Furman v. Georgia Brief for Respondent

    Kt/^uL

IN THE

Supreme Court of the United States
1971 TERM

NO. 69-5003

WILLIAM HENRY FURMAN,

v
Petitioner,

GEORGIA,
Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME 
COURT OF GEORGIA

BRIEF FOR RESPONDENT

P. O. ADDRESS:

132 State Judicial Bldg. 
40 Capitol Square, S.W. 
Altanta, Georgia

Arthur K. Bolton 
Attorney General
Harold N. Hill, Jr., 
Executive Assistant 
Attorney General
Courtney W ilder Stanton 
Assistant Attorney General
Dorothy T. Beasley 
Assistant Attorney General

P. O. ADDRESS: ANDREW J. RYAN, J r .
Chatham County Courthouse Districrt Attorney 
Savannah, Georgia Eastern Judicial Circuit

Andrew J. Ryan, III 
Assistant District Attorney



TABLE OF CONTENTS

CONSTITUTIONAL AND STATUTORY PRO­
VISIONS INVOLVED ...............

QUESTION PRESENTED . . . . . . .

STATEMENT OF THE CASE . . . . . .

SUMMARY OF ARGUMENT . . . . . . .

Page

1

2

2

2

ARGUMENT:

I. The death penalty for
murder is not per se cruel 
and unusual, in the con­
stitutional sense, and is 
therefore not a depriva­
tion by the State of Peti­
tioner Furman's life with­
out due process of law . . . .  20

II. The "Indicators" of un­
acceptability of death 
as a penalty are not 
reliable yardsticks, 
are not relevant or ap­
propriate yardsticks, and 
do not provide accurate 
measures for determining 
that standard of decency 
beyond which states may 
not go in fixing pun­
ishment 45



11.

III. Capital punishment is an 
appropriate maximum pen­
alty for murder in our 
society today and its 
use is not forbidden to 
the states as cruel, and 
unusual punishment in 
contravention of the Eighth 
and Fourteenth Amend­
ments ...................... 84

IV. There is no issue in this 
case concerning Petition­
er's mental condition at 
the time the sentence was 
imposed because (1 ) no 
question was raised at 
any stage of the proceed­
ings below, either at 
trial or subsequently, and
(2) there are no facts 
which cast any real doubt 
on Petitioner's mental com­
petency at the time of sen­
tencing; rather the record 
plainly shows otherwise. . . 88

V. Georgia law safeguards an
insane man from execution. . 92

CONCLUSION 95



1X1 .

APPENDICES:

APPENDIX A:

Statutory Provisions and
Rules Involved........... la

APPENDIX B:

Crimes Under the Criminal Code 
of Georgia Punishable by Death . lb

APPENDIX C:

Persons Currently under Death 
Penalty in Georgia, Sept. 20,
1 9 7 1 ............................ le



IV

TABLE OF CASES

Aikens v. California ................ 20

Barbour v. Georgia, 249 U.S. 454
(1919) . . . . . . . . . . . . .  90

Bartholomey v. State, 260 Md. 504,
273 A.2d 164 ( 1 9 7 1 ) ..............  82

Brady v. United States, 397 U.S.
742 (1970) ......................  . 86

Brown v. State. 215 Ga. 784 (1960). . 94

Butler v. State. 285 Ala. 387,
232 S.2d 631 (1970) . . . . . . .  82

Duzier v. State. 441 S.W.2d 688
(1969) . . . . .  ................... 82

Edelman v. California, 344 U.S. 357
(1957) . . . . . . . . . . . . . .  89

Ex parte Kennmler, 136 U.S. 436
(1890) ........... . . . . . . . .  22,

23, 35, 36, 
38, 85

Howard v. Fleming, 191 U.S. 126
(1903) . . . . .  ................... 36,

37, 69

Jackson v. Georgia, No. 69-5030 . . 17



V.

Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459 (1947). . . 23,

24, 25, 35, 
38-39, 44, 58

McGaut’ha v. California, 402 U.S.
183 (1971) .............  . . . . .  34,

39,
69, 79, 83, 
84

Manor v. State, 223 Ga. 594
(1967) . . . . . . . . . . . . . . .  12

Massey v. State, 222 Ga. 143
(1966) .................   82

O'Neil v. Vermont. 144 U.S. 323 (1892)
.............. 36,

37, 85

Parker v. North Carolina, 397 U.S.
790 (1970) .......................... 86

People v. Walcher. 42 111.2d 159
246 NE2d 256 (1969). . .............. 82

Powell v. Texas, .392 U.S. 514,
530 (1968)..................   53

Rivers v. State. 226 S.2d 337
(Fla. 1969) ....................  82

Robinson v. California. 370 U.S. 660,
682, 683 ( 1 9 6 2 ) .................  29,

43, 53



VI .

Schmid v. State. 226 Ga. 70(1970) . . 15

Sims v. Balkcom. 220 Ga. 7 (1964) . . 82

Solesbee v. Balkcom. 339 U.S.
9 (1950) ........................... 25,

26, 48, 53, 
94, 95

State v. Calhoun, 460 S.W.2d
719 (Mo. 1970) . . . . . . . . . .  82

State v. Cerny, 480 P.2d 199
(Wash. 1971) ...................... 82

State v. Crook, 253 La. 961,
221 S.2d 473 (1969) . . . . . . .  82

State v. Davis, 158 Ct. 341,
260 A.2d 587 ( 1 9 6 9 ) .............  82

State v, Kelback, 23 Utah 2d 231,
461 P . 2d 297 ( 1 9 6 9 ) .............  82

State v. Rogers, 275 N.C. 411,
168 S . E . 2d 345 ( 1 9 6 9 ) ........... 82

Trop v. Dulles, 356 U.S. 86,
89, 100 (1958)...............  27,

29, 33, 39, 
40, 42, 46, 
52, 53, 85



vxx.

Weems v.United States. 
370-371, 384 (1910).

217 U.S. 349,
28

29, 31- 32,
33, 37, 38
48, 53, 85

Whitus v. Georgia, 
545 (1967) . .

385 U.S.
79

Wilkerson v. Utah. 99 U.S. 130(1879). 35

Williams v„ State, 222 Ga. 208(1966). 12

Wilson v. State. 225 S.2d 321
(Fla. 1969) . . . .  ......... 82

Witherspoon v. Illinois. 391 U.S. 
519 (1968) ...................

61, 63, 78 
79



VXXX.

Annals of Congress, Vol. II, 
Appendix pp. 2274, 2281 . . 86

Bedau, H., The Death Penalty 
in America, (Rev. ed 1967) 
p. 120. .................... 51

City of Atlanta, Department 
of Police, 91st Annual 
Report, Dec. 31, 1970 . . .  80

Cohen, B . Law Without Order

OTHER AUTHORITIES

(1970)...................... 51

Ershine, 34 Pub Op Q (1970- 
7 1 ) ................... .. - 60

Farrand, The Records of the 
Federal Convention of 1787, 
Vol. I, Yale University 
Press 1934 .............. .85

Georgia House Study Commit­
tee Report, 1968 House 
Journal, p. 3451........... 59

Georgia Senate Study Commit­
tee Report, 1966 House 
Journal, p. 2669. . . . . .  59



X X .

Good Housekeeping, November
1969, vol. 169, p. 24 . . .  61

Hearings before the Subcom­
mittee on Criminal Laws and 
Procedures of the Committee 
of the Judiciary, United 
States Senate on S. 1760,
March 20, 21, and July 2, 
1968... . . . . . . . . . .  58

Mutchmor J. R. "Limita­
tion of Death Penalty in 
Canada" Christian Century, 
January 24, 1968, Vol. 85,
P- 120......................49

Nation's Business, November
1970, vol. 58, p. 28. . . .  60

Newsweek, January 11, 1971, 
pp. 23, 24, 27.............  58

Pennington, John, "The Death 
Penalty: Have We Walked the 
Last Mile?", Atlanta Journal 
and Constitution, Aug. 30 
and Sept. 6, 1970 . . . . .  75

OTHER AUTHORITIES— continued



X.

Perry and Cooper, Sources of 
Our Liberties, American Bar 
Foundation, 1959. . . . . .  85

Rutland, The Birth of the 
Bill of Rights7^776^1791, 
University of North Carolina 
Press, 1955 ................ 75

Time, April 15, 1966, vol. 87, 
p. 40. .................... . 50

United Nations, Department of 
Economic and Social Affairs, 
Capital Punishment (ST/SOA/ 
SD/9-10) (1968)   .47

United States Department of 
Justice, National Prisoner 
statistics Number 44, August 
1969, Table 15, p. 30. . . . 32,

56, 62

OTHER AUTHORITIES--continued



XX .

STATUTORY AND CONSTITUTIONAL 
PROVISIONS

G a.  code Ann. § 6-805(f) (Ga.
Laws 1965, pp. 18, 24) 10

Ga.  code Ann. § 24-3005 (G a .
Laws 1889, p. 156; 1950, p.
427, 428) 94

Ga. code Ann. § 26-1001 (1969) 12

G a.  code Ann. § 26-1003 (1969) 13

Ga. code Ann. § 26-1004 (1969) 12

Ga.  code Ann. § 26-1101 (1969) 12
G a.  code Ann. § 26-1901 and -1902

(1969) 55

G a.  code Ann. § 26-3301 (Ga. Laws
1969, p .  741) 31

G a.  code Ann. § 27-1502 (1933) 89

G a.  code Ann. § 27-405 i(Ga.  Laws
1962, p .  453, 454) 6

G a.  code Ann. § 27-2514 (G a .  Laws
1924, p .  195) 67, 76

G a.  Code Ann. § 27-2515 (G a . Laws
1924, p .  196) 76



XIX .

Ga. Code Ann. § 27-2602-2604 (Ga.
Laws 1960, pp. 988, 989, Ga.
Laws 1874, p. 30) 92

Ga. code Ann. § 38-415 (Ga. Laws
1962, pp. 133-135) 6

Ga. Code Ann. 77-309(c)(d) (Ga.
Laws 1956, pp. 161, 171 as a- 
mended) 66

Ga. Code Ann. 77-310(d)(Ga. Laws
1956, pp. 161, 173, as amended) 93

N. M. Stat. Ann. (1969 Cum.
Pocket Part) 40A-29-2.1 57

Official Compilation of the Rules 
and Regulations of the State of 
Georgia, Rules of the State 
Board of Corrections, Sec. 125- 
1-2-.05 75

Rules of the United States Supreme 
Court, Rule 23(l)(f) 90



IN THE

SUPREME COURT OF THE UNITED STATES

1971 Term 
No. 69-5003

WILLIAM HENRY FURMAN,

Petitioner,

GEORGIA,

Respondent.

ON WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

BRIEF OF RESPONDENT

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

In addition to the provisions recited 
by Petitioner, this case involves also 
certain Georgia statutes and published 
Rules of the State of Georgia Board of 
Corrections, each of which is set forth



2

as Appendix A to this Brief [herein­
after cited as "App. A, pp. _____ ] at 
App. A, pp. la - 16a infra.

QUESTION PRESENTED

"Does the imposition and car­
rying out of the death penalty 
in this case constitute cruel 
and unusual punishment in vio­
lation of the Eighth and Four­
teenth Amendments?"

STATEMENT OF THE CASE

William Joseph Micke, Jr., age 29, 
died on August 11, 1967, at his home 
in Savannah, Georgia, as the result of 
a bullet being shot through his lung and 
producing severe hemorrhaging (A. 17,
18, 32). The unprovoked shooting oc­
curred as follows: Micke and his wife
retired to bed sometime after midnight, 
when he returned from his initial night 
of work at a second job taken to supple­
ment the family income. Mr. Micke's 
primary employment was with the United 
States Coast Guard (A. 18). The young 
family included five children, ranging 
in age from one year to fifteen years 
(A. 17). Between 2:00 and 2:30 a.m., 
before falling asleep, the Mickes heard 
noises and, thinking it was 11-year-old 
Jimmie sleepwalking, Mr. Micke went to 
get Jimmie back to bed (A. 18, 19).



3

Mrs. Mi eke, listening, heard her husband's 
footsteps quicken. Then she heard a loud 
sound and her husband's scream (A. 19). 
Believing then that someone was in the 
house because of Mr. Mieke's cry, and 
fearful that someone else was also in the 
house, and afraid that her children might 
be harmed, Mrs. Micke ran to the bedrooms 
for the children and gathered them into 
her bedroom in an effort to protect them 
(A. 19, 21, 22). She and the children 
then screamed for their neighbor, she 
realizing that she had no gun or other 
means to defend against an intruder (A.
19, 22). She called the police as soon as 
she saw Mr. Dozier, the neighbor, come out 
of his house (A. 19), but her hysteria 
prevented the police from learning what 
the disturbance was (A. 24). Sergeant 
Spivey, who was just one or two blocks 
away from the Micke home when the call 
came at about 2:23 a.m., went immediately 
there and was met by Mr. Dozier out front 
(A. 24, 26). They thought an intruder was 
still in the house, so Sergeant Spivey 
checked the front door and, finding it 
locked, went around to the back door.

The back of the house was dark, and 
when the officer tried the back door, it 
opened (A. 24-25). Shining his flash­
light into the house, he saw Mr. Micke’s 
body lying on the floor with a large 
puddle of blood around the head and 
shoulder (A. 25). Still thinking there



4

was an intruder in the house, the officer 
crawled through the rooms and found no one 
other than Mrs. Micke and the children 
locked in a front bedroom (A. 25). Upon 
doubly checking Mr. Micke's vital signs. 
Sergeant Spivey concluded that he was dead. 
Other policemen arrived, an ambulance was 
called, and an investigation begun (A. 26).

Officers Hall and Goode and others 
immediately scanned the area in a search 
for the assailant (A. 37, 41). Hall sta­
tioned himself at the far end of a wood­
ed area next to the Micke house, in his 
patrol car with the lights off and motor 
running (A. 38). Petitioner came out of 
the woods and when he saw the patrol car, 
he walked faster and then started to run 
(A. 38-39). Hall and other officers pur­
sued, finally on foot, and traced Peti­
tioner 's tracks to the nearby home of his 
uncle (A. 39). After obtaining the uncle's 
permission to search the area, the officers 
located Petitioner hiding under the house 
and pulled him out by the hand (A. 39, 40, 
41). A search was made of Petitioner 
and a .22 caliber pistol, which was later 
identified as having discharged the bullet 
which killed Mr. Micke, was taken from his 
right front pocket (A. 40-43, 49, 50;
R. Transcript 67-71). No other civilian 
was seen out in the area during the course 
of the search (A. 40).



5

Detective Smith testified (after a 
voluntariness hearing before the court in 
the absence of the jury and after the 
court concluded that the statements were 
not inadmissible on that account [A. 44, 
46]), that on the same day and following 
an explanation of Petitioner's rights to 
him 1/ and his indication that he did not 
then want a lawyer# the detective said he 
had one question# which was: " . . .  did 
he get inside of the house" (A. 47). 
Petitioner's reply# he said, was:

"A. He state yes, that he was 
in the kitchen; the man come in 
the kitchen, saw him in there 
and attempted to grab him as he 
went out the door; said the man 
hit the door, instead of catching 
him, he hit the door, the door 
slammed between them, he turned 
around and fired one shot and 
ran." (A. 47).

The investigation at the Micke home, 
commenced while Officers Hall and Goode 
and others were searching for the assail­
ant (A. 26, 29, 33, 37, 41) yielded 
latent fingerprints on a washing machine 
on the back porch which were later deter-

Officer Goode testified that his 
constitutional rights were also read 
to him upon arrest (A. 42).

1/



6

mined to have been made by Petitioner 
(A. 28, 33, 37). The inch-thick ply­
wood door which lead from the small 
porch to the kitchen where Mr. Micke's 
body was found, contained a bullet hole 
(A. 27, 29), the appearance of which 
indicated that the bullet came into the 
house (A. 27, 30). Mrs. Micke testified 
that the door had been locked (A. 20).
It appeared that the washing machine had 
been pulled away from a window, a fan 
moved, and the door unlocked on the inside 
by slipping a hand through the window 
(A. 20, 21, 27, 28, 31).

After the State presented its 
case, Petitioner's counsel (who has been 
counsel throughout the proceedings and up 
to the present time) asked that the jury 
be excused and that the defendant be 
called to determine, on the record, whe­
ther he then wished "to make a sworn or 
unsworn statement or no statement at 
all." (A. 50). This was done (A. 50) .2J

2/ Georgia law gives a criminal defendant 
these three options. Ga. Laws 1962,p.453 
Ga. Code Ann. § 27-405, App. A, p.
6 a. See also Ga. Laws 1962, pp. 
133-135, Ga. Code Ann. § 38-415 and 
-416.



