreme Court 
on March 8, 1965, 85 S. Ct. 824, 13 L. ed. 2d 759. On May 
24, 1965, this Court ordered that the sentence of death 
be carried out on July 9, 1965.

2. The judgment and proceedings in the Circuit Court 
of Talladega County and on appeal to this Court appear



3a

of record in the files and minutes of this Court, and refer­
ence thereto is hereby made, and the same are asked to 
be treated as a part of this petition as if fully set out 
herein.

3. Petitioner respectfully shows that the judgment of 
this Court and of the Circuit Court of Talladega County 
were unlawfully and improperly taken against him in 
that:

(a) Petitioner, who is a Negro, was deprived of due 
process of law and equal protection of the laws as guar­
anteed by the Fourteenth Amendment to the Constitution 
of the United States by reason of systematic and arbitrary 
exclusion of Negroes from service on petit juries in the 
Circuit Court of Talladega County, as the result of a 
consistent and unvarying practice of the Circuit Solicitor, 
who during a period of twelve years always struck Negroes 
from the petit jury venire and sought or entered into 
agreements with defense counsel so that all Negroes would 
be struck at the outset of the jury selection procedure.

(b) Petitioner was deprived of due process of law and 
the equal protection of the laws as guaranteed by the 
Fifth and Fourteenth Amendments to the United States 
Constitution in that the Circuit Solicitor, during his argu­
ment before the jury, unfairly commented on petitioner’s 
failure to take the stand in his own defense.

(c) Petitioner was deprived of due process of law and 
the equal protection of the laws as guaranteed by the 
Fourteenth Amendment to the United States Constitution 
in that the Solicitor, during his summation argument be­
fore the jury, aroused racial prejudice and inflamed the 
minds of the jurors.

Coram  Nobis Petition



4a

(d) Petitioner was deprived of due process of law and 
the equal protection of the laws as guaranteed by the 
Fourteenth Amendment to the United States Constitution 
in that petitioner is a Negro who was charged with the 
rape of a white woman and sentenced to death for that 
crime in the State of Alabama, which State, its sub­
divisions, instrumentalities, officers, and agents through 
policy, practice, custom and usage arbitrarily and dis- 
criminatorily imposes the penalty of death against Negroes 
charged with the crime of rape against white women, but 
does not impose this same penalty against white men 
charged with the crime of rape in similar circumstances.

(e) Petitioner was deprived of due process of law and 
the equal protection of the laws in violation of the Four­
teenth Amendment to the United States Constitution in 
that his sentence of death was determined by a jury which 
pursuant to Title 14, § 395 of the Alabama Code had un­
limited, undirected and unreviewable discretion in choice 
of sentence.

(f) Petitioner was deprived of due process of law and 
the equal protection of the laws in violation of the Four­
teenth Amendment to the United States Constitution in 
that the jury’s verdict simultaneously determined his guilt 
and fixed the sentence at death, pursuant to Title 14, § 395 
of the Alabama Code, which does not establish any pro­
cedure allowing separate consideration of the issues of 
guilt and sentence.

(g) Petitioner was deprived of due process of law and 
the equal protection of the laws in violation of the Eighth 
and Fourteenth Amendments to the United States Con­
stitution in that he was sentenced to death for the crime 
of rape without consideration of aggravating or mitigat­

Coram Nobis Petition



ing circumstances, pursuant to Title 14, § 395 of the Ala­
bama Code, which statute on its face and as applied pre­
scribes the imposition of cruel and unusual punishment.

(h) Petitioner was deprived of due process of law and 
the equal protection of the laws as guaranteed by the 
Fourteenth Amendment to the United States Constitution 
in that, on the day he was apprehended by law enforce­
ment officials, he was not informed of his right to remain 
silent and to refuse to give evidence against himself, nor 
was he informed of his right to confer with counsel, nor 
was he provided counsel so that he might be informed of 
his right to remain silent and to refuse to give evidence 
against himself; but, instead, he was required against his 
will and without the advice of counsel to remove his cloth­
ing and subject himself to the taking of photographs in 
the nude and to the combing of his pubic hairs by the state 
toxicologist, and was forced to surrender his clothing to 
the custody of the state toxicologist, all of which resulted 
in the introduction and admission of prejudicial and in­
criminating evidence at his trial.

