Sims v Dutton Supplemental Brief for Petitioner

    I n  th e

g>ttprrmr Court nf %  luttrfc #tatro
October Term, 1966 

No. 251

I saac S im s , J r .,
Petitioner,

S tate oe Georgia.

ON WRIT OE CERTIORARI TO THE SUPREME COURT 
OP THE STATE OP GEORGIA

BRIEF FOR PETITIONER

J ack  G reenberg 
J ames M . N abrit, I I I  
C onrad K. H arper

10 Columbus Circle 
New York, New York 10019

A n t h o n y  G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

H oward M oore, J r .
W illiam  H. A lexander

859% Hunter Street, N.W. 
Atlanta, Georgia 30314

Attorneys for Petitioner



I N D E X

PAGE

Opinion B elow ...................................................................... 1

Jurisdiction ............................. -........................................... 1

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

Constitutional and Statutory Provisions Involved----- 4

Statement of the Case............................................... -...... - 5

Summary of Argument ........................................   9

A rgum ent

I. Petitioner’s Constitutional Rights Were Violated 
by the Use at His Trial of Confessions Which 
(A) Were Not Reliably Determined to Be Vol­
untary, in Violation of Jackson v. Denno, 378 
U.S. 368; (B) Were Judged by Standards of 
Voluntariness That Were Not in Accord Consti­
tutional Requirements; (C) Were Obtained in 
Inherently Coercive Circumstances Following
the Physical Brutalization of Petitioner While 
in Custody; and (D) Were Obtained in Violation 
of Petitioner’s Sixth Amendment Right to the 
Assistance of Counsel ......................... ......... ........  13

Introduction ________ ._____-.................................. 13

A. The Decision Below Is in Plain Conflict With
Jackson v. Denno, 378 U.S. 368 ................... 14

B. The Standards Applied Below to Determine
Voluntariness Were Insufficient to Satisfy 
the Constitutional Requirements ..... ...... ......  22



11

0. Petitioner’s Confession Was Obtained in In­
herently Coercive Circumstances and After 
He Had Been Physically Brutalized While in 
Custody, and Its Hse to Convict Him Vio­

PAGE

lates the Due Process Clause of the Four­
teenth Amendment ............ ................. ............  26

1. Facts and Circumstances Surrounding 
the Confession ............................. ..............  26

2. The Confessions Were Obtained in In­
herently Coercive Circumstances and 
Their Use Violated the Due Process
Clause ..........................................................  36

3. The Physical Violence Inflicted on Sims 
Is Sufficient by Itself to Invalidate the 
Confessions .....................................   39

D. The Decision Below Violates Petitioner’s 
Sixth Amendment Right to Counsel in Con­
flict With Escobedo v. Illinois, 378 U.S. 478, 
and Other Decisions of This Court .......    44

II. Petitioner Was Denied Equal Protection of the 
Laws by Rulings of the Courts Below Refusing 
Evidence That Negroes Were Systematically 
Excluded From Grand and Petit Juries in 
Charlton County, and Overruling His Challenge 
to Those Juries on Grounds of Racial Discrimi­
nation in Their Selection ..................... ..............  47

A. The Georgia Courts Unconstitutionally Re­
fused to Receive Petitioner’s Proffered Proof 
of Racial Discrimination in the Selection of 
Jurors 49



I l l

B. The Use of Tax Digests Containing Racial 
Designations, As Required by Statute, in

PAGE

Georgia’s System of Jury Selection is Un­
constitutional ....................................................  52

C. The Results of Jury Selection in the Instant 
Case Establish a Prima Facie Case of Racial 
Discrimination ..................................................  56

Conclusion  .......................................................................... 61

Appendix on Computation ................................................  63

T able op Cases :

Anderson v. Martin, 375 U.S. 399 .... ............ .... ........ 53, 56
Arnold v. North Carolina, 376 U.S. 773 ....................... 50
Ashcraft v. Tennessee, 322 U.S. 143 ............................  25
Avery v. Georgia, 345 U.S. 559 .......... .....12,13, 55, 56, 59, 60

Blackburn v. Alabama, 361 U.S. 199 ............................  42
Bram v. United States, 168 U.S. 532 ..........................  43
Brodie v. United States, 295 F.2d 157 (D.C. Cir. 1961) 21
Brooks v. Beto, No. 22,809, 5th Cir., July 29, 1966 ....... 50
Brown v. Allen, 344 U.S. 443 _______ ____ _____ ___  57
Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962), cert.

den. 372 U.S. 978 ............................ ................... .......... . 45
Bryant v. State, 191 Ga. 686, 13 S.E.2d 820 (1941) ....16, 20

Carter v. Texas, 177 U.S. 442 ......................................11, 50
Cassell v. Texas, 339 U.S. 282 .................................. 52,57
Chambers v. Florida, 309 U.S. 227 ............. .................  25
Cohens v. Virginia, 6 Wheat. (19 U.S.) 264 ............... 14
Coker v. State, 199 Ga. 20, 33 S.E.2d 171 (1945) .....16, 20
Coleman v. Alabama, 377 U.S. 129.................. ....... ..... 11, 50



IV

Commonwealth v. Coyle, 190 Pa. Super. 509, 154 A.2d
412 (1959) .............................................. ....................... -  21

Commonwealth ex rel. Gaito v. Maroney, 416 Pa. 199,
204 A .2d 758 (1964) ................... ................... -.............  22

Communist Party v. Subversive Activities Control
Board, 367 U.S. 1 .................................... .................... . 52

Cooper v. Aaron, 358 U.S. 1 .............. ...... ................. —-  14
Crooker v. California, 357 U.S. 433 ............. .......... ......  45
Culombe v. Connecticut, 367 U.S. 568 ...................38, 42, 43

Davis v. North Carolina, 384 U.S. 737 ........................  41
Davis v. State, 245 Ala. 589, 18 So.2d 282 (1944) .......  21
Downs v. State, 208 Ga. 619, 68 S.E.2d 568 (1952) ..16,17, 20

Escobedo v. Illinois, 378 U.S. 478 ................ 2,11,14,44, 45
Eubanks v. Louisiana, 356 U.S. 584 .......................13, 50, 57

Pikes v. Alabama, 352 U.S. 191 ...............2,14, 36, 37, 38, 42

Garrett v. State, 203 Ga. 756, 48 S.E.2d 377 (1948) ....16, 20 
Griffith v. Rhay, 282 F.2d 711 (9th Cir. 1960), cert. den.

364 U.S. 941...................................................................... 45

PAGE

Haley v. Ohio, 322 U.S. 596 ....................................... ...37, 38
Hamm v. Virginia State Board of Elections, 230 P. 

Supp. 156 (E.D. Va. 1964), aff’d sub nom. Tancil v.
Woolls, 379 U.S. 19 ................... ......... ................. 12,53,54

Haynes v. Washington, 373 U.S. 503 ...............25, 30, 37, 38
Henry v. Rock Hill, 376 U.S. 776 .................................. 14
Hernandez v. Texas, 347 U.S. 475 ........... .......................  50
Hill v. Texas, 316 U.S. 400 .......................................... 13, 57

Jackson v. Denno, 378 U.S. 368 .............2, 8, 9,13,14,15,16,
17.18,19, 20, 21, 22

Johnson v. New Jersey, 384 U.S. 719 .......................41,44



Johnson v. Pennsylvania, 340 U.S. 88 
Johnson v. Zerbst, 304 U.S. 458 .......... 38

Labat v. Bennett, No. 22,218, 5th Cir., Aug. 15, 1966 ....
Lisenba v. California, 314 U.S. 219 .................... -........
Lopez v. State, 384 S.W.2d 345 (Tex. Ct. Crim. App. 

1964) ................................................................... -............

Malinski v. New York, 324 U.S. 401............. ..... ......... 37,
Marion v. State, 387 S.W.2d 56 (Tex. Ct. Crim. App.

1964) .............. ...... ........................................-...................
Massiah v. United States, 377 U.S. 201 ......-...............
Maxwell v. Bishop, E.D. Ark., No. PB-66-C-52, decided

August 26, 1966 ............................................ .................
Miranda v. Arizona, 384 U.S. 436 ...........................41,42,
Moorer v. South Carolina, 4th Cir., No. 10,526, Memo­

randum and Order of July 18, 1966 ..........................

Neal v. Delaware, 103 U.S. 370 ......................... ............
Norris v. Alabama, 294 U.S. 587 ...... ....................50. 54,

Opper v. United States, 348 U.S. 84 .................. ..........

Payne v. Arkansas, 356 U.S. 560 .......................... 24, 37,
Payton v. United States, 222 F.2d 794 (D.C. Cir. 

1955) ................................................................... ........... 39,
People v. Caruso, 246 N.Y. 437, 159 N.E. 390 (1927) .... 
People v. Megladdery, 40 Cal. App. 748, 106 P.2d 84

(1940) ........................... .................... -----....... —.............
People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965)
Pierre v. Louisiana, 306 U.S. 354 ..................................
Powell v. Alabama, 287 U.S. 45 ............. ........ — .... .

Rabinowitz v. United States, No. 21,256, 5th Cir., July 
20, 1966 ................. .......................... .................... ......... 50,

50
42

22

43

22
46

3
44

3

50
57

19

43

42
21

21
22
50
46

53



VI

PAGE

Reece v. Georgia, 350 U.S. 85 ................................... . 50
Rogers v. Richmond, 365 U.S. 534 ...............10,14,19, 23,

24, 25, 43

Scott v. Walker, 358 F.2d 561 (5th Cir. 1966) ..........  51
Sims v. Balkcom, 220 Ga. 7, 136 S.E.2d 766 (1964)

1, 5, 6, 50
Smith v. Texas, 311 U.S. 128 .................................. 13, 50, 57
Smith v. United States, 348 U.S. 147 ..........................  19
Spano v. New York, 360 U.S. 315 ........ ..... .......... ..42, 46, 47
State v. Brewton, 395 P.2d 874 (Ore. 1964) ................... 22
State v. Burke, 27 Wis. 244, 133 N.W.2d 753 (1965) .... 22
State v. Costello, 97 Ariz. 220, 399 P.2d 119 (1965) .... 22
State v. Taylor, 133 N.W.2d 828 (Minn. 1965) ....  22
Stein v. New York, 346 U.S. 156 ............... 17, 20, 21, 40, 42
Swain v. Alabama, 380 U.S, 202 ......................... ........  61

Townsend v. Sain, 372 U.S. 293 ....................................... 3
Turner v. Pennsylvania, 338 U.S. 62 ..............................  38

United States v. Atkins, 323 F.2d 733 (5th Cir. 1963) .... 53 
United States ex rel. Goldsby v. Harpole, 263 F.2d 71

(5th Cir. 1959) ..... ....................................................... . 51
United States v. Louisiana, 225 F. Supp. 353 (E.D.

La. 1963), aff’d 380 U.S. 145 .................................. 12,53
United States ex rel. Seals v. Wiman, 304 F.2d 53 

(5th Cir. 1962) ...............................................................  51

Wan v. United States. 266 U.S. 1 .................. .............. 14, 24
Ward v. Texas, 316 U.S. 547 ......................... .............. . 25
Watts v. Indiana, 338 U.S. 49 ..........................................  37
Williams v. Georgia, 349 U.S. 375 ..................................  56
Wong Sun v. United States, 371 U.S. 471 .............. . 19



V ll

S t a t u t e s :
PAGE

Ga. Code Ann. §27-209 (1933) .......................... -.... 33,45,46
Ga. Code Ann. §27-212 (1933) ........................................  33
Ga. Code Ann. §38-411 (1933) ............ ......... .4,16, 20, 22, 23
Ga. Code Ann. §59-106 (1965 Rev. Yol.) ..... ....4,12,47,48,

49, 52, 53
Ga. Code Ann. §59-108 (1965 Rev. Vol.) ....................... 47
Ga. Code §92-6307 (1933) ................. ......... ...5,12,47,52,55

N. Y. Code Grim. Proc. §395  ................................ .....  19
N. Y. Code Crim. Proc. §465 ..........................................  21

28 U.S.C. §1257(3) ............................................................  2

Other. A u t h o r it ie s :

Barron & Holtzoff, Federal Practice & Procedure 
§2281 (Rules ed. 1958) ..................................................  21

24 C.J.S., Criminal Law, §1452 (1961) ..........................  21

Finkelstein, The Application of Statistical Decision 
Theory to the Jury Discrimination Cases, 80 Harv.
L. Rev. (1966) [to be published in Fall, 1966] ....... 58

Hoel, Introduction to Mathematical Statistics (1962) 59

7 Wigmore, Evidence §2071 (3d ed. 1949) ..................  19



In t h e

&>vtyxm\t (Eourt ni tliT lititpfr BXuUb
October Term, 1966 

No. 251

I saac S im s , J r .,

S tate of Georgia.

Petitioner,

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF GEORGIA

BRIEF FOR PETITIONER

Opinion Below

The opinion of the Supreme Court of Georgia and the 
dissenting opinion of Justice Almand are reported at 221 
Ga. 190, 144 S.E.2d 103. A prior conviction for the same 
offense involved here was set aside in an opinion reported 
as Sims v. Balk,com, 220 Ga. 7, 136 S.E.2d 766 (1964).

Jurisdiction

Judgment of the Supreme Court of Georgia was entered 
July 14, 1965 (R. 345) and rehearing was denied July 26, 
1965 (R. 351). On October 19, 1965, Mr. Justice Black 
extended the time for filing the petition for writ of cer­
tiorari to and including November 23, 1965 (R. 355). The 
petition for writ of certiorari and the motion for leave 
to proceed in forma pauperis were filed November 22, 1965, 
and granted June 20, 1966 (384 U.S. 998; R. 356-57). Re­



2

view was limited to the first five questions presented by 
the petition (R. 356-57).

The jurisdiction of this Court is invoked pursuant to 
28 U.S.C. §1257(3), petitioner having asserted below and 
asserting here, the deprivation of his rights, privileges and 
immunities secured by the Constitution of the United 
States.

Questions Presented

1. Whether petitioner’s Fourteenth Amendment rights 
were violated by a conviction and sentence to death ob­
tained on the basis of a confession made under inherently 
coercive circumstances within the doctrine of Fikes v. 
Alabama, 352 U.S. 191.

2. Whether petitioner’s Fourteenth Amendment rights 
were violated by the failure of the Georgia courts to afford 
a fair and reliable procedure for determining the volun­
tariness of his alleged coerced confession is disregard of 
the principle of Jack-son v. Denno, 378 U.S. 368.

3. Whether petitioner’s Fourteenth Amendment right 
to counsel as declared in Escobedo v. Illinois, 378 U.S. 478, 
was violated by the use of his confession obtained during 
police interrogation in the absence of counsel, or whether 
petitioner’s right to counsel was effectively waived.