7

Petitioner verified that his attorney 
had discussed these three alternatives 
with him and advised him in this regard, 
and that it was his decision not to make 
a statement (A. 51). After further ex­
planation by the court and his attorney, 
in which it was emphasized that he could 
make either a sworn or an unsworn state­
ment, the court asked: "Do you want to 
tell this jury anything?" The defendant 
then said, "Yes". (A. 52, 53). He reit­
erated this desire before the jury, and 
after his attorney instructed him to 
"Give your name, your age and everything 
else about you," the following transpired:

"The Defendant: William Henry Furman.

"Mr. Mayfield: Speak a little louder, 
please.

"The Defendant: William Henry Fur­
man. I am twenty-six. I work at 
Superior Upholstery.

"Unidentified: Where?

"The Defendant: Superior Upholstery.

"Mr. Mayfield: Speak loud enough now 
for everyone to hear you and hear 
you clearly.

"The Defendant: They got me charged
with murder and I admit, I admit



8

going to these folks1 home and they 
did caught me in there and I was com­
ing back out, backing up and there 
was a wire down there on the floor.
I was coming out backwards and fell 
back and I didn't intend to kill no­
body. I didn't know they was behind 
the door. The gun went off and I 
didn't know nothing about no murder 
until they arrested me, and when the 
gun went off I was down on the floor 
and I got up and ran. That's all to 
it.

"Mr. Mayfield: Now, do you have
anything else you want to tell this 
jury about this case?

"The Defendant: Yes, sir, one other
thing; they didn't —  questioned me 
down there, down there at the police 
station, they didn't told me nothing 
about a lawyer and I told them who I 
wanted as an attorney and they still 
asked me questions and I wouldn't an­
swer none. That's —  that's all I've 
got to say.

"Mr. Mayfield: Anything else you want
to say now?

"The Defendant" That's all.

"Mr. Mayfield: You may come down.



9

Note: (The defendant withdrew
from the witness stand.)" (A.
54-55).

Before the trial commenced, a motion 
to suppress evidence was heard and denied, 
a motion challenging the array of the jury 
venire was submitted upon stipulation of 
transcript from another case, and other 
defense motions were made and denied (R. 
8-15, Re Transcript 2, 2-a, 11A through 
11 BE; A. 11, 12).

In obtaining a panel of forty-eight 
qualified jurors, only one person was dis­
qualified, and thus required replacement, 
for answering that he would refuse to im­
pose capital punishment in a case regard­
less of the evidence (A. 12-15).

The trial was held on September 20, 
1968 (A. 10), the homicide having occur­
red on August 11, 1967 (A. 17). The 
lapse of time was occasioned by defen­
dant 1s attorney having moved for psychi­
atric examination and evaluation at an 
institution designated by the court and 
at State expense so that the jury could 
have the information in determining guilt 
or innocence and proper punishment (A. 6 ). 
On October 24, 1967, the court granted the 
motion inadvertently referring to it as a 
special plea of insanity, and ordered 
defendant sent to Milledgeville (Central) 
State Hospital for examination (A. 8 ).



10

By the terms of the order, the findings 
were to be sent to the court, the solici­
tor general, and defendant's counsel. 
Defendant was returned to the court in 
April, 1968, as being competent to stand 
trial, it having been determined that he 
was not psychotic, knew right from wrong, 
and was able to cooperate with his coun­
sel in preparing his defense (Petitioner's 
Brief, Appendix B, p. 3b).

No further reference was made to any 
insanity, either in terms of a defense or 
in terms of being competent to stand trial. 
Despite all of the pre-trial and post­
trial activity which marks the course of 
this case, the subject did not arise un­
til after this Court granted certiorari 
and preparations for the appendix began 
(Petitioner's Brief, App. B, p. lb). 
Contrary to the assertion putting the blame 
for omission of the "reports" on the 
trial court clerk, the law clearly im­
poses this duty of perfecting the record 
on the party contending the record is 
incomplete, in this case,the Petitioner.
Ga. Laws 1965, pp. 18,24; Ga. Code Ann.
§ 6-805(f), App. A. p. la.
Respondent knows of no requirement that 
the clerk include in the record more than 
is recorded in his office.

The merits of the new assertions 
regarding Petitioner's mental condition 
are palpably suspect since, although



11

trial counsel pressed an appeal before 
the Georgia Supreme Court and was thus 
responsible for drawing up the enumera­
tion of errors and supporting brief 
based on the record, the absence of the 
letters was not even noticed or thought 
important enough to be made a part of 
the record at that stage, as may be done 
in accordance with appellate practice. 
Ga. Laws 1964, pp. 18, 24, supra.

Petitioner, in his Statement of the 
Case, refers to the characterization of 
the crime given in the opinion of the 
Georgia Supreme Court (Petitioner's 
Brief, p. 6). That Court, in section 
6 of its opinion (A. 67, 68), ruled that 
the general grounds of the motion for 
new trial 3/were not meritorious.

2/ That is, contentions that the
verdict was contrary to evidence and 
without evidence to support it; that 
the verdict was decidedly and 
strongly against the weight of the 
evidence; and that the verdict was 
contrary to law and the principles 
of justice and equity. See R. 20.



12

The reason was that the evidence was suf­
ficient to show either implied malice 4/ 
or at least the death occurring in the 
commission of a felony. .5/

Contrary to Petitioner's comment, 
Georgia law at the time of his convic­
tion, and still now, divides crimes of 
homicide into three categories: murder

4 /

V

Ga. Code Ann. § 26-1004: "Implied
Malice. Malice shall be implied 
where no considerable provocation 
appears and where all the circum­
stances of the killing show an 
abandoned and malignant heart. Cobb, 
783." This now comprises § 26-1101 (a) 
of the Code of Georgia, effective
July 1, 1969. (Petitioner's Brief, 
App. A, p. 4a)
Illustrated, as the Court notes, by 
Williams v. State, 222 Ga. 208 (1966) 
and Manor v. State, 223 Ga. 594(1967) 
This type of murder is now defined in 
the Criminal Code of Georgia, § 26-
1101(b). (Petitioner's Brief, App. A, 
p. 4a).
Formerly Ga. Code Ann. § 26-1002, 
now Criminal Code of Georgia § 
26-1101. (Petitioner's Brief, App.
A, p. la, 4a).

y



13

voluntary manslaughter , and invol­
untary manslaughter -§/. The Committee 
Notes which accompany the new Criminal 
Code of Georgia effective July 1, 1969, 
discusses the decision not to divide the 
offense of murder into degrees:

"An examination of murder legisla­
tion in operation in 30 States 
discloses that six jurisdictions 
(Illinois, Louisiana, Mississippi, 
Oklahoma, South Carolina, and 
Texas) follow the Georgia pattern 
of dividing homicide into murder, 
voluntary, and involuntary man­
slaughter, with separate defini­
tions of these offenses. The 
remaining 24 States, approximately 
80 % of the jurisdictions studied, 
in addition to having statutes deal­
ing manslaughter, divide murder 
into degrees for purposes of pro­
secution and punishment. . . .

* * *

7 /

Formerly Ga. Code Ann. § 26-1002, 
now in Criminal Code of Georgia,
§ 26-1101.(Petitioner 1s Brief,

8/ APP* PP* la, 4a).
Formerly Ga. Code Ann. § 26-1009, 
now in Criminal Code of Georgia,
§ 26-1103. (Petitioner1s Brief, 
App. A, pp. 2a, 4a).



14

"While more than three-fourths of 
the States divide the offense of 
murder into degrees, primarily to 
facilitate punishment, Georgia has 
always followed the common-law 
view of a single definition.
Illinois and Louisiana, which have 
recently enacted criminal Code 
legislation, have adopted the de­
finitional classification of homi­
cide similar to the method presently 
employed in Georgia. The Model 
Penal Code Proposed Official Draft 
approves and utilizes the single 
definition (Section 201.2)."
Committee Notes, Criminal Code of 
Georgia, 1970 Revision, p. 84.

Thus, Georgia submits to the jury 
trying the case the discretion to fix the 
punishment at death in a murder case, and 
does not limit its consideration by classi­
fications of degree. The value of any 
life ended by murder is thus given the 
same weight insofar as the maximum penalty 
imposeable is concerned. The myriad of 
variables attendant to each case is left 
to consideration of the jury, represent­
ing the community, as to which murder 
cases appropriately call for the death 
penalty.

Petitioner states, as a footnote, 
his Amended Motion for New Trial chal­
lenged a certain jury instruction re­



15

garding felony murder (Petitioner's Brief 
p. 7, fn. 4). He did not object to the 
instruction when given (A. 64).

He states that he incorporated the 
challenge by reference into the Enumera­
tion of Errors which formed the basis of 
appeal to the Georgia Supreme Court, but 
it appears there only thusly:

"7. That the Court erred in one 
and all of the respects set out in 
the amended Motion for New Trial and 
for the reasons set forth thereon." 
Enumeration of Errors dated March 27, 
1969, p. 2 (Not paginated in origi­
nal record in this Court and not 
included in printed Appendix.).

The Supreme Court of Georgia does not con­
sider enumerations not briefed or argued. 
Schmid v.State, 226 Ga. 70 (1970). And 
it is abundantly evident that Petitioner 
did not assert the matter below at all, 
as at the conclusion of the Georgia 
Supreme Court's opinion, it is stated:

"7. Having considered every 
enumeration of error argued by 
counsel in his brief and find­
ing no reversible error, the 
judgment is Affirmed.11 (A. 68).

Consequently, Petitioner can raise no 
inference or implication that any issue 
in this regard was properly raised.



16

Petitioner refers to "additional 
facts" concerning him which the jury did 
not know but which "appear in the record" 
(Petitioner's Brief, pp. 8-9). That 
these "facts" are not a part of the record 
and were not a part of the record before 
the court below has already been pointed 
out. It is further noted that the 
"facts" alluded to, i.e., results of 
psychiatric examination, were fully 
available for disclosure to the jury, 
had Petitioner's counsel deemed it favor­
able to the defendant to make such a 
revelation. The letters are dated 
February 28, 1968, and April 15, 1968 
(Petitioner's Brief, App. B, pp. 2b and 
3b), long before the trial on September 
20, 1968, and it is obvious from their 
content that defense counsel would not 
have chosen to make the jury aware of 
their substance. There is no basis what­
soever for Petitioner's bald statement 
that the two letters "indicate that 
Petitioner Furman is both mentally 
deficient and mentally ill."
(Petitioner's Brief, p. 9). The lately 
contrived "issue" of insanity is further 
dealt with in this Argument, infra, p. 88 et 
The facts concerning the same are simply 
recited here, in refutation of Petitioner's 
erroneous Statement of the Case in this 
regard.

Contrary to Petitioner's statement, 
he was not "committed" to Central State 
Hospital upon a special plea of insanity.



17

There was no such special plea of insan­
ity, which would have ultimately required 
a jury determination of competency to 
stand trial, such as occurred in Jackson's 
case. See Jackson v. Georgia, No.
69-5030, A. 12, 13, 17, 18, 21, 33. 
Instead, counsel simply moved for psy­
chiatric examination, at State expense, 
to be used for purposes of defense and 
possibly for sentencing (A. 6). As 
indicated heretofore, the court in 
granting the motion inadvertently 
referred to it as a plea of insanity, 
but none was ever filed nor did counsel 
ever make any issue of competency to 
stand trial.

Petitioner also asserts an erroneous 
conclusion regarding the meaning of the 
second letter: the Hospital did not re­
port on April 15, 1968, that he was THEN 
diagnosed identically as he had been diag­
nosed on February 28. Instead, the letter 
merely repeated the earlier diagnosis as 
having at one time been made, and it then 
goes on to say that the present condition 
is different. There is no basis for con­
cluding, as Petitioner inferredly attempts 
to, that the Hospital deliberately sent 
back for trial a man who had some mental 
condition which should have legally avoid­
ed trial and sentencing.



18

SUMMARY OF ARGUMENT

THE IMPOSITION AND CARRYING OUT 
OF THE DEATH PENALTY IN THIS 
CASE DOES NOT CONSTITUTE CRUEL 
AND UNUSUAL PUNISHMENT IN VIOLA­
TION OF THE EIGHTH AND FOURTEENTH 
AMENDMENTS.

The Fourteenth Amendment, by virtue 
of which cruel and unusual punishment for­
bidden by the Eighth Amendment is a pro­
hibition against the states, provides 
that the states may not deprive any per­
son of life without due process of law. 
Conversely, the states may deprive a 
person of life so long as the mandates of 
due process of law are observed. The 
Eighth Amendment, adopted as part of a 
declaration of rights to confine the 
federal government, may not effect a 
curtailment of a right of the states 
recognized by the states-restricting 
Fourteenth Amendment.

The Eighth Amendment does not pro­
hibit the penalty of death for crime, 
in that such a penalty was historically 
acceptable in the context of the period 
in which the Amendment was adopted, 
has thereafter traditionally been a 
part of the penal system in this country, 
and is widely accepted today as a rea­
sonable, rational, and appropriate



19

instrument in the control of crime. it 
is not a punishment that is prohibited as 
constitutionally "cruel and unusual."
The function of State legislatures to 
define crimes and fix punishments is 
therefore not restricted against providing 
such a punishment.

This case is devoid of any issue 
concerning the sanity of Petitioner.

There is no constitutional barrier 
to the imposition and carrying out of 
the death penalty in the case at bar.



20

ARGUMENT

I
THE DEATH PENALTY FOR MURDER 
IS NOT PER SE CRUEL AND UN­
USUAL, IN THE CONSTITUTIONAL 
SENSE, AND IS THEREFORE NOT A 
DEPRIVATION BY THE STATE OF 
PETITIONER FURMAN'S LIFE WITH­
OUT DUE PROCESS OF LAW.

The Court has framed the question for 
examination to be, whether the imposition 
and carrying out of the death penalty in 
Furman's case constitutes cruel and un­
usual punishment in violation of the 
Eighth and Fourteenth Amendments. Peti­
tioner contends that his sentence is a 
rare, random, and arbitrary infliction 
and for that reason is prohibited by 
the Eighth Amendment principles briefed 
in Aikens v. California, No. 68-5027.
He states therein that the Due Process 
Clause of the Fourteenth Amendment is 
"involved" 2/, but he makes little or 
no reference to it thereafter, travel­
ing instead on the assumption that the 
Eighth Amendment is incorporated into 
the Due Process Claiise and so it need

9/ Aikens Brief, p. 2.



21

only be examined in terms of the former. 
However, since the Eighth Amendment is 
not, alone, applicable to the States 
and was not applicable to them in any 
sense before the adoption of the Four­
teenth Amendment in 1868, the question 
at issue must be reviewed in the context 
of the latter's requirements. The 
Eighth Amendment imposes no restrictions 
on the States, but the Fourteenth Amend­
ment does. The Due Process requirements 
will therefore be developed as the appro­
priate arena in which to focus on the 
cruel and unusual punishment question.

The Fourteenth Amendment Due Pro­
cess Clause guarantees:

"(N)or shall any State deprive 
any person of life, liberty or 
property without due process of 
law; . . . "  (Emphasis added).

It does not prohibit a State from 
depriving a person of life, but rather 
the prohibition is that it shall not be 
done without due process of law. Thus, 
the Nation saw fit, one hundred years ago, 
to give constitutiqnal permanence to the 
right of every person to demand due pro­
cess before his life could be forfeited 
by the State. The mandates of this 
clause, in terms of cruel and unusual 
punishment, has been stated variously:



2 2

In Ex parte Kemmler, 136 U.S. 436 (1890) 
the Court explained:

"[I]n the Fourteenth Amendment, 
the same words [due process of 
law] refer to that law of the 
land in each State, which derives 
its authority from the inherent 
and reserved powers of the State, 
exerted within the limits of 
those fundamental principles of 
liberty and justice which lie 
at the base of all our civil and 
political institutions. Undoubt­
edly the Amendment forbids any 
arbitrary deprivation of life, 
liberty or property, and secures 
equal protection to all under like 
circumstances in the enjoyment of 
their rights; and in the adminis­
tration of criminal justice re­
quires that no different or higher 
punishment shall be imposed upon 
one than is imposed upon all for 
like offenses. But it [the Four­
teenth Amendment] was not designed 
to interfere with the power of 
the State to protect the lives, 
liberties and property of its 
citizens, and to promote their 
health, peace, morals, education 
and good order." I_d. at 448.

Kemmler complained that the form of 
the death penalty, electrocution, was



23

cruel and unusual and therefore a depri­
vation of life without due process of 
law. The Court concluded that in order 
to reverse the New York highest court, 
it would " . . .  be compelled to hold 
that it had committed an error so gross 
as to amount in law to a denial by the 
State of due process of law to one ac­
cused of crime." id. at 448. Peti­
tioner's complaint faces the same test 
because in order to prevail, it, too, 
must evidence a denial of substantive 
due process: whereas Kemmler challenged 
the form of infliction, i.e ., electro­
cution itself, rather than the procedure 
for inflicting it, Petitioner chal­
lenges the punishment, i.e., the death 
penalty, itself, rather than the proce­
dure by which it was imposed on him.