(i) Petitioner was deprived of due process of law and 
the equal protection of the laws in violation of the Four­
teenth Amendment to the United States Constitution in 
that he was given no opportunity to prove that he did 
not voluntarily submit to the surrender of his clothing, 
the photographing of his nude body and the combing of 
his pubic hairs, but instead the jury decided the issue 
of voluntariness simultaneously with its determination of 
his guilt.

(j) Petitioner was deprived of due process of law and 
the equal protection of the laws in violation of the Four­
teenth Amendment to the United States Constitution in

5a

Coram Nobis P etition



6a

that women were excluded from service on the grand and 
petit juries pursuant to Title 30, § 21 of the Alabama 
Code, which statute makes women ineligible for jury 
service.

4. In support of subdivision (a) of paragraph 3, peti­
tioner shows the Court as follows:

No Negro served on a petit jury in Talladega County 
between 1950 and the date of petitioner’s trial in 1962 in 
either a civil or criminal case. Petitioner offers to prove 
that the Circuit Solicitor of Talladega County was re­
sponsible for the total absence of Negroes on petit juries 
in criminal cases in that he consistently struck all Negroes 
remaining on the venire if he was unable to obtain the 
agreement of defense counsel to the elimination of Negro 
venireman. The United States Supreme Court indicated 
in its opinion in this case that such a practice, if proved, 
would constitute a violation of the Fourteenth Amendment, 
Swam v. Alabama, 13 L. ed. 2d 774.

Petitioner is unable to present proof of the above allega­
tion by affidavit at this time. The individual best able to 
execute an affidavit supporting this allegation is the Circuit 
Solicitor, Hon. W. E. Hollingsworth, Jr., who represented 
the State of Alabama at the trial of this case and who is 
adverse to the interests of petitioner. Moreover, this is 
the type of issue which can only be decided after a full 
hearing with compulsory process, examination and cross- 
examination of witnesses.

The United States Supreme Court held in this case 
that the issue presented by petitioner’s allegations had not 
been adequately heard, and petitioner respectfully requests 
a full evidentiary hearing on this issue before this Court 
or before the Circuit Court of Talladega County.

Coram N obis Petition



5. In support of subdivision (b) of paragraph 4, peti­
tioner shows the Court as follows:

At the trial of this ease, during his argument before 
the jury, the Circuit Solicitor made the following state­
ments :

Gentlemen, do you think we have proved these tree 
elements! I submit to you it is not denied, there 
is not a word come from this stand that denied the 
charge of rape. We have proved it to you, gentlemen, 
beyond a reasonable doubt that this prosecuting wit­
ness was raped. Now the only question that the de­
fendant has raised here by his attorneys is the ques­
tion of identify [sic]. (Transcript, p. 354)

This Court held on appeal of this case that such state­
ment did not violate Alabama Code 1940, Tit. 15, § 305, 
as amended by Act No. 124, app’vd June 23, 1949, Acts 
1949, p. 150. Robert Swain v. State of Alabama, 275 Ala. 
508, 156 So. 2d 368, 378. Since this Court’s decision, the 
Supreme Court of the United States has held that the 
privilege against self-incrimination guaranteed by the Fifth 
Amendment to the United States Constitution is applica­
ble to proceedings in the state courts under the Fourteenth 
Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489 
(1964). Subsequently, the United States Supreme Court 
held that comment by either judge or prosecuting attorney 
on the defendant’s failure to take the stand in a state court 
trial violates the Fifth and Fourteenth Amendments to
the United States Constitution. Griffin v. California, ------
U.S. — , 85 S. C t .------ , 14 L. ed. 2d 106 (1965). The issue
raised here was not treated as a federal constitutional 
issue by this Court, nor was this issue raised in or passed 
upon by the United States Supreme Court in this case.

i a

Coram  N obis Petition



8a

Petitioner respectfully submits that the recent decisions 
of the United States Supreme Court require that this 
Court hear and determine the federal constitutional issue 
now presented, and petitioner further submits that he is 
entitled to a new trial.