4. Is a conviction constitutional where:

(a) local practice pursuant to state statute requires 
racially segregated tax books and county jurors are selected 
from such books;

(b) the number of Negroes chosen is only 5% of the 
jurors but they comprise about 20% of the taxpayers; and



3

(c) a Negro criminal defendant’s offer to prove a prac­
tice of arbitrary and systematic Negro inclusion or exclu­
sion based on jury lists of the prior ten years is disal­
lowed?1

1 In this brief petitioner will not urge reversal of the decision below 
upon the ground presented by the fifth question in his petition for certi­
orari, relating to racially discriminatory application of the death penalty 
for rape. Petitioner, a pauper, was tried in October, 1964. At that time 
he had available, to support the contention urged in his plea in abatement 
(E. 17-18) that Georgia juries discriminate against Negroes in capital 
sentencing for rape, only the published United States Bureau of Prisons 
figures showing that between 1930 and 1962 fifty-eight Negroes and three 
whites were executed for rape in the State. His proffer of this evidence 
was rejected by the trial judge (R. 93-95)—wrongly we believe— and 
that ruling was preserved for review by the Georgia Supreme Court (E. 
323, 333) and subsequently challenged in the petition for certiorari here.

However, since petitioner’s trial, substantial new evidence has become 
available on the issue. Pursuant to a rigorously conceived research design, 
an empirical study of the effect of race upon capital sentencing for rape 
in eleven Southern States including Georgia was undertaken in the sum­
mer of 1965 under the sponsorship of the N.A.A.C.P. Legal Defense and 
Educational Fund. The results of that study are being subjected to 
statistical analysis on a State-by-State basis and have been proffered or 
presented through expert testimony in a number of pending cases. See 
Maxwell v. Bishop, E.D. Ark., No. PB-66-C-52, decided August 26, 1966, 
stay granted by Mr. Justice White, September 1, 1966; Moorer v. South 
Carolina, 4th Cir., No. 10,526, Memorandum and Order of July 18, 1966 
(describing the study). The study lays a firm factual foundation for the 
attack made in this case, the cases cited, and others, challenging Southern 
capital punishment for rape under the Equal Protection Clause of the 
Fourteenth Amendment.

The study to date has involved the expenditure of considerably more 
than $35,000. Since it supplies evidence supporting petitioner’s contention 
which is vastly more illuminating than the meager showing petitioner 
attempted to make on the present record in 1964 and—being plainly 
without petitioner’s financial means—obviously will support a “ substantial 
allegation of newly discovered evidence” within the meaning of Townsend 
v. Sain, 372 U.S. 293, 313 (1963), it will be available to petitioner in 
subsequent proceedings, whether on remand following reversal of peti­
tioner’s conviction on the grounds urged in this brief or in state or federal 
collateral attack proceedings. In these circumstances, petitioner’s counsel 
would not urge this Court to premature consideration of a vitally signifi­
cant constitutional question on the scanty and relatively uninformative 
record of the present proceeding.



4

Constitutional and Statutory 
Provisions Involved

This case involves the Sixth and Fourteenth Amend­
ments to the Constitution of the United States.

This case also involves the following Georgia Statutes: 

Ga. Code §38-411 (1933) :

Confessions must be voluntary.—To make a confession 
admissible, it must have been made voluntarily, with­
out being induced by another, by the slightest hope of 
benefit or remotest fear of injury.

Ga. Code Ann. §59-106 (1965 Kev. Y o l.) :
Revision of jury lists. Selection of grand and traverse 
jurors.—Biennially, or, if the judge of the superior 
court shall direct, triennially on the first Monday in 
August, or within 60 days thereafter, the board of 
jury commissioners shall revise the jury lists.

The jury commissioners shall select from the books 
of the tax receiver upright and intelligent citizens to 
serve as jurors, and shall write the names of the per­
sons so selected on tickets. They shall select from these 
a sufficient number, not exceeding two-fifths of the 
whole number, of the most experienced, intelligent, and 
upright citizens to serve as grand jurors, whose names 
they shall write upon other tickets. The entire number 
first selected, including those afterwards selected as 
grand jurors, shall constitute the body of traverse 
jurors for the county, to be drawn for service as pro­
vided by law, except that when in drawing juries a 
name which has already been drawn for the same term 
as a grand juror shall be drawn as a traverse juror, 
such name shall be returned to the box and another



5

drawn in its stead. (Acts 1878-79, pp. 27, 34; 1887, p. 
31; 1892, p. 61; 1899, p. 44; 1953, Nov. Sess., pp. 284, 
285; 1955, p. 247.)

Ga. Code §92-6307 (1933):

Entry on digest of names of colored persons.—The 
tax receivers shall place the names of the colored tax­
payers, in each militia district of the county, upon the 
tax digest in alphabetical order. Names of colored and 
white taxpayers shall be made out separately on the 
tax digest. (Acts 1894, p. 31.)

Statement of the Case

Petitioner, Isaac Sims, an indigent, ignorant and illiter­
ate Negro, is under a sentence of death by electrocution 
imposed by the Superior Court of Charlton County, Georgia 
following his conviction for the crime of rape. His con­
viction was affirmed on appeal by the Supreme Court of 
Georgia, which stayed execution pending this Court’s re­
view of petitioner’s claims that he was denied rights pro­
tected by the Constitution of the United States.

Petitioner had previously been indicted, convicted and 
sentenced to death at the October 1963 Term of the Superior 
Court for the same offense. That first conviction wTas set 
aside on habeas corpus by the Supreme Court of Georgia, 
which ordered a new trial on May 7, 1964. Sims v. Balkcom, 
220 Ga. 7, 136 S.E.2d 766 (1964). No appeal from the first 
conviction had been taken by Sims’ court-appointed coun­
sel, the court reporter had destroyed his trial notes, exe­
cution had been scheduled for November 13, 1963, and a 
commutation of sentence had been denied (R. 58, 250-251). 
One of Sims’ present counsel, Mr. Moore, entered the case 
and initiated the habeas corpus proceedings resulting in



6

the Sims v. Bcilkcom decision and obtained a stay on the 
day before Sims’ scheduled execution.

The indictment leading to this conviction, returned Octo­
ber 6, 1964, charged that Sims raped Nola Jean Eoberts 
on April 13, 1963, in Charlton County (E. 1). The trial 
commenced the next day, October 7, 1964, and a jury re­
turned a verdict of guilty without recommendation of 
mercy on October 8, 1964 (E. 2).

The evidence upon which Sims was convicted consisted 
principally of testimony by the prosecutrix that Sims 
“ forced her car off the road, dragged her into the w-oods, 
pulled her clothes off, and raped her” (Opinion below, E. 
334), and that he “kept choking her and threatened to kill 
her if she screamed” (ibid.). In addition, there was testi­
mony by Miss Eoberts’ mother and her physician, Dr. 
Jackson, as to her condition after the attack, and evidence 
of several admissions and confessions by the defendant. 
The circumstances of these admissions and confessions, 
which Sims contends were involuntary and obtained by 
coercion, are set forth in detail in Argument I below, pp. 
26 to 36. The text of a written confession signed by Sims 
while in custody appears at E. 226-227. Sims is unable to 
read or write. The confession was written by a deputy 
sheriff and read to Sims. The first three sentences and 
last three paragraphs of the statement were admittedly 
not statements by Sims but, rather, assertions of the vol­
untariness of the confession written by the deputy and 
read to Sims (E. 100-101, 103-104, 218-219).

Petitioner denied understanding the import of the state­
ment and denied b .IS guilt in sworn testimony at a voir dire 
hearing and in an unsworn statement before the jury (E. 
134-135, 248). Sims, in his mid-twenties at the time of 
arrest, was a pulpwood worker who quit school at age 
seventeen or eighteen, having completed only the third



7

grade (R. 128-130). His understanding is severely limited 
as is illustrated by the following testimony, which is a 
mere sample of his incapacity as revealed in the record:

Mr. M oore: Do you know what is meant by “ the 
statement can be used against you in court” !

Mr. Sims: Statement can be used against me?
Mr. Moore: Statement can be used against you in 

court. Do you know what that means!
Mr. Sims: No, sir.
Mr. Moore: Do you know what it means to be in­

formed of your legal rights?
Mr. Sims: Well, that’s like being good or something?
Mr. Moore: Is that what it means to you, Isaac?
Mr. Sims: Yes, sir. (R. 136)

*  # # # #

Mr. M oore: Isaac, do you know what “ Constitutional 
rights” means?

Mr. Sims: Do you mean good or something?
Mr. Moore: Is that what it means to you, Isaac?
Mr. Sims: Yes, sir. (R. 137)

The facts of record with respect to petitioner’s claim of 
racial discrimination in the jury selection process are set 
forth below in Argument II, pp. 47 to 48, infra.

Petitioner objected to the confessions and the testimony 
about them on federal constitutional grounds by a series 
of oral and written motions and pleas, including a pre­
trial motion to suppress (R. 13), a motion to quash the 
signed confession and to exclude the testimony concerning 
it (R. 235), and motions to strike testimony (R. 212-213, 
225). All the motions were overruled. An amended mo­
tion for new trial renewed the objections (R. 24-44) and 
was denied (R. 317). The federal claims were preserved 
by bill of exceptions (R. 319, 321-322), and on appeal the



8

Supreme Court of Georgia rejected all of petitioner’s con­
stitutional claims and held the confession was properly 

-admitted in evidence (E. 334-343).

Petitioner’s objections to the standard used to determine 
voluntariness under Georgia law were articulated in the 
amended motion for new trial (R. 43-44). His objections, 
based on Jackson v. Denno, 378 U.S. 368, were overruled 
by the Georgia Supreme Court in an opinion denouncing 
the holding of Jackson as “illogical, impracticable and 
utterly unsound” and expressing the hope that it would 
be overruled, while at the same time attempting to show 
that the Jackson holding was not applicable to this case in 
view of certain Georgia laws (R. 337-342).

The federal objections based on jury discrimination were 
also preserved throughout the proceedings below. Peti­
tioner’s motion for change of venue, first plea in abatement, 
and challenge to the array in the Superior Court alleged 
that his Fourth Amendment rights of equal protection of 
the laws and due process of law had been violated in that 
grand and petit jury panels were selected in a racially 
discriminatory manner (R. 3-4, 6-8, 10-11). The pleadings 
contended that Negroes were systematically and arbitrarily 
included or excluded from jury panels and that no Negro 
had ever served as a jury commissioner {ibid.). The first 
plea in abatement and challenge to the array also alleged 
that the Charlton County Tax Digest from which jurors 
were selected listed taxpayers separately on the basis of 
race (R. 4, 7-8). After hearing testimony the court over­
ruled petitioner’s objections (R. 5, 6, 8, 12, 70. 93, 95). 
Petitioner offered in evidence certified copies of the grand 
and traverse jury lists from 1954 to 1963 (R. 254-98). The 
trial court ruled them, inadmissible (R. 72-73, 147). Peti­
tioner’s bill of exceptions in the Supreme Court of Georgia 
assigned these various rulings on the jury discrimination 
claim as error (R. 319-322).



9

The Supreme Court of Georgia affirmed, rejecting peti­
tioner’s arguments on the merits (R. 330-332).

■ Petitioner offered to prove by certified copies of the 
traverse and grand jury lists of 1954 to 1963 the pattern 
in which Negroes had been systematically and arbitrarily 
included or excluded from jury lists (R. 70-73). These 
offers of proof were ruled inadmissible (R. 147) and this 
ruling was upheld by the Georgia Supreme Court (R. 332- 
33).

Summary of Argument

I.

The use at trial of confessions obtained from petitioner 
while in police custody violated his right against depriva­
tion of life without due process of law, for several reasons.

A. The issue of voluntariness of the confessions was 
submitted to the trial jury without the prior judicial screen­
ing required by Jackson v. Denno, 378 U.S. 368. The Su­
preme Court of Georgia conceded as much, but took the 
view that Jackson was inapplicable in Georgia by reason 
of several aspects of Georgia confession practice—the re­
quirement that confessions be corroborated, the require­
ment that they be shown voluntary as a condition of 
admissibility, and the trial court’s power to set aside an 
unjust verdict of conviction— said to provide safeguards 
not provided by the New York practice condemned in Jack- 
son. However, each of these practices has its exact ana­
logue in New York law and each is so obviously general, 
if not universal, American practice in confession cases 
that it blinks reality to suppose the Court in Jackson 
imagined that any other practices would obtain in the trials 
which Jackson was plainly designed to govern. Georgia



10

has here merely evaded, not distinguished, Jackson; and 
its evasion should not he countenanced by the Court.

B. A standard was used to determine the voluntariness, 
hence the admissibility, of petitioner’s confessions which 
was not the standard imposed by the Fourteenth Amend­
ment. Inquiry respecting voluntariness below was confined 
to the issues (delimited by Georgia statute) whether peti­
tioner’s statements were induced by promises or threats. 
But under the Due Process Clause, any cumulation of 
circumstances which saps the will of an accused and com­
pels him to a confession not freely self-determined renders 
the confession inadmissible even though no threats or 
promises have been made. The narrow view taken by the 
Georgia courts of the constitutional obligation of a State 
to protect criminal defendants against the use of invol­
untary confessions thus runs afoul of the holding in Rogers 
v. Richmond, 365 U.S. 534, and compels reversal of peti­
tioner’s conviction.

C. Petitioner, an ignorant and illiterate Negro taken 
into custody for the capital offense of rape of a white 
woman, was subjected while surrounded by police to physi­
cal brutality requiring hospital treatment. A short time 
thereafter, still surrounded by police, without the oppor­
tunity to see a friend or lawyer, and without effective 
warning of his rights in view of his limited mentality, he 
confessed the rape. Later, after he had been charged by 
warrant, again surrounded by police and without having- 
seen a friend or received effective caution, he was asked 
to reaffirm his confession and did so. On these uncontested 
facts, his confessions were coerced as a matter of law. 
Any confession made in police custody shortly after a 
prisoner’s blood has been spilled is inadmissible consistent 
with due process of law. When to the physical brutality



11

suffered by petitioner there is added his mental inadequacy, 
his isolation in police confinement, and the terrorizing cir­
cumstance of his charge for rape of a white woman, the 
totality of circumstances plainly makes out duress within 
the prior forced-confession holdings of this Court.

D. The same circumstances firmly establish that peti­
tioner was denied the right to counsel given by Escobedo 
v. Illinois, 378 U.S. 478. While petitioner did not request 
counsel, Escobedo and cases decided prior to it make 
plain that a request is not the invariable condition of the 
protective right to counsel which Escobedo assures, and 
that in some cases fundamental fairness precludes use of 
a confession taken from an ignorant and uncounseled state 
criminal defendant. Petitioner’s is such a case. His in­
capacity to understand or protect his rights in the fearful 
surroundings of his confinement by the police render the 
taking of his initial confessions fundamentally unfair. And 
the police stratagem of securing his reaffirmation after he 
had been charged violates the command of the Sixth Amend­
ment, as incorporated in the Fourteenth, that a criminal 
“accused” be provided a lawyer once the proceedings 
against him have progressed to the post-investigative stage.

