Withrow v. WIlliams Jr. Brief Amici Curiae in Support of Respondent

    §upmttp GJourt of tfro llnxtzb States
October T erm, 1964 

No. 64

In the

R obert Swain,

—v.— 

A labama.

Petitioner,

ON WRIT OF CERTIORARI TO THE SUPREME COURT OP ALABAMA

PETITION FOR REHEARING

J ack Greenberg 
J ames M. Nabrit, I I I  

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Orzell B illingsley, J r.
P eter A. H all

1630 Fourth Avenue North 
Birmingham, Alabama

Attorneys for Petitioner

F rank H eepron 
Michael Meltsner 
Melvyn Zarr 

Of Counsel



I N D E X

I. The Rationale of the Court’s Rejection of Peti­
tioner’s Claim of Exclusion of Negroes From Jury 
Venires Represents a Sharp Departure From Pre­
vious Decisions and Entails Grave Consequences 
Not Adequately Considered in the Briefs or the 
Argument or the Opinion of the Court ..............  2

II. The Court Apparently Did Not Adequately Appre­
ciate the Extent to Which Racial Discrimination 
Infects the Jury Selection Process in Talladega 
County .......................................................................... 10

Conclusion.............................      11

Certificate of Counsel...............     13

Appendix ...........................................................................  la

T able op Cases

Anderson v. Martin, 375 U. S. 399 .............................. — 10
Arnold v. North Carolina, 376 U. S. 773 ......................  4
Avery v. Georgia, 345 U. S. 559 .................... ............. 6

Bailey v. Ilenslee, 287 F. 2d 936 (8th Cir. 1961) ....... 4
Burton v. Wilmington Parking Authority, 365 II. S.

715 ................. ................................................................. 7

Cassell v. Texas, 339 U. S. 282 ................................ . 3, 4
Chambers v. Florida, 309 U. S. 227 .............................. 12

PAGE



Eubanks v. Louisiana, 356 U. S. 584 .................... .........  6, 7

Fay v. New York, 332 U. S. 261.....................................  9
Fay v. Noia, 372 U. S. 391 ............................................ . 9

Hamilton v. Alabama, 368 U. S. 52 .............................. 12
Harper v. Mississippi, ------U. S .------- , 171 So. 2d 129

(1964) .............................................................................  4,5
Henslee v. Stewart, 311 F. 2d 691 (8th Cir. 1963) ___  4
Hill v. Texas, 316 U. S. 400 .......................................... 7

Louisiana v. United States, 33 U. S. L. Week 4262 .......  6, 7

Neal v. Delaware, 103 U. S. 370 .................................... . 3
Norris v. Alabama, 294 U. S. 587 ................... .................. 4, 7

Patterson v. Alabama, 294 U. S. 600 .............................. 12
Patton v. Mississippi, 332 U. S. 463 ..... ..................... 4, 6
Peterson v. City of Greenville, 373 U. S. 244 ..............  10
Powell v. Alabama, 387 U. S. 4 5 .....................................  12

Reece v. Georgia, 350 U. S. 85 .................................... . 4
Rideau v. Louisiana, 373 U. S. 723 .................................  7

Strauder v. West Virginia, 100 U. S. 303 ......................  3

Townsend v. Sain, 372 U. S. 293 .....................................  9

United States ex rel. Goldsby v. Harpole, 263 F. 2d 71
(5th Cir. 1959) ............................................................  4,5

United States ex rel. Seals v. Wiman, 304 F. 2d 53 (5th 
Cir. 1962) ........................................................................ 4, 7

Whitus v. Balkcom, 333 F. 2d 496 (5th Cir. 1964) ....... 5
Williams v. Georgia, 349 U. S. 375 .................................. 12

11

PAGE



iii

PAGE

Statutes:

18 U. S. C. §243 ............................... ...................... .........  9

Alabama Code, Tit. 30, §21 (1958) ............... ...... .......  5
North Carolina G. S. §9-1 .................. ..........................  4

Other Authorities:

Marshall, Federalism and Civil Rights (Columbia Univ. 
1964) ............................................................................... 5

Prettyman, Death and the Supreme Court .............. . 12



In the

§uprmtu> Court of %  llnxUb States
October T eem, 1964 

No. 64

R obert Swain,
Petitioner,

A labama.