6. In support of subdivision (c) of paragraph 3, peti­
tioner shows the Court as follows:

At the trial of this case, during his argument before the 
jury, the Circuit Solicitor made the following statements:

Do you think this young lady, Jimmie Sue Butter- 
worth, consented to have this defendant have that 
rough and rugged intercourse where this impact 
against her body caused loose hairs to come out of 
his privates! You gentlemen know the way a colored 
person—you have seen them, you have seen their hair. 
You know, gentlemen, it is coarse. You know that it 
is rough. You know from your own experience with 
everyday life that when any two forces meet each 
other and that there is a rubbing or banging there 
there are going to be hairs lost. Most of you men are 
married men. You have had everyday experiences. 
You know from your own knowledge that people shed 
hairs and they lose them, but gentlemen how many of 
you if they took us out and shook our clothes would 
find negroid hairs falling from our privates! (Tran­
script, p. 354)

Mr. H o llin g sw o r th : Think what it has done to 
that child’s life. A\ hen will she ever forget the day 
ot February 7, 1962, when a bootlegger was riding 
the road and decides he wants to stop and rape some­
body in that community right near the county line.

Coram  N obis P etition



9a

M r . H a l l : I your Honor please, we object to the 
use of the term “ bootlegger” . We don’t recall any tes­
timony, any evidence coming from this witness stand 
that this man was a bootlegger.

T h e  C o u r t : I ’ll sustain  the ob je ct ion  and I ’ll in ­
struct the ju r y  n ot to  con sid er it.

M r . H a l l : We move for a mistrial, your Honor.
T h e  C o u r t : I’ll overrule the motion for a mistrial.
Mr. H a l l : We take exception.
M r . H o llin g sw o r th : The way I understand it, he 

said he was going to get a load from Opelika. (Tran­
script, pp. 355, 356)

M r . L ove : When he left City Motor Company down 
here, gentlemen, he had something on his mind. I ’ll 
tell you what he had on his mind. He had Mrs. Weldon 
on his mind. He had been passing that house, she 
stated she had been living there for ten years.

M r . H a l l : If your Honor please, we respectfully 
would like to interrupt Mr. Love at this time and make 
an objection. There is no evidence in this trial that 
this defendant had Mrs. Weldon on his mind. There 
is nothing at all to connect Mrs. Weldon with this 
case. We would respectfully urge your Honor that 
this is truly prejudicial to this defendant, incompetent, 
immaterial, illegal and has no place in this argument.

M r . H o llin g sw o r th : Your Honor, I  would like to 
state this. The State has a right to argue what has 
been presented before the Court. And the evidence 
is disputed in this case that this defendant went to 
Mrs. Weldon’s house first, the testimony has been that 
she has lived there for ten or more years on that par­
ticular road at that particular place, that he parked 
his car down below her house and that he went to

Coram Nobis P etition



10a

her house first. And that when he left he didn’t go 
back to his car, he went the other way. This jury has 
seen Mrs. Weldon and they have the right to take into 
play their own knowledge and common sense as to 
what they see and what they have heard in this court­
room. The State has a right to argue the evidence.

M e . H a l l : I f  your Honor please, as we recall the 
evidence, both ladies testified that whoever came to 
their door asked for a telephone. The defense thought 
that was the reason suggested, that was the only rea­
son certainly offered in this court, in the testimony. 
We think it highly improper to argue to the jury that 
there was some other reason for going there when 
there is not one iota of testimony which has been in­
troduced to that effect.

T h e  C o u r t : Gentlemen of the jury I will instruct 
you at this time that it is the law that counsel for 
either side can argue any reasonable inference to be 
drawn from the evidence in the case, however, what 
was evidence in the case or what is a fact in the case, 
is a matter for you and you alone to decide. I ’ll over­
rule your objection.

Me. B il l in g s l e y : Your Honor, we would like to 
ask for a mistrial and would like the remarks stated 
by Mr. Love included in the transcript of the record.