II.

A. Georgia courts refused to permit petitioner to make 
a full record on his claim that Negroes had been arbitrarily 
barred from and limited in serving on Charlton County 
grand and petit juries. In thus thwarting petitioner’s 
rights, the Georgia courts were in clear violation of the 
principle announced in Coleman v. Alabama, 377 U.S. 129, 
and Carter v. Texas, 177 U.S. 442. In jury discrimination 
cases, this Court has long relied upon records covering a 
number of years in order to appraise present conduct in 
the context of past action.



12

B. The Charlton County jury commissioners’ use of seg­
regated tax digests, pursuant to Ga. Code §§59-106 and 
92-6307, violates petitioner’s Fourteenth Amendment rights 
to grand and petit juries selected without regard to race. 
Hamm v. Virginia State Board of Elections, 230 F. Supp. 
156 (E.D. Ya. 1964), aff’cl sub nom. Tancil v. Woolls, 379 
U.S. 19, deprives the State of any justification for main­
taining racially separate tax lists, and Georgia’s process 
of selecting jurors from those lists, together with Charlton 
County’s local practice of having the names of white tax­
payers on white paper and Negroes on yellow paper, vio­
lates the rule of Avery  v. Georgia, 345 U.S. 559. Ga. Code 
Ann. §59-106, specifying that jurors shall be chosen on the 
basis of uprightness and intelligence, requires the jury 
commissioners to employ vague, subjective criteria and 
gives them a discretion in which the discriminatory oppor­
tunities provided by the segregated digests create an un­
constitutional probability of racial exclusion. Cf. United 
States v. Louisiana, 225 F. Supp. 353, 396-97, aff’d, 380 
U.S. 145.

C. Notwithstanding the Georgia courts refused to per­
mit petitioner to make a full record on his jury discrim­
ination claim, the facts shown—that only about 5% of the 
jury list, from which his grand and petit juries were se­
lected, were identified as Negroes although Negroes com­
prised about 20% of the tax digest—made out a prima 
facie case of racial discrimination. In support of this 
claim, petitioner relies upon statistical computations wdiich 
show a high degree of improbability that Charlton County 
juries were selected without regard to race in October, 1964. 
A  gross disparity between the number of Negroes avail­
able for jury service and those actually chosen appears, 
and suffices to make the showing of improbability of color­
blind selection required by the jury discrimination cases



13

generally, e.g., Smith v. Texas, 311 U.S. 128, 131; Hill v. 
Terns, 316 U.S. 400, 404; Eubanks v. Louisiana, 356 U.S. 
584, 587. The instant case is controlled by Avery  v. Georgia, 
345 U.S. 559, where the Conrt, on a record quite similar 
to petitioner’s regarding the jury selection process, held 
that a prima facie case of racial discrimination had been 
established. The probability that the selection process was 
fairly used in Avery  is much greater than the probability 
that the process was fairly used in the instant case.

ARGUMENT

I.

Petitioner’ s Constitutional Rights Were Violated by 
the Use at His Trial o f  Confessions Which (A ) 'Were 
Not Reliably Determined to Be Voluntary, in Violation 
o f  Jackson Denno, 378 U.S. 368 ; (B ) Were Judged 
by Standards of Voluntariness That Were Not in Accord 
With Constitutional Requirements; (C ) Were Ob­
tained in Inherently Coercive Circumstances Following 
the Physical Brutalisation o f  Petitioner While in Cus­
tody; and (D ) Were Obtained in Violation o f  Peti­
tioner’ s Sixth Amendment Right to the Assistance of 
Counsel.

Introduction

At petitioner’s trial the State introduced testimony con­
cerning an alleged oral confession by petitioner Isaac Sims 
to Deputy Sheriff Jones (R. 210), and a written confes­
sion signed by Sims purporting to give the details of the 
crime (R. 226-27). Both the alleged oral confession (which 
Sims denied making) and the signed statement were ob­
tained April 13, 1963, while petitioner was in custody in 
the Ware County Jail, as the sole suspect in a capital 
felony. The prosecution also introduced testimony of a



14

state investigator that on the afternoon of April 15, 1963, 
he read the written confession to Sims who said it was 
true (R. 238). Sims stated at trial that he did not under­
stand what he was doing when he signed the confession 
and that he was innocent of the crime (R. 141, 248).

We urge that Sims’ rights under the Constitution were 
violated by the use against him of these confessions, for 
several distinct reasons grounded on decisions of this Court 
decided prior to his trial, October 7, 1964 (R. 148, 249). 
We submit first, that the procedure by which the trial 
judge and jury determined the admissibility of petitioner’s 
statements violated the due process requirements of Jack- 
son v. Denno, 378 U.S. 368. Second, we urge that the 
standards used to determine voluntariness were consti­
tutionally deficient under Rogers v. Richmond, 365 U.S. 534, 
and Wan v. United States, 266 U.S. 1. Third, we argue 
that the physical brutality and coercive circumstances sur­
rounding the confessions prohibit their use under Fikes v. 
Alabama, 352 U.S. 191, and similar cases. Fourth, we argue 
that use of the confessions violated petitioner’s Sixth 
Amendment right to counsel under the principle of Esco­
bedo v. Illinois, 378 U.S. 478, and other decisions of this 
Court.

A. The Decision Below Is in Plain Conflict With 
Jackson v. Denno, 378 U.S. 368

The decision below is a frontal attack on the funda­
mental premise of this Court’s rulings from Cohens v. 
Virginia, 6 Wheat. (19 U.S.) 264, through Cooper v. Aaron, 
358 U.S. 1, to Henry v. City of Rock Hill, 376 U.S. 776, 
that under the Supremacy Clause, “ the federal judiciary 
is supreme in the exposition of the law of the Constitution” 
(Cooper v. Aaron, 358 U.S. at 18). On June 22, 1964, this 
Court decided Jackson v. Denno, 378 U.S. 368, holding



that the Constitution forbids a state court procedure leav­
ing the determination of the voluntariness of a confession 
to the same jury which is charged with deciding simul­
taneously the issue of guilt or innocence. The Court held 
that such a procedure “did not afford a reliable determina­
tion of the voluntariness of the confession offered in evi­
dence at the trial, did not adequately protect . . . [the] 
right to be free of a conviction based upon a coerced con­
fession and therefore . . . [violated] the Due Process 
Clause of the Fourteenth Amendment” (378 U.S. at 377).

Notwithstanding that petitioner was tried and convicted 
in October 1964, almost four months after Jackson v. 
Denno, and that decision was brought to the attention of 
the Georgia trial and appellate courts, Georgia has ad­
hered to its settled practice in plain violation of Jackson 
v. Denno. To be sure, the Georgia Supreme Court’s opinion 
below makes a bow in the direction of the Supremacy 
Clause (“Did we think that the Jackson case applied to 
this case, we would unhesitatingly follow it despite our 
firm conviction that it is illogical, impractical, and utterly 
unsound” ; K. 337), and attempts to distinguish Jackson 
v. Denno on grounds we shall examine below. But the 
primary emphasis of the opinion is an open denunciation 
of this Court’s decision and an express call for it to be 
overruled.

The court below decried “the unusual implication of 
Jackson” ; deplored the “ strange speculation as to how 
jurors might violate their oaths . . .  all of which was pure 
imagination without a scintilla of fact or law to support 
it” ; asserted it was based on “unfounded speculation” ; 
said the “ decision is so shocking . . . every judge has a 
duty to speak out loudly against it” ; and voiced dismay 
over the “new and strange rule with no basis of law but 
established by a majority of one of the Supreme Court”



16

(R. 339-41). Indeed, that court saw the Jackson case as 
one “ shaking the foundations of orderly judicial trials 
which can only be followed by chaos in the trial courts of 
America” (R. 341), and expresses the hope that this Court 
will “ after more mature consideration overrule Jackson 
v. Denno”  (E. 341). Such vehemence was not merely 
academic exhortation. Repudiation of Jackson is the only 
ground on which the procedures employed in petitioner’s 
case could be sustained.

Nothing in the opinion below suggests that Georgia 
procedure affords what Jackson v. Denno requires: a sys­
tem for determining the voluntariness of a confession on 
the facts and law prior to its submission to the jury which 
decides the question of guilt or innocence. On the con­
trary, consistent with prior Georgia precedents, the trial 
court submitted the issue of voluntariness to the trial 
jury for decision (see charge to jury at E. 312). The trial 
jury was left to resolve the conflicting testimony about 
whether physical brutality was used against petitioner by 
Dr. Jackson in the presence of a group of police officers at 
the same time it was considering the issue of guilt on all 
the evidence, including the disputed confessions. The func­
tion of the trial judge, under settled Georgia procedure, 
was merely to determine whether the State made out a 
prima facie case that a confession was voluntary. The 
State can establish such a prima facie case under Georgia 
law merely by its witness’s assertion during preliminary 
examination that (in the words of Georgia Code §38-411) 
a confession was “made voluntarily, without being induced 
by another, by the slightest hope of benefit or remotest 
fear of injury.” Bourns v. State, 208 Ga. 619, 621, 68 S.E. 
2d 568, 569-70 (1952); Garrett v. State, 203 Ga. 756, 762-63, 
48 S.E.2d 377, 382 (1948); Coker v. State, 199 Ga. 20, 23-25, 
33 S.E.2d 171, 173-74 (1945); Bryant v. State, 191 Ga. 686,



17

710-11, 13 S.E.2d 820, 836-37 (1941). Once the state makes 
this “prima facie”  showing it is “ for the jury to decide 
on conflicting evidence whether [a confession] . . . was 
voluntary.”  Doivns v. State, supra, 68 S.E.2d at 570. The 
trial judge overruled Sims’ motion to suppress the con­
fession without any explanation or elaboration of his rul­
ing and without any indication that he had attempted to 
resolve the conflicting testimony presented to him (R. 147). 
It is significant that during the hearing, out of the pres­
ence of the jury, Sims’ testimony that he was beaten and 
pulled by the “privates” while in custody in Dr. Jackson’s 
office was entirely unrebutted, Dr. Jackson’s partial de­
nials coming only in testimony to the jury after the con­
fessions ruled admissible.

All of the vices of the procedure which this Court thought 
sufficient in Jackson to require it to overrule Stein v. New 
York, 346 U.S. 156, are present here. The trial court’s 
unexplained overruling of petitioner’s challenge to the 
confessions in no way resolved the conflict between peti­
tioner’s testimony that he was questioned by Sheriff Lee 
and Sheriff Lee’s denials, nor did it determine whether 
credence was to be given petitioner’s then undisputed testi­
mony that he was beaten by Dr. Jackson in the presence 
of armed peace officers. The trial court made no findings 
concerning the weight to be given the testimony that peti­
tioner was “ scolded” in the sheriff’s office (R. 139), or 
the circumstances that the written statement contained 
manufactured statements of voluntariness (R. 101, 103- 
104). Similarly, it is impossible to know what the jury 
decided on the question of voluntariness. Here, as in Jack- 
son v. Denno (supra, 378 U.S. 379-80):

It is impossible to discover whether the jury found 
the confession voluntary and relied upon it, or in­
voluntary and supposedly ignored it. Nor is there any



18

indication of how the jury resolved disputes in the 
evidence concerning the critical facts underlying the 
coercion issue. Indeed, there is nothing to show that 
these matters were resolved at all, one way or the 
other.

Thus, the ruling below is at war with the requirement 
that the “procedures must . . .  be fully adequate to insure 
a reliable and clear-cut determination of the voluntariness 
of the confession, including the resolution of disputed facts 
upon which the voluntariness issue may depend.” Jackson 
v. Denno, 378 U.8. 368, 391.

The court below does not deny that Georgia practice 
makes the trial jury the only trier of fact on the issue 
of “ admissibility” when a confession is challenged as in­
voluntary. It, rather, suggests three principal reasons,2 
why it believes Jackson v. Denno is distinguishable from 
this case (R. 337-338):

1) That the Jackson opinion did not consider Georgia 
Code §38-420 “which provides that a confession can not 
rest upon a confession alone, but the confession must 
be corroborated” ;

2) that the Jackson opinion did not consider Georgia 
Code §38-411 “requiring as an indispensable founda­
tion to the introduction of an alleged confession a 
showing that it was freely and voluntarily made and 
that it was not induced by another by the slightest 
fear of punishment nor the remotest hope of reward” ;

2 The court below also suggested that Jackson did not cover this ease 
because "there was no evidence to make an issue of voluntariness”  (R. 
339). To the contrary, we shall submit at pp. 26 to 43, infra, that the 
uncontradicted evidence establishes coercion as a. matter of law. However 
this may be, the assertion that there was “ no evidence” o f coercion is 
entirely untenable. See ibid.



19

3) that the Jackson- opinion did not consider “ Geor­
gia law investing the trial judge with unquestionable 
power to review the case after conviction, and to set 
the verdict aside if he is not satisfied with it.”

The general answer to these attempted distinctions is 
that none of the rules of Georgia law which are cited are 
rules which are different from the New York law con­
sidered in Jackson. Indeed, all three rules are principles 
of such general applicability that there is no reason at all 
to believe that this Court did not consider them or ever 
thought any other principles applied when it decided 
Jackson v. Denno, supra.

The Georgia Supreme Court’s first point—emphasizing 
that confessions must be corroborated—is directly par­
alleled in New York law. See N.Y. Code Crim. Proc., §395 
requiring “additional proof”  other than a confession be­
fore conviction. The rule that confessions must be cor­
roborated is, of course, universal in American law. See 
7 Wigmore, Evidence §2071 (3d ed. 1940). It has been 
stated frequently in this Court’s opinions in federal cases. 
Opperv. United States, 348 U.S. 84; Smith v. United States, 
348 U.S. 147; Wong Sun v. United States, 371 U.S. 471, 
488-489. One can hardly suppose that the Court forgot it 
or did not know of it in deciding Jackson v. Denno, supra.

Of course, even if the Georgia rule on corroboration of 
confessions was unique, it would not justify rejection of 
Jackson v. Denno. The emphasis on the corroboration of 
the confession is merely another way of urging that it is 
reliable or truthful. But Rogers v. Richmond, 365 U.S. 534, 
makes it plain that the Constitution requires a determina­
tion that a confession is voluntary and that the reliability 
of the confession is not properly considered in determining 
voluntariness.



