Brief of Plaintiff in Error

    IN THE SUPREME COURT OF GEORGIA 

WILLIAM HENRY FURMAN, 

Plaintiff-in-Error 

vs. BRIEF OF PLAINTIFF IN ERROR 

STATE OF GEORGIA 

Defendant-in-Error 
CASE NO, 25163 

SR
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ES

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. 

PART ONE 
  

STATEMENT OF FACTS 

\ 
WILLIAM HENRY FURMAN wad charged with the offense of 

Murder and convicted in Chatham Superior Court and sentenced to 

death. An original and amended Motion for New Trial were filed 
hg 

and denied on each and svery count, 

Notice of Appeal was given as prescribed by law and an 

Enumeration of Errors being filed previously as required with a 

Copy: thereof filed in the (Office of the Clerk of Chatham Superior 

Court and the Judge of Chatham Superior Court notified of said 

fact. 

Service has been made upon the District Attorney of 2 

Chatham County and upon the Attorney General as provided in the 

Appellate Procedure Act of 1965. 

Numerous grounds are being urged as to the alleged 

errors committed in the trial of sald case, all of which are set 

out in said enumeration of error and brief reference to each in 

being made in this brief. In general grounds for a new trial, 

error is assigned. as to insufficiency of evidence because the 

fingerprints of the Plaintiff in Error having been obtained il- 

legally evidence should have been suppressed there would not 

nave been sufficient evidence toward a conviction. 

The facts in this case are briefly summarized as fol-   

  

 



      

5. That the police denied to the plaintiff-in-error 

his constitutional rights of being taken to the nearest magis- 

trate for arraigment and in detaining him for an unreasonable 

length of time during which period they obtained fingerprints, 

and evidence from the plaintiff-in-error at a time when he did 

not have the benefit of counsel, and after it had moved from an 

investigatory stage to an accusatory stage. 

6. Pursuant to the law of the State of CGeorgla, person 

with conscientious scruples against the death penalty were 

éxcluded for. cause from service on the Sty which convicted and 

sentenced your plaintiff in error, such an exclusion violated 

the rights of petitioner under the Fourteenth Amendment to the 

Constitution of the United States. 

7. That the Court erred in one and all of the respects 

set out in the amended Motion for a New Trial and for the reason 

set forth thereon. 

8. That said case has been appealed to the Supreme 

Court of Georgia because it is a case involving a capital offense 

with the same punishment imposed and under the constitution of 

the State of Georgia exclusive jurisdiction on appeal is vested 

in the Supreme Court of Georgia. 

PART TWO 

ARGUMENT AND LAW   

1. THAT THE COURT ERRED IN OVERRULING AND DENYING 

PLAINTIFF IN ERROR"S MOTION AND AMENDED MOTION FOR NEW TRIAL FOR 

THE REASONS STATED THEREON. 

The grounds assigned herein in Ground 1 and Ground 2 

are based on the alleged errors committed by the Court as here- 

inafter set forth in admitting into evidence the fingerprints of 

the plaintiff in error and that said ruling was contrary to the   
 



      

1aw and to the case Miranda v State of Arizonm 86 5S. Ct. 1602, 

  

  

in that while the defendant was in police custody, illegally 

and without being appraised of his rights, he was required to 

pernit his fingerprints to be taken in the evidence so obtained 

from him during the time of his illegal detention was contrary 

to law and to said decision. The admission of the fingerprints 

was illegal under the many decisions of the various courts as 

set out in said amended grounds, and if eliminated from the 

record would leave a record barren of proof of the defendant's 

guilt. 

3. THAT THE COURT ERRED IN REFUSING TO SUPRESS THE 

EVIDENCE OBTAINED DURING HE ARREST AND DETENTION OF WILLIAM 

RST HAVING THE RIGHT TO CONSULT 

vd
 

HENRY FURMAN, WITHOUT HAVING 

WITH COUNSEL IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS. 