In Louisiana ex rel. Francis v. 
Resweber, 329 U.S. 459 (1947), the 
circumstances of execution were com­
plained of as cruel and unusual punish­
ment. Thus, procedural due process was 
the frame. Mr. Justice Frankfurter 
developed the concept of the due pro­
cess safeguard in a concurring opinion 
and said it is part of "the conceptions 
of justice and freedom by a progressive 
society." Id., at 467.

"The Fourteenth Amendment,” he
wrote, "did mean to withdraw
from the States the right to



24

act in ways that are offensive to 
a decent respect for the dignity 
of man, and heedless of his free- 
dom. " Id,, at 468.

"In short," he continued, "the 
Due Process Clause of the Four­
teenth Amendment did not withdraw 
the freedom of a State to enforce 
its own notions of fairness in the 
administration of criminal justice 
unless, as it was put for the Court 
by Mr. Justice Cardozo, 'in so doing 
it offends some principle of justice 
so rooted in the traditions and con­
science of our people as to be ranked 
as fundamental.'" I_d. at 469.

This context, then, is the proper 
one in which the Court is to review 
State penal laws, with respect to whether 
they are cruel and unusual. The question 
of the moment is whether the death penalty 
offends some principle of justice so 
rooted in the traditions and conscience 
of our people as to be ranked as funda­
mental. This test looks to the solid past 
as well a constitutional inquiry should, 
rather than simply to the shifting pre­
sent, which Petitioner presses with his 
emphasis on a test of "evolving standards.

Measured by this due process test, 
it is indisputable that the death penalty 
for crimes which immediately endanger or



25

take life does not offend a rooted prin­
ciple of justice. The existence and 
application of the death penalty itself 
has been an integral part of our penal 
systems since at least Colonial days, 
although, as Justice Burton pointed out 
in dissent in the Louisiana case, tor­
turous means and forms of inflicting 
death is prohibited as shocking funda­
mental instincts of civilized man.
Id. at 473.

Since due process standards are very 
broadly conceived, Mr. Justice Frank­
furter cautioned, "great tolerance toward 
a State's conduct is demanded of this 
Court." _Id. at 470. The State does not 
assert that its position in this case 
cannot be maintained without a great 
tolerance being shown by the Court, but 
rather points up this concept to illus­
trate the foreshortened framework of 
Petitioner's premise.

Although Solesbee v. Balkcom, 339 
U.S. 9 (1950) is not a punishment case, 
it involves an application of the Due 
Process Clause. The question was whether 
the method applied by Georgia to deter­
mine the sanity of a convicted defendant 
offended due process. The Court held 
that the statute as applied did not do so. 
Mr. Justice Frankfurter, who dissented, 
again exhaustively reviewed the meaning of 
the Due Process Clause. The rule against



26

executing an insane person is "protected 
by substantive aspects of due process," 
he noted. (Id. at 24). This conclusion 
followed from an application of the sub­
stantive aspect of due process, which 
was phrased thusly:

"It is now the settled doc­
trine of this Court that the 
Due Process Clause embodies a 
system of rights based on moral 
principles so deeply embedded in 
the traditions and feelings of 
our people as to be deemed funda­
mental to a civilized society 
as conceived by our whole history." 
Id. at 16.

* * *

"In applying such a large, un- 
technical concept as 'due pro­
cess,' the Court enforces those 
permanent and pervasive feelings 
of our society as to which there 
is compelling evidence of the 
kind relevant to judgments on 
social institutions." Id. at 16.

The distinction between substan­
tive and procedural due process which 
was there made was that substantive 
due process prohibited killing an in­
sane man, whereas procedural due pro­
cess required that where a question of



27

sanity arises, the prisoner must be 
given the opportunity to show that he is 
otherwise. This distinction illustrates 
that Petitioner's argument, as embodied 
in the Aikens Brief, must be construed 
to be that the death penalty violates 
substantive due process, because the 
theory is that any execution actually 
inflicted in our contemporary society 
would be unconstitutional.

Trop v. Dulles, 356 U.S. 86 (1958) 
is strictly an Eighth Amendment case 
because of its federal character. Due 
process considerations did not enter 
in. Therefore, Petitioner's lifting 
of the test suggested in that case and 
his primary reliance thereon distorts the 
question in this case. Its adaptability 
to the present situation must be circum­
scribed by the superimposition of the 
broad limits in which due process allows 
the States to operate.

Petitioner, moreover, makes the Trop 
test unworkable in a judicial setting by 
construing it narrowly. The evolving 
standards of decency, he says, are ones 
which are current and can be measured by 
contemporary statistics and public 
opinion indicators and world-wide 
"trends". Such a close-to-pocket con­
struction of the Trop language not only 
fails to take into account the changes 
of tomorrow but refuses to acknowledge



28

the judicial setting in which it must 
be applied. Petitioner's brief is 
replete with partial statistics, as­
sertions of unconfrontable "experts", 
and all types of "objective indicators" 
which allow not of cross-examination 
and which are not subject to the rules 
of evidence. It is submitted that the 
standards intended by the statement that 
"the [Eighth] Amendment must draw its 
meaning from the evolving standards of 
decency that mark the progress of a 
maturing society" -i2/ are standards of 
fundamental significance and capable 
of demonstration to a judicial body that 
is confined to the evidence in the record 
of a case and is not equipped with the 
facilities for factual investigation and 
the gathering of conflicting evidence 
which a legislative body would have. The 
scope and magnitude of the "evidence" 
proffered by Petitioner itself bespeaks 
an attempt that would more fittingly be 
directed to a legislature. The Court, 
as a matter of fact, has on more than 
one occasion with respect to penalties, 
pointed this out: see dissent of Mr. 
Justice White, concurred in by Mr.
Justice Holmes, in Weems v. United 
States, 217 U.S. 349, 384 (1910); dis-

10/ 356 U.S. at 101.



29

sent of Mr. Justice Clark in Robins on 
v. California, 370 U.S. 660, 682, 683 
(1962); dissent of Mr. Justice White in 
Robinson v. California, supra, 370 U.S. 
at 689. At the least, the Court has 
taken cognizance of the comprehensive 
task involved in reaching the conclusion 
that a legislatively defined crime or 
legislatively fixed punishment is uncon­
stitutional :

"And for the proper exercise of 
such power [judicial power to judge 
the exercise of legislative power] 
there must be a comprehension of 
all that the legislature did or 
could take into account, -- that 
is, a consideration of the mischief 
and the remedy." Weems v. United 
States, supra, 217 U.S. at 379.

The standard, then, is the much broader 
one implicit in "the dignity of man"; it 
requires only that the power to punish "be 
exercised within the limits of civilized 
standards". Trop v. Dulles, supra, 356 
U.S. at 100. The overriding applicability of 
the Fourteenth Amendment due process con­
cept, which was absent in the Trop and 
Weems tests, is present in Robinson v. 
California, supra, 370 U.S. 660 (1962).
There the Court concluded that it was 
"doubtless" that a law which made a crim­
inal offense of a disease would universal­
ly be thought to be cruel and unusual



30

punishment in violation of the Eighth 
and Fourteenth Amendments, -ii/ The 
fundamental character of the condemna­
tion is therefore the gauge.

The narrow construction which Peti­
tioner puts on "contemporary human know­
ledge", "public opinion enlightened by 
humane justice", and "evolving standards 
of decency that mark the progress of a 
maturing society", also falls prey to one 
of his own arguments. The United States 
Constitution is, to be sure, a vital 
organ which must be interpreted with 
deference to its elastic nature. This 
does not mean, however, that it may be 
construed solely to fit today's needs, 
desires and best judgment. That is 
employment more appropriate to laws, 
which can be made today and changed, modi­
fied, altered, amended, or repealed 
tomorrow. Laws can be experimented 
with. But the Constitution remains as it 
stands, subject only to infrequent and 
difficult-to-achieve amendment. If the 
Court were to construe the foundation 
document in terms of current world or 
national opinion, and assuming for the 
sake of argument that Petitioner has 
demonstrated total contemporary rejection

11/ 370 U.S. at 666.



31

of the death penalty, the constitutional 
invalidation of capital punishment would 
remove it foreover as a penal sanction in 
this country, absent constitutional 
amendment.

Such finality should not be imposed 
when it has not been shown that the death 
penalty serves no legitimate purpose and, 
even more importantly, when no one can 
yet imagine the types or magnitudes of 
crimes that will surely evolve in future 
generations. Who, for example, envi­
sioned twenty years ago that our society 
plagued with gun-point airplane high­
jacking, would find it necessary to define 
a new crime, commonly referred to as 
"skyjacking", and provide as a maximum 
the death penalty? A2/ Who today can 
imagine the new and more broadly sweeping 
crimes that can evolve in the increasingly 
complex, mobile, speeding, technological, 
interdependent society in which we live?
It is all too well known that the flip of 
a switch can destroy millions. As the 
Court succinctly stated in Weems v. United 
States, 217 U.S. 349 (1910):

12/ See Ga. Laws 1969, p. 741; Criminal 
Code of Georgia § 26-3301. (App. A, 
p. 5) .



32

"The future is their (constitution's) 
care, and provision for events of 
good and bad tendencies of which no 
prophecy can be made. In the appli­
cation of a constitution, therefore, 
our contemplation cannot be only of 
what has been, but of what may be."
Id. at 373.

Note also that this statement immedi­
ately succeeds the Court's observation 
that the death penalty was not meant to 
be excluded by the Eighth Amendment pro­
hibition.

The penalty here sought to be out­
lawed should be abolished by the law 
makers, if such a penalty is currently 
unacceptable as Petitioner says. Then, 
if ever again thought useful or necessary, 
it could likewise be reinstated. Ex­
perience would then provide a knowledge­
able guideline by a number of states 
which at one time elected to abolish the 
penalty. -=-=/ But to ban it as a matter 
of constitutional imperative is not only 
unjustified in terms of its present posture 
but is also dangerous in terms of its 
future use. As it was pointed out on pre-

13/ United States Department of Justice,
National Prisoner Statistics Bulletin, 
Number 45# August, 1969, Table 15, p. 
30 [hereinafter cited as NPS] .



33

vious occasions, the power of the 
legislature to define crimes and their 
punishment must yield only to a consti­
tutional prohibition;

"The function of the legislature 
is primary, its exercise fortified 
by presumptions of right and legal­
ity, and is not to be interferred 
with lightly, nor by any judicial 
conception of its wisdom or propriety. 
They have no limitation, we repeat, 
but constitutional ones, and what 
those are the judiciary must judge.
We have expressed these elementary 
truths to avoid the misapprehension 
that we do not recognize to the ful­
lest the wide range of power that 
the legislature possesses to adapt 
its penal laws to conditions as they 
may exist, and punish the crimes of 
men according to their forms and fre­
quency." Weems v. United States, 
supra, 217 U.S. at 379.

The sane principle is reiterated in 
Trop v. Dulles, supra, 356 U.S. at 103:

"Courts must not consider the 
wisdom of statutes but neither 
can they sanction as being merely 
unwise that which the Constitution 
forbids."



34

And more recently in McGautha v. California, 
402 U.S. 183 (1971):

"Our function is not to impose on 
the States, ex cathedra, what might 
seem to us a better system for deal­
ing with capital cases. Rather it 
is to decide whether the Federal Con­
stitution proscribes the present pro­
cedures of these two States in such 
cases." Id. at 195 .

In the instant case, the antagonist 
to the traditional penalty has not only 
failed to show that it is constitutionally 
forbidden but even that it is unwise. 
Fundamental requirements of fairness and 
decency are ^hat the Due Process Clause 
embodies, —  and it is that bedrock 
standard which Petitioner must show 
capital punishment contravenes. It is 
abundantly evident that he has not proved 
his case.

Emphasis has been given to the due 
process setting in which the claim of 
cruel and unusual punishment must be 
viewed. This is not to deny that judi­
cial measurements of Eighth Amendment cruel 
and unusual punishment are not to be 
applied. Indeed they are, as is illus-

14/ McGautha v. California, supra 
402 U.S. at 215.



35

trated by at least as early a case as 
Louisiana ex rel. Francis v. Resweber, 
supra, 329 U.S. at 463 (1947)-

The test of whether punishment is 
cruel and unusual in the constitutional 
sense has been variously stated in dif­
fering circumstances. In attempting to 
ascertain the meaning of the Eighth 
Amendment clause in the federal case of 
Wilkerson v. Utah, 99 U.S. 130 (1879), 
the Court in part measured the mode of 
execution by the proposition that the 
Constitution forbids punishments of 
torture and all others in the same line 
of unnecessary cruelty. In that regard, 
death by electrocution does not fail the 
test. Ex Parte Kemmler, supra. Even 
Petitioner concedes as much. .15/

"Punishments are cruel", the Court 
said in Kemmler, "when they involve tor­
ture or a lingering death; . . . some­
thing inhuman and barbarous . . . "
Ex parte Kemmler, supra, 136 U.S. at 447.

15/ Aikens Brief, App. I, p. 9i:
"Under correct application," elec­
trocution "insures a death that is 
both instantaneous and painless."



36

The meaning of cruel and unusual 
punishment was subsequently expanded and 
liberalized to cover a broader spectrum. 
Mr. Justice Field, in dissent in 0 1 Neil 
v. Vermont, 144 U.S. 323 (1892), pre­
cursed the concept that the inhibition 
is directed not only against punishments 
of a torturous character, "but against 
all punishments which by their excessive 
length or severity are greatly dispro- 
portioned to the offenses charged."
Id. at 340. The punishment imposed in 
that case was, in Field's opinion, "a 
punishment at the severity of which, con 
sidering the offenses, it is hard to 
believe that any man of right feeling 
and heart can refrain from shuddering." 
Id. at 340. So measured, the punishment 
which has over the past several years 
been imposed by juries to at least most, 
if not all, of the approximately 660 per 
sons now under death penalty in this 
country, cannot be said to be excessive 
in terms of the right feeling and heart 
of any man.

The Court in Howard v. Fleming,
191 U.S. 126 (1903) declined to set out 
a rule for determining what punishment 
is cruel and unusual or under what cir­
cumstances the Court would interfere 
with the decision of a state court in 
respect thereto. Reference was made 
instead to Ex parte Kemmler, supra.



37

The Court did say, however, that "Undue 
leniency in one case does not transform 
a reasonable punishment in another case 
to a cruel one." Howard v. Fleming, supra, 
191 U.S. at 136. By that measurement, 
the penalty in the cases sub judice will 
stand.

The excessiveness concept outlined 
by Mr. Justice Field in O'Neil., supra, 
was applied in Weems v. United States,
217 U.S. 349 (1910). After reviewing 
the history of the cruel and unusual 
punishment clause and the judicial pro­
nouncements concerning it, the Court 
concluded that the punishment provided 
by statute in Weems was cruel in its 
excess and unusual in its character.
Thus, because of its degree and because 
of its kind, it was deemed invalid. 
Petitioner here, too, challenges the 
statutory punishment itself, rather than 
merely its application in his case. He 
says in effect that it is per' se cruel 
and unusual. He assumes that it is 
"cruel" and directs his attention to an 
attempt at showing that it is also 
"unusual."

But is the death penalty excessive, 
that is, cruel, per se for murder and 
other crimes that take, or clearly and 
presently endanger, innocent life?
It is inconceivable that in our system 
of justice the victim should be compelled



38

to suffer more than the attacker. The 
death penalty has always been regarded 
by this Court as constitutionally al­
lowable as a punishment:

"Punishments are cruel when they 
involve torture or a lingering 
death; but the punishment of death 
is not cruel within the meaning of 
that word as used in the Constitu­
tion. It implies there something 
inhuman and barbarous, and some­
thing more than the mere extin­
guishment of life." Ex parte 
Kemmler, supra, 136 U.S. at 447.

Lest there be any doubt as to the 
meaning of that statement, the Court in 
Weems, supra, 217 U.S. at 370-371, ex­
plained:

"It was not meant in the language 
we have quoted to give a comprehen­
sive definition of cruel and un­
usual punishment, but only to ex­
plain the application of the pro­
vision to the punishment of death.
In other words, to describe what 
might make the punishment of death 
cruel and unusual, though of itself 
it is not so."

Mr. Justice Burton repeated this pre­
cept with approval in his dissent in 
Louisiana ex rel. Francis v. Resweber,



39
supra, 329 U.S. at 463, footnote 4.
More recently it was said:

"At the outset, let us put to 
one side the death penalty as an 
index of the constitutional limit 
on punishment. Whatever the argu­
ments may be against capital 
punishment, both on moral grounds 
and in terms of accomplishing the 
purposes of punishment— and they 
are forceful— -the death penalty 
has been employed throughout 
history, and, in a day when it 
is still widely accepted, it can­
not be said to violate the consti­
tutional concept of cruelty." Trop 
v. Dulles, supra, 356 U.S. at 99.