20

The Georgia Court’s second point merely focuses on the 
verbiage of Georgia Code §38-411 and is largely rhetoric. 
Of course, Georgia law requires that a foundation be laid 
for a confession. But so does New York’s law as this 
Court observed in Jackson v. Denno, 378 U.S. 368, 377-378, 
and Stein v. New York, 346 U.S. 156. The Georgia rule is 
like the New York rule described in Jackson v. Denno, 378 
U.S. at 377-378:

Under the New York rule, the trial judge must make 
a preliminary determination regarding a confession 
offered by the prosecution and exclude it if in no cir­
cumstances could the confession be deemed voluntary. 
But if the evidence presents a fair question as to its 
voluntariness, as where certain facts bearing on the 
issue are in dispute or where reasonable men could 
differ over the inferences to be drawn from undisputed 
facts, the judge “must receive the confession and leave 
to the jury, under proper instructions, the ultimate 
determination of its voluntary character and also its 
truthfulness.” Stein v. New York, 346 U.S. 156, 172, 
97 L.ed. 1522, 1536, 73 S. Ct. 1077. If an issue of coer­
cion is presented, the judge may not resolve conflicting 
evidence or arrive at his independent appraisal of the 
voluntariness of the confession, one way or the other. 
These matters he must leave to the jury.

And the opinion below nowhere hints at a disavowal of the 
line of prior Georgia decisions interpreting §38-411 to re­
quire only a decision by the judge whether there was a 
prima facie showing of voluntariness with all factual dis­
putes being left to the jury. Downs v. State, 208 Ga. 619, 
621, 68 S.E.2d 568, 569-570 (1952); Garrett v. State, 203 Ga. 
756, 762-763, 48 S.E,2d 377, 382 (1948); Coker v. State, 199 
Ga. 20, 23-25, 33 S.E.2d 171,173-174 (1945); Bryant v. State, 
191 Ga. 686, 710-711, 13 S.E.2d 820, 836-837 (1941).



21

Thus, the court’s second point plainly begs the question 
in its assertion that Georgia law requires that confessions 
be voluntary. The question decided in Jackson v. Denno, 
supra, is who must determine that confessions are volun­
tary. Georgia has not shown that its procedure in this re­
gard differs from that condemned in Jackson.

The Georgia court’s third point is that the trial judge 
can grant a new trial if he is not satisfied with or does not 
approve the verdict. Again, New York has the same rule, 
and this Court was aware of it as indicated by Stein v. 
New York, 346 U.S. 156, 174, footnote 18. This Court de­
scribed the New York trial judge’s powers in Stein saying 
that he can “ set aside a verdict if he thinks the evidence 
does not warrant it,” citing N. Y. Code Grim. Proc. §465. 
Indeed, in a New York capital case such as Jackson the 
state Court of Appeals also has statutory power to order a 
new trial “if the conviction is found to be ‘against the 
weight of evidence,’ or if the court is satisfied for any 
reason whatever ‘that justice requires a new trial’ ” (Stein 
v. New York, 346 U.S. 156, 171-172). See People v. Caruso, 
246 N.Y. 437, 159 N.E. 390 (1927). With respect to the 
trial judge’s powers to order a new trial, the notion that a 
trial judge may act as a “ thirteenth juror” is general in 
our law and not at all peculiar to Georgia. See, for example, 
Brodie v. United States, 295 F,2d 157, 160 (D.C. Cir. 1961); 
Davis v. State, 245 Ala. 589, 18 So.2d 282 (1944); People v. 
Megladdery, 40 Cal. App. 748,106 P.2d 84 (1940); Common­
wealth v. Coyle, 190 Pa. Super. 509, 154 A.2d 412 (1959); 
24 C.J.S., Criminal Law, §1452 (1961); Barron & Holtzoff, 
Federal Practice & Procedure, §2281 (Rules ed. 1958).

We submit that the Court should reject the invitation in 
the opinion below (R. 341) to overrule Jackson v. Denno, 
and should reaffirm that the decisions of the nation’s highest 
Court interpreting the Constitution are as binding in



22

Georgia as they are in the other States. There is no reason 
why Georgia cannot conform to Jackson, as the other States 
have done.3 The State’s brief in opposition to certiorari in 
this case has understandably made no argument on the 
Jackson v. Denno question.

B. The Standards Applied Below to Determine 
Voluntariness Were Insufficient to Satisfy the 
Constiluional Requirements

In his Amended Motion for New Trial petitioner set 
forth constitutional objections to the charge to the jury 
on the issue of voluntariness (R. 43-44). The charge on 
this issue (R. 312) did little more than reiterate the lan­
guage of Ga. Code §38-411 that confessions must be vol­
untary “without being induced by another, by the slightest 
hope of benefit or remotest fear of injury.” The motion 
asserted that the charge violated constitutional require­
ments in that it was “wholly inadequate to have insured 
a reliable and precise determination of the voluntariness 
of the alleged confession” and that the “ instructions leave 
it entirely to the impressionistic determination of the jury 
whether a voluntary confession was in point of fact made 
without delineating any constitutionally adequate standards 
or definitive criteria upon which and by which the jury 
could resolve said issue” (R. 43-44).

Whatever was the scope of the trial judge’s function 
in appraising the issue (we have submitted in part A above

3 The following jurisdictions have altered their rules to conform to 
Jackson v. Denno, 378 U.S. 368: State v. Costello, 97 Ariz. 220, 399 P.2d 
119 (1965); People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965) ; 
State v. Brewton, 395 P.2d 874 (Ore. 1964); Commonwealth ex rel. Gaito 
V. Maroney, 416 Pa. 199, 204 A.2d 758 (1964) ; Lopez v. State, 384 S.W.2d 
345 (Tex. Ct. Crim. App. 1964), on remand from 378 U.S. 567; State v. 
Burke, 27 Wis. 244, 133 N.W.2d 753 (1965).

State law grounds barred consideration of Jackson on its merits in 
State v. Taylor, 133 N.W.2d 828 (Minn. 1965) ; Marion v. State, 387 S.W. 
2d 56 (Tex. Ct. Crim. App. 1964).



23

that he did not resolve any disputed facts), it seems ap­
parent that he did not use any different standard than 
the one he gave the jury. This is clear not only from the 
jury instruction but from the manner in which the Court 
repeatedly treated objections to the confessions, permitting 
them to go before the jury on nothing more than conelusory 
affirmative answers by police witnesses to questions phrased 
in the words of the statute (R. 211, 224-225).

Finally, the Georgia Supreme Court seems to have taken 
the same narrow view of the test for vountariness. Its 
opinion gives little evidence of an examination of the to­
tality of the circumstances surrounding the confession. 
There is, for example, no mention of the physical brutality 
to which Sims was subjected while in custody during the 
investigation process. This is described in detail, infra at 
pp. 26 to 30. Nor was there any discussion of the many 
other factors such as Sims’ mental condition, injuries, 
education, isolation, etc., which are delineated below at 
pp. 30 to 36. Eather, the court below apparently found it 
sufficient to resolve the issue that there was testimony 
that petitioner was advised of certain rights; that the 
Sheriff testified “ that no threats or promise of hope or 
benefit or reward were made to induce Sims to make a 
statement” (R. 335); that there was thus, a “prima facie 
showing that the statement was freely and voluntarily made 
and admissible in evidence. Code §38-411” (R. 336); and 
that “ even without this confession, the above-mentioned 
evidence w7as sufficient to support the verdict” (R. 334).

It is, we submit, clear that petitioner never had a deci­
sion of the issue of voluntariness made with reference to 
the appropriate constitutional standards at any level—• 
neither by the trial judge, jury, or state appellate court. 
His conviction should be reversed on the authority of 
Rogers v. Richmond, 365 IJ.S. 534.



24

In Rogers, supra, the Court invalidated a conviction rest­
ing on a confession which the trial judge and the State’s 
highest court had approved, since it was plain they both 
“ failed to apply the standard demanded by the Due Process 
Clause of the Fourteenth Amendment for determining the 
admissibility of a confession” (365 U.S. at 540). The error 
of the Connecticut courts was in determining admissibility 
“by reference to a legal standard which took into account 
the circumstance of probable truth or falsity” (365 U.S. 
at 543).

In Isaac Sims’ ease, it is apparent that the State’s high­
est court made the same error. It relied on the fact that 
there was other evidence corroborating the confession in 
considering its -admissibility. Whether the other evidence 
of guilt was thought pertinent as assuring the confession’s 
truth or as warranting its non-prejudicial character, this 
simply is not Fourteenth Amendment law. See Payne v. 
Arkansas, 356 U.S. 560, and authorities cited.

The Supreme Court of Georgia, moreover (and the trial 
court insofar as its basis of judgment can be gleaned from 
this record), appraised the case only in terms of the pres­
ence or absence of threats or promises—the Georgia statu­
tory standard. Similarly, the skeletal instructions to the 
jurors in the words of the statute directed the jury’s atten­
tion to “hope . . . or . . . fear” and wholly failed to equip 
the jurors to determine voluntariness in accord with federal 
constitutional standards requiring scrutiny of all the co­
ercive or overbearing circumstances of the ease.

This Court long ago condemned as unduly restrictive a 
review of confessions that was limited to determining 
whether they were induced by promises or threats. Mr. 
Justice Brandeis wrote in Wan v. United States, 266 U.S. 
1, 14-15:



25

The court of appeals appears to have held the prison­
er’s statements admissible on the ground that a con­
fession made by one competent to act is to be deemed 
voluntary, as a matter of law, if it was not induced by 
a promise or a threat; and that here there was evi­
dence sufficient to justify a finding of fact that these 
statements were not so induced. In the Federal courts, 
the requisite of voluntariness is not satisfied by estab­
lishing merely that the confession was not induced by 
a promise or a threat. A confession is voluntary in 
law if, and only if, it was, in fact, voluntarily made. 
A confession may have been given voluntarily, al­
though it was made to police officers, while in custody, 
and in answer to an examination conducted by them. 
But a confession obtained by compulsion must be ex­
cluded, whatever may have been the character of the 
compulsion, and whether the compulsion was applied 
in a judicial proceeding or otherwise. Bram v. United 
States, 168 U.S. 532.

And at least since Chambers v. Florida, 309 U.S. 227, 
239, the rule of Wan has been the law of the Fourteenth 
Amendment. See also Ward v. Texas, 316 U.S. 547, 555; 
Ashcraft v. Tennessee, 322 U.S. 143, 154.

Petitioner has not had a determination of voluntariness 
in the courts below which is consistent with the constitu­
tional standards. Rogers v. Richmond, 365 U.S. 534; Wan 
v. United States, 266 U.S. 1; cf. Haynes v. Washington, 373 
U.S. 503, 516-517, note 11.



26

C. Petitioner’s Confession Was Obtained in Inherently 
Coercive Circumstances and After He Had Been Phys­
ically Brutalized While in Custody, and Its Use to 
Convict Him Violates the Due Process Clause of the 
Fourteenth Amendment

1. Facts and Circumstances Surrounding the Confession

Isaac Sims was taken into custody by Sgt. George 
Sims and Trooper Peacock of the State Patrol at about 
3:00 p.m. on April 13, 1963 (R. 184-185). On orders 
from Sheriff Sikes, petitioner was taken by Sgt. Sims to 
the medical office of Dr. Joseph M. Jackson (R. 185). 
He was taken directly to Dr. Jackson’s office from the 
place where the police took him in custody (R. 184-185). 
It is clear that the officers took Sims to Dr. Jackson’s 
office as a part of their investigative process, so that his 
clothes might be removed and examined for evidence of 
the crime (R. 205, 206-207).

Petitioner Sims testified very clearly that he was brutal­
ized while in custody at Dr. Jackson’s office. He gave 
such testimony both in the pre-trial hearing outside the 
presence of the jury (R. 131), and in his unsworn state­
ment, before the jury (R. 248). Sims stated that he was 
in Dr. Jackson’s office with seven or eight white state 
patrolmen. When asked what happened to him there, 
Sims said (R. 131):

Well, Dr. Jackson, he knocked me down and kicked 
me over my eye lid and busted my eye on the right 
side.

Q. Did anything else happen to you? A. And he 
grabbed me by my private and drug me on the floor.

Sims’ statement before the jury was to the same effect 
(R. 248):



27

Well, they brought me over to Dr. Jackson’s office 
and they carried me in there, about six or seven 
State Patrols, and Dr. Jackson beat me, and taken 
my clothes off, and then carried me over to the bigger 
hospital and stitched my eye up where they kicked 
me over the eye, and put me on some white clothes 
•—white pants, but I kept my shirt I had on.

Q. While you were in Dr. Jackson’s office did he 
drag you around the floor? A. Yes, sir.

# # *  # #

Q. (By the Defendant’s Attorney) What happened 
to you while you were in Dr. Jackson’s office? A. 
Well, he pulled me by the privates.

When Sims testified in the pre-trial hearing he was 
cross-examined, but the prosecutor never asked Sims a 
single question about what happened to him in Dr. Jack­
son’s office (E. 137-143). In addition, the prosecutor put 
on no testimony at all to rebut Sims’ claim that he was 
beaten, kicked over the eye, and pulled by his private 
parts in the presence of six to eight officers.

The prosecutor never asked any witness a single ques­
tion about what happened in Dr. Jackson’s office. Sgt. 
George Sims, the officer who took petitioner to and from 
Dr. Jackson’s office (R. 185), was never asked what hap­
pened in the office.4 * The other officers who were present 
were never called to testify or identified by name.6 The 
prosecutor did not ask Dr. Jackson a single question (on 
direct or re-direct) about what happened while Sims was 
in his office (R. 189-197, 208).

4 Dr. Jackson said that he presumed that the officers in the office with
Sims were the ones who brought him there (R. 202).

6 The exception was Trooper Peacock who was mentioned by Sgt. Sims 
(R. 184) but did not testify.



28

Defense counsel did cross-examine Dr. Jackson about 
the events in his office (R. 202-207). Certain aspects of 
Sims’ testimony were confirmed by Dr. Jackson, who said:

(a) that Sims was brought to his office (R. 202);

(b) that police officers and troopers were there and he 
was not alone with the defendant (R. 202);

(c) that Sims’ clothes were removed (R. 202) ;

(d) that he (Dr. Jackson) “ assisted him slightly” and 
gave him “a little help” in removing his clothes, including 
his pants and his underpants (R. 202-203, 206-207);

(e) that Sims was down on the floor while in the office 
(R. 203, 204);

(f) that by the time Sims left the office he “had a place 
over his eye that required some treatment” (R. 204) ;6

(g) that when Sims left “he was taken over to the 
hospital and the place was treated that I told you about” 
(R. 207);

(h) that at the hospital Dr. Aztui put four stitches in 
the injury over Sims’ eye (R. 207).