T h e  C ouet : I ’ll overru le  the m otion  f o r  a  new  tria l.
M r . B il l in g s l e y : We take exception. (Transcript, 

pp. 352, 353)
Mb. H ollingsw orth  : . . . Think with me, gentlemen 

as we go through the evidence, some of the State’s 
evidence on identity. First—now you gentlemen ob­
served Mrs. Weldon. To me she was a nice looking, 
attractive, pleasant, agreeable person. She looked to 
me like she would be a Christian woman. There is

Coram Nobis P etition



1 1 a

nothing from this stand to denote to the contrary. The 
only thing, if I was being critical of her, I would think 
she was a poor judge of distance. (Transcript, p. 354)

7. In support of subdivision (d) of paragraph 3, peti­
tioner shows to the Court as follows:

Coram Nobis P etition

(a) According to the United States Census, Alabama’s 
population was as follows between 1930 and the present:

Y ear
T ota l

P opu lation
W hite

P opu lation
%

W hite
N onw hite

P opu lation
%

N on white

1930 2,646,248 1,700,844 64.3 945,404 35.7
1940 2,832,961 1,849,097 65.3 983,864 34.7
1950 3,061,748 2,079,591 67.9 982,152 32.1
1960 3,266,740 2,283,609 69.9 983,131 30.1

(b) Between January 1, 1930 and December 31, 1964, the 
State of Alabama executed 134 persons, of whom 107 or 
79.8 per cent were Negroes and 27 or 20.2 per cent were 
white persons.

As of March 17, 1965, 18 persons were committed to 
Kilby Prison awaiting execution by the State of Alabama, 
of whom 11 were Negroes and 7 were white.

(c) Between January 1, 1930 and December 31, 1964, the 
State of Alabama executed 22 persons for the crime of 
rape, of whom 20 or 90.9 per cent were Negroes and 2 or 
9.1 per cent were white persons. As of March 17, 1965, 2 
persons were committed to Kilby Prison awaiting execu­
tion by the State of Alabama for the crime of rape, both 
of whom were Negroes.

(d) According to the records on file in this Court of 
those cases resulting in execution of the defendant for the 
crime of rape in the State of Alabama since 1930, to the 
extent that they reveal information as to the race of the



12a

victim of the crime, in every case involving the execution 
of a Negro or a white man for the crime of rape, the victim 
of the crime was a white woman. In 11 of these cases, the 
record on file in this court explicitly discloses that the vic­
tim of the crime was white. The names, docket numbers 
and dates of decision by this court of those cases are as 
follows:

Coram N obis P etition

Name Citation Date of Decision Docket No.
Charles Williams V. 
State o f Alabama

224 Ala. 6 December 3, 1931 1 Div. 678

Roosevelt Collins v. 
State of Alabama

234 Ala. 197 May 27, 1937 7 Div. 408

Charles White v. 
State of Alabama

237 Ala. 610 April 27, 1939 4 Div. 46

Norman Bell v. 
State of Alabama

238 Ala. 586 December 4, 1939 1 Div. 72

William Clark v. 
State of Alabama

239 Ala. 380 March 4, 1940 8 Div. 946

Henry Daniels, Jr. v. 
State of Alabama

243 Ala. 675 January 21, 1943 1 Div. 162

Curtis Robinson v. 
State o f Alabama

243 Ala. 684 January 28, 1943 1 Div. 163

Reuben Myhand v. 
State o f Alabama

259 Ala. 415 August 6, 1953 4 Div. 711

Melvin Jackson v. 
State o f Alabama

262 Ala. 528 June 21, 1956 4 Div. 817

Jeremiah Reeves v. 
State of Alabama

264 Ala. 476 June 21, 1956 3 Div. 751

Ernest Cornell Walker v. 269 Ala. 555 
State o f Alabama

September 17, 1959 6 Div. 381

In five other cases in which Negroes were executed for the
crime of rape, there is information in the record from
which the inference may fairly he drawn that the victim
was white. These cases are as follows:



13a

Coram Nobis Petition

Name Citation Date of Decision Docket No.