Mr. Justice Black' s concurring opinion in
McGautha v. California, supra, makes it
plain:

"The Eighth Amendment forbids 
'cruel and unusual punishments.'
In my view, these words cannot 
be read to outlaw capital punish­
ment because that penalty was in 
common use and authorized by law 
here and in the countries from 
which our ancestors came at the time 
the Amendment was adopted. It is 
inconceivable to me that the 
Framers intended to end capital 
punishment by the Amendment. Al­
though some people have urged that



40

this Court should amend the Consti­
tution by interpretation to keep it 
abreast of modern ideas, I have 
never believed that lifetime judges 
in our system have any such legis­
lative power. See Harper v.
Virginia Board of Elections, 383 
U.S. 663, 670 (1966) (Black, J., 
dissenting)." Id. at 226.

It is not pretended that previous 
pronouncements foreclose the question. 
However, the consistent views expressed 
over the years by this Court on this 
subject illustrate that the death penalty 
is not an unacceptable punishment. It 
cannot be said that these views do not 
give expression to that common standard 
of decency required of punishment in our 
society by humane justice, or that they 
must be abandoned because contemporary 
human knowledge has rendered the death 
penalty constitutionally "unusual".

Returning to the meaning of the 
cruel and unusual punishment clause and 
its previous construction by this Court, 
which serves to instruct as to its 
appropriate application in this case, 
the Weems definition was reiterated in 
the later federal case of Trop v. Dulles, 
supra, 356 U.S. at 100. The Eighth 
Amendment merely circumscribes the power 
to punish so that it does not exceed 
"the limits of civilized standards."



41

Id. at 100. The punishment of dena­
tionalization for even a minor deser­
tion in wartime was found to exceed 
these limits because it destroyed the 
political existence of the individual 
and his right to have rights. It was 
found to be excessive, contrary to "the 
dignity of man." The death penalty, 
when so measured, withstands the test. 
Execution is a traditional penalty which 
may be imposed depending on the enormity 
of the crime, the Court in Trop noted.
Id. at 100. It is submitted that the 
Petitioner has failed to carry his 
burden of showing that the death penalty 
is no longer clothed with validity.
His primary assertion is that capital 
punishment has now become unusual in a 
constitutional sense because of the 
rarity of actual execution, and that 
that rarity proves its unacceptability 
in terms of "evolving standards of 
decency." The failure of his proofs to 
substantiate his claim is demonstrated 
subsequently.

"Unusual”, that aspect of the clause 
to which Petitioner directs the weight 
of his argument, was given particular 
attention in footnote 32 of the Trop 
decision. Without concluding whether the 
word "unusual" should be given an inde­
pendent meaning, it was observed that 
the Court:



42

" . . .  simply examines the 
particular punishment involved 
in light of the basic prohibi­
tion against inhuman treatment, 
without regard to any subtle­
ties of meaning that might be 
latent in the word 'unusual.'"

Going on, the Court suggested that:

"If the word 'unusual' is to 
have any meaning apart from 
the word 'cruel', however, the 
meaning should be the ordinary 
one, signifying something dif­
ferent from that which is gen­
erally done."

And why did the Court regard denational­
ization as "unusual" in this sense? Be 
cause:

"[i]t was never explicity sanc­
tioned by this Government until 
1940 and never tested against the 
Constitution until this day."
Trop v. Dulles, supra, 356 U.S. 
at 100, fn. 32.

The death penalty on the other hand, 
has always been sanctioned in this country 
and is still sanctioned by the vast major­
ity of jurisdictions here. It was such 
an integral part of the penal system 
when the Amendment was adopted that there



43

was not even a question so far as 
Respondent can find, in Congress or in 
any of the State legislatures to which 
it was sent for ratification, as to 
whether that Amendment conceivably ex­
cluded the death penalty. And as to its 
testing against the Constitution, it 
would appear that the question would have 
come up prior to this almost 200th year 
of our national history, if it had been 
regarded as debatable.

The "contemporary human knowledge" 
test which Petitioner extracts from 
Robinson v. California, supra, must be 
examined in its context in order to be 
a reliable guide in the present action. 
The Court said:

"It is unlikely that any State 
at this moment in history would 
attempt to make it a criminal 
offense for a person to be men­
tally ill, or a leper, or to be 
afflicted with a venereal dis­
ease. A State might determine 
that the general health and wel­
fare require that the victims of 
these and other human afflic­
tions be dealt with by compul­
sory treatment, involving 
quarantine, confinement, or 
sequestration. But, in the



44

light of contemporary human 
knowledge, a law which made a 
criminal offense of such a dis­
ease would doubtless be univer­
sally thought to be an infliction 
of cruel and unusual punishment 
in violation of the Eighth and 
Fourteenth Amendments. See 
Louisiana ex rel. Francis v.
Resweber, 329 U.S. 459, . .
Id. at 566.

Thus, the Court considered the penalty 
to be so grossly antagonistic to contem­
porary human knowledge that universal 
thought would "doubtless" regard it as 
violative of the Eighth and Fourteenth 
Amendments. The same degree of attitude 
or opinion is not present in terms of 
capital punishment. Even Petitioner's 
statistics show that there is no "univer­
sal thought" in this country on its 
validity in the constitutional sense, or 
that such thought is "doubtless" a 
condemnatory one.



II
45

THE "INDICATORS" OF UNACCEP­
TABILITY OF DEATH AS A PENALTY 
ARE NOT RELIABLE YARDSTICKS,
ARE NOT RELEVANT OR APPROPRIATE 
YARDSTICKS, AND DO NOT PROVIDE 
ACCURATE MEASURES FOR DETER­
MINING THAT STANDARD OF DECENCY 
BEYOND WHICH STATES MAY NOT GO 
IN FIXING PUNISHMENT.

It has been demonstrated that the 
antagonist has failed to take into 
account the due process aspect of the 
question before the court, and the 
perimeters of that aspect have been 
explained. it has also been pointed 
out that the interpretation by the 
antagonist, of the tests heretofore 
enunciated and applied by this Court 
in construing the "cruel and unusual 
punishment" prohibition, has been too 
narrow and has sought to restrict the 
Court to a simplq present pulse-taking. 
A proper perspective of the question 
would sustain the punishment imposed, 
when history, experience, and purpose 
are scrutinized within the light of 
present knowledge. Leave that for 
the moment, however, and turn to the 
"proof" which Petitioner offers. it 
fails even the tests which he has 
proposed; that is, it fails to show 
that the standard which he has out­
lined is not being met by the State.



46

The premise which Petitioner 
attempts to prove, and whigh he says 
spells the doom of capital' punish­
ment, is that the death penalty has 
a fatal characteristic, i.e., "extreme 
contemporary rarity resulting from a 
demonstrable historical movement which 
can only be interpreted fairly as a 
mounting and today virtually universal 
repudiation." 23—/ The following 
objective indicia, he asserts, all 
point to unacceptability by contem­
porary standards:

(1) The suggestion is made that 
there is a world-wide trend towards 
disuse for civilian crime, a de_ facto 
abolition.

Firstly, by excluding military 
crimes from discussion, Petitioner 
attempts to artificially limit the 
scope of the Eighth Amendment which, 
as exemplified by its application to 
wartime desertion in the case of Trop 
v. Dulles, supra, admits of no such 
restriction. What this distortion 
does is allow the argument to be made 
that the death penalty has been 
"abolished" in many countries. Peti­
tioner has failed to point out that

13/ Aikens Brief, p. 12.



47

it has been almost universally 
retained for war-time crimes or 
treason. 12— / The legislative 
restrictions on the use of the 
death penalty in this and other 
countries certainly do not 
constitute "abolition". It 
presents rather a matter of degree. 
Thus the moral and legal absolutes 
presented in Petitioner's Brief 
are hedged, he having excluded at 
the outset an entire class of crimes 
the inclusion of which would weaken 
his argument. Petitioner has tacitly 
admitted by this exclusion that the 
death penalty has not been outlawed 
but has at the most been restricted.

It is highly questionable, 
secondly, whether the international 
picture is an appropriate measure 
of whether a State has contravened 
our Federal Constitution. Although 
the court in Trop took cognizance 
of the non-acceptability by civilized

iZ/ United Nations, Department of 
Economic and Social Affairs, 
Capital Punishment (ST/SOA/ 
SD/9-10) (1968).



48

nations of the world of statelessness 
as a punishment for crime, the penalty 
of denationalization in that case was 
of a peculiarly international character 
and involved the international political 
status of the person. Thus, the law of 
other nations was uniquely pertinent.
It is not so with the penalty of death, 
which does not involve an individual's 
citizenship relationship with his 
country or others. The same Trop 
opinion, moreover, comments on the death 
penalty in terms of "our", meaning our 
Nation's, history.

It was to the States that Mr. 
Justice Frankfurter looked in Solesbee 
v. Balkcom, 339 U.S. 9 (1950). In the 
dissent he tested the due process 
problem:

"The manner in which the States 
have dealt with this problem 
furnishes a fair reflex, for 
purposes of the Due Process 
Clause, of the underlying feel­
ings of our society about the 
treatment of persons who 
become insane while under 
sentence of death." id. at 21.

in Weems v. United States, supra, 
217 U.S. at 380-381, the Court compared 
the Philippine punishment, for Eighth 
Amendment purposes, only with the law of



49

the United States and with other punish­
ments in the Philippines.

Further, Petitioner cites no 
authority for the proposition that 
the Framers intended the test of 
"cruel and unusual punishment" to be 
a poll-taking of other countries1 use 
of a particular punishment. It is un­
likely that such a concept was envi­
sioned.

And it cannot be said that the 
reports cited by Petitioner 23/ indi­
cate a world-wide repudiation of such 
certainty that the death penalty contra­
venes the very dignity of man. Great 
Britain only abolished it after a trial 
period which indicates its own hesitancy, 
and Canada is still undergoing a five- 
year experiment that will expire unless 
affirmatively acted on by its Parlia­
ment. 23/ Such built-in vacillation

23/ Aikens Brief, p. 27, fn. 46.

23/ See report of the "Limitation of 
Death Penalty in Canada" by J. R. 
Mutchmor, Christian Century, Janu­
ary 24, 1968, Vol. 85, page 120. 
Just prior to the enactment of the 
experimental abolition in Canada, 
the death penalty was retained by 
(continued on next page)



50

by the two countries whose underlying 
philosophies are most closely allied 
with our own refutes the implication 
that our country alone remains barbaric

In addition, the circumstances of 
other countries may indeed permit them 
to abolish the death penalty; their 
crime rates and penal facilities, their 
systems of criminal law and their under 
lying concepts of crime, themselves un­
doubtedly each affected the decision to 
abolish. Thus, the mere number of such 
foreign countries have no effect on the 
constitutionality of what, in most of 
these United States, is regarded as a 
legitimate and needed penalty for crime

(2) The Petitioner alleges that 
the countries have abandoned capital 
punishment because of their concern 
with fundamental human decency, which 
he says is illustrated by an intense 
concern of religious groups, a crusade 
fervor with which the forces against 
the death penalty have moved, and anti

a vote of 143 to 112 despite 
the fact that Prime Minister 
Lester Pearson and the leaders of 
all other major parties favored 
abolishing it. "Time", April 15, 
1966, Volume 87, page 40.



51

capital punishment opinions of highly 
respected persons. Bedau lists 
examples of literature stating the 
case for capital punishment. 25/

The "objective indicator" which 
is thus put forth is merely contrived 
as a bald conclusion. Without a 
careful study of the circumstances 
under which a foreign country designed 
to discontinue use of the death penalty, 
it cannot be surmised that its reason 
was that which Petitioner wishes it to 
be. A conclusion, especially of the mag­
nitude made by Petitioner in this regard, 
cannot reliably be drawn from a small 
and carefully selected set of illustra­
tions, especially ones that do not even 
accurately portray what they portend to. 
For example, the fervor of crusade 
alluded to is indicative of most, 
if not all, attempts to reverse time- 
honored and traditional concepts and 
practices. It does not "show" that 
the reason for abolition is basically a 
concern with fundamental human decency.
It goes without saying that forces

55/ Bedau, The Death Penalty in Ameri­
ca (Rev. ed 1967), p. 120. See 
also, Bernard Lande Cohen, Law With­
out Order (1970).



52

destructive of society are also often 
imbued with the fervor of a crusade.

(3) Petitioner condemns what he 
regards as the mainstay of support 
for the death penalty. This "indicator 
of unacceptability" is the belief in 
retribution, atonement, or vengeance.
The implication is that such is not a 
legitimate purpose.

In the first place, punishment for 
its own sake is not regarded in law as 
unconstitutional. The Court in Trop 
referred to this in finding that the 
purpose of denationalization was simply 
to punish the deserter: "There is no
other legitimate purpose that the sta­
tute could serve," the court concluded. 
"Here the purpose [of the law] is 
punishment, and therefore the statute 
is a penal law." Trop v. Dulles, supra, 
356 U.S. at 97. Mr. Justice Brennan, 
in his concurring opinion in Trop, 
indicated that if the sole purpose of 
punishment was retribution, the punish­
ment was not a valid one. Not inci­
dentally, in discussing the purposes 
of the penal law, he noted that the 
thought of death as a penalty would 
serve the legitimate purpose of deter­
rence. Trop v. Dulles, supra, 356 U.S. 
at 112 .



53

It is patent that the death penalty 
serves a number of legitimate ends of 
punishment, contrary to Petitioner's 
contention. Such recognized purposes 
are deterrence of the wrongful act by 
threat of punishment (Trop, supra, 
concurring opinion of Mr. Justice 
Brennan, 256 U.S. at 111-112; Robinson, 
supra, dissent of Mr. Justice Clark,
370 U.S. at 68; Powell v. Texas, 392 
U.S. 514, 530 [1968]); the protection 
of society itself and of its members 
(Solesbee v. Balkcom, supra, 339 U.S. 
at 13; Robinson, supra, concurring 
opinion of Mr. Justice Douglas, 370 U.S. at 
677; Trop, supra, Mr. Justice Brennan concurring 
opinion, 256 U.S. at 111-112; included 
as a purpose of the penal law is the 
insulation of society from a dangerous 
individual by imprisonment "or execu­
tion") ; the repression of crime and 
prevention of repetition (Weems v .
United States, supra, 217 U.S. at 381).

How can it possibly be said that 
the death penalty does not act to 
deter would-be crime perpetrators 
from carrying out their schemes? In 
Powell, supra, 392 U.S. at 531, the 
Court presumed that the very existence 
of criminal sanctions serves to reinforce 
condemnation of murder, rape and other 
anti-social conduct. it cannot, on



54

the other hand, be presumed that the 
threat of death has not stayed the 
hand and saved the life,simply because 
the penalty has failed to deter those 
who commit capital felonies. Statis­
tics could never be gathered to prove 
how many capital crimes were averted 
by the existence of the death penalty, 
for no census gatherer or poll-taker 
could persuade even one person to admit 
that he would have committed a murder, 
or rape, or an armed robbery, or a 
kidnapping, but for the knowledge 
that he could have received the death 
penalty! It is in the very nature of 
man to recoil the most strenuously from 
forfeiture of his life. Although this 
deterrent effect cannot for lack of 
knowledge be measured in terms of the 
numbers of capital crimes NOT committed, 
other indications of the prevailing 
belief in the superior deterrent effect 
of the death penalty are recitable:

a) Six of the states which have 
partially abolished the death penalty 
have retained it for certain crimes.
New York, Vermont, North Dakota, and 
Rhode Island are particularly notable 
for retaining it for murders committed 
by certain prisoners, and New York and 
Vermont retain it also for murder of ap i /police officer or certain persons in ■—

21/ NPS, p. 30.



55

the prisons. What primary purpose 
could these carefully selected excep­
tions have other than deterrence?
Certainly the exceptions do not bear 
witness to a greater value being placed 
on some victims' lives than on others.
The resultant disservice of such 
circumscription as New York placed is 
tragically illustrated by the recent 
prison uprising in which a woefully 
large number of persons, some civilian, 
were killed; it is doubtful that all of 
the prisoners responsible were "lifers".
New York1s law, however, arbitrarily 
limits the death penalty "for persons 
found guilty of killing a peace officer 
who is acting in the line of duty, and 
for prisoners under a life sentence who 
murder a guard or inmate while in confine­
ment or while escaping from confinement."22/

b) The threat of the death penalty 
for armed robbery palpably serves as a 
deterrent; it is common knowledge that 
robbers frequently accomplish their 
evil ends with unloaded weapons. Can 
it be said that this is not because 
they are aware that an armed robbery 
can draw the death penalty but an 
unarmed robbery cannot? 23/

22/ NPS, p. 30.

23/ Criminal Code of Georgia, §§ 26- 
1901 and -1902.