Dr. Jackson’s explanation of what happened to peti­
tioner in his office was highly evasive and partly in the 
form of denials of knowledge about what happened to 
Sims. Asked whether the State Patrolman “put the place 
over his eye,” Jackson answered, “ I don’t know who put 
it there” (R. 204). When asked if the officers were beating 
Sims he said:

A. You’ll have to ask the officers.
Q. I ’m asking you, Dr. Jackson. I ’m asking you

6 A state investigator observed the injury on his face two days later 
(R. 242).



29

whether or not the officers were beating the defendant. 
A. I will say that I wasn’t there all the time (E. 204).

Referring to the “place” over Sims’ eye, Jackson was 
asked:

Q. He didn’t have it over his eye when he came 
into yonr office, did he? A. I didn’t see him till after 
he got in.

Q. And when you first saw him in your office he 
didn’t have it? A. I couldn’t see it. He was sort of 
slumped over, sort of falling around, like. Most any­
thing could have happened to him (E. 204).

Hr. Jackson denied that he knocked Sims down (R. 
204) or that he kicked him (R. 205). But when asked 
whether Sims wras kicked he said only: “I don’t know 
that he was” (R. 205). Earlier, Dr. Jackson was asked 
whether Sims was knocked down and he said: “I don’t 
know whether he was knocked down or fell down” (R. 
203).

Dr. Jackson was asked:

Q. Did you find him down on the floor? A. He 
sort of fell in the floor.

Q. He just sort of fell? Where were you standing 
at the time he sort of fell? A. I was standing on my 
feet.

Q. Were you standing near him? A. Fairly close.
Q. Were you standing as close as I am to you, or 

closer? A. Probably a little closer.
Q. Where you could touch him? A. I think he 

could touch me.
Q. And you could touch him? Right? A. Yes. (R.

204).



30

Thus, Dr. Jackson’s testimony was that Sims was close 
enough to touch him when he fell on the floor, but Dr. 
Jackson did not know “whether he was knocked down or 
fell down” (R. 203). Later Jackson said Sims was on the 
floor when he entered the room (R. 205). In Jackson’s 
own words, “ Most anything could have happened to him” 
(R. 204). Despite all this, throughout the entire trial the 
prosecutor avoided any inquiry into what happened to 
Sims in Dr. Jackson’s office. Although Dr. Jackson denied 
on cross that he knocked Sims down or kicked him, the 
prosecution asked no questions about this and called none 
of the policemen to corroborate the doctor’s denial. Plainly 
Sims was injured while in custody. There was no sug­
gestion that he resisted arrest or anything of that nature.

Moreover, the doctor gave no testimony denying Sims’ 
claim that he was pulled by his private parts and dragged 
on the floor. There was no rebuttal or denial of this 
testimony at all and it stands uncontradicted and uncon­
tested in the record. The language of the Court in Haynes 
v. Washington, 373 U.S. 503, is pertinent in appraising 
the State’s failure to rebut Sims’ claim of brutality:

We cannot but attribute significance to the failure of 
the State, after listening to the petitioner’s direct 
and explicit testimony, to attempt to contradict that 
crucial evidence; this testimonial void is the more 
meaningful in light of the availability and willing 
cooperation of the policemen who, if honestly able 
to do so, could have readily denied the defendant’s 
claims. (373 U.S. at 510.)

In addition to the evidence of physical brutality, there 
are, of course, a variety of other facts to be considered in 
appraising the totality of circumstances surrounding the 
confessions. They reveal that Sims was bewildered, help­



31

less, alone, hungry, in pain and in fear when he signed 
his written statement.

Isaac Sims is an indigent, ignorant, illiterate Negro, who 
cannot read and can write only his name (R. 130). He has 
spent most of his life in Charlton County in the southeast 
part of Georgia (R. 129). Both of his parents are dead; 
his closest relatives in Charlton County were two sisters 
(R. 128). At the time of his arrest he was in his twenties; 
the record leaves his exact age unclear.7 Sims was unable 
to tell what year he was born (R. 128). He went to the third 
grade in school, quitting* when he was “ seventeen or eigh­
teen” (R. 130). He testified, “Well, I didn’t go [to school] 
too much on account of I had to help my father work, and 
he taken me out of school” (R. 129). He worked as a pulp- 
wood worker, earning forty to sixty dollars a week. He 
is indig-ent, had appointed counsel at his first trial, and 
has proceeded in forma pauperis throughout the case.

The record reveals his limited mental capacity in many 
instances. He did not know the year he was born; nor could 
he state when Iris father died (R. 128). He was totally un­
able to explain words and phrases such as “normal and 
ordinary” (R. 144), “ legal rights”  (R. 136), “ constitutional 
rights” (R. 137), “ freely and voluntarily” (R. 136), “ the 
right to have a lawyer” (R. 137), or that “a statement can 
be used against you in court” (R. 136). Sims “ stutters” 
when he speaks (R. 122).

Sims was a Negro charged with the rape of a white 
woman-—a capital felony in Georgia. The prosecutrix was 
the unmarried daughter of the local postmaster (R. 61). 
At about 2 :00 or 2 :30 p.m. Sims was taken into custody and 
held at gunpoint some five miles from the scene of the

7 The confession stated that he was 27 on the day of arrest in April 
1963 (R. 226) ; he testified that he was 29 at the trial in October 1964 
(R. 247), but his birthdate was February 5 (R. 128).



32

crime by two Negro men who had been ordered by their 
boss, a local white man, to look for any “ stray man” (R. 169, 
175-176). He was then taken by this white man, Noah 
Stokes, accompanied by several other men, to state troopers 
who carried him to Dr. Jackson’s office where Sims was 
brutalized as we have described above. After Sims was 
treated at the hospital for his eye injury, the police took 
him to the Ware County Jail in Waycross, some thirty or 
thirty-five miles away from Folkston and located outside 
the county where the crime occurred, for “ safe keeping” 
(R. 233-231, 242).

The police testimony is that at about 6 :30 p.m., while con­
fined in a cell at the Ware County Jail, Sims orally admitted 
“ raping” or “molesting” a white woman in Folkston in a 
conversation with Deputy Sheriff Dudley Jones whom Sims 
had known for more than a dozen years previously8 (R. 113, 
209-210, 214-216). Jones did not testify that he gave Sims 
any warnings prior to eliciting this admission, either as to 
Sims’ right to remain silent, that his statement would be 
used against him, or as to his right to counsel. Jones testi­
fied that Sims then agreed when asked if he wanted to make 
a statement to the sheriff (R. 113, 210).9

Sims remained alone in a cell until about 10:00 or 10:30 
that evening when he was taken to the “interview room” 
in the jail (R. 210, 223). Sims had not been fed since he 
was taken into custody some 8 hours earlier and he was 
still in pain from the injury sustained in Dr. Jackson’s 
office.10 There were four white officers in the “ interview

8 Sims denied making- this oral confession (R. 134, 138-139).
9 Sims also denied this (R. 133).
10 Sims testified at R. 135-136:

A. Well, I  felt pretty rough for about two or three weeks, more on 
my private than I did on my face.

Q. When you said you felt pretty rough, what did you mean, Isaac? 
A. Well, I was paining a right smart.



33

room” with Sims: they were the Sheriff and Deputy Sheriff 
of Ware County, the Chief of Police, and the Constable.11 
Sims testified that he was “ scared” (R. 143). As to his 
treatment, he said, “ they didn’t beat me, but they kind of 
scolded me a little” (R. 139). None of Sims’ testimony in 
these regards was rebutted.

Since his arrest, petitioner had not been in touch with 
any relative, friend or attorney. He had not been offered 
the use of a phone (R. 222) and he had not been taken be­
fore a magistrate in accordance with Georgia law (R. 235- 
236).12 He was in jail in the adjoining county some 30 or 
35 miles from Folkston (R. 67, 242).

Q. Were you paining a right smart when you were in the room 
with Sheriff Lee and Deputy Sheriff Jones? A. Yes, sir.

Q. Now, after you were taken into custody up until the time you 
were taken upstairs had you been given anything to eat? A. No, sir.

Q. Were you hungry? A. Yes, sir; I could have eat.
11 The Police Chief and Constable were not called as witnesses.
12 Georgia law specifically required bringing petitioner promptly before 

a magistrate where, as here, the arrest was made without a warrant:
“Duty of person arresting without warrant.—In every case of an 

arrest without a warrant the person arresting shall without delay 
convey the offender before the most convenient officer authorized to 
receive an affidavit and issue a warrant. No such imprisonment shall 
be legal beyond a reasonable time allowed for this purpose and any 
person who is not conveyed before such officer within 48 hours shall 
be released.” Ga. Code §27-212 (1933).

Even if the arresting officers had a warrant, they were similarly obli­
gated :

“ Officer may make arrest in any county. Duty to carry prisoner to 
county in which offense committed.— An arresting officer may arrest 
any person charged with crime, under a warrant issued by a judicial 
officer, in any county, without regard to the residence of said arrest­
ing officer; and it is his duty to carry the accused, with the warrant 
under which he was arrested, to the county in which the offense is 
alleged to have been committed, for examination before any judicial 
officer of that county.

“ The county where the alleged offense is committed shall pay the 
expenses of the arresting officer in carrying the prisoner to that 
county; and the officer may hold or imprison the defendant long 
enough to enable him to get ready to carry the prisoner off. (Acts 
1865-6, pp. 38, 39; 1895, p. 34.)” Ga. Code §27-209 (1933).



34

The record does not make it clear how long Sims was in 
the interview room before the confession was given and 
signed,13 or to what extent, if any, Sims was interrogated. 
When asked whether he questioned Sims, Sheriff Lee said, 
“ I don’t think so,” then, “I could have,” and finally, “I just 
don’t recall right now” (R. 105). Sims said he was ques­
tioned by Lee (R. 135, 140), and also that he was “ scolded” 
(E. 139).

Deputy Sheriff Jones wrote out the confession and read 
it to Sims. He admittedly wrote out some matter which 
Sims did not say. The Sheriff, and his deputy who actually 
wrote the confession, testified petitioner did not say that 
the statement had been made freely and voluntarily or that 
he had been informed of his legal rights, although the writ­
ten statement includes those words. In fact, petitioner does 
not even know the meaning of “ freely and voluntarily” 
(E. 136). Every word in the confession asserting its volun­
tariness and its having been made with knowledge of the 
legal consequences was inserted not by petitioner but by 
his inquisitors. The deputy sheriff crossed out several 
words in the original statement, including the words, “ I

18 Sheriff Lee testified (R. 104) :
Q. Do you know what time on the evening of April 13, 1963, that 

you started taking this statement? A. Well, the statement was short. 
It wouldn’t have taken but just a few minutes.

Q. How many minutes? A. Oh, ten or fifteen minutes.
Q. Did you start taking the statement at 10 :30 or did you conclude 

it at 10 :30? A. Well, I wouldn’t say we finished at 10 :30 or started 
at 10:30. It was approximately 10.

Q. So you questioned him from 10 to 10:30? A. How is that?
Q. You questioned him from 10 to 10:30? A. I didn’t say that.
Q. You started at 10? A. I didn’t say that.
Q. You started at 10:30, then? A. I said that we could have 

finished at 10 :30 or started at 10 :30. I  don’t recall.
Deputy Sheriff Jones said that Sims was brought down at 10 :30 (R. 113); 
that it took him approximately twenty to thirty minutes to write down 
Sims’ statement (R. 119), and five or six minutes to read it to him (R. 
121-122) .



have read” when it was learned the petitioner could not 
read (B. 229).

The sheriff testified that he told petitioner that before 
he made a statement he was entitled to an attorney and 
that petitioner said he did not want one (B. 99-100, 224). 
The sheriff also said that he told petitioner “ that the state­
ment he was going to give could be used against him in 
court” (B. 99-100, 225). On each of the occasions at trial 
when Sheriff Lee recounted his warning to Sims, he failed 
to mention that he advised Sims of his right to remain 
silent (B. 99-100, 224-225). However, a sentence at the 
end of the confession written by the deputy recites: “ I have 
been informed of my legal rights by Sheriff Bobert E. Lee 
that I did not have to make any statement whatsoever, 
knowing that this statement can be used against me in a 
court of law” (B. 227). No one offered Sims the use of a 
phone or advised him that a lawyer would be appointed if 
he could not afford one.

On Monday afternoon, April 15, 1963, Agent F. F. Cor­
nelius of the Georgia Bureau of Investigation brought Sims 
in handcuffs from the jail in Waycross back to the sheriff’s 
office Folkston (B. 237, 241). Cornelius questioned Sims 
in the sheriff’s office in the presence of five other police of­
ficers14 (B. 239-240). Cornelius read the statement Sims had 
signed on Saturday night to Sims, asked him if it was true, 
and Sims said, “Yes, sir” (B. 238). Cornelius did not cau­
tion Sims that he was not required to answer and could re­
main silent, or otherwise advise him of his rights (B. 241). 
Sims apparently still had no attorney and had not seen any 
friends or relatives during the period since his arrest (B. 
241-242). He was first taken before a magistrate on April 
15th (B. 66). The record is silent on whether the question­

35

14 None o£ these five officers testified at the trial.



36

ing by Cornelius came before or after that proceeding. 
But a warrant charging Sims with the crime had been 
issued at some time before he was brought back to Folkston 
and made the admissions to Cornelius (R. 239).

2. The Confessions Were Obtained in Inherently 
Coercive Circumstances and Their Use Violated 
the Due Process Clause

The Court has consistently held that the voluntariness 
of a confession must be determined in the context of all 
the surrounding circumstances as they appear from the 
Court’s independent examination of the uncontested facts 
on the entire record. Examination of the record in this 
case makes it plain that each of the confessions allegedly 
given by Sims to the law authorities while he was in cus­
tody were given in inherently coercive circumstances and 
were not voluntary.

The recitation of the facts above should demonstrate con­
clusively that Fikes v. Alabama, 352 U.S. 191, requires re­
versal of the conviction. The similarities between this 
case and Fikes are numerous and significant. In both cases 
the petitioner was a Negro in his mid-twenties charged 
with a sexual assault upon the daughter of a local public 
official in a southern community. Both Fikes and Sims had 
attained only third grade educations when they quit school 
in their late teens. Sims, like Fikes, is of limited mentality. 
In this case, as in Fikes, the petitioner was first arrested 
by civilians; was not arraigned or taken before a magis­
trate prior to his confession; was carried to a jail far from 
the scene of the crime; and was allegedly advised of some 
of his legal rights by a law enforcement officer before con­
fessing. Sims saw no friend, relative or counsel; Fikes 
saw his employer, but his father and a lawyer were denied 
access to him. The Fikes record contained “no evidence of 
physical brutality” (357 U.S. at 197). But Isaac Sims made 
a strong and largely uncontested showing that he was



37

brutalized and suffered injury requiring medical treatment 
while in the custody of officers who were engaged in an 
investigative process.