In Powell v. Alabama, 287+, S. 45, 53 Sup. Ct. 55.77 

,. Ed. 158 (1932), the Supreme Court held the, right of an indi- 

“gent accused in a capital case to the assistance of 'the guiding 

hand of counsel at every step of the proceedings- against him' 

to be an essential element of a fair trial 'of such character 

that it cannot be denied without violating those "fundamental 

principles of liberty andjustice which lie at the base of all 

our civil and political institutions."' The fundamental un- 

fairness of placing an accused on trial without counsel a 

emphasized by Mr. Justice Sutherland: 'Even the intelligent 

and educated layman has small and sometimes no skill in the 

science of law. If charged with crime, he is incapable, general 

ly of determining from himself whether the indictment is good 

or bad. He is unfamiliar with the rules of evidence. Left 

without the aid of counsel he may be put on trial without 

proper charge, and convicted upon incompetent evidence, Or evi- 

siable. ' He 

dence irrelevant to the issue or otherwise inadmis   

    

a
 
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lacks both the skill and knowledge adequately to prepare his 

defense, even though he have a perfect one. He requires the 

guiding hand of counsel at every step in the procedings against 

him. Without it, though he be not guilty, he facrs the danger 

of conviction because he does not know how to establish his 

innocence.! 287 U S. 45, 64, 53 Sup. Ct. 55, 64, 77 L. Ed, 158 

(1932). 

In 1938 the United States Supreme Court faced up to 

the problems under the sixth amendment. In Johnson Vv. Zerbst, 

304.4, S. 458 Sup. Ct. 1019, 82 L. Bd. 1461 (1938) the court 

defined the rights of a criminal defendant to representation 

in federal courts. This was a habeas corpus proceeding in 

which the new Judge Elbert Tuttle of the Fifth Circuit was ap- 

pointed to represent an indigent who was convicted of counter- 

feiting without having effectively waived his constitutional ri 

to the assistance of counsel, The court said (at 467, 468)! 

‘Since the Sixth Amendment constitutionally 

entitles one charged with crime to the 

assistance of Counsel, compliance with this 

constitutional mandate is an essential juris- 

dictional prerequisite to a Federal court's 

authority to deprive an accused of his life 

Or liberty. When this right is properly 

walved, the assistance of Counsel is no 

longer 4 necessary element of the Court's 

jurisdiction to proceed to conviction and 

sentence... If the accused, however, is not 

represented by Counsel and has not competently 

and intelligently waived his constitutional 

right, the Sixth Amendment stands as a 

jurisdictional bar to a valid conviction 

r 
and sentence depriving him of his life or 

his liberty. . A court's jurisdiction at 

yy + £1 
Sit L 

  
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the beginning of trial may be lost "in the 

course of the proceedings: due to failure 

to complete the court -- as the Sixth Amend- 

ment requires - by providing Counsel for an 

accused who is unable to obtain counsel, who 

has not intelligently waived his constitutional 

‘guaranty, and whose life or liberty is at 

stake, 1f this requirement of the Sixth 

Amendment is not complied with, the court 

no. longer has:jurisdiction to proceed. ® % #! 

Although the Supreme fourt gave full rein to the sixth 

amendment's guaranty of counsel in federal courts, it sought to 

limit the right to appointment of counsel in state courts to 

capltal cases absent special circumstances showing prejudice re- 

sulting fromthe absence of counsel, Bett v. Brady, 316 1.85, Oo 

, 62 Sup, Ct. 11252. 36 L., Ed. 1592 (1942). During tare 20 

years: in which the Betts v. Brady holding persisted, 'special 

clrcumstances' seemed to be the rule rather than the exception. 

The 20 years of vacillation came to an end in 1963 with the 

court's decision in the Gideon case. Gideon v. Wainwright, 372 

U.:8.. 385, 83:Sup. Ct. 792, 9'L., Bd, 24 799 (1963). 

When Gideon v. Wainwright reached the Supreme Court, 

Georgia joined with 21 other states, amicus curiae, urging the 

overruling of Betts v. Brady, as 'an anachronism when handed 

down.! ‘In sweeping terms the Supreme Court held that the con- 

stitutional guarantee of counsel of the sixth amendment 1s | 

'fundamental and essential to a fair trial and is (therefore) 

made obligatory upon the states by the fourteenth amendment.’ 