56

A burglar, too, realizing that he risks 
the death penalty if in the course of 
his venture, his gun goes off and some­
one is killed, may well be persuaded to 
guarantee against that possibility.

c) The deterrent value of the death 
penalty vis-a-vis other penalties was 
documented at some length in the Hearings 
before the Subcommittee on Criminal Laws 
and Procedures of the Committee on the 
Judiciary, United States Senate, on S. 
1760, March 20, 21, and July 2, 1968, 
pages 187-192 of the Report. The deter­
rent effect was shown by evidence of 
experience, by the psychology of deter­
rence, and by statistics.

(4) The next insupportable 
"indicator" is Petitioner's statement 
that the United States has over­
whelmingly rejected the death penalty 
as shown by the decreasing trend of 
executions since 1930 even though 
many jurisdictions retain the death 
penalty on the books.

This is grossly misleading. In
the first place, the fact that only2 5 /fourteen states of fifty --- ‘ have

2 5/ This and the other statistics 
mentioned in this section are 
drawn from NPS, Table 15, p. 30. 
(continued on next page)



57

abolished the death penalty either 
partially or completely cannot be ex­
plained away by saying that the majority 
have it only on their books but do not 
actually use it. The fact cannot be 
escaped that America is not yet ready, 
if ever it will be, to abandon capital 
punishment altogether. It is not pre­
pared to do that even by legislative 
action, much less by constitutional 
fiat declaring it contrary to the 
fundamental concepts of ordered liberty.

The retention states have not 
ignored the law that is on their books 
nor the question now being posed.
Eleven states have experimented with 
abolition and have subsequently restored 
the penalty, and of those eleven, only 
three reabolished it and one of those 
reabolitions occurred in the Nineteenth 
Century. In the forty years from 1917 
to 1957, only the state of Missouri 
abolished the death penalty, and it was 
restored in that state in 1919 and

Also, N. M. Stat. Ann. (1959 
Cum. pocket part) § 40A-29-2.1. 
(Aikens Brief, App. G. p. 9 g.).



58

remains in force. Since 1947, when 
Louisiana ex rel. Francis v .
Resweber, supra, was decided, only 
seven states have abolished the death 
penalty while two enacted partial 
abolitions. One of the seven, Delaware, 
restored the penalty after three years 1 
experience. Viewed in another per­
spective, in the thirteen years since 
Trop v. Dulles, supra, only four states 
abolished the death penalty, plus the 
two which adopted partial abolition.
It is therefore stretching the point 
to incredulity to say that the penalty 
has been overwhelmingly rejected in this 
country, or that there is any "trend" 
in this regard.

Affirmative displays of desired 
retention have recently been demon­
strated by the Illinois referendum in 
December, 1970 and by the results
of an extensive study undertaken in 
Georgia by Study committees of the

II26/ Reported in Newsweek, Janu­
ary 11, 1971, pp. 23, 24, 27.



59

Senate and of the House in 1966 and 
1967. 27/ Public hearings were held 
in a number of locations throughout 
Georgia, written material on the sub­
ject was examined, persons responsible 
for administration of the penal laws 
were queried, and inquiries were made 
of the states classified as having 
abolished capital punishment, with 
respect to their crime rates before 
and after abolition and with respect 
to life imprisonment as the maximum 
penalty. Based on these studies, the 
majority reports of each of the com­
mittees recommended retention of the 
death penalty.

Other clear indications of the 
Nation's attitude and opinion, which 
must have at least some bearing on 
the "standards of decency" which the

27/ 1966 House Journal, p. 2669,
contains the Senate Report;
1968 House Journal, p. 3451, 
contains the House Report.
The Senate Committee was 
created pursuant to Senate 
Resolution No. 107. Senate 
Journal 1965, p. 1226. The 
House Committee was created 
pursuant to House Resolution 
No. 3, House Journal 1967, p . 15.



60

community embraces, are the results 
of numerous polls. The polls collected 
by Erskine in 34 Public Opinion Quarter­
ly (1970-71) bear witness to the high 
percentages of persons in this country 
who favor capital punishment. The 
Gallup polls indicate a rise from 45% 
to 51% "For Capital Punishment" 
between the years 1965 and 1969. "Time" 
magazine on June 6, 1969, pp. 26, 27, 
reported the results of a Louis Harris 
poll which indicated that 48% of the 
Americans questioned favored capital 
punishment while 38% did not. Among 
men, 58% favored it and among women,
40%. "Nation's Business" reported in 
its November, 1970, issue, vol. 58 p. 28, 
that the results of its October invi­
tation to "Sound Off to the Editor" on 
"Should the death penalty be abolished?/ 
were that four out of five replies were 
"no". The readers in this case were of 
course primarily businessmen. Taking 
into account that most states and the 
federal government retain the death 
penalty, it is significant that the much 
touted opposition did not take advantage 
of the opportunity to show their numbers 
in this poll. The vote was notably 
nearly two to one in favor of the death 
penalty in a poll undertaken by a 
national women's magazine, "Good House­
keeping", and reported in the November



61

1969 issue, vol. 169 p. 24. 62.1%
favored it and 35.8% were against it; 
only 2 .1% reported "no opinion".

The Court in Trop, supra, was 
therefore demonstrably correct when it 
stated that the death penalty is still 
widely accepted in this country, and 
Petitioner's attempt to discredit that 
statement or prove that it is no longer 
valid falls short of its goal. Although 
polls are not solid proof, they are an 
acceptable barometer when an "indication 
will suffice for the purposes of the 
question in inquiry. The court allowed 
as much in Witherspoon v. Illinois, 391 
U.S. 510, 520,fn. 16 (1968).

Petitioner overlooks the most signi 
ficant and reliable measuring device, 
and the one that is more pertinent to 
this inquiry than any other. That is 
the contemporary American jury. The 
Court itself pointed to this keystone 
in Witherspoon v. Illinois, supra, 391 
U.S. at 519-520 :

"Guided by neither rule nor 
standard, 'free to select 
or reject as it [sees] fit,' 
a jury that must choose 
between life imprisonment and 
capital punishment can do



62

little more--and must do 
nothing less— than express 
the conscience of the com­
munity on the ultimate .
question of life or death...."— '

Let us look at what the juries are 
doing in this country. In 1968, 102 
persons received the death sentence; in 
1967, 85 persons were so sentenced; in 
1966, 118 death sentences were imposed; 
in 1965, 86; in 1964, 106; in 1963, 93; 
in 1962, 103; in 1961, 140. 22/ Thus, 
in only eight years of the last decade,

28/ "And one of the most important
functions any jury can perform in 
making such a selection is to 
maintain a link between contempo­
rary community values and the 
penal system, a link without 
which the determination of 
punishment could hardly reflect 
'the evolving standards of 
decency that mark the progress 
of a maturing society.' "

29/ NPS, Table 4, p. 12.



63

833 persons received the death sentence 
in the United States. Assuming that in 
all cases it was a jury which made the 
determination of this penalty, the total 
number of persons thus selected by the 
random methods employed to obtain jurors 
representing a fair cross-section of the 
community amounted to 9,996 or almost 
ten thousand persons! Keeping in mind 
that these conscientious people, sworn 
to dispatch the solemn duties of meting 
out justice, were faced with actual 
cases and real defendants, and that they 
deemed the death penalty appropriate in 
a very real sense and through a very 
personal involvement in the debate, 
the significance of these figures is 
indisputable. It is abundantly evi­
dent, therefore, that the people do 
not believe that we can afford to dis­
pense with the death penalty as an 
effective weapon against crime in our 
society.

The juries in the two Georgia 
cases at bar were selected in accord­
ance with the requirements of Wither­
spoon v. Illinois, supra, (A. 12-15). 
Insofar as the penalty was concerned, 
only those prospective jurors who 
stated in voir dire that they would 
not even consider returning a verdict 
in accordance with the maximum pro­
vided by law, were excluded for cause.



64

In Furman's case, only one member of 
the panel of 48 was disqualified for 
this reason. So out of 49 persons 
randomly selected to represent the 
community by jury duty, only 2%,when 
faced with a specific case in which 
the decision as to punishment would 
be his, affirmatively indicated that 
he would refuse to impose capital 
punishment regardless of the evidence 
(A. 13). Even the juror who indi­
cated a general opposition to capital 
punishment saw fit to impose the penalty 
in this case (A. 12, 21). In Jackson's 
case (No. 69-5030), of a total of 60 
prospective jurors submitted to the voir 
dire, 12, or only 1 out of 5, similarly 
were disqualified (A. 33-37).

in Georgia, 33 persons are currently 
under death penalty (App. C, pp.1-6).
All were sentenced by juries. Eight were 
sentenced within the last two years.

The attitudes of the community thus 
reflected show conclusively that the 
death penalty is far from being rejected, 
much less "overwhelmingly rejected", 
and is certainly not universally thought 
of in this country as being contrary to 
standards of decency.



65

(5) Petitioner misconceives the 
conclusion he draws from the data 
concerning the number of executions in 
the United States in recent years.
The penalty, he says, is no longer in 
actual use because the incidence of 
executions is "freakishly rare". The 
conclusion that this is the result of 
"prevailing" abolitionist sentiment is 
undocumented and insupportable, con- 
trarily, it is demonstrable that there 
have been fewer executions recently 
because the condemned criminals have 
averted the carrying out of the 
penalty by pursuing a variety of appeals 
and other post-conviction proceedings.
The proper conclusion to be drawn is 
that out system of law is increasingly 
providing greater and wider opportunity 
for the convicted defendant to chal­
lenge the proceedings which ultimately 
resulted in his sentence. The perfec­
tion of our system of criminal justice 
is the apex sought as we constantly 
strive for the greatest degree of fair­
ness. The advancement well known to 
this Court need hardly be given illustra­
tion. It is marked by requirements 
tending towards greater impartiality 
of juries and their freedom from preju­
dice or discrimination, by safeguards 
against involuntary confessions and 
erroneous lineup identification, by 
provision for effective assistance of 
counsel for all who are charged with 
crime. This advancement, which assures



66

more than ever before that a man will 
be afforded due process by a full 
panoply of protections, also allows 
review of his trial to a greater 
degree, by more tribunals, and sub­
ject to a finer scrutiny through the 
use of verbatim transcripts and post­
conviction evidentiary hearings. And 
that development, taken advantage of by 
prisoners whether under prison terms or 
under death penalty, bears most 
heavily on the carrying out of execu­
tions in recent years.

The status of persons subject to 
capital punishment in Georgia provides 
a concrete and irrefutable picture 
which is likely repeated in state after 
state. Limitations of time and informa­
tion prevent a revelation of such scope here. 
In Georgia, however, there are actually 
33 persons now under death penalty.
This number is not reflected in the 
published statistics because many of 
the prisoners are in county jails 
rather than in the State penitentiary, 
since it is the policy of Georgia to 
retain a man locally while he has legal 
proceedings pending. Ga. Laws 1956, 
pp. 161, 171, as amended; Ga. Code 
Ann. § 77-309 (c) and (d) (App. A, p. 13a).



67

By the same token, condemned pris­
oners are generally to be sent to the 
State penitentiary not more than twenty 
days nor less than two days prior to 
the date set for execution. Ga. Laws 
1924, p. 195; Ga. Code Ann. § 27-2514 
(App. A, pp. 8a-9a). During periods 
of stays of execution, prisoners are 
to be incarcerated in the jail of the 
sentencing county. 3_0/ described in 
detail in the chart submitted at 
Appendix C, of the 33 present cases,
13 persons currently have petitions 
for certiorari pending before this 
Court, 7 have motions for new trial 
pending before the trial courts, 5 have 
habeas corpus proceedings in motion or 
on appeal, and 2 have executions stayed. 
One person is in prison out-of-state 
and 3 are awaiting the setting of new 
execution dates. 3JL/ The court pro­
ceedings in progress involve numerous

30/ Opinions of the Attorney General 
of Georgia, 1959, pp. 245-246.

31/ App. C, p. 10c.



68

alleged grounds, the variety of which 
demonstrates that the decisions in the 
cases now before the Court may very 
well not affect any of them. (App. C, pp. 
1-6) .

It is plain, at any rate, that it 
is not public opinion that has caused 
a cessation in executions but rather 
an expansion of post-conviction remedies 
which are being invoked to a greater 
degree. The fallacy of Petitioner's 
conclusion concerning public opinion 
is also pointed out by the numbers 
of persons sentenced to death in the 
last few years. 32/ It is contrary to 
common sense to conclude that the 
juries which imposed capital punish­
ment on 102 felons in 1968 did so in 
the belief or hope that the penalty 
would not be carried out. 33/

As to Petitioner's assertion 
that the death penalty is a southern 
phenomenon, it is noted that although 
the "South" is classified as one of 
five geographical groups, it comprises 
one-third of the fifty-two jurisdictions

32/ Supra, pp. 62-63. 

33/ NPS, p. 12.



69

counted. It is more to the point
of this case, however, that mere geo­
graphical predominence does not render 
a penalty constitutionally prohibited. 
The fact that the northern state of 
New York retains the death penalty only 
for persons found guilty of killing a 
peace officer who is acting in line of 
duty and for prisoners under life sen­
tence who murder a guard or inmate 
while in confinement or while escaping 
from confinement HL/ does not render 
Georgia's retention of the death penalty 
for the murder of anyone unconstitu­
tional. A harsher sentence in one state 
does not make it cruel and unusual for 
that reason. As the Court observed in 
Howard v. Fleming, supra, 191 U.S. at 
136, in sustaining a state sentence 
against an attack that it was cruel and 
unusual:

"If the effect of this sen­
tence is to induce like 
criminals to avoid its ter­
ritory, North Carolina is to

34/ Aikens Brief, p. 38.

35/ NPS, Table 15, p. 30, note (a).



70

be congratulated, not
condemned."

(6) The "rarity" which is alluded 
to in the abortive attempt to disprove 
the generally wide acceptance of the 
death penalty as a viable tool of crime 
prevention and criminal justice in this 
country, has previously been put in its 
more accurate perspective. The faulty 
conclusions relied on in this regard 
therefore miss wide the mark. As 
reemphasized lately by the Court in 
McGautha v. California, supra, 402 U.S. 
at 213 : " . . .  it requires a strong
showing to upset [a] settled practice 
of the Nation on constitutional grounds." 
Even Petitioner admits that the 
"rarities" he proffers only "imply" 
American unacceptance of the death 
penalty for consideration by the court 
of the constitutional issue at hand.36/

36/ Aikens Brief, p . 39.



71

And the implications from the 
public opinion polls might, more 
logically than Petitioner concludes, 
be that Americans are alarmed by the 
growth of crime in their country and 
by the evidences of disrespect for 
the law which they see around them.

We say "more logically" because 
it does not stand to reason, as 
Petitioner contends, that a polled 
person will indicate an opinion 
contrary to what Petitioner purports 
is a universal attitude, meanwhile 
harboring a belief against capital 
punishment. What could possibly 
induce the polled public to speak 
for capital punishment and deliber - 
ately take what Petitioner regards 
as an unpopular and "condemned" 
stand? it stands to reason, instead, 
that the polled public means what it 
says and that the "overwhelming 
rejection" is a fiction. Thus, the 
"swings in public opinion" referred 
to by Petitioner 37/ may instead 
reflect a belief that the lack of 
actual carrying out of death sentences

37/ Aikens Brief, p. 39.



72

imposed in the last several years is 
directly related to the rise in the 
rate of serious crimes.

(7) Petitioner suggests that 
the number of death penalties meted 
out and the number of actual execu­
tions now taking place is an objec­
tive indicator that the American 
conscience has repudiated the penalty. 
Much has already been discussed in 
refutation, but an additional point 
needs to be made with regard to the 
number of death sentences imposed 
by today's juries. The proportion­
ately fewer instances in which juries 
find the death penalty mandated may 
well indicate not their revulsion to 
it (or they would not impose it at 
all) but rather a more stringent demand 
for a showing of aggravated circum­
stances than previously. Thus,
BECAUSE it is evident that juries are 
giving greater caution before selecting 
the death penalty, and BECAUSE it occurs 
almost exclusively in instances of 
heinous crime, juries are shown to re­
serve the death penalty for unusual cases. 
There is all the more reason to retain

38/ See App. C, pp. lc - 6c.



73

it as a constitutional penalty. Both 
the imposition and the carrying out of 
a death penalty in this country today 
are surrounded with greater safeguards 
and humanitarian considerations than 
have existed in the past. The expanded 
guarantees of due process, as well as 
the increasingly more conscientious, 
knowledgeable, and more cautious jury, 
give added reason for retaining rather 
than abolishing it. Our system of 
criminal justice assures more than 
ever before that those who are 
ultimately required to pay the maximum 
penalty will have had a full measure 
of due process protection and the 
responsible consideration of his 
peers. Such a framework must be 
regarded as adding to the constitu­
tionality of the death penalty. That 
it may result in fewer actual imposi­
tions and executions should not, 
because of that additional due process, 
result in unconstitutionality of the 
penalty. The "cruel and unusual 
punishment" prohibition surely does 
not compel depriving the states 
which are concerned with ordered 
liberty, and the jurors who act 
directly on behalf of the citizens 
of the States, of the freedom to 
impose and carry out the traditionally 
maintained penalty of death where 
justified.