The Fikes case involved a longer period of custody and 
questioning before the confession, viz., five days in Fikes 
as against 7 or 8 hours in this case. But even a short period 
of time may be sufficient to overpower a suspect’s will 
(Haley v. Ohio, 332 U.S. 596), and the denial of food to 
petitioner during his confinement bears directly upon the 
confession’s alleged voluntariness (Watts v. Indiana, 338 
U.S. 49, 53; Payne v. Arkansas, 356 U.S. 560, 567), as does 
the stripping of petitioner in Dr. Jackson’s office (Malinski 
v. New York, 324 U.S. 401). The physical beating suffered 
by Sims is sufficient to counterbalance the comparatively 
short period of questioning revealed by the record. As Mr. 
Justice Frankfurter (joined by Mr. Justice Brennan) said 
concurring in Fikes v. Alabama, 352 U.S. 191, 198:

It is, I assume, common ground that if this record had 
disclosed an admission by the police of one truncheon 
blow on the head of petitioner a confession following 
such a blow would be inadmissible because of the Due 
Process Clause.

Sims has more than met the requirement that he show 
“ one blow.” It is not disputed that while engaged in their 
investigation the police took Sims to Dr. Jackson’s office 
where he sustained injuries requiring medical treatment 
(four stitches over the eye), which he claimed were received 
from blows and kicks in the presence of the police, an 
episode the prosecution has never troubled to deny or re­
but. We submit that it is plain that the prosecutor never 
asked a question or put on a witness to deny Sims’ version 
of this incident because he could not honestly do so (cf. 
Haynes v. Washington, 373 U.S. 503, 510).



The element of violence in this case makes it as strong, 
if not stronger than Fikes, supra, and similar cases where 
the Court has viewed the circumstances as sufficiently coer­
cive to strike down convictions. See, particularly, Haynes 
v. Washington, 373 U.S. 503; Culombe v. Connecticut, 367 
U.S. 568; Turner v. Pennsylvania, 338 U.S. 62; Johnson v, 
Pennsylvania, 340 U.S. 881 (per curiam; facts stated in 
Culombe v. Connecticut, 367 U.S. 568, 628).

And, of course, the fact that Sims’ signed statement con­
tains assertions of voluntariness, composed by the police, 
does not suffice to save the confession in view of the other 
circumstances. A  strikingly similar recital also dictated 
by the police was disregarded by the Court in striking down 
the conviction in Haley v. Ohio, 332 U.S. 596, 598, 601. 
Sims’ testimony indicates he did not even comprehend the 
meaning of the recitals of voluntariness or understand the 
significance of the warnings he was given. His supposed 
waiver of the right to counsel could not, given his lack of 
understanding and inability to understand common legal 
terms expressed in ordinary language, be regarded as “an 
intentional relinquishment or abandonment of a known 
right or privilege,” Johnson v. Zerbst, 304 U.S. 458, 464. 
Plainly, petitioner did not know a lawyer’s function or 
understand how a lawyer could be of assistance to him.

Here, as in Fikes, “ The totality of the circumstances that 
preceded the confessions . . . goes beyond the allowable 
limits” (352 U.S. at 197). The conclusion applies equally 
to the alleged oral admission to Deputy Jones, the signed 
statement, and the testimony that the signed statement was 
reaffirmed two days later.



39

3. The Physical Violence Inflicted on Sims Is Suffi­
cient by Itself to Invalidate the Confessions

We submit that the physical violence inflicted on Sims 
while in custody, during a police effort to find evidence of 
the crime by examination of his clothes, is alone sufficient 
to vitiate the confessions obtained thereafter. It is con­
ceded that he was stripped of his pants and underpants in 
a room full of men. No witness has denied his story that 
he was pulled by his private parts and dragged across the 
floor. His version was not even challenged by cross-exami­
nation. It is conceded that he sustained injuries requiring 
medical treatment while in a room containing a doctor and 
policemen. No one told any story about how Sims received 
his injuries except Sims. Dr. Jackson’s evasions are plain 
on the record; he offered no explanation of Sims’ injury.

In Payton v. United States, 222 F.2d 794, 796-97 (D.C. 
Cir. 1955), a confession was obtained while an accused had 
blood on his shirt, having been recently bleeding as the 
result of force reasonably used by the officers to effect his 
arrest and confinement. The Court excluded a confession 
and reversed a conviction on the ground that admission of 
a confession following so shortly after violence upon the 
prisoner—albeit reasonably necessary violence—was im­
proper. Judge Fahy wrote for the Court (at 797):

We assume the officers had authority to use the force 
reasonably necessary to effect the arrest and confine­
ment. But when a confession is elicited so soon after 
the use of violence upon the prisoner, resulting in 
bloodshed, the compelling inference is that the confes­
sion is not the free act of the prisoner. It is imma­
terial that other coercion did not occur at the very 
moments he was questioned and signed the statement. 
Violence at the hands of the Police admittedly had oc­



40

curred within about an hour. A  confession made in 
such circumstances, and thereafter repudiated by the 
accused, should not be admitted in a criminal trial in 
a Federal court. “ The undisputed facts showed that 
compulsion was applied. As to that matter there was 
no issue upon which the jury could properly have been 
required or permitted to pass.”  Ziang Sung Wan v. 
United States, 266 U.S. 1, 16-17; . . . [other citations 
omitted].

Judge Fahy quotes (222 F.2d at 797, note 5), from the 
opinion in Stein v. New York, 346 U.S. 156, 182, as fol­
lows :

“Physical violence or threat of it by the custodian of a 
prisoner during detention serves no lawful purpose, 
invalidates confessions that otherwise would be con­
vincing, and is universally condemned by the law. 
When present, there is no need to weigh or measure 
its effects on the will of the individual victim.”

The Stein opinion further states in language that is 
relevant here:

Slight evidence, even interested testimony, that it 
[defendant’s injury] occurred during the period of 
detention or at the hands of the police, or failure by 
the prosecution to meet the charge with all reasonably 
available evidence, might well have tipped the scales 
of decision below. Even here, it would have force 
if there were any evidence whatever to connect the 
admitted injuries with the events or period of inter­
rogation. But there is no such word in the record. 
(346 U.S. at 183, emphasis added.)

As we have seen, there is ample evidence to show that 
Sims’ injury occurred during detention and the prosecu­



41

tion has made no effort to meet the charge with any evi­
dence. Nor can it matter that the same officers who later 
obtained Sims’ confessions were not shown to have been 
present when he was mistreated. There was no showing 
that the coercive impact of his mistreatment during the 
investigative process (in the presence of seven or eight 
officers by Sims’ account) was at all eliminated by his be­
ing transported thirty or more miles to another county and 
turned over to other officials. Sims testified as to his con­
tinuing pain for a prolonged period far beyond the last of 
the confessions. The oral admission to Deputy Jones was 
said to have occurred at about 6:30, less than three hours 
after Sims was injured. The written statement followed a 
few hours later after a period of isolated confinement. 
The final admission of the accuracy of the signed statement 
to state investigator Cornelius must obviously fall if the 
statement itself is excluded. It is clearly tied to the written 
statement. In any event, it occurred after petitioner had 
been returned to Folkston, the scene of his original beat­
ing and again in a room with six policemen.

If the confession involved here had been introduced at 
a trial held after June 13, 1966, the conviction would plainly 
be summarily reversed on the authority of Miranda v. 
Arizona, 384 U.S. 436; Johnson v. New Jersey, 384 U.S. 
719; cf. Davis v. North Carolina, 384 U.S. 737, 739. The 
courts below did not have the benefit of the specific guide­
lines set forth in Miranda, and concededly the full panoply 
of protections given by that decision are not available to 
Sims. But in an important sense Miranda—apart from 
its specific guidelines—represents a distillation of the les­
sons learned through the long experience of this Court in 
the review of in-custody confession cases. It plainly reflects 
sensitive awareness of a problem the Court has recognized 
before, namely, that:



42

What actually happens to them [prisoners] behind the 
closed door of the interrogation room is difficult if not 
impossible to ascertain. Certainly, if through excess 
of zeal or aggressive impatience or flaring up of temper 
in the face of obstinate silence a prisoner is abused, 
he is faced with the task of overcoming, by his lone 
testimony, solemn official denials. (Culombe v. Con­
necticut, 367 U.S. 568, 573-574, opinion of Justice 
Frankfurter, joined by Justice Stewart.)

We urge that in light of this consideration, the Court 
now firmly declare that any in-custody confession which 
follows close upon the spilling of the prisoner’s blood 
while he is alone in the hands of officers (Payton v. United 
States, supra)—a confession following a blow (Fikes, supra, 
Justice Frankfurter, concurring) or unexplained evidence 
of injury to a prisoner during detention {Stein, supra)— 
must be excluded without further inquiry whether the pris­
oner’s will was overborne by the brutality.

We recognize that this rule has not been uniformly fol­
lowed in the past and that confessions have been sustained 
notwithstanding physical violence as in Lisenba v. Cali­
fornia, 314 U.S. 219. But we urge such a general prin­
ciple as consistent with the spirit and learning of Miranda 
v. Arizona, 384 U.S. 436. Lisenba dates from an era when 
this Court’s concern in state criminal cases was with the 
performance of the state courts, not the police. Long before 
Miranda, that concern had broadened. See Blackburn v. 
Alabama, 361 U.S. 199; Spano v. New York, 360 U.S. 315. 
There can be no justification for police brutality upon a 
prisoner, and no legitimate police interest in beatings. 
There will be explanations offered, of course (although not 
even those were offered here), and speculation that the 
prisoner was hard-headed and remained unaffected. Mi­
randa counsels that no ear be given to these unlitigable



matters. Where blood has flowed, no confession made soon 
after should be tolerated consistent with due process of 
law.

Even in the absence of such a general principle, how­
ever, the violence upon Sims must vitiate his conviction 
when considered in conjunction with his limited mentality 
and general helplessness in the hands of experienced in­
vestigators. Plainly Sims had n o :

. . .  powers of resistance comparable to those which the 
Court found possessed by the defendant Cooper in 
Stein v. New York, 346 U.S. 156, who haggled for terms 
with the officials to whom he confessed, or the defend­
ant James in Lisenba v. California, 314 TJ.S. 219, who 
bragged immediately before his confession that there 
were not enough, men in the District Attorney’s office 
to make him talk. (Culombe v. Connecticut, 367 U.S. 
568, 625, opinion of Justice Frankfurter, joined by 
Justice Stewart.)

Extraction of confessions from Sims, in his circumstances, 
and their use to convict him violated the Due Process 
Clause.16

16 The assertion of the court below that the conviction may be justified 
because “ even without this confession, the . . . evidence was sufficient to 
support the verdict”  (R. 334) deserves only brief reply. First, it should 
be mentioned that the sole significant corroboration of the prosecutrix’s 
testimony was the confession. Georgia law and the trial court’s charge 
below required “ other evidence independent of hers, sufficient to connect 
the accused with the offense charged” (R. 313) to corroborate her testi­
mony. Literally nothing in the record except the confessions connect Sims 
with the offense. Furthermore, the victim never identified Sims as her 
attacker until his first trial some 5 months after the crime (R. 157-158). 
Second, and more fundamentally, the voluntariness of a confession must 
be examined without regard to the other evidence of guilt, and a defen­
dant’s constitutional rights are violated by use of a coerced confession to 
convict, even if there is other convincing evidence of guilt. Rogers v. 
Richmond, 365 U.S. 534, 544; Malinski v. New York, 324 U.S. 401, 404; 
Bram v. United States, 168 U.S. 532, 540-542; Payne v. Arkansas, 356 
U.S. 560.



44

D. The Decision Below Violates Petitioner’s Sixth 
Amendment Right to Counsel in Conflict With 
Escobedo v. Illinois, 378 V.S. 478, and Other 
Decisions of This Court

Petitioner’s trial commenced some four months after the 
decision in Escobedo v. Illinois, 378 U.S. 478; thus that 
decision may be applied in judging his case. Johnson v. 
New Jersey, 384 U.S. 719. The Escobedo decision focused 
on the right to counsel under the Sixth Amendment in ap­
praising in-custody confessions. This Sixth Amendment 
emphasis is in contrast to the reliance upon protection of 
the Fifth Amendment privilege against self incrimination 
in Miranda v. Arizona, 384 U.S. 436.

Most of the elements present in Escobedo were present 
in this case. When Sims’ confessions occurred “ the investi­
gation [was] . . .  no longer a general inquiry into an un­
solved crime but ha[d] begun to focus on a particular sus­
pect, the suspect ha[d] been taken into police custody, the 
police carr[ied] out a process of interrogations that lends 
itself to eliciting incriminating statements, . . . and the 
police have not effectively warned him of his absolute 
constitutional right to remain silent . . . ” (378 U.S. at 490- 
491).

However, it could not be said on this record that Sims 
had “ requested and been denied an opportunity to consult 
with his lawyer.” Sims never requested a lawyer for he 
was incapable of understanding how a lawyer might help 
him, had no funds to hire a lawyer, was given no opportun­
ity to consult with friends or family, or even to use a 
telephone, and was not informed of his right as an indigent 
to appointed counsel.

We submit that in these circumstances the general prin­
ciple enunciated in Escobedo and in cases decided earlier



45

require the conclusion that Sims was denied the assistance 
of counsel in violation of the Sixth Amendment as made 
applicable to the States by the Due Process Clause of the 
Fourteenth Amendment. Even beforeEscobedo, it had been 
recognized that the right to counsel might be violated by 
in-custody interrogation in the absence of counsel. The 
Ninth Circuit so held in Griffith, v. Rhay, 282 F.2d 711 9th 
Cir. 1960), cert. den. 364 U.S. 941. The Ninth Circuit 
adopted the reasoning of Crooker v. California, 357 U.S. 
433, 438-440, that apart from voluntariness interrogation 
in the absence of counsel might deny due process if any 
accused “ is so prejudiced thereby as to infect his subse­
quent trial with an absence” of fundamental fairness, this 
is to be determined by all the circumstances including the 
education and mentality of the accused. The Ninth Cir­
cuit found Griffith’s confession inadmissible despite a fail- 
ure to request counsel. See also the opinion of Judge 
Browning in Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 
1962,) cert. den. 372 U.S. 978, generally in accord with 
Griffith v. Rhay, supra.

An additional point may be made with respect to Sims’ 
confession to state investigator Cornelius on Monday, April 
15. This took place after a warrant against Sims had been 
issued by a judicial officer. The warrant is not in the record 
and it cannot be determined on this record whether it was 
issued upon the basis of the prior confession (though this 
seems likely) or some other showing against Sims. In 
any event, at this stage Sims was, though not yet indicted, 
plainly in the position of an “ accused” being held in antici­
pation of trial. See Ga. Code §27-209, quoted supra note 12. 
He still had no lawyer, but following his confession and the 
issuance of a warrant against him he was plainly accused 
and, for every relevant purpose, in a position exactly 
comparable to a man under indictment. He surely was in



46

need of a lawyer to prepare for the inevitable trial and to 
advise him.