Jimmie Brown v. 
State o f Alabama

236 Ala. 423 October 6, 1938 6 Div. 145

Frank Johnson v. 
State of Alabama

242 Ala. 278 January 14, 1942 6 Div. 873

William N. Snead v. 
State of Alabama

243 Ala. 231 May 14, 1942 6 Div. 866

Johnnie B. Smith v. 
State of Alabama

247 Ala. 354 January 24, 1946 6 Div. 333

Jesse Frank Jackson v. 
State of Alabama

260 Ala. 641 April 22, 1954 3 Div. 667

In five of the cases resulting in the execution of a Negro 
for the crime of rape in the State of Alabama, the tran­
script of trial in this Court, if  any, does not disclose the 
race of the victim of the crime. In the only two cases re­
sulting in the execution of white persons for the crime 
of rape, there is information in the record on file in this 
Court from which the inference may fairly be drawn that 
the victim of the crime was white. Daniel T. Reedy v. State 
of Alabama, 246 Ala. 363. Joseph Ii. Iiockenberry v. State 
of Alabama, 246 Ala. 369,------ So. 2 d ------- .

The two men presently awaiting execution in Kilby 
Prison for the crime of rape are Robert Swain and Drewey 
Aaron, Jr. Robert Swain is the petitioner in this case. 
He was convicted of the rape of a white woman. Drewey 
Aaron, a Negro, was also convicted of the rape of a white 
woman. Aaron v. State of Alabama, 273 Ala. 337, 139 So. 
2d 309 (1961).

In the only other case known to the petitioner of defend­
ants presently under sentence of death for the crime of 
rape in the State of Alabama, three men were separately 
tried, convicted and sentenced to death for the crime of 
rape against a white woman in Etowah County during 
the past three months. The names of these cases are:



14a

State of Alabama v. Wheeler Billingsley, Jr., 
Cir. Ct. No. 743;

State of Alabama v. Robert Butler, Cir. Ct. 
No. 744;

State of Alabama v. James Liddell, Cir. Ct. 
No. 745.

Petitioner alleges that the gross disparity shown above 
between the proportion of Negroes in the population and 
the proportion of Negroes sentenced to death and exec­
uted for the crime of rape is the result of a racially dis­
criminatory system of justice and is not explainable by 
other factors reasonably related to a rational system of 
imposing sentence. Petitioner alleges that Negroes have 
been sentenced to death for crimes which, if committed by 
persons of the white race, would not have resulted in im­
position of the death penalty.

Petitioner offers to prove that race is the sole explana­
tion for the grossly disproportionate number of Negro ex­
ecutions for rape by reference to judicial records and the 
testimony of attorneys in rape cases in all counties of 
Alabama or a representative sample of Alabama counties. 
Petitioner respectfully requests a full hearing with op­
portunity to prove his allegations with the benefit of com­
pulsory process of witnesses, production of records, exam­
ination and cross-examination of witnesses. Petitioner also 
respectfully requests the opportunity to take depositions 
in preparation for such a hearing. Petitioner is hampered 
by the unavailability of deposition and discovery proce­
dures in criminal cases. Proper development of this fun­
damental issue of constitutional law requires an evidentiary 
hearing with the opportunity for full and effective prep­
aration.

Coram N obis P etition



15a

8. In support of subdivision (e) of paragraph 3, peti­
tioner shows the Court as follows:

Title 14, §395 of the Alabama Code gives the trial jury- 
complete discretion to impose any penalty between a term 
of 10 years and death. No rational, fair or uniform stand­
ards are set by statute, and the trial judge gave the jury 
no directions as to choosing among allowable sentences. 
Such a system allows juries to consider discriminatory 
racial factors in the sentencing process, and petitioner al­
leges that juries in rape cases have imposed harsher sen­
tences upon Negroes than those imposed on white defend­
ants.

9. In support of subdivision (f) of paragraph 3, peti­
tioner shows the Court as follows:

The petit jury determined petitioner’s sentence at the 
same time that it determined his guilt. Petitioner was 
deprived of the opportunity to present evidence in mitiga­
tion without taking the stand in his own defense and for­
feiting the privilege against self-incrimination.