74

(8) Petitioner refers next to what 
he describes as a "secrecy" which envelopes 
executions and suppresses the truth about 
them from subjection to public opinion.
The fact that they are not carried out in 
the open public objectively indicates, 
he intimates, that society must therefore 
regard this punishment as repellent.

No distinction is made between the 
society which Petitioner alleges is the 
suppressor and the society which is "un­
enlightened" and the society which alleg­
edly is thus shown to consider it repug­
nant. It strains logic to believe that 
society is so chameleon, or that one hand 
does not know what the other hand is doing.

Moreover, it is provincial to suggest 
that the public does not realize the im­
port of an execution. The numerous arti­
cles that Petitioner himself cites bear 
witness to the fact that a great deal of 
literature is put before the public to 
inform it of the subject. The anatomy 
of an execution has been repeatedly 
described and discussed and testified 
to at various public hearings, 
as Petitioner himself acknowledges, e.g., 
at footnote 89, page 45 of the Aikens 
Brief and Appendix I therein. Illus­
trative also is the type of article 
that appeared in "The Atlanta Journal 
and Constitution Magazine" last



75

year. 39/ The article graphically 
pictured and described the electric 
chair and procedure used in Georgia.
It is notable that the reams written on 
the subject and directed to the public 
has not led to abolition of capital pun­
ishment in these United States.

As to information concerning exe­
cutions, the news media policy of the 
State Board of Corrections is an open 
one. 12/ A recent pertinent example 
of the application of this policy was

22/ "The Death Penalty: Have We Walked
The Last Mile?", the first of a two- 
article series by John Pennington 
appearing in the issues of August 30 
and September 6, 1970.

Secretary of State, Official Com­
pilation of the Rules and Regulations 
of the State of Georgia, "Rules of 
the State Board of Corrections,"
Sec. 125-1-2-. 05; App. A.,p. 16a.



76

the televised interview of Petitioner 
Lucious Jackson, Jr. (Case No. 69-5030) 
by NBC on the "Xerox Quarterly Report", 
September 8, 1971. Thus it cannot be said 
that knowledge of executions is suppressed.

As to the assertion that executions 
are carried out "clandestinely", the 
date of execution is made a part of the 
sentence itself, which is a public 
record. Also, the condemned per­
son may have present, if he desires, 
his counsel, relatives, and such clergy­
man and friends as he wishes. ^-/

This introduces the pivotal point 
regarding the fact that executions are 
carried out privately.

41/ A. 5, Ga. Laws 1924, p. 195;
Ga. Code Ann. § 27-2514, App.
A. pp. 8a - 9a.

i!/ Ga. Laws 1924, p. 196; 1956, pp. 
161, 182; Ga. Code Ann. § 27- 
2515, App. A., p. 10a.



77

(9) Petitioner suggests that such 
privacy indicates society's revulsion to 
public execution. That is indeed true. 
Such a mode of carrying out the penalty 
imposed is now generally considered 
barbaric because it unnecessarily robs 
the condemned man of the last vestiges 
of dignity. Decency calls for an aban­
donment of the public circus atmosphere 
of execution, not for the abandonment of 
execution itself.

The humane method predominantly 
invoked is regarded as sufficient 
to serve the purposes of the punishment. 
It is the obvious consensus that re­
quiring a condemned man to make a 
spectacle of himself in his last hour 
is too great a price to extract for 
the additional deterrent value such 
a procedure might have.

No authority is advanced, nor is any 
known to Respondent, for the proposition 
that the deterrent effect of the death 
penalty is erased by imposing it pri­
vately. That the would-be capital 
felon would be deterred only by the sight 
of another's forfeiture of life and 
would not be deterred at all by the 
thought of the forfeiture of his own, 
is simply not supportable.



78

(10) The discretionary aspect 
which the death penalty now has,
Petitioner contends, provides its only 
basis of acceptability to the public.

While it may be true that a rigid, 
mandatory use of the death penalty, to 
cover all manner of acts forbidden 
within the definition of a capital 
crime, might impose cruel and unusual 
punishment on a particular offender, 
it does not follow that individualiza­
tion of penalty by the device of mini­
mum - maximum penal laws reaches the 
same result. It goes without saying 
that the discretionary aspect of the 
death penalty, as well as other pen­
alties, removes the very arbitrariness 
of which petitioner complains. The 
feature of discretion allows the jury 
to take a less wooden approach to pen­
alty. Most importantly in the context 
of the present inquiry, it allows the 
community standard to be more immediately 
felt and applied and is more direct than 
any change in statute. That juries do 
impose the death penalty under this pro­
cedure makes it abundantly evident that 
such is as close a reflection of com­
munity standards as is presently pos­
sible and that it is not, moreover, a 
result of insensitive or slow-moving legis­
lative directive. The function of the jury 
as maintaining a link between community 
values and the penal system is noted in 
Witherspoon v. Illinois, supra, 391 U.S. at 
519.



79

(11) Another indefensible "indicium 
of unacceptability" is Petitioner's 
reference to the identity of death pen­
alty prisoners.

Petitioner admits that evidence 
supporting his theory cannot be brought 
forth. This omission in itself is fatal 
to the premise because the burden is his 
to establish the unconstitutionality 
claimed. 43J  certainly he cannot do so 
by mere innuendo.

Moreover, it can hardly be pre­
sumed that the juries in this country 
have conspired to sentence only certain 
classes of persons within our society, 
or that the juries responsible for the 
death penalties now outstanding were 
infected with an impermissible discrim­
ination. If the Petitioner in any case 
now before the Court believes he was 
unconstitutionally discriminated against 
because of his status in society, he has 
not shown so. And the tools for doing so 
have been made clear and available. See 
Whitus v. Georgia, 385 U.S. 545 (1967); 
Witherspoon v. Illinois, supra.

liL/ McGautha v. California, supra, 
402 U.S. at 203.



80

In addition, safeguards against 
arbitrariness or other lack of due 
process for disadvantaged persons have 
increased substantially in the last 
several decades. Added to those pre­
viously mentioned is the right to effec­
tive assistance of counsel for the 
indigent, to cite just one.

It is submitted that if it appears 
that those receiving the death penalty 
fall primarily into one particular class 
or another, it is not because of some 
rampant discrimination but rather be­
cause the rate of capital felonies is 
proportionately higher by far among such 
groups. The 1970 Annual Report of the 
Atlanta, Georgia, Police Department 44/ 
shows in that year a total of 55 murders 
committed by white persons and 187 mur­
ders committed by Negro persons. 45/ 
Thirty-one persons were killed by white 
assailants, and one-hundred eighty-seven 
persons were killed by Negro assailants ..!§/

City of Atlanta Department of Police, 
91st Annual Report, December 31, 1970.

Supra, p. 15. 

Supra, p’. 15.



81

Eighty-eight cases of rape by a Negro male 
were booked, while the total for white 
males was 18. 47/ The facts are thus
destructive of the presumption.

(12) Petitioner asserts that since 
the legislatures have failed for various 
reasons to give expression to the public 
conscience in this area, the Court must 
do so.

As has been demonstrated, however, 
the public conscience has not condemned 
the death penalty per se. Nor have the 
courts. The decisions of the state high 
courts have consistently upheld the death 
penalty against claims that it is con­
trary to the cruel and unusual punish-

Supra, p. 41.



82

ment provision of the Constitution. Hi/

48y Recent cases holding that the death 
penalty is not cruel and unusual 
punishment are: Butler v. State,
285 Ala. 387, 232 S.2d 631 (1970); 
State v. Davis, 158 Ct. 341, 260 
A.2d 587 (1969); Rivers v. State,
226 S.2d 337 (Fla. 1969); Wilson v. 
State. 225 S.2d 321 (Fla. 1969); 
Massey v. State, 222 Ga. 143 (1966); 
Sims v. Balkcom. 220 Ga. 7 (1964); 
People v. Walcher, 42 111.2d 159,
246 N.E.2d 256 (1969); State v. 
Crook. 253 La. 961, 221 S.2d 473 
(1969); Bartholomey v. State, 260 
Md. 504, 273 A.2d 164 (1971);
Duiser v. State, 441 S.W.2d 688 
(Mo. 1969); State v. Calhoun.
460 S.W.2d 719 (Mo. 1970); State 
v. Rogers, 275 N.C. 411, 168 
S.E.2d 345 (1969); State v. Kelback, 
23 Utah 2d 231, 461 P.2d 297 (1969); 
State v. Cerny, 480 P.2d 199 (Wash. 
1971).



83

Such an objective indicator as a 
survey of state judicial consideration 
and pronouncement provides a most rele­
vant and appropriate yardstick.

It is thus abundantly clear that 
Petitioner has failed to make that strong 
showing required to upset the settled 
practice of the Nation on constitutional 
grounds. McGautha v. California, supra, 
402 at 203, and the cases cited therein.



84

III

CAPITAL PUNISHMENT IS AN 
APPROPRIATE MAXIMUM PENALTY FOR 
MURDER IN OUR SOCIETY TODAY AND 
ITS USE IS NOT FORBIDDEN TO THE 
STATES AS CRUEL AND UNUSUAL PUN­
ISHMENT IN CONTRAVENTION OF THE 
EIGHTH AND FOURTEENTH AMENDMENTS.

It was submitted at the outset of 
this discussion on "indicators" ^9/ 
that, in addition to the fact that Peti­
tioner has not made his case, a proper 
perspective of the question would of 
itself sustain the death penalty as a 
punishment, when history, experience, and 
the light of present knowledge are scru­
tinized. These criteria, posed in 
McGautha v. California, supra, 402 U.S. 
at 207-208, as the relevant factors to be 
considered, soundly indicate that the 
death penalty should not be declared 
offensive to the Constitution. The pur­
poses of the death penalty as a means of 
controlling crime and protecting society 
have already been discussed, and the 
country's long experience with it does 
not teach that it has no relevancy to 
these goals. The experience of those 
states which have deleted it from their 
laws has provided a track record of over

49/ See p. 45.



85

fifty years in some instances, and yet 
that experience has not persuaded the 
great majority of states to join them.

As to history, this Court has on 
a number of occasions examined the his­
torical context in which the Eighth 
Amendment was adopted. It is
clear that at the time the amendments 
known as the Bill of Rights were consider­
ed by Congress and subsequently by the 
state legislatures to which they were 
sent for ratification in 1789, there was’ 
no question that the death penalty was

5Q/ Ex parte Kemmler, supra, 136 U.S. 
at 446, et seq.; O'Neil v. Vermont, 
supra, 144 U.S. at 339 et seq.; 
Weems v. United States, supra, 217 
U.S. 368, at seq.; 389, et seq.; 
Trop v. Dulles, supra, 356 U.S. 
at 100. See also Parrand. The 
Records of the Federal Convention 
of 1787, Vol. I, Yale University 
Press, 4th Printing 1934; Rutland, 
The Birth of the Bill of Rights, 
1776-1791, University of North 
Carolina Press, 1955, Perry and 
Cooper, Sources of Our Liberties, 
American Bar Foundation, 1959.



86

not regarded as cruel and unusual pun­
ishment. The same First Congress which 
adopted the Bill of Rights approved an 
act setting the punishment for certain 
crimes against the United States, on 
April 30, 1790. It provided the penalty 
of death for a number of crimes, including 
treason (Section 2), murder (section 3), 
a number of high seas crimes (sections 
5 and 9), rescue of a capital felon 
(section 23), forgery of, and other 
crimes related to, public securities 
(section 14), and others. _5J/

From that early time until this, 
the death penalty has been an integral 
part of our penal system, and has been 
accepted as a legitimate and necessary 
instrument in the exercise of the right 
of the sovereign to protect itself and 
its constituents. This Court has itself 
given what appears to be tacit approval 
of the penalty as a means, both in some 
of the cases hereinbefore discussed in 
such later cases as Brady v. United States, 
397 U.S. 742 (1970); Parker v. North 
Carolina, 397 U.S. 790 (1970).

51 / Annals of Congress, Vol. II, 
Appendix pp. 2274, 2281.



87

The crux of the matter is that 
nothing appears in the instant cases 
to compel, or even to warrant, a re­
versal of this development.



THERE IS NO ISSUE IN THIS CASE 
CONCERNING PETITIONER'S MENTAL 
CONDITION AT THE TIME THE SEN­
TENCE WAS IMPOSED BECAUSE (1)
NO QUESTION WAS RAISED AT ANY 
STAGE OF THE PROCEEDINGS BELOW, 
EITHER AT TRIAL OR SUBSEQUENTLY,
AND (2) THERE ARE NO FACTS WHICH 
CAST ANY REAL DOUBT ON PETITIONER'S 
MENTAL COMPETENCY AT THE TIME OF 
SENTENCING; RATHER THE RECORD 
PLAINLY SHOWS OTHERWISE.

Petitioner attempts to raise at 
this juncture a challenge to his mental 
•^soundness" in September, 1968, when he 
was tried and sentenced. In terms cap- 
-able of application in a legal sense and 
relevant to a judicial inquiry, he ap­
parently refers to mental competency.

It has been pointed out in Respon­
dent's Statement of the Case that
the question is a new one in the long 
history of this case. No mention at 
all was made of it at trial. The record 
is vacant of any comment whatsoever in 
this regard. Had counsel thought him 
incompetent, he surely would have made 
some mention of it before or during the

88
I V

Supra, pp. 10-11.



89

course of the trial. He had instigated 
psychiatric examination of Petitioner in 
October, 1967, shortly after the crime 
was committed (A. 6, 8), but following 
Petitioner's return to the court in April, 
no assertion appears during the months of 
preparation which culminated in the 
September trial. No plea of insanity 
was made nor was any defense of
insanity offered. Not the slightest 
bit of evidence appears. Nor was any 
complaint made in this regard in the 
motion for new trial or in the amended 
motion for new trial. / The enumera­
tion of errors submitted to the court 
below is also devoid of any suggestion 
along such line (R., unnumbered pages). 
Moving along, the Petition for Certiorari 
filed in this Court also contains no such 
assertion, and even the Reply Brief bears 
no reference. Since no complaint was 
made in all of the time and throughout all 
of the proceedings beginning with Peti­
tioner’s return for trial up until the 
present Brief on the Merits, no question 
exists which addresses itself to the con­
sideration of this Court. Edelman v. 
California. 344 U.S. 357 (1957);

££/ As provided by Ga. Code (1933) 
§ 27-1502; App. A., p. 7a.

54 R. 20, 34-43.



90

Barbour v. Georgia, 249 U.S. 454 (1919); 
Rules, Supreme Court of the United States, 
Rule 23(1)(f). Not only is there no 
substantial federal question, there is no 
question at all.

Moreover, a careful scrutiny of the 
record unearths no facts which cast any 
real doubt on Petitioner's mental compe­
tency at the time of trial and sentencing. 
He now alludes to two letters purportedly 
made a part of the record, which letters 
were not in the record before the court 
below, and he claims that they raise sub­
stantial doubts concerning his competency. 
Presumably he means at the time of trial 
and/or sentencing, although this is not 
made clear. The letters, even if they 
had been made available to the Supreme 
Court of Georgia, could have made no 
difference whatsoever in connection with 
its decision. The reason, as noted above, 
is that no point was made to which they 
would be relevant. Nor are the letters 
probative at all in terms of Petitioner's 
assertion here. The one dated closest 
to the time of trial plainly states that 
Petitioner was not psychotic, knew right 
from wrong and was "able to cooperate 
with his counsel in preparing his defense" 
(Petitioner's Brief, App. A, p. 3b).



91

The record, on the other hand, 
demonstrates Petitioner's competency. 
Although he may not have understood the 
legal terminology or concepts when first 
questioned by his counsel and the court, 
he obviously understood plain English 
and made the determination to tell the 
jury his side of the story (A. 50-55).
To say that he did not comprehend the 
nature of the proceedings against him, 
or that he was unable to assist counsel 
in the preparation of his defense, is 
thus baseless.



92
V.

GEORGIA LAW SAFEGUARDS AN 
INSANE MAN FROM EXECUTION

Petitioner moves from his contention 
regarding competency at time of sentencing 
to insanity at the time of execution.
If that be his concern, again there is 
no cause for the Court's consideration 
of the matter. The State wholeheartedly 
agrees with the assertion that the exe­
cution of an insane person would offend 
basic precepts of humanitarianism. It 
has provided statutory avenues designed 
to prevent such a miscarriage. The 
record indicates that none have been 
pursued on Petitioner's behalf, and 
therefore he cannot assert before this 
Court that the State has deprived him of 
due process or thereby inflicted a 
cruel and unusual punishment on him.
He has not, to put it succinctly, 
exhausted his remedies, and therefore, 
any question in this regard that might 
arise is not only not ripe for review, it 
has not yet been born.