The premise of Spano v. New York, 360 U.S. 315, 324- 
327 (concurring opinions) and Massiah v. United States, 
377 U.S. 201, is that indictment marks the point in the 
criminal process when investigation is completed and trial 
preparation begins. At this point, “ ‘when consultation, 
thoroughgoing investigation and preparation [are] vitally 
important, the defendants . . .  [are] as much entitled to such 
aid [of counsel] . . .  as at the trial itself.’ ” Massiah v. 
United States, 377 U.S. 201, 205.16 Obviously, in the pro­
ceedings in petitioner’s case the period following issuance 
of the warrant rather than that following indictment was 
the stage envisaged by this language. It should be noted 
that petitioner was formally indicted no earlier than a few 
days before trial on each of the two occasions on which he 
was tried.17

We submit that the principles of Spano v. New York, 
360 U.S. 315, 324-327 (concurring opinions), and Massiah 
v. United States, 377 U.S. 201, require that this confession 
be excluded under the principles of the Sixth Amendment. 
To be sure, unlike Spano and Massiah, Sims had not yet 
been formally indicted at the time of the admission to 
Cornelius. But he was more than a suspect at this point. 
In every realistic sense he was “ the accused” (Ga. Code 
§27-209) and was “ scheduled to be tried” once the police 
had obtained his signed confession and a warrant against 
him. The subsequent interrogation by Cornelius was more

16 Quoting from Powell v. Alabama, 287 U.S. 45, 57.
17 The exact dates of the first indictment and of commencement of the 

first trial are not in this record. But Sims was indicted at the October 
1963 term and the date of sentencing October 9, 1963, appears (R. 251, 
256). The second indictment was filed October 6, 1964 (R. 1 ) ; trial 
commenced October 7, 1964 (R. 46, 198, 249) and the verdict was returned 
October 8, 1964 (R. 2).



47

than an interrogation focusing on a suspect. Cornelius 
sought a final nail in the coffin which was already almost 
closed by the signed confession. This final confession closed 
the case, and after it effective aid and advice by counsel 
“ at the only stage when legal aid and advice would help” 
(Spano, supra, 380 U.S. at 326) became impossible.

II.

Petitioner Was Denied Equal Protection of the Laws 
by Rulings of the Courts Below Refusing Evidence 
That Negroes Were Systematically Excluded From 
Grand and Petit Juries in Charlton County, and Over­
ruling His Challenge to Those Juries on Grounds of 
Racial Discrimination in Their Selection.

Georgia’s general procedure for selecting grand and petit 
jurors is as follows: The jury commissioners are directed 
by statute to examine the tax digest for the names of no 
more than two-fifths of the most intelligent and upright 
taxpayers. The names selected are put on tickets and 
placed in jury boxes, one for grand and one for petit juries, 
from which the judge later draws the names of those who 
are to serve for a particular term of court. The names 
drawn by the judge are placed on grand and petit jury lists 
(R. 76-80, 84, 86-87). See Ga. Code Ann. §§59-106, 59-108 
(1965 Rev. Vol.).

Ga. Code §92-6307 provides that “Names of colored and 
white taxpayers shall be made out separately on the tax 
digest.” Under local practice in Charlton County, where 
petitioner was tried and convicted, separate sections of the 
tax digest are maintained for white and Negro names, the 
whites listed on white paper, the Negroes on yellow paper 
(R. 82). The jury commissioners, all of whom are white 
(R. 83), rely upon their personal knowledge of the persons



48

listed in the tax digest and their personal opinions of those 
persons’ character and intelligence, in selecting “upright 
and intelligent citizens to serve as jurors.” Ga. Code Ann. 
§59-106. In practice, they first examine white taxpayers’ 
names, then Negroes’ names. Despite a commissioner’s 
testimony that no consideration is given to race, the sepa­
rate lists make it clear whether any particular taxpayer is 
white or Negro (R. 80-81, 84, 91-92).

The 1960 United States Census for Charlton County 
shows 2,656 persons over twenty-one, of whom 728 or 27.4% 
are non-white (R. 75). The tax digest books show 1,838 
Charlton County taxpayers in 1961, of whom 367 or 19.9% 
are Negroes (R. 74), and 1,908 taxpayers in 1962, of whom 
420 or 22% are Negroes (R. 74). There were 1,959 Charlton 
County taxpayers in 1963,18 of whom 410 or 20.4% were 
Negroes (R. 74). Of the 99 jurors chosen hy the judge for 
the October 1964 Term of the Charlton County Superior 
Court, from which the grand and petit jurors were selected 
in petitioner’s case, only 5 or about 5% wrere identified as 
Negroes (R. 74, 89-90, 297-98).19

Petitioner offered to prove a consistent and continuing- 
practice under which Negroes had been unconstitutionally 
barred from or selected in limited numbers for jury service 
in Charlton County (R. 3-4, 6-8, 11, 70-71). In support of 
this claim he proffered in evidence certified copies of the 
grand and petit jury boxes and lists for the period 1954- 
1963 (R. 72-73, 254-98), but the trial court ruled them in­
admissible (R. 72-73, 147). This ruling was affirmed by the 
Georgia Supreme Court (R. 330-32).

18 No statistics regarding the number of taxpayers in 1964 were intro­
duced apparently because such stastistics were not available at the time 
o f trial (see R. 74).

19 The names and racial identification of taxpayers selected for the 
1964 jury boxes were not proffered at trial.



49

Petitioner makes three contentions here with regard to 
racial discrimination in jury selection: He first submits 
that the Georgia courts unconstitutionally refused to re­
ceive evidence proferred by him to show jury discrimination 
in years prior to his trial. This Court has often relied on 
evidence of jury discrimination going hack as far as ten, 
twenty or thirty years and has held that one seeking to 
prove jury discrimination is entitled to offer evidence to 
support his claim (see Part A, infra, p. 49).

Petitioner also contends that the jury commissioners’ use 
of segregated tax digests in selecting prospective jurors is 
unconstitutional. The segregated tax digests and the vague, 
subjective criteria for juror selection mandated by Ga. Code 
Ann. §59-106 encourage discriminatory use of the commis­
sioners’ discretion. (See Part B, infra, p. 52.)

Petitioner finally urges that a prima facie case of racial 
discrimination was made out by the fact that Negroes com­
prised 20% of the taxpayers but only 5% of the 1964 jury 
list. In support of this contention, petitioner will show that 
there is an extremely small probability that, assuming a 
fair selection process, so few Negroes would have appeared 
on the 1964 jury list (see Part C, infra, p. 56).

A. The Georgia Courts Unconstitutionally Refused to Receive 
Petitioner’s Proffered P r o o f  o f  Racial Discrimination in 
the Selection of Jurors

Petitioner offered to prove by certified jury boxes and 
lists covering the period 1954-1963 a pattern of arbitrary 
exclusion or limitation of Negroes on the jury lists of Charl­
ton County. “Jury lists for a ten year period were offered 
in evidence. All were excluded except for the lists of jurors 
from which the juries who indicted and convicted were 
taken.”  Opinion of Georgia Supreme Court (R. 331). Peti­
tioner also offered these lists to prove that the presence of a



50

Negro on the grand jury which reindicted petitioner follow­
ing the reversal of his conviction in Sims v. Balkcom, 220 
Ga. 7, 136 S.E.2d 766 (1964), was the result of arbitrary 
inclusion on the 1964 jury list. These offers of proof were 
ruled inadmissible apparently on the ground that the grand 
and petit jury lists in the County had been revised during 
the summer of 1964, immediately prior to petitioner’s re­
indictment and trial (R. 5, 8, 12, 70, 93, 95). The ruling 
was affirmed by the Georgia Supreme Court on the ground 
that no showing had been made of discrimination in the 
composition of the grand and petit juries involved in the 
instant case (R. 331).

It is a principle needing no elaboration that in a jury 
discrimination case, “ . . . this Court must reverse on the 
ground that the defendant ‘offered to introduce witnesses 
to prove the allegations . . . and the [state trial] court de­
clined to hear any evidence on the subject. . . .’ ”  Coleman 
v. Alabama, 377 U.S. 129, 133, quoting with approval, in a 
unanimous opinion, from Carter v. Texas, 177 U.S. 442, 
448-49. With the notable exceptions of Coleman and Carter, 
this Court has consistently reviewed jury discrimination 
cases on a record covering a number of years. E.g., Neal v. 
Delaivare, 103 U.S. 370, 397 (no Negro had ever served as 
ju ror); Norris v. Alabama, 294 U.S. 587, 591 (no Negro had 
served within witnesses’ memory); Pierre v. Louisiana, 306 
U.S. 354, 361 {ibid.); Smith v. Texas, 311 U.S. 128, 129 (7 
years); Eubanks v. Louisiana, 356 U.S. 584, 586 (18 years); 
Hernandez v. Texas, 347 U.S. 475, 482 (25 years); Reece v. 
Georgia, 350 U.S. 85, 87 (18 years); Arnold v. North Caro­
lina, 376 U.S. 773, 774 (24 years); and see, Rabinoivitz v. 
United States, No. 21256, 5th Cir., July 20, 1966. p.8 of slip 
opinion (more than 35 years); Labat v. Bennett, No. 22218, 
5th Cir., August 15, 1966, p. 37 of slip opinion (8 years); 
Brooks v. Beto, No. 22809, 5th Cir., July 29, 1966, pp. 14-15



51

of slip opinion (no negro had ever served as grand ju ror); 
Scott v. Walker, 358 F.2d 561, 572 (5th Cir. 1966) (6 years); 
United States ex ret. Seals v. Wiman, 304 F.2d 53, 63, n.5 
(5th Cir. 1962) (11 years); United States ex rel. Goldsby 
v. Harpole, 263 F.2d 71, 78 (5th Cir. 1959) (no Negro had 
served within witnesses’ memory).

Notwithstanding this substantial body of precedent, es­
tablishing* beyond peradventure the pertinency of a pattern 
or practice of past discrimination as a basis for interpreting 
the significance of the composition of particular juries in 
the case at issue, the state trial court refused to permit 
petitioner to examine a jury commissioner regarding the 
number of Negroes in a petit jury box compiled just two 
years prior to trial.

The Solicitor General: Your Honor, we will make 
our objection . . .  as to going into a [1962] jury 
list that doesn’t have anything to do with the present 
grand jury or petit jury. . . . We say under the law 
he [petitioner] is entitled to a cross section of petit 
jurors and grand jurors, but that could only per­
tain to this petit jury and this grand jury—not 
some that used to be.

The Court: I am of the opinion that would be 
right (R. 88-89).

Petitioner was thus thwarted in his attempt to make a 
full record upon which a continuing pattern or practice 
of racial discrimination in jury selection in Charlton 
County might have been based. His contention of sys­
tematic exclusion or limitation of prospective Negro jurors 
in selection of his grand and petit juries was thus de­
prived of the evidentiary support which derives from 
placing present practices in the meaningful context of 
past actions. As this Court has recognized, “Institutions,



52

like other organisms, are predominantly what their past 
has made them. History provides the illuminating context 
within which the implications of present conduct may he 
known.” Communist Party v. Subversive Activities Con­
trol Board, 367 U.S. 1, 69. Petitioner seeks nothing more 
than to have his day in court on his federal constitutional 
claims. This he has been denied, and with it the equal pro­
tection of the laws.

B. The Use of Tax Digests Containing Racial Designations, 
As Required by Statute, in Georgia’s System of Jury 
Selection is Unconstitutional.

This Court has long made clear that “ Jurymen should 
be selected as individuals, on the basis of individual qualifi­
cations, and not as members of a race.” Cassell v. Texas, 
339 U.S. 282, 286. Petitioner contends that the jury selec­
tion procedures established by state law and used in 
Charlton County, Georgia, encourage and permit the selec­
tion of jurors on the basis of race, in violation of the 
Fourteenth Amendment.

In Charlton County grand and petit jury lists are selected 
by a jury commission of white commissioners. At the 
time of petitioner’s trial only two-fifths of the most in­
telligent, upright and experienced citizens on the tax 
books were eligible to be jurors pursuant to Ga. Code 
Ann. §59-106. The jury commissioners cheeked the tax 
books to determine who was qualified for jury service. 
In accordance with local practice under Ga. Code §92-6307, 
which requires that the tax books separately list white 
and Negro taxpayers, white taypayers were listed on white 
paper and Negro taxpayers separately on yellow paper.

At the time they select persons from the tax digest, 
therefore, the jury commissioners have actual knowledge



53

of the race of each taxpayer.20 Except for specifying the 
maximum number of persons who may be selected, i.e., 
two-fifths of the whole number of taxpayers, Ga. Code 
Ann. §59-106 gives no specific guidance to the commis­
sioners. Rather, the statute requires the commissoiners 
to employ vague, subjective criteria: uprightness and
intelligence. Such criteria, of course, allow broad discre­
tion which may be exercised in a discriminatory manner. 
Cf. United States v. Louisiana, 225 P. Supp. 353, 396-97, 
aff’d, 380 U.S. 145; United States v. Atkins, 323 F.2d 733 
(5th Cir. 1963), and cases there cited; Rabinowits v. United 
States, No. 21256, 5th Cir., July 20, 1966, pp. 37-38 of 
slip opinion.

In the recent case of Hamm v. Virginia State Board of 
Elections, 230 P. Supp. 156 (E.D. Va. 1964), aff’d sub nom. 
Tancil v. Wo oils, 379 U.S. 19, a three-judge district court 
declared that Virginia statutes requiring that lists of 
voters and taxpayers be kept in separate books according 
to race violated the Fourteenth Amendment. The district 
court stated that it was now

axiomatic that no State can directly dictate or casually 
promote a distinction in the treatment of persons solely 

. on basis of their color. To be within the condemna­
tion, the governmental action need not effectuate 
segregation of facilities directly. Cf. Anderson v. 
Martin, 375 U.S. 399, 402, 84 S.Ct, 454, 11 L.Ed. 430 
1964. The result of the statute or policy must not 
tend to separate individuals by reason of difference

20 Among the evidence proffered by petitioner but excluded by the trial 
court (E. 5, 8, 12, 70, 93, 95) were jury boxes clearly indicating the race 
of prospective jurors: The traverse or petit jury box for August 9, 1954, 
showed seven persons following 321 names, who were given special num­
bers, i.e., ‘ '1C through 7C”  (R. 279) and the petit jury box for August 1, 
1960, showed six persons, following 331 names, who were listed as 
“ colored” (R. 288).



in race or color. No form of State discrimination, no 
matter how subtle, is permissible under the guaran­
tees of the Fourteenth Amendment Freedom. 230 F. 
Supp. at 157-158.