10. In support of subdivision (g) of paragraph 3, peti­
tioner shows the Court as follows:

Capital punishment is retained for the crime of rape in 
only 17 states and four foreign counties. See Rudolph v. 
Alabama, 375 U. S. 889 (1963) (dissenting opinion). Im­
position of such a penalty for rape violates evolving stand­
ards of decency which are almost universally accepted. 
The taking of human life to protect a value other than 
human life is inconsistent with the constitutional prescrip­
tion against punishments which are greatly dispropor­
tionate to the offense charged. Permissible aims of pun­

Coram  N obis P etition



16a

ishment, such as deterrence, isolation, and rehabilitation 
can be achieved as effectively by punishing rape less se­
verely than by death and this penalty constitutes unnec­
essary cruelty.

11. In support of subdivision (h) of paragraph 3, peti­
tioner shows the Court as follow s:

Petitioner did not submit voluntarily to the surrender 
of his clothing, the photographing of his nude body, and 
the combing of his pubic hairs. Petitioner was not ade­
quately informed of his rights and he did not waive his 
right to counsel and privilege against self-incrimination. 
Petitioner had little education and was not acquainted with 
legal procedures. He asked to see his father and was re­
fused.

Irrespective of the issue of voluntariness, petitioner was 
deprived of his constitutional rights when officers of the 
state took his clothing, photographed his body and combed 
his pubic hairs. These actions were taken while petitioner 
was being unlawfully restrained of his liberty. Petitioner 
was not lawfully arrested, but was being held for investiga­
tion at the time.

12. In support of subdivision (i) of paragraph 3, peti­
tioner shows the Court as follows:

Petitioner was given no opportunity to take the stand 
and deny that he voluntarily submitted to the taking of his 
clothing, the photographing of his body, and the combing 
of his pubic hairs, without surrendering the privilege 
against self-incrimination. Moreover, the issue of admis­
sibility of the photographs, clothing and hairs was not de­
termined by the court in a separate proceeding and away

Coram N obis P etition



17a

from the presence of the jury. See Jackson v. Denno, 378 
U. S. 368 (1964).

13. In support of subdivision (j) of paragraph 3, peti­
tioner shows the Court as follows:

Title 30, §21 of the Alabama Code specifies that only 
the names of males shall be placed on the jury roll.

14. Petitioner respectfully requests that the Court stay 
the execution of defendant’s death sentence, grant a full 
evidentiary hearing on those issues as to which the at­
tached affidavits do not suffice, and grant him the right to 
file a petition in the Circuit Court of Talladega County 
for a writ of error coram nobis to inquire into the facts 
alleged herein or grant such additional or alternative re­
lief as the Court may deem appropriate.

/ s /  R obert S w ain  
R obert S w ain  

Petitioner

/ s /  Orzell  B illin g sley , J r .
Orzell  B illingsley , Jr.

/ s /  P eter A. H all  
P eter A. H all

1630 Fourth Avenue North 
Birmingham, Alabama

J ack  Greenberg 
J ames M. N abrit, III 
M ich ael  M eltsner 
F ran k  H . H effron

10 Columbus Circle 
New York, N. Y. 10019

Attorneys for Petitioner

Co-ram N obis Petition



18a

Verification

State of Alabama )
Montgomery County )

Personally appeared before me, the undersigned author­
ity, a notary public for said State and County, Robert 
Swain, who being by me first duly sworn, deposes and says 
that he is the petitioner in the foregoing petition, that he 
has read the said petition and that the facts and things 
therein alleged are true and correct to the best of his 
knowledge and information and belief.

/ s /  R obert S w ain  
R obert S w ain  
Petitioner

Sworn to and subscribed before me this 25th day of 
.June, 1965.

/ s /  Orzell  B illing sley , J r .
Orzell  B illin g sley , J r .

Notary Public, Montgomery
County, Alabama



19a

Certificate

I, the undersigned counsel of record for Robert Swain, 
hereby certify that I have this day delivered to the Attor­
ney General of Alabama a copy of the foregoing petition.

Dated this 25th day of June, 1965.