The safeguards referred to provide 
for an investigation into the sanity of the 
person under death penalty. Ga. Laws I960, 
pp. 988, 989; Ga. Code Ann. § 27-2602. Ga. 
Laws 1874, p. 30; Ga. Code Ann. §§ 27-2603 
and 27-2604.



93

This procedure is mentioned by Petitioner 
at page 18 of his brief and is recited 
in Appendix A thereto, page 3a. However, 
he omits recital of section 27-2603, 
which may be found herein in Appendix A, 
p. 10a. it is a special procedure provided 
for capitally sentenced felons and its 
substance has been reviewed and approved 
by this Court. Solesbee v. Balk.com,
339 U.S. 9 (1949). In all other cases, 
the authority to transfer mentally ill 
inmates is vested in the State Board of 
Corrections, the procedure to be set out 
by the Director. Ga. Laws 1956, pp.
161, 173, as amended; Ga. Code Ann.
§ 77-310(d); App. A., pp. 14a-15a. Opinions 
of the Attorney General, 1968, No. 68-136, 
p. 162.

The legal test of insanity, for pur­
poses of determining whether an allegedly 
insane convict should be executed, as 
applied in a Governor's investigation, 
is as follows:

"Whether the prisoner after 
conviction has the mental 
ability to comprehend: (1) 
the offenses for which he 
was tried; (2) the nature 
of and the reason for the 
punishment to be imposed 
upon him; and (3) any facts 
or circumstances whch might 
make his punishment unlawful,



94

and whether he has the ability 
to make these facts or circum­
stances known either to his 
counsel or to the court."
Opinions of the Attorney General, 
1968, No. 68-310, p. 443.
See also Brown v.State, 215 Ga.
784 (1960); Solesbee v. Balkcom,
204 Ga. 122 (1949), affirmed 
339 U.S. 9 (1949).

There is thus no cause for complaint 
in this regard.

Even if there had been raised any 
question concerning Petitioner's mental 
condition at the time of imposition of 
sentence, Georgia law provides for judi­
cial inquiry in such a case. 55/ rjv̂g 
trial judge may, in its discretion, order 
a mental or psychiatric examination.

Due process does not require, as a 
matter of constitutional law, the type 
of inquiry suggested by Petitioner, 
nor should it. Petitioner demands judi­
cial examination into, and determination 
of, whether he is competent to be exe­
cuted and whether he is mentally capable

55/ Ga. Laws 1889, p. 156; 1950, p.
427, 428; Ga. Code Ann. § 24-3005; 
App. A., p.2a.



95

of receiving a death sentence. Such 
considerations, even with the assistance 
of medical experts, would be impossible 
of calculation. Who could possibly fore­
tell what effect the imposition of a 
particular sentence will have on a man's 
sanity? By what gauge could it be as­
certained what his mental condition will 
be in the future at time of execution?
There is, moreover, nothing in this 
case which would indicate on hindsight 
that the sentence should not have been 
imposed due to its effect on Petitioner's 
mental condition.

Finally, there is no valid connection 
between (a) the lack of a sua sponte judi­
cial inquiry into Petitioner's mental capa­
city to receive sentence and (b) the con­
stitutional prohibition against cruel and 
unusual punishment. The question, if 
there had been one in this case, would 
direct itself to the requirements of due 
process, as in Solesbee v. Balkcom, supra, 
and not to the Eighth Amendment.

CONCLUSION

It is unavoidably clear that the 
imposition and carrying out of the death 
penalty in this case does not constitute 
cruel and unusual punishment in violation 
of the Eighth and Fourteenth



96

Amendments, and that the judgment of the 
Supreme Court of Georgia should be'affirmed.

Respectfully submitted,

ARTHUR K. BOLTON 
Attorney General

HAROLD N. HILL, JR., Executive 
Assistant Attorney General

COURTNEY WILDER STANTON 
Assistant Attorney General

DOROTHY T. BEASLEY 
Assistant Attorney General

ANDREW J. RYAN, JR. 
District Attorney

ANDREW J. RYAN, III 
Assistant District Attorney



97

I,, Dorothy T. Beasley, Attorney of 
Record for the Respondent herein, and a 
member of the Bar of the Supreme Court 
of the United States, hereby certify that 
in accordance with the Rules of the Supreme 
Court of the United States, I served the 
foregoing Brief for Respondent on the Peti­
tioner by depositing copies of the same 
in a United States mailbox, with first 
class postage prepaid, addressed to 
counsel of record at their post office 
addresses:

JACK GREENBERG 
JAMES M. NABRIT, III 
JACK HIMMELSTEIN 
ELIZABETH B. DuBOIS 
JEFFRY A. MINTZ 
ELAINE R. JONES 
10 (.Columbus Circle 
Suite 2030
New York, New York 10019

B. •-CLARENCE MAYFIELD 
910 West Broad Street 
Savannah, Georgia 31401

MICHAEL MELTSNER
Columbia University Law School
435 West 116th Street
New York, New York 10027



98

ANTHONY G. AMSTERDAM 
Stanford University Law School 
Stanford, California 94305

ATTORNEYS FOR PETITIONERS

This day of September, 1971.

DOROTHY T. BEASLEY



APPENDICES



la

APPENDIX A

STATUTORY PROVISIONS AND RULES INVOLVED
Ga. Code Ann. (1970 Cumulative 

Pocket Part) § 6-805. Preparation of 
record for appeal; reporting of evidence 
and other matter when narrative form 
used. - (f) Where any party contends 
that the transcript or record does not 
truly or fully disclose what transpired 
in the trial court and the parties are 
unable to agree thereon, the trial court 
shall set the matter down for a hearing 
with notice to both parties, and resolve 
the difference so as to make the record 
conform to the truth. If anything mat­
erial to either party is omitted from 
the record on appeal or is misstated 
therein, the parties by stipulation, 
or the trial court, either before or 
after the record is transmitted to the 
appellate court, on a proper suggestion 
or of its own initiative, may direct 
that the omission of misstatement shall 
be corrected, and, if necessary, that a 
supplemental record shall be certified 
and transmitted by the clerk of the trial 
court. The trial court or the appellate 
court may at any time order the clerk of 
the trial court to send up any original 
papers or exhibits in the case, to be 
returned after final disposition of the 
appeal. (Acts 1965, pp. 18, 24).



2a

Ga. Code Ann. (1971 Revision) § 24- 
3005. (4872) Contingent expenses of
superior court; payment.— -Any contingent 
"expenses incurred in holding any session 
of the superior court, including lights, 
fuel, stationery, rent, publication of 
grand jury presentments when ordered 
published, and similar items, such as 
taking down testimony in cases of fel­
ony, etc., shall be paid out of the 
county treasury of such county, upon 
the certificate of the judge of the 
superior court, and without further 
order, provided however that the judges 
of the superior courts in counties hav­
ing a population of 70,000 or more 
according to the United States census 
of 1940 or any future census may within 
their discretion order a mental or 
psychiatric examination made by a 
properly qualified psychiatrist after 
a person has been convicted of a crime 
or has pleaded guilty to a crime and 
before sentence is imposed, if said 
judge believes within his discretion 
that such an examination is necessary 
to a just and proper sentence and 
that the expenses of such an examina­
tion shall be paid out of the county



3a

treasury of such county upon the 
certificate of the judge of the 
superior court and without further 
order. (Acts 1889, p. 156; 1950, 
pp. 427, 428.)

NOTE: Chatham County, Georgia, total
population: 188,299. I960
Census of Population, Vol. I, 
Part 12, United States Depart­
ment of Commerce, Bureau of 
Census.



4a

Criminal Code of Georgia (1970 
Revision) § 26-1901. Robbery.— A per­
son commits robbery when, with intent 
to commit theft, he takes property of 
another from the person or the im­
mediate presence of another (a) by use 
of force; or (b) by intimidation, by 
the use of threat or coercion, or by 
placing such person in fear of im­
mediate serious bodily injury to him­
self or to another; or (c) by sudden 
snatching. A person convicted of rob­
bery shall be punished by imprisonment 
for not less than one nor more than 20 
years. (Acts 1968, pp. 1249, 1298.)

§ 26-1902. Armed robbery.— A 
person commits armed robbery when, 
with intent to commit theft, he takes 
property of another from the person or 
the immediate presence of another by 
use of an offensive weapon. The offense 
robbery by intimidation shall be a les­
ser included offense in the offense of 
armed robbery. A person convicted of 
armed robbery shall be punished by 
death or imprisonment for life, or by 
imprisonment for not less than one nor 
more than 20 years. (Acts 1968, pp.
1249, 1298; 1969, p. 810.)



5a

Criminal Code of Georgia (1970 
Revision) § 26-3301. Definition; pun­
ishment; continuing offense; juris­
diction. - A person commits hijacking 
of an aircraft when he (1) by use of 
force; or .(2) by intimidation, by the 
use of threats or coercion, places the 
pilot of an aircraft in fear of immediate 
serious bodily injury to himself or to 
another, causes the diverting of an 
aircraft from its intended destination 
to a destination dictated by such person. 
A person convicted of hijacking an air­
craft shall be punished by death or life 
imprisonment. The offense of hijacking 
is declared to be a continuing offense 
from the point of beginning and juris­
diction to try a person accused of the 
offense of hijacking shall be in any 
county of Georgia over which the air­
craft is being operated. (Acts 1969, 
pp. 741, 742)



6a

Ga. Code Ann. (1970 Cumulative 
Pocket Part), § 27-405 (935 P.C.) 
Evidence; statement or testimony of 
defendant. - The court shall hear all 
legal evidence submitted by either 
party, and shall always permit the 
defendant to make his own statement of 
the transaction (not under oath) if he 
desires to do so. The weight to be given 
to such statement shall be entirely 
in the discretion and sound judgment 
of the court. Whenever such statement 
is made, it shall be the duty of the 
court to reduce it to writing, and re­
turn it with the other papers to the 
proper court in the event of a commit­
ment. In the alternative, however, 
if the prisoner wishes to testify and 
announces in open court before any court 
of inquiry his intention to do so, he 
may so testify in his own behalf. if 
he so elects, he shall be sworn as any 
other witness and may be examined and 
cross-examined as any as any other wit­
ness, except that no evidence of general 
bad character or prior convictions shall 
be admissible unless and until the de­
fendant shall have first put his char­
acter in issue. The failure of a defen­
dant to testify shall create no presump­
tion againsb him, and no comment shall be 
made because of such failure. (Acts 1962, 
pp. 453, 454.)



7a

Ga. Code (1933) (1953 Revision,
Ga. Code Ann.) §27-1502. (976 P.
C.) Plea of insanity, how tried.—  
Whenever the plea of insanity is ~filed, 
it shall be the duty of the court to 
cause the issue on that plea to be 
first tried by a special jury, and 
if found to be true, the court shall 
order the defendant to be delivered 
to the superintendent of the Milledge- 
ville State Hospital, there to remain 
until discharged in the manner prescribed 
by law.



8a

Georgia code Annotated (1953 
Revision) § 27-2514. Sentence of death; 
copy for penitentiary superintendent.
Time and mode of conveying prisoner to 
penitentiary. Expenses.— Upon the con- 
viction of any person of a crime the pun­
ishment of which is death, it shall be 
the duty of the presiding judge to sen­
tence such convicted person to death 
according to the provisions of this law, 
and to make such sentence in writing, 
which shall be filed with the papers in 
the case against such convicted person, 
and a certified copy thereof shall be 
sent by the clerk of the court in which 
said sentence is pronounced to the super­
intendent of the State penitentiary, not 
less than 10 days prior to the time fixed 
in the sentence of the court for the exe­
cution of the same; and in all cases it 
shall be the duty of the sheriff of the 
county in which such convicted person is 
so sentenced, together with one deputy 
or more, if in his judgment it is neces­
sary, and provided that in all cases the 
number of guards shall be approved by the 
trial judge, or if he is not available, 
by the ordinary of said county in which 
such prisoner is sentenced, to convey 
such convicted person to said peniten­
tiary, not more than 20 days nor less 
than two days prior to the time fixed in 
the judgment for the execution of such 
condemned person, unless otherwise di­
rected by the Governor, or unless a stay



9a

of execution has been caused by appeal, 
granting of a new trial, or other order 
of a court of competent jurisdiction, 
and the expense for transporting of said 
person to the penitentiary for the pur­
pose of electrocution shall be paid by 
the ordinary of the county wherein the 
conviction was had, or the board of com­
missioners of roads and revenues, the 
county commissioner, or other person or 
persons having charge of the county funds, 
out of any funds on hand in the treasury 
of such county. (Acts 1924, p. 195.)



10a

Georgia code Annotated (1970 
Cumulative Pocket Part) § 27-2515. 
Execution by warden and assistants; 
witnesses.— There shall be present at 
such execution the warden of the peni­
tentiary, or a deputy warden thereof, 
who shall serve as executioner, at 
least two assistants, two physicians 
to determine when death supervenes, an 
electrician, a suitable guard, and, if 
the condemned person so desires, his 
counsel, relatives and such clergymen 
and friends as he may desire. (Acts 
1924, p. 196; 1956, pp. 161, 182.)

Ga. Code Ann. (1953 Revision)
§ 27-2603. (1075 P.C.) Insane convict
committed to the Milledgeville State 
Hospital. - When any person shall, after 
conviction of a capital crime, become in­
sane, and shall be so declared in accord­
ance with the provisions of the preceding 
section, the convict shall be received 
into Milledgeville State Hospital, there 
to be safely kept and treated as other 
adjudged insane persons. All the provi­
sions of the law relating to insane persons 
under sentence of imprisonment in the 
penitentiary shall apply to the class of 
cases herein provided for, so far as 
applicable. (Acts 1874, p. 30).



11a

Ga. Code Ann. (1970 Cumulative 
Pocket Part) § 77-113. Disposition 
of tubercular prisoners.--When any 
person confined in the common jail 
awaiting trial for any offense against 
the penal laws of this State, or there 
confined after conviction for any 
such offense, or serving any jail 
sentence imposed upon him by authority, 
or there committed for any civil or 
criminal contempt, or serving any mis­
demeanor sentence under county juris­
diction in a public works camp or other 
institution for maintenance of county 
prisoners, shall be afflicted with 
tuberculosis, the judge of the superior 
court may order his delivery by the 
sheriff to the superintendent of the 
Battey State Hospital or such other 
institution as may be approved and 
supported by the State Board of Health 
for the care of tubercular patients, 
and thereupon he shall be so delivered 
and received, and he shall be there 
securely confined, kept and cared for.

The period of time such person is 
thus kept and confined in such hospital 
or institution shall be credited upon 
any jail sentence being served by him 
in the same manner as though he had 
remained in such jail. Any such person 
committed for any civil or criminal 
contempt while in such hospital or 
other institution shall remain for all



12a
purposes under the orders, juris­
diction and authority of the court 
committing him for contempt in the 
same manner as though he had remained 
in such common jail. (Acts 1960, p . 
769; 1964, p. 365.)



13a

Georgia Code Annotated (1970 
Cumulative Pocket part) § 77-309(c) (d)
* * * * (c) immediately upon the
imposition of such a sentence as pro­
vided in paragraph (b) of this section 
and after all appeals or other motions 
have been disposed of so that said con­
viction has become final, the clerk of 
the court shall immediately notify the 
Director of Corrections of the sentence, 
and shall forthwith dispatch therewith, 
by mail, a complete history of such 
person upon forms provided by the Di­
rector .

•kick

(d) Within a reasonable time 
thereafter, the Director of Corrections 
shall assign such prisoner to a correc­
tional institution designated by him in 
accordance with subsection (b) of this 
section. it shall be the financial re­
sponsibility of such correctional insti­
tution to provide for the picking up and 
transportation, under guard, of such 
prisoner to his assigned place of deten­
tion. . . .

(Acts 1956, pp. 161, 171; 1964, pp. 489, 
490; 1968, p. 1399; 1969, p. 602.)



14a

Ga. Code Ann. (1964 Revision)
§ 77-310. Classification and segre­
gation of prisoners' establishment of 
separate camps; removal of women 
prisoners; transfer of mentally 
diseased and tubercular” prisoners.

* * *

(d) The State Board of Corrections 
is authorized to transfer mentally 
diseased inmates from the Georgia State 
Prison or other institutions operating 
under its authority to the criminal ward 
or facility of the State Hospital' for 
insane at Milledgeville, Georgia. Such 
prisoner shall remain at said hospital 
until the superintendent of said hospital 
declares that his sanity has been restored 
at which time the said prisoner shall 
be returned to the custody of the State 
Board of Corrections. At any time after 
completion of his sentence a prisoner 
detained at Milledgeville State Hospital 
on the ground that he is mentally 
diseased may petition for a trial of 
the question of his lunacy in accord­
ance with the procedure provided in 
sections 35-236 and 35-237. Prior to 
completion of his sentence this proce­
dure shall not be available to him.