And when used as the basis for jury selection, the dis­
criminatory effect of segregated tax lists is far from 
“ subtle.” The vice of using such lists is two-fold under 
Charlton County practice. First, the jury commissioner 
has the means of willful racial discrimination ready to 
hand. Second, even if a commissioner wishes not to dis­
criminate, he is nonetheless required to make a judgment 
as to the proportions in which white and Negro taxpayers 
shall be chosen for jury service. For it is only after con­
sidering the white list that the white jury commissioner 
turns to the Negro list; and under compulsion of the two- 
fifths statutory limitation upon the maximum number 
of persons to be chosen, he obviously must make the 
conscious decision at some point that there are enough 
whites and that Negroes shall now be selected. It will not 
do to say that this result is the inevitable product of a 
selection process that starts with tax lists that the State, 
for other legitimate reasons, may require to be kept in 
segregated form. For the precise holding of Hamm is 
that the State has no interests which justify the segre­
gated lists and that they are unconstitutional in them­
selves. By refusing to give full weight to the Hamm deci­
sion and to this Court’s affirmance of it, the Georgia Su­
preme Court, in a capital case, has permitted one uncon­
stitutional practice to spawn a more vicious one.

The Georgia Supreme Court tried to minimize the signif­
icance of the racially segregated tax lists on the ground 
that the jury commissioners acted without regard to race 
(R. 330). But such protestations of good faith are not



in these circumstances sufficient. Norris v. Alabama, 294 
U.S. 587. A  selection procedure which provides unnces- 
sary opportunities for discrimination violates the Four­
teenth Amendment, whether or not those opportunities 
are proved to have been seized. In Avery  v. Georgia, 
345 U.S. 559, a conviction was reversed because the names 
of potential jurymen were placed on different colored slips 
according to race. The trial judge testified that he selected 
the slips without regard to color, but Chief Justice Yinson 
stated that “Even if the white and yellow tickets were 
drawn from the jury box without discrimination, oppor­
tunity was available to resort to it at other stages in the 
selection process.” Id. at 562. And Justice Frankfurter, 
concurring said: “We may accept the testimony of the 
judge who drew the slips from the box as to the honesty 
of his purpose; that testimony does not refute the fact 
that there were opportunities to discriminate, as experience 
tells us there will inevitably be when such differentiating 
slips were used.” Id. at 564.

No significant distinction can be made between the selec­
tion process in Avery  and the process used here. In Avery 
the jury commissioners selected prospective jurors for 
the jury list from the county tax returns.21 The list was 
printed with the names of white persons on white tickets 
and the names of Negroes on yellow tickets. The tickets 
were then placed in a jury box from which a judge drew 
the names of those selected to serve on a given panel. A 
clerk arranged the drawn tickets and typed in final form 
the list of persons for a panel. 345 U.S. at 560-61. In 
petitioner’s case, the jury commissioners chose prospec­
tive jurors from the tax digest having the names of white 
persons on white paper and the names of Negroes on 1

S1 These returns presumably were segregated, because Ga. Code §92-6307, 
which is under attack here, was in effect when Avery was decided.



56

yellow paper. The names chosen were put into the jury 
box from which the superior court judge drew the names 
for a particular jury list or panel (R. 79, 86). Both in 
Avery  and here the use of a procedure relying upon racial 
differentiation of prospective jurors denies equal protec­
tion. As this Court concluded in Williams v. Georgia, 
349 U.S. 375, 382, “it was the system of selection and the 
resulting danger of abuse which was struck down in Avery 
and not an actual showing of discrimination on the basis 
of comparative numbers of Negroes and whites on the 
jury lists.” That conclusion is no less applicable here. 
Cf. Anderson v. Martin, 375 U.S. 399.

C. The Results of Jury Selection in the Instant Case Establish 
a Prima Facie Case of Racial Discrimination

The principal evidence of racial discrimination in jury 
selection which petitioner was permitted to present below 
consisted of the facts that Negroes constituted approxi­
mately 20% of the Charlton County taxpayers in 1963, and 
only about 5% of the jury list from which the jurors were 
selected who indicted and convicted petitioner.82 Notwith­
standing the trial court’s refusal to permit petitioner to 
make a full record regarding jury discrimination, it is re­
spectfully submitted that this evidence alone established 
an unrebutted prima facie case of racial discrimination.

It is well settled that a showing of the total exclusion 
of Negroes from jury lists in jurisdictions where they con- 22

22 The only jury commissioner who testified stated that the commissioners 
only selected persons whom the commissioners knew (R. 78) and that he 
could only identify 5 Negroes on the October, 1964 jury list (R. 89-90). 
Under ordinary rules for establishing* a prima facie case, petitioner has 
thus elicited evidence tending to fix the number of Negroes on the list at 
live. I f  there were more, the other jury commissioners were available to 
the State to prove it. No attempt to present such proof was made here 
and petitioner submits that this record, therefore, establishes that there 
were but 5 Negroes on the list in question.



57

stitute a substantial percentage of the population makes 
out a prima facie case of discrimination. Norris v. Alabama, 
294 U.S. 587. The reason is that it is extremely unlikely 
that a fair selection procedure would produce no Negroes 
on such lists where there is a substantial number of Ne­
groes available for service. For the same reason, a signifi­
cant disparity between the percentage of Negroes selected 
for jury lists and their percentage in the population from 
which the lists are drawn also makes a compelling showing 
of discrimination. Like cases of total exclusion of Negroes, 
the existence of a substantial disparity in representation 
is highly unlikely if the selection process has been a fair 
one. Cf. Cassel v. Texas, 339 U.S. 282, 289-90; Brown v. 
Allen, 344 U.S. 443, 471. A disparity exists in the instant 
case: Negroes comprise 20% of the taxpayers but only 
5% of the October, 1964 jury list. The question, there­
fore, is whether this disparity is substantial enough to con­
stitute a prima facie showing of racial discrimination.

The test of the significance of disparities is the proba­
bility that they would have occurred by chance. This is the 
implicit basis for the decision in Norris v. Alabama, 294 
U.S. 587, and the other jury discrimination cases in which 
statistical evidence has been used. On occasion this Court 
has made this explicit. Thus, in Smith v. Texas, 311 U.S. 
128, 131, the Court held that “ Chance and accident alone 
could hardly have brought about for listing for grand jury 
service of so few Negroes from among the thousands shown 
by the undisputed evidence to possess the legal qualification 
for jury service.” Similar statements appear in Tlill v. 
Texas, 316 U.S. 400, 404 and Eubanks v. Louisiana, 356 
U.S. 584, 587. In these and other jury discrimination cases, 
this Court has defined the problem as that of determining 
the probability that, assuming the selection was made with­
out regard to race, so few Negroes would have been chosen 
for jury service. When the probability is small that so few



58

Negroes would be chosen, the jury discrimination cases in 
substance hold it proper to reject the assumption that jury 
selections were made without regard to race.

The determination of these probabilities need not be left 
to the uncertain guide of common sense. There is a sci­
entific method for solving problems of this type which has 
been widely used in many branches of science, economics, 
and social science. This is the mathematical method known 
as statistical decision theory. The application of this 
method to jury discrimination problems is fully discussed 
in an article to be published in the fall of 1966 in the Har­
vard Law Review. See Finkelstein, The Application of 
Statistical Decision Theory to the Jury Discrimination 
Cases, 80 Harv. L. Rev. (1966). In terms of statistical 
theory the issue before the Court is: What is the proba­
bility that no more than 5 Negroes would appear on a jury 
list of 99 when Negroes constituted 20% of the tax list 
from which the names of jurors were selected and the se­
lection was made without regard to race?23

The answer is provided by an accepted mathematical 
formula, the derivation of which is discussed in detail in 
Finkelstein, supra. Applying that formula to the facts of 
this case: If a jury list of 99 is selected from a larger list 
which is 20% Negro, the probability that no more than 
5 persons selected for the jury list would be Negro, if the 
selections were made without regard to race, is approxi­

33 Because the selection of names for the jury list was made in two 
stages—the white jury commissioners selected names from the tax digest 
for the jury boxes and the judge selected names from the boxes for the 
jury list— discrimination could have occurred at either stage. But since 
state officials were responsible for both selection processes, the jury was 
unconstitutionally chosen regardless of the official responsible for the 
discrimination. For this reason petitioner need only consider the result 
of the selection processes, i.e., the racial composition of the October 1964 
jury list.



59

mately 0.00002. In other words, on only one occasion in 
50,000, on the average, would a jury list selected at random 
under these conditions yield the observed results.24 The 
probability of this occurrence is so minute that statisticians 
would uniformly reject the hypothesis that selection was 
made without regard to race. See e .g ., Hoel, I ntroduction  
to M athem atical  S tatistics, 49 (1962).25

The probability of the result observed in this case is 
vastly smaller than the probability of the result observed 
in Avery  v. Georgia, 345 U.S. 559, where this Court held 
that the statistical evidence made out a clear case of racial 
discrimination. The evidence in Avery showed that al­
though Negroes comprised 5% of the jury list from which 
the venires were selected, no Negro had been selected for 
a venire of sixty.26 This fact, together with the use of yel­
low slips for the names of Negro jurors—a method similar 
to the use of the segregated tax list in the instant case—

24 The requisite computations for this result are given in the Appendix.
25 The only jury commissioner who testified stated that jurors were 

selected on the basis of being “ intelligent, upright and good citizens” 
(R. 78). In order to sustain the state’s contention that these factors rather 
than race accounted for the disparity between the number of Negroes on 
the tax list and those selected for the jury lists, it would be necessary to 
assume that on the average three to four times as many whites met these 
subjective qualifications than did Negroes. See Finhelstein, supra, where 
the method of analyzing the subjective qualifications issue is discussed. 
No evidence of any such superior rate of qualifications on the part of 
white taxpayers was introduced by the State nor is there any evidence 
that this small number of Negroes appearing on the jury list was the 
result of the application of the statutory criteria.

26 Mr. Justice Reed, concurring, 345 U.S. at 563, gave the following 
statistics : “ The population of Pulton County is 691,797. The Negroes 
comprise 25% or 165,814. The tax receiver’s digest, from which the jury 
list is selected has 105,035 white citizens and 17,736 Negroes—14%. The 
jury list for the year in question had 20,509 white and 1,115 Negroes— 
5%. Prom that list a number, 150 to 200, were drawn for service on each 
of the divisions of the court. Evidently, these were for a week or a term’s 
service. The venire from which the trial jury for Avery was selected 
numbered 60. All were white.”



6 0

was held to make a prima facie case of discrimination. 
Mr. Justice Frankfurter, concurring, observed that “The 
mind of Justice, not merely its eyes, would have to be 
blind to attribute that occurrence to mere fortuity.” 345 
TT.S. at 564.

The probability of the result observed in Avery, i.e., that 
no Negroes would be selected for a venire of 60 where they 
comprise 5% of the jury list, was 0.046. This means that, 
on the average, venires without any Negroes would have 
appeared in Avery  approximately five times in every 100. 
See Finkelstein, supra, for the computations. The proba­
bility that the venire in Avery  was fairly chosen was ap­
proximately 20,000 times greater than the probability that 
the jury list in the instant case was fairly compiled.27 28 Thus, 
although Avery  involved total exclusion of Negroes from 
a particular venire and in the instant case some Negroes 
were included on the jury list, the probability that so few 
Negroes would be chosen in the instant case is vastly 
smaller than the probability that no Negroes would have 
been chosen in Avery™  If in Avery  the results were suffi­

27 Finkelstein’s article computes the 0.046 probability for Avery on the 
assumption that for the Avery majority the controlling disparity was that 
between the number of Negroes on the jury list (5% ) and the number of 
Negroes (none) chosen for the venire in question (see n. 26, supra). It 
may be thought, however, that the Court rather was concerned with the 
fact that Negroes comprised 14% of the tax rolls yet none were called 
for service. Applying the same formula used by Finkelstein to compute 
the figure 0.046 but considering the tax rolls as the relevant universe from 
which the venire was drawn in Avery, the probability that no Negroes 
would be chosen for a venire of 60 is 0.000117. In other words, in only 
one chance out of 10,000, on the average, would a fair selection proce­
dure yield the observed results in Avery. The probability o f this occur­
rence is still approximately 5 times greater than the probability observed 
in the instant case.

28 There are two reasons for this. The first is that in the instant case 
Negroes comprised 20% of the taxpayers from which the jury list was 
selected, while in Avery they comprised only 5% of the jury list from 
which the venire in question was chosen. The larger the proportion of 
Negroes in the universe from which selections are made, the smaller the



(51

ciently improbable to constitute a prima facie case of dis­
crimination, tbe evidence here must amply sustain peti­
tioner’s burden of proof.29

CONCLUSION

For the foregoing reasons the judgment below should 
be reversed.

Respectfully submitted,

J ack  Greenberg 
J ames M . N abrit, III 
C onrad K. H arper

10 Columbus Circle 
New York, New York 10019

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pa. 19104

H oward M oore, J r .
W illiam  H. A lexander

8591/2 Hunter Street, N.W. 
Atlanta, Georgia 30314

Attorneys for Petitioner

probability that only a few Negroes would be chosen. The second reason 
is that the group selected in the instant case (99 on the jury list) was 
substantially larger than the group in Avery (60 on the venire). The 
larger the group considered, the smaller the probability o f a substantial 
disparity in racial proportions.

29 Swain v. Alabama, 380 U.S. 202 is not authority for a contrary re­
sult. Statistical computations of the type given above were not presented 
to the Court and Swain did not involve the use of a segregated tax digest 
in the selection of jurors. See Finkelstein, supra, for an analysis of Swain.





63

APPENDIX ON COMPUTATION

The probability that no more than five Negroes would be 
selected out of 99 when Negroes constituted 20% of the tax 
list from which the selections were made may be computed 
by using a formula known as the cumulative binomial dis­
tribution. The value of this formula can be determined 
either by using ready-made tables or approximation meth­
ods. We have used the table appearing in Harvard Com­
putation Laboratory, Tables of the Cumulative Binomial 
Probability Distribution (1955). Using that table we have 
the following for the probability P that no more than five 
Negroes would be selected:

P(v = 5)
v = 5

- ;>v = 0
v = 5

n;
v !  ( n - v )

9 9;
v l ( 9 9 - v ) ;

Pv Qn -v

( 0 . 2 0 ) V ( 0 . 8 0 ) 9 9 - v

v = 0 

0 . 00002+

A description of the derivation and terms of the formula 
and the use of the tables appears in Finkelstein, The Ap­
plication of Statistical Decision Theory to the Jury Dis­
crimination Cases, 80 Harv. L. Rev. ____ (1966). [To be
published in the Fall of 1966.]



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