The constitutional right to counsel in state courts under the due 

process clause of the fourteenth amendment was held to be co- 

extensive with that required in federal courts under the sixth 

amendment. Betts v. Brady was expressly overrulled.   

  

 



      

Under Gideon and the related cases decided by the 

Supreme Court, counsel must be provided at every important stage 

of a criminal proceeding. It is the duty of the trial court to 

appoint counsel for an accused without request.See Doughty v. 

Maxwell, 376 U. S. 202, 84 Sup. Ct. 702, 11 1. Ed. 24 650 (1964); 

United States ex rel Durocher v. LaVallee, 530 F. 24 303 (2nd Cir. 

1963). 

As the Supreme Court emphasized in Carnley Vv. Cochran, 

460 U.S. 506, 513, 82 Sup. Ct. 884, g99 ia 1, Bd, 24 70,770 

(19423): 

'Tt is settled that where the assistance 

of counsel is a constitutional requisite, 

the right to be furnished counsel does not 

depend upon a request.’ 

The accused must be fully and fairly advised of his right to 

counsel. A waiver, to be effective, must be an understanding 

and intelligent relinquishment of the known right. Such a 

‘waiver will not be presumed from" a silent record, for courts 

indulge every reasonable presumption against waiver of the right 

of counsel. Johnson v. Zerbst, supra, Carnley v. Cochran. As 

the Supreme Court recently emphasized: 

'Presuming waiver from a silent record is 

impermissible. The record must show, OT 

there must be an allegation and evidence 

which shows, that an accused was offered 

counsel but intelligently and understandingly 

rejected the offer. Anything less 1s not 

waiver.' Carnley v. Cochran, 368 1.8. 

306, 516, 82 Sup. Cr. 834, 8.1. Ed. 9d 

70, 77 (1962). 

And as the Fifth Circuit has recently held: 

tithe failure to advise 2 defendant of 

  

  

  

 



      

his right to counsel will invalidate 

a plea of guilty even in the absence 

of a showing of prejudice: in both 

state and federal cases. United States 

ex. rel Durocher v. LaVallee, 2 Cir. 1964, 

330 F., 24 303, 308 Cort. denied, 377 U, 

S. 958%, 84 Sup. Ct. 1921, "12 1, Ed. 24 

1048 (1964)! Harvey v. State of Mississippi, 

304 B. 24 263, 269 (5th Cir. 198465). 

The«right to counsel exists at every important stage of 

2 criminal proceeding and includes, not only the right to be 

represented by counsel at the time of trial, but also the right 

hearing, As the recent decision of the Supreme Court in Zscobedo 

v. 111inois, 378 U. S..478,:84 Sup. CL. 1758, 12 L.Ed. 24 977 

(1964) indicates, the right to representation may exist as carly 

as the time of questioning once the investigation has focused 

‘upon the accused. 

Escobedo, a not too bright Puerto Rican, was arrested 

with an accomplice on suspicion of murder. His family employed 

counsel who went to the police station where Escobedo was being 

questioned, Counsel asked to see his client and his client 

looking through a crack in the door asked to see the lawyer 

sent to represent him. The court held that failure of the 

Chicago police to allow Escobedo to confer with counsel rendered 

Escobedo's confession inadmissible. The court said: 

'We hold, therefore, that where, as here, the 

investigation is no longer a general inquiry 

into an unsolved crime but has begun to 

focus on a particular suspect, the suspect 
1 

has been taken into police custody, the 
5 ? 

  

  

 



v 

. 3 

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police carry out a process of interrogat- 

jons that lends itself to eliciting in- 

criminating statements, the suspect 

has requested and been denied an op- 

portunity to consult with his lawyer, 

and the police have not effectively warned 

him of his absolute constitutional right 

to remain silent, the accused has been 

denies "the Assistance of Counsel” in 

violation of the Sixth Amendment to the 

Constitution as "made obligatory upon the 

States by the Fourteenth Amendment,” 

Gideon v. Wainwright, 372 U. 85. at 342, 

0 1, Ed. 24 at 804; 93 ALR 24 733, and 

that no statement elicited by the police 

during the interrogation may be used against 

him at a criminal trial.’ 