15a

Provided, however, that upon being 
presented with a proper certification 
from the county physician of a county 
where a person is sentenced to prison, 
that such person so sentenced is a 
dope addict or alcoholic to the extent 
that his health will be impaired or 
his life endangered without immediate 
treatment, the Board of Corrections 
is hereby directed to transfer such 
prisoner to the criminal ward or 
facility of the State Hospital at 
Milledgeville. Said prisoner shall 
remain there until the hospital 
authorities determine he is able to 
serve his sentence elsewhere.



16a

Official Compilation, Rules and 
Regulations of the State of Georgia, 
Volume II, Rules of the State Board of 
Corrections § 125-1-2.05 News Media 
Policy. Amended. Members of the news 
media possessing press passes issued by 
the Board of Corrections may visit all 
institutions, without prior appointment, 
at any hour of the normal business day 
and they shall be allowed to visit any 
part of the institution that they desire. 
Such news media personnel shall be accom­
panied, for safety reasons, by a person 
so designated by the warden. inmates 
shall not be interviewed without the per­
mission of the Board of corrections and 
no article or program of a derogatory 
nature shall be published without first 
giving the Director an opportunity to 
offer a rebuttal. Authority Ga. consti­
tution 1945, Art. V., Sec. V., Par. I 
(Ga. Code Ann., Sec. 2-3401); Ga. L.
1956, pp. 161, 170 (Ga. Code Ann., 77-307). 
Effective May 4, 1971. Administrative 
History. Original Rule filed and effec­
tive on December 31, 1969. Amended:
Filed April 14, 1971; effective May 4, 
1971.



l b

APPENDIX B

CRIMES UNDER THE CRIMINAL CODE OF GEORGIA
PUNISHABLE BY DEATH

Criminal Code of Georgia,
Sec. : 
26-1101 
26-1311 
26-1902 
26-2001 
26-2201 
26-2401 
26-3301

Murder
Kidnapping
Armed Robbery
Rape
Treason
Perjury
Aircraft Hijacking



1c
APPENDIX C

PERSONS CURRENTLY UNDER DEATH PENALTY IN GEORGIA
SEPT. 20, 1971

(Information appears in court records 
and Department of Corrections files.)

NAME RACE AGE CONVIC. SENTENCE JUDGE COUNTY OFFENSE FACTS ABOUT PRESENT STATUS OF CASE ASSERTED GROUNDS
and DATE DATE or VICTIM LOCATION
SEX JURY

Arkwright,
Willie

NM 36 7/16/67 7/18/67 Jury Screven Rape WF, unknown to D, 
robbed, beaten, 
choked, raped 3 
times by D and 
accomplice

Central
State
Hospital
(for
exam)

petition for 
writ of cert 
pending in US 
Sup ct

Misapplication of Witherspoon; 
standardless jury; cruel and 
unusual; challenge to array; more 
attorney's expenses needed; challenge 
to Ga. change of venue procedure

Cummings, 
George

NM 19 4/7/69 4/7/69 Jury Fulton Murder Innocent M by­
stander shot 
while D under 
influence of Red 
Devil

Fulton
County
Jail

Petition for 
writ of cert 
pending in US 
Sup Ct

Unitary trial; denial of D's dis­
covery motion; denial of D's motion 
to cross-examine prospective jurors 
concerning death penalty

Furman,
William
Henry

NM 28 9/20/68 9/20/68 Jury Chatham Murder WM shot when he 
surprised D bur­
glarizing his 
home at 2 am

Central
State
Hospital

Set for argu­
ment before US 
Sup Ct

Cruel and unusual, insanity at 
time of sentencing

Abbreviations used:
N - Negro 
W - White 
M - Male 
F - Female 
D - Defendant



2c

NAME RACE AGE CONVIC. SENTENCE JUDGE COUNTY OFFENSE FACTS ABOUT PRESENT STATUS OF CASE ASSERTED GROUNDS
and DATE DATE or VICTIM LOCATION
SEX __________ __________ JURY________ __________________________________ _________

Grantling,
Charles
F.

NM 22 3/24/70 3/25/70 Jury Upson Rape 18 yr old WF 
raped and se­
verely beaten 
by D and accom­
plice knife and 
gun

Upson
County
Jail

Motion for new 
trial pending in 
Upson County

General grounds *

Hart,
Robert

NM 19 Jury Fulton Armed
Robbery

NM permanently 
paralyzed by D's 
gunshot during 
armed robbery

Fulton
County
Jail

Affirmed-Ga. 
Sup Ct 
1/7/71

Henderson,
Tommy
Lee

NM 34 12/10/70 12/12/70 Jury DeKalb Kidnapping 
and Murder

WF kidnapped by 
D and accomplice 
and NM (age 27) 
accomplice of D

Georgia
State
Prison

Petition for 
writ of cert 
pending in US 
Sup Ct

Standardless jury; unitary trial; 
application of Sims v. Georgia; 
exclusion of scrupled juror; 
cruel and unusual

Jackson,
Lucious

NM 24 12/10/68 12/10/68 Jury Chatham Rape WF raped while D 
threatened her 
life with pair of 
scissors at her 
throat. Attempted 
robbery also

Georgia
State
Prison

Set for argu­
ment in US 
Sup Ct

Cruel and unusual; standardless 
jury; unitary trial; misapplica­
tion of Witherspoon

Jackson,
D.W.

NM 35 6/71 6/71 Jury Coweta Murder NM (12 yrs) also 
shot the boy's 
mother and raped 
14 yr old sister

Coweta
County
Jail

Motion for new 
trial pending 
in Coweta Co

General grounds

* In Georgia, the general grounds of a motion for new trial are:
1) verdict contrary to evidence;
2) verdict contrary to the weight of the evidence;
3) verdict contrary to law.



3c

NAME RACE AGE CONVIC. SENTENCE JUDGE COUNTY OFFENSE FACTS ABOUT PRESENT qipATUS OF CASE ASSERTED GROUNDS
and DATE DATE or VICTIM LOCATION
SEX JURY

Johnson,
Edward

NM 24 9/13/69 9/13/69 Jury Fulton Murder WM (80 yrs old) 
shot during armed 
robbery, D on 
drugs

Fulton
County
Jail

On appeal to 5th 
Cir from denial 
of habeas corpus

Cruel and unusual; disqualification of 
jurors - opinion on death penalty

Johnson,
Johnny
B.

NM 32 5/6/69 5/7/69 Jury Worth Murder WM policeman shot 
with shotgun dur­
ing official in­
vestigation

Georgia
State
Prison

Hearing on peti­
tion for habeas 
corpus set 10/4/ 
71-Tattnall Co__

No proof of waiver; no commitment hearing; chal­
lenge to array; inadequate counsel; improper in­
structions; standardless jury; cruel and unusual; 
cruiltv plea-waiver of jury trial; exclusion of scrupled jurors

King,
Otis

NM 20 “6/23/71 6723/71 Jury Fulton Murder and 
armed rob­
bery

WM security guard 
shot during armed 
robbery

Fulton
County
Jail

Motion for new 
trial pending in 
Fulton County

General grounds

Lee,
James
C.

NM 26 12/4/68 1/3/69 Jury Rich­
mond

Murder WM medical stu­
dent surprised D 
in act of bur­
glary

Georgia
State
Prison

petition for 
writ of cert 
pending in US 
Sup Ct

Standardless jury; unitary trial; cruel and 
unusual; denial of effective counsel

Lingo,
Joe

NM ~24 2/1/68 5/2S755- Jury Lowndes Murder WM shot during 
armed robbery of 
service station 
at which he 
worked

Georgia
State
Prison

Execution stay­
ed by Governor 
10/14/70

Manor,
Robert

NM 41 9/28/68 9/28/68 Jury Chatham Murder WF (age 62) had 
employed D. Died 
during rape by D

Georgia
State
Prison

Petition for 
writ cert 
IJS Sup Ct

Cruel and unusual; standardless jury; involuntary 
confession

Massey,
Dewayne

WM 28 9/21/65 7/22/65 Jury Turner Rape WF (age 28) beat­
en and raped in 
front of her 4 yr 
old child

Georgia
State
Prison

Petition for 
writ cert 
US Sup Ct

Change of venue; standardless jury



4c

NAME RACE AGE CONVIC. SENTENCE JUDGE COUNTY OFFENSE
and DATE DATE or FACTS ABOUT PRESENT STATUS OF CASE

VICTIM LOCATION
ASSERTED GROUNDS

SEX j u r y

McCrary,
Prentice

NM 18 4/2/70 4/2/70 Jury ! Upson Rape WF (age 18) beat­
en and raped, 
threatened with 
knife and aun

Upson
County
Jail

Motion for new 
trial pending in 
Upson County

General grounds

Miller,
William
Jack

NM 41 2/22/67 2/22/67 Jury Jones Rape WF raped at knife 
point in front of 
aged mother

Georgia
State
Prison

Petition for 
writ cert in 
US Sup Ct

Jury selection; right to counsel at preliminary 
hearing; competence to stand trial; standardless 
jury; cruel and unusual

Mitchell,
John
Henry

NM 24 5/19/69 5/19/69 Jury DeKalb Rape WF raped by four 
NMs at gunpoint; 
had delivered 
child only 3 wks 
earlier

Georgia
State
Prison

Petition for 
habeas corpus 
pending in 
Tattnall Co

Equal protection-death penalty given mostly to in­
digents, blacks; no counsel at line-up or setting new 
date. Cruel and unusual; standardless jury; challenge 
to array; unitary trial struck by judge

Mobley,
Charlie

NM 28 5/12/65 6/4/65 Jury Burke Murder M, local grocer 
shot during armed 
robbery

Georgia
State
Prison

Awaiting new exe­
cution date; H-C 
denied by 5th cir

Moore,
Robert ; 
F. |

NM 39 4/14/66 4/16/71 Jury Camden Murder M shot during 
armed robbery

Georgia 
State 
Pur is on

Motion for new 
trial pending in 
Camden County

General grounds

Park,
A.C.

WM 82 1/68 1/68 Jury Jackson Murder WM, solicitor 
general of 
county killed by 
dynamite attached 
to car

Georgia
State
Prison

Petition for 
writ of cert 
pending in 
US Sup Ct

Confession of co-conspirators; right of con­
frontation

pass,
Bean E.

WM 4/3/70 4/3/70 Jury DeKalb Murder WM & WF killed 
when they sur­
prised D in act 
of burglary

DeKalb
County
Jail

Execution stay­
ed pending fil­
ing of petition 
for writ of 
cert US Sup Ct

(Enum. of Errors in Ga.Sup.Ct.) Refusal of court to 
accept guilty plea; objection to evidence; disquali­
fication of jurors who would never impose death 
penalty; sheriff mentioned case to panel; coerced con­
fession ; no charge on insanity; improper instruction



5c

NAME RACE AGE CONVIC. SENTENCE JUDGE COUNTY OFFENSE FACTS ABOUT PRESENT STATUS OF CASE ASSERTED GROUNDS
and DATE DATE or VICTIM LOCATION
SEX JURY

Roach,
Freddie

WM j 7/18/65 7/20/65 Jury Whit­
field

Rape WF (age 25) 
beaten, choked, 
raped, threaten­
ed with knife

Georgia
State
prison

No action pend­
ing; awaiting 
new execution 
date

' ' ' . r , t r  , . . . . , -  ' JH - n  .1 ii i .» ii i|

Sheats ,  

La­
fayette

NM 11/2/70 11/2/70 Jury Clarke Murder M shot during 
armed robbery

Clarke
County
Jail

Mot for new trial 
pending in 
Clarke Co

General“grounds

Smith,
Ronald
Lee

WM 25 7/10/70 7/10/70 Jury Spalding Murder M, killed during 
armed robbery

Spalding
County
Jail

Mot for “new trial 
pending in 
Spalding Co

General grounds

Jury Screven Murder WF (about age 18) 
killed after 
meeting D at 
dance, body hor­
ribly mutilated

Georgia
State
Prison

Petition for 
habeas corpus 
pending in 
Tattnall Co

Equal protection-dealth penalty mostly for 
indigents with appointed counsel; challenge 
to array; standardless jury; unitary trial; 
cruel and unusual

Suggs,
Steve B. WM 25 10/1/68 10/1/68

9/25/68 Jury Lamar Murder M, shot with 
shotgun

Georgia
State
Prison

Petition for 
writ cert in 
US Sup Ct

Challenge to array; need for psychiatric exam; 
denial of "speedy trial" because State "knowing­
ly" used illegal jury lists

Sullivan,
Julious

NM 35 3/15/67

Jury Chatham Murder WM policeman 
shot with own 
gun by D who 
attempted to 
escape

Georgia
State
Prison

Petition for 
writ cert in 
US Sup Ct

Standardless jury; unitary trial, cruel and 
unusual; exclusion of those completely opposed 
to death penalty; challenge to array; search 
and seizure

Thacker ,  

James C.
NM 24 12/13/65 12/13/65

Walker ,  

James H.
NM 25 4/17/69 4/17/69 Jury DeKalb Rape WF raped by four 

NMs at gunpoint, 
had delivered 
child 4 wks 
earlier

Georgia
State
Prison

Petition for 
writ cert in 
US Sup Ct

Misapplication of Witherspoon; conviction con- 
trary to evidence; no counsel at line-up; cruel 
and unusual

. . . .............  .... - .... .......................................... .................... ................. .................................................. —  ..... — — --- - - - - - - - - - - - - - - - - - - - - 1



6c

NAME RACE
and
SEX

AGE CONVIC.
DATE

SENTENCE
DATE

JUDGE
or

JURY

COUNTY OFFENSE FACTS ABOUT 
VICTIM

PRESENT
LOCATION

STATUS OF CASE ASSERTED GROUNDS

Ward,
Ray

NM 29 7/21/69 7/25/69 Jury Pulaski Murder WM (70 yrs old), 
local grocer shot 
during apparent 
armed robbery

Georgia
State
Prison

Petition for 
writ of habeas 
corpus pending 
in Tattnall Co

Equal protection-death penalty imposed mostly 
on indigents? cruel and unusual; standardless 
jury; unitary trial; removal of Negroes from 
jury

Williams, 
Venson 
E.

WM 37 10/7/65 10/7/65 Jury Gwinett Murder 3 WM policemen 
investigating 
auto theft. Shot 
with own guns by 
D & accomplice

Georgia
State
Prison

Petition for 
writ of cert 
pending in US 
Sup Ct

Due process-does in camera hearinq on D 's 
request for discovery violate?

Williams, 
Johnny 
B.

NM 27 7/18/67 7/18/67 Jury Screven Rape WF choked and 
raped by D three 
times. Also 
robbed

Screven
County
Jail

Petition for 
writ of cert 
pending in US
Sup Ct

Equal protection-death penalty imposed mostly 
on Negroes; standardless jury; cruel and un­
usual; burden of proving alibi on D

Ramsey,
Ed

NM 9/15/55 9/15/55 Jury Elbert Robbery by 
force

No information South
Carolina
State
Prison
(life
sentence)

Four men, one woman under death sentence were declared insane by Governor's Insanity Commission.



7c

RECAPITULATION OF INFORMATION ON PERSONS 
CURRENTLY UNDER DEATH PENALTY IN GEORGIA

I Description of crime for which death 
penalty imposed:

A Murder:

During armed robbery or 
burglary 10
Killing of police or se­
curity guard 4
Apparent sexual motives 2
Killing of public 
official (premeditated) 1
Domestic quarrel (12 yr 
old boy killed) 1
Killing of accomplice 
during kidnapping 1
Senseless slayings (no 
apparent motive 2

Total 21

B Armed Robbery:

D shot victim who was per­
manently paralyzed 1
Facts unknown 1

2Total



8c

C Rape

Beatings 5
In front of sensitive 
witness 2
Daring robbery (or 
attempted robbery) 3
Raped more than once or 
more than one man 4
Life threatened and en­
dangered all

Gun 4
(includes 2 co-D's for 
same crime)

Knife 4
Scissors 1
Choking 3
More than one man _4

Total 10
(Adds up to more than total- 
some crimes involve several 
elements.)

TOTAL 33



9c

II Race of defendants:

A Murder:

Negro defendants 16
Known N victims 1
Known W victims 9

White defendants 4
Known W victims 4

B Armed Robbery:

Negro defendants 2
Known Negro victims 1

C Rape:

Negro defendants 8
White defendants 2

All victims white

III Sentended:

All by jury

IV Present location:

Georgia State Prison 19
County Jails 11
Central State Hospital 2 

(temporary)
Out-of-State 1



V Current Status

Motion for new trial 7
State habeas corpus 
Federal habeas corpus 
Petition for certiorari in 
United States Supreme Court 13 
Set for argument in United 
States Supreme court 2
Awaiting new execution date 3 
Execution stayed 2
Out-of-State 1

VI Length of time since con­
viction :

16 years 1
(in South Carolina 
State Prison)
6 years 5
5 years 1
4 years 4
3 years 7
2 years 6
1 year 7
this year 2

10c
rtf 

i—
i