/ s /  Orzell  B illingsley , J r. 
Orzell  B illingsley , Jr. 
Attorney for Petitioner



20a

IN THE SUPREME COURT OF ALABAM A

Affidavit of Frank H. Heffron

S t a t e  o f  N e w  Y o r k ,

C o u n t y  o f  N e w  Y o r k , s s . :

F r a n k  H .  H e f f r o n , being duly sworn, deposes and says:

1. I am an attorney at law admitted to practice in the 
courts of New York on March 25, 1963.

2. I have inspected the official publications of the 
United States Department of Justice, Bureau of Prisons, 
and can state, on the basis of those reports, that between 
January 1, 1930 and December 31, 1964, the State of 
Alabama executed 134 persons of whom 107 were Negroes 
and 27 were white persons; that during the same period 
of time, the State of Alabama executed 22 persons for 
the crime of rape of whom 20 were Negroes and 2 were 
white persons. National Prisoner Statistics Bulletin on 
Executions 1930-1964, No. 37 (April 1965).

3. I have in my possession a certificate executed by 
Milford S. Dean, Chief Clerk of Records and Identifica­
tion of the Alabama State Board of Corrections, stating 
the following information as to the name, race and date 
of execution of all persons lawfully executed for the crime 
of i ape in fhe State of Alabama between 1927 and October 
18, 1963:

Ex P a r t e  R o b e r t  S w a i n

Nam e Race D ate o f  E xecution

Cleveland Malone 
Mose Daniels

Negro February 27, 1931
Negro March 27, 1931
Negro January 15, 1932
Negro June 11, 1937

Charley Williams 
Roosevelt Collins



21a

Affidavit o f Frank H. H effron

N am e Race D ate o f  Execution

Curtis Cobb Negro August 19, 1938
Jimmie Brown Negro November 25, 1938
Roy Anderson Negro June 9, 1939
Charles White Negro June 9, 1939
Herman Bell Negro March 29, 1940
Willie James Brandon Negro August 9, 1940
William Clark Negro July 17, 1941
William N. Snead Negro June 26, 1942
Frank Johnson Negro June 4, 1943
Henry Daniels, Jr. Negro August 13, 1943
Curtis Robinson Negro August 13, 1943
Joseph H. Hockenberry White March 16, 1945
Daniel T. Reddy White March 16, 1945
Jesse Frank Jackson Negro June 4, 1954
Melvin Jackson Negro September 28, 1956
Jeremiah Reeves Negro March 26, 1958
Ernest Cornell Walker Negro December 4, 1959

4. On March 17, 1965, I was present, in Kilby Prison and
observed the official records of Kilby Prison which showed 
that as of March 17, 1965, 18 persons were on death row 
awaiting execution of whom 11 were Negroes and 7 were 
whites.

5. I am presently associated with counsel of record in 
the cases of Robert Swain and Drewey Aaron, Jr., and 
I can state that both are Negroes presently under sentence 
of death in Kilby Prison as the result of conviction for 
rape of white women.

6. I am associated with counsel of record in the cases 
of State of Alabama v. Wheeler Billingsley, Jr., Etowah 
County Circuit Court No. 743, State of Alabama v. Robert 
Butler, Etowah County Circuit Court No. 744, and State



22a

of Alabama v. James Biddell, Etowah. County Circuit Court 
No. 745. In all three of these cases, the defendants are 
Negroes recently sentenced to dath for the rape of a white 
woman.

7. In the case of State of Alabama v. Wheeler Billing­
sley, Jr., Etowah County Circuit No. 743, the defendant 
fiiled a motion for new trial and a motion for reduction 
of sentence raising the claim that the death penalty is 
discriminatorily applied against Negroes in rape cases 
by the State of Alabama. In preparation for hearing on 
that motion, defendant issued subpoenas duces tecum to 
the Circuit Court Clerks of all counties in Alabama re­
quiring their appearance at the hearing with records of 
rape cases in their courts between 1930 and 1965. On 
motion to quash the subpoenas, the Circuit Court, on 
.June 2, 1965, quashed all of the subpoenas duces tecum 
except that issued to the Circuit Clerk of Etowah County. 
At the same time, the Circuit Court of Etowah County 
denied defendant permission to take depositions of the 
Circuit Clerks except those residing more than 100 miles 
away from Etowah County.