The lesson to be learned from the Escabedo case, it 

seems to the Committee, is clear; the rights which a person 

has to confer with paid counsel are no greater than the rights 

that the indigent has to confer with appointed counsel. Con- 

sequently, the Committee is firmly convinced that in felony 

and in misdemeanor cases the right to counsel begins at the time 

a criminal investigating has 'begun to focus on a particular 

suspect and it continues through the trial and into the ap- 

pellate stage.' In addition, the state must also provide an 

indigent with the necessary tools of an effective defense 

including a free transcript, investigative expenses and expert 

examinations and testimony. 

Concern to_ do something about this problem does not 

imply that egregious Wrongs and shocking inequities have been 

practiced. The appointment of the Special Committec proceeded       
 



      

on no such assumption and we did not believe this to be the reason 

the Special Committee was appointed. Indeed, the Special Com- 

mittee was heartened by numerous evidences of concern for the 

fairness and decency of the criminal process in Georgia's court. 

Qur courts, even before Gideon, held that the constitutional 

guaranty of counsel, 'amounts to nothing, unless the counsel se- 

lected by the accused or appointed by the court are given a 

reasonable time to ascertain what 1s the character of the case 

that the accused is called upon to defend.' Fair v. Balkcom, 216 

Gal "721, 119 SE. 24.60), 694 (1961)." 

It is respectfully submitted that evidence obtained 

actually prior to the time of the arrest of the accused and 

up to the time of the actual appointment of counsel for him 

by the court during which period the damage to the accused had 

been completed, that such evidence obtained relating to alleged 

confessions, fingerprints, etc. should be eliminated from the 

record and with their elimination the defendant stands bare of 

sufficient guilt to authorize said verdict being sustained. 

4. Plaintiff-in-Error challenge the death penalty, as 

authorized by Georgia statutes and as administered by state 

officials, on the ground that it is a cruel and unusual punish- 

ment proscribed by the Eight and Fourteenth Amendments to the 

Constitution of the United States. "That a capital jury: in 

Georgia lacks standards of any sort in guide it in imposing the 

death penalty. This procedure alone rises serious question 

under the Eight Amendment, for a system that permits jurles to 

kill people capriciously 1s, by nature, a cruel system. The 

issue posed by capital sentencing without standards is not 

whether, on any rational view that might be taken of the purr 

poses of criminal punishment, the conduct defined by, law as a   
 



    

capital offense-specifically, rape and first degree murder and 

other specified crimes could support a death sentence consist- 

ently with civilized standards for the administration of criminal 
law. The question is rather whehter unconstitutional cruelty is 
not the inevitable accouterment of a system which allows wholly 

arbitrary sentences of death for these crimes to be imposed upon 
some number of men convicted of them, selected from the whole 

number of convicts by a sentencing agency that acts without the 
slightest guide save him 25 to which circumstances authorize 

the extreme penalty by not recommending mercy. 

Our Eight Amendment submission involves a number of 

closely related points. Orderly presentation requires that we 

State them separately; but we think it important to emphasize 

at the outset that we rely upon their cumulative effect to in- 

validate the death penalty in Georgia as a constitutionally for- 

bidden cruel and unusual punishment, 

Cruelty of punishment can be viewed from the perspective 

of the one who undergoes the punishment and aslo from the larger 
view of society in general. Where the imposition of a drastic 

penalty responds to no rules or standards propounded within the 

legal system, the one who is punished experiences that is to 

him an unjustified infliction of cruelty. He may understand his 

crime and his conviction, but there is no way for him to have 

& reasoned understanding as to why he has been singled out for 

the death penalty. Plaintiff-in-Error submits that the death 

penalty assessed on such a basis-without regularity 0% ths ag~ 

surance of consideration of any rational purposes that might 

justify its infliction-must be cruel and unusual to the one who 

suffers it because of its inherent arbitrariness, A judgment so 

unconfined, so Capricious, so essentially erratic, is innately 

Cruel because it invites and indeed compels the interpretation that 

Lt is purposeless.     

  

  

 



      

The curelty of such a judgment without standards is also 

apparent to the society which experiences it. The judgment and 

execution can be understood no more by the Citizens of Georgia 

than by the men who are killed, for Georgia's sentencing pro- 

cedure leaves the life-death choice competely to the discretion 

of the jury, and no articulated standards is provided by the law 

to distinguish those cases which bring dowon the verdict from 

those which result in life imprisonment or less. A Sentence- 

the harshest which the law can impose-inflicted with no attention 

to the circumstances taht may reasonably warrant it, is from any 

perspective a cruel and unusual punishment. 

The exierme rarity of the infliction of the death penalty 

today in Georgia and throughout the United States only adds to 

the inevitable arbitrariness of a sentence imposed without stand- 

ards. This rarity may itself vesult in part from public recoz- 

nition thatthe penalty is arbitrary and cruel. In any gvent, the 

history and penology reflects a distinct and accelerating trend 

away from the exactment of a defendant's life as punishment for 

his crime, For present purposes it is sufficient to note that 

the upshot of the historical development which was virtually 

abolished capital punishment de facto is that the death penalty 
  

is not today a regular part of Georgia's or of any State's 

systematic regulation of conduct through penal law, It is an 

aberrant fortuity, falling at random and without explanation on 

the extremely disadvantaged few whom fluke selects. It is 

obvious, we think, that such rave, unusual, arblirvary use of a 

harsh penalty operates to deprive it of any functional place in 

the rational scheme of a State's system of social defense. 

Punishment used in this manner ceases to be an instrument of 

public justice or of reasoned penal policy and hence it ceases 
. 

to have any claim-'to legitimacy that might be set off against 

the commands of the Eight Amendment. = 
“ 

  

 



      

The death penalty as administered in Georgia is there- 

fore cruel not only because it is extreme but because it is 

wanton; and unusual not only because it is rare, but because the 

decision to remove the defendant from the ordianry penological 

regime is arbitrary. Inevitably under such a sentencing regime, 

capital punishment in those few, arbitrarily selected cases 

where it is applied both in "disproportioned to the offenses 

charged: and constitutes 'unncessary cruelty.!" See Rudolph 
  

Vv. Alabama, 375 U.S. 889, 891 (1963) (opinion of three justices 

dissenting from the denial of certiorari). 

This Court must draw its own conclusions, for constitut- 

ional purposes; and Plaintiff-in-Error's propose and proffer to 

prove definitively in this litigation that capital punishment 

is not a more effective deterent than life imprisonment. 

Deterrance as .an objective of criminal law, therefore, does not 

demonstrate that the State has a compelling interest in execut- 

int Plainitff-in Error for there are alternative means less 

subversive of the fundamental right to life available to the 

State for accomplishing that objective of the remaining legiti- 

mate purposes of criminal sanctions-isolation and rehabilitation 

the same thing will be shown. Capital punishment is not a way 

to meet those objectives; it is a way to avoid them. In cont 

rection with these aims, that again, life imprisonment would 

be fully as effective as killing.the Plaintiff-in-Error. 

Plaintiff-in-Error attacks the means for, as well as the 

necessity of, infliction of the death penalty. The belief that 

electrocution produces instantaneous, painless death, Re 

Kemmler, 136 U. S. 443 (1883), is not born out by present-day 

sCience. The death penalty is cruel in the most obvious sense 

of the word, and, since there is no justification for the 

cruelty, that it is unncessarily cruel. The concept of cruelty, 

of course, is not limited to physical torture. It includes 

mental torture... Trop 'v., Dulles 356 U.S. 86 3101 (1958) (Piurality   
 



      

opinion of the Chief Justice); Mickle v. Henrichs, 262 Fed. 

687, 690 (D. Nev. 1918): Davis v. Berry, 216 Fed, Cas. 252 (No. 

6546) (D.C.D. Cal 1878). But whether the cruelly inherent in 

electrocution and its inevitagle indicents is called ‘mental’, 

or ‘physical is hardly a matter of moment, 

Sentences. of death are a cruel and unusual punishment 

for the crimes of rape and murder because they affront con- 

temporary standards of decency, universally felt, that would 

condemn the use of death as a penalty for such crimes if the 

penalty were uniformly, regularly and even-handedly applied 

either to all those persons who are convicted of rape and under, 

or to any non-arbitrarily selected sub-class of such persons. 