Affidavit o f  Frank H. H effron

/ s /  F r a n k  H . H effron 
F ra n k  H . H effron

Sworn to before me this 24th day of June, 1965.

/ s /  M arjorie H. Doswell 
M arjorie H. D oswell 
Notary Public, State of New York 
No. 31-6082800
Qualified in New York County 
Commission Expires March 30, 1966



23a

IN THE SUPREME COURT OF ALABAMA 

Ex P abte R obert S w ain

State of N ew  Y ork ,
County  of N ew  Y ork , s s . :

F red W allace , being first duly sworn, deposes and says:

1. I am a graduate of the Harvard University School 
of Law and was awarded the degree of Bachelor of Laws 
in June, 1964.

2. During April, 1963 I inspected the official records 
of Supreme Court of Alabama on file in the Judicial 
Building, Montgomery, Alabama, of all cases resulting in 
execution of the defendant for the crime of rape in 
Alabama.

3. In the following cases resulting in execution of the 
Negro defendant for the crime of rape, the record dis­
closes that the victim of the crime was white: Charles 
Williams v. State, Transcript, p. 14; Roosevelt Collins v. 
State, Transcript, p. 4; Charles White v. State, Transcript, 
1>. 44: Norman Bell v. State, Transcript, p. 61; William. 
Clark v. State, Transcript, p. 24; Henry Daniels, Jr. v. 
State, Transcript, p. 29; Reuben Myhand v. State, Tran­
script, p. 417; Melvin Jackson v. State, Opinion of the 
Court, 88 So. 2d 206; Jeremiah Reeves v. State, Opinion 
of the Court, 68 So. 2d 14, 16; Ernest Cornell Walker v. 
State, Opinion of the Court, 114 So. 2d 402, 403.

4. In the following cases resulting in the execution of 
the Negro defendants, the inference may fairly be drawn

Affidavit of Fred Wallace



24a

from the transcript on file that the victim of the crime 
was white.

Jimmie Brown v. State, Transcript; Frank Johnson v. 
State, Transcript, p. 126; William N. Snead v. State, 
Transcript, p. 52; Johnnie B. Smith v. State, Transcript, 
p. 247; Jesse Frank Jackson v. State, Transcript, p. 43.

5. In the only two cases resulting in the execution of 
the white defendant, the inference may fairly be drawn 
from the transcript on file that the victim of the crime 
was white: Daniel T. Reedy v. State; Joseph H. Hocken- 
berry v. State.

/ s /  F eed W allace 
F red W allace

Sworn to before me this 24th day of June 1965.

/ s /  M arjorie H. D oswell 
M arjorie  H. D oswell 
Notary Public, State of New York 
No. 31-6082800
Qualified in New York County 
Commission Expires March 30, 1966

Affidavit o f F red  W allace



25a

IN THE SUPREME COURT OF ALABAMA 

Ex P abte R obert S w a in

S tate of N ew  Y ork ,
C ounty  of N ew  Y ork , s s . :

E ddie H oward T u c k e r , being duly sworn, deposes and 
says:

1. I am an attorney at law admitted to the bar of the 
State of Mississippi, May 3, 1965.

2. On June 23,1965,1 inspected the records of the United 
States Department of Commerce, Bureau of Census, 350 
Fifth Avenue, New York, New York. Upon examination 
of the official records of the Census Bureau, I state that 
the population figures set forth in paragraph 7 (a) of the 
petition for leave to file petition for writ of error coram 
nobis in the Circuit Court of Talladega County, are true, 
correct, and accurate.

/ s /  E ddie H. T ucker  
E ddie H. T ucker

Sworn to before me this 24th day of June, 1965.

/ s /  M arjorie H. D oswell 
M arjorie  H. D oswell 
Notary Public, State of New York 
No. 31-6082800
Qualified in New York County 
Commission Expires March 30, 1966

Affidavit of Eddie Howard Tucker



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