In short, we do not disagree with the reasoning process, 

but we question the factual premise, of a statement made by the 

Supreme Court years ago in Trop v. Dulles, supra 356 U.S. , at 

099, 

All informed observers of the death penalty agree in 

describing a world-wide trend toward it disuse that is nothing 

short of drastic; Hartung, Trends in the Use of Capital 
    

  
    Punishment, 284 ANNALS 8 (1952); Sellin, The Inevitanle End of 

Capital Punishment, in SELLIN, CAPITAL PUNISHMENT (1967) 239- 
  

240; Bedau, Death Sentence in New Jersey 1907-1960, 19 RUTGERS 

-L. REV. 1, 9-11 1964). there sre probably fewer legal execut- 

ion per year. 

5. THAT 'FHE POLICE DENIED TO THE PLAINTIFF IN ERROR 

HIS CONSTITUTIONAL RIGHTS OF BEING TAKEN TO THE NEAREST MAGIS - 

TRATE FOR ARRAIGNMENT AND DETAINING HIM FOR AN UNREASONABLE 

LENGTH OF TIME DURING WHICH PERIOF THEY OBTAINED FINGERPRINTS 

77Y3I 0 

AND EVIDENCE FROM THE PLAINTIFF IN ERROR AT A TIME WHEN HE PID 

NOT HAVE THE BENEFIT OF COUNSEL, AND AFTER THE ARREST HAD 

MOVED FROM AN INVEST IGATORY STAGE TO AN: ACCUSATORY STAGE. 

Plaintiff in Error feels that assignment of error in 

Ground 35 of his argument would be sufficient to be reincor- 

porated in its entirety for Ground 5 of his brief and waives   
  

ro
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r 

  

I
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further argument on said points other than to say that he was 

denied the assistance of counsel in violation of The Sixth 

Amendment to the Constitution of the United States which is 

enforcible against the state through the due process clause of 

the Fourteenth Amendment, Gideon v. Wainwright, 372 U. S. 335 
  

at 345 (1963), provides that "In all criminal proceedings, the 

accused shall enjoy the right...to have the assistance of coun- 

sel for his defense.” 

Present formulations of the Sixth Amendment right 

guaranteed counsel at every "critical stage” in 3 MYcriminal 

oO   proceeding.” Hamilton v, Alabama; 368 U. S. 52 (1961), 

£f
) 

6. PURSUANT TO THE LAW OF THE STATE OF GOERGIA,PERSON 

WITH CONSCIENTIOUS SCRUPLES AGAINST THE DEATH PENALTY WERE 

EXCLUDED FOR CAUSE FROM SERVICE ON THE JURY WHICH CONVICTED ALD 

SENTENCED YOUR PLAINTIFF IN ERROR, SUCH AN EXCLUSION VIOLATED 

THE RIGHTS OF PETITIONER UNDER THE FOURTEENTH AMENDMENT TO 

THE CONSTITUTION OF THE UNITED STATES. 

Plaintiff in Error sentence of death is unconstitutiona 

under Witherspoon v. Illinois, 391 U. 5. 510 (1963, which an- 
  

    

nounced a federal constitutional rule broadly invalidating tne 

practice of "death-qualifying' capital juries by the exclusion 

of veniremen having conscientious scruples against the death 

penalty. The excuse for cause of veniremen generally opposed 

to capital punishment, denied capital defendants a constitut- 

ionally fair jury for trial of the death penalty issue. The 

holding in the Whithersppn case invalidates all but a very 

narrow sort of death qualification practices. The Court held 

unconstitutional the systematic exclusion of jurors scruples 

against the death penalty " On any broader bases" (Id 522, n. 

21, paragraph 1)" than one which excuses 'only venireman who.. 

(make) unmistakably clear (1) that they would automatically 

vote against imposition of capital punishment without regard   
 



      

to any evidence that might be developed at the trial of the 

case before them, or (2) that their attitude toward the death 

penalty would prevent them from making an impartial decision 

as to the defendant's guilt." Thus, to escape invalidation 

under Whitherspoon, a practice of wxcuses for cause on account 

of scruples against the death penalty may allow a prospective 

juror to serve unless he ‘states unambiguously’ on his vior dire 

that his attitudes fall within one or the other of two Criteria: 

(1) that his opposition to the death is such that be cannot 

sit as a fair and impartial trier of the issue of the defend- .. 

at'Srguilt or innocence; and, in this aspect, he cannot "sub- 

pa
t 

ordinate his personal views to what he (perceives) to be his 

duty to abide by his oath as a juror and to obey the law of 

the state.’ (2) that he is irrevocably committed against and 

would not consider voting for the death penalty regardless of 

the facts and circumstances that might appear at the trial. and 

again, in this aspect, he cannot ‘subordinate his personal 

views on capital punishment to what he (perceives) to he ais 

duty to abide by his oath and to obey the law of the State,” 

and we may therefore say here, as the Court did in VWhitherspoon 

that the "issue vefore us..does not involved the rights of the 

prosectuion to challenge for cause those prospective jurors 

tho state that their reservation about capital punishment 

would prevent them from making an impartial decision as to 

the defendant's guilt: 391 U.S. 513, clearly such standards 

cannot be squared with Whitherspoon's pronouncement that an 

exclusion is constitutionally invalid where the prospective 

juror does not state unambiguously and with unmistakable 

clarity that he would not consider and would vote automatically 

against imposition of the death penalty. See (Transcript of 

record page 5.). 

b 

  
 



      

In view of all of these errors that have been pointed 

out we respectfully request that the conviction be reversed and 

the defendant allowed a fair trial based on legal evidence 

legally obtained. 

Respectfully submitted, 

il i - 3 pt 
Ao ai FO th 7 BATA 

¥ 4. ral . ~ J ¢ ; i” te 7 a ih RRR i AF 4 PE & ds 

. fs rl . i 

  

a oi Harr 

ATTORNEY FOR PLAINTIFF IN ERROR 

910: West Broad St. 
Savannah, Georgia 31401 

  

 



      

GEORGIA X 
X 

HATHAM COUNTY X 

PERSONALLY appeared before the und ersigned Notary 

Public, B. CLARENCE MAYFIELD, hwo, after being sworn on oath, 

says that he is the attorney for the plain 

the above stated case and that he has this 

in error with a copy of the foregoing brie 

tiff in error din 

day served defendant 

f by depositing copies 

of the same in the united States pail, in envelopes with suf- 

ricient postage affixed and addressed to: 

Honorable Andrew J. Ryan, Jr. 
Solicitor General, E, J. .C, 
Chatham County Courthouse 
Savannah, Georgia 

Honorable Arthur X. Bolton 
Attorney General of Georgia 
Judicial Building 
Atlanta, Georiga 

This 27th day of March, 1869, 

iN
 

Of Georgia 

  

p— —— re, 

Sworn to and subscribed before me 

this 27th day of-March, 1969, 

- i 
7 . i 

Y= yl Vd ’ a 

Fh ae MC , r,t, alii 

———— 

    

NOTARY, PUBLIC, CHATHAM COUNTY CX. Y, PU & he 
~~. % 

~. \ 

  
=
 

 



  

supreme Court of the State of Georgia 

Clerk's Office, Atlanta 

January 19, 1972 

1, Joline B. Williams, Clerk of the Supreme Court of Georgia, 

do hereby certify that the foregoing forty (40) pages, hereto 

attached, contain a true and complete copy of each of the three 

briefs filed in the Supreme Court of Georgia in Case No. 25163, 

William Henry Furman v. The State, as appears from the records and 

files in this offices, 

Witness my signature and the seal of 

the said Court hereto affixed the 

day and year first above written. 
eis as x ’ 

; . >" } bv 2? y ) 
s/ pe / Pd / - /7 / / 7 . / Co nds, WE oT TAA ERT \ Pe : - > LI pr 4 —— Nr Pe 2 2 - e 

“nd? a all Cae Pee eam = 

Clerk, Supreme Court of Georgia