ON WBIT OP CEETIOEAEI TO THE SUPREME COURT OP ALABAMA

PETITION FOR REHEARING

Petitioner respectfully urges the Court to rehear this 
capital case for the following reasons:

1. The opinion of the Court establishes rules governing 
proof of racial discrimination in jury selection which, as 
a practical matter, will be incapable of administration at 
the trial level wherever a jury commission has been com­
pelled to abandon exclusion of Negroes and has moved to 
token inclusion.

2. The opinion of the Court reflects incomplete appre­
ciation of evidence in the record demonstrating state- 
initiated racial distinctions infecting the jury selection 
process.



2

I.

The Rationale of the Court’s Rejection of Petitioner’s 
Claim of Exclusion of Negroes From Jury Venires Rep­
resents a Sharp Departure From Previous Decisions 
and Entails Grave Consequences Not Adequately Con­
sidered in the Briefs or the Argument or the Opinion 
of the Court.

The Court holds that petitioner has failed “ in this case 
to make out a prima facie case of invidious discrimination 
under the Fourteenth Amendment”, 33 U. S. L. Week 4231, 
4232, because there was no “meaningful attempt to demon­
strate that the same proportion of Negroes qualified under 
the standards being administered by the commissioners” , 
33 U. S. L. Week at 4233, and “purposeful discrimination 
based on race alone is [not] satisfactorily proved by show­
ing that an identifiable group in a community is under­
represented by as much as 10 per cent”, 33 U. S. L. Week 
at 4233.

A. No prior decision of this Court has required as part 
of establishing a prima facie case a showing that Negroes 
are as well qualified as whites. On the contrary, the rule 
of exclusion, as it has been known heretofore, has required 
only a showing of a class constituting a distinct portion of 
the population and a pattern of systematic non-representa­
tion of that class, whereupon the state has been required 
to justify that non-representation. Both petitioner and 
respondent argued this cause on the premise that the 
burden of showing inequality between the races rested on 
the state, and the state attempted to assume that burden 
at the hearing in the Circuit Court through the use of 
spurious and irrelevant statistics on the incidence of ve­
nereal disease and receipt of public assistance. The burden 
of showing equality between the races is not one which a



3

Negro petitioner may realistically be expected to meet, and 
this Court should not place that burden upon him without 
considering briefs and arguments directed squarely toward 
the issue.

The Court appears, from its opinion, willing to entertain 
a rebuttable presumption that Negroes as a class are not 
as well qualified as white persons under constitutionally 
acceptable standards. Such a presumption flies in the face 
of the teachings of the Court since the turn of the century.1 
Moreover, if the incidence of disqualifying factors is 
higher among Negroes in a given county, the jury commis­
sioners, who presumably have observed these factors, will 
be easily in the best position to offer proof of them; then 
the Negro defendant will be justly put to his proof in re­
buttal. But this is a far different thing from a presumption 
by the Court of racial inequality.

The rule to date, as petitioner understood it, was as 
stated in Cassell v. Texas, 339 U. S. 282. There, Mr. Justice 
Reed, announcing the judgment of the Court, pointed out 
that although Negroes constituted 15.5% of the population, 
they constituted only 6.7% of the grand jury panels—a 
discrepancy of the same order of magnitude as that pre­
sented in the instant case. Mr. Justice Reed’s opinion held 
that:

An individual’s qualifications for grand-jury service,
however, are not hard to ascertain, and with no evi-

1 Such a rule conflicts with the purpose of the Fourteenth Amend­
ment, see Strauder v. West Virginia, 100 U. S. 303, 306, for it 
implies that Negroes are known to be less qualified and should 
therefore prove that they possess the same qualifications as whites. 
Attempts to impose such a burden have been rejected in the past. 
Neal v. Delaware, 103 U. S. 370, for example, reversed a “violent 
presumption” of a state court that Negro exclusion was due to 
their lack of qualifications.



4

dence to the contrary, we must assume that a large 
proportion of the Negroes of Dallas County met the 
statutory requirements for jury service. 339 IT. S. 
at 288-289.

Also, in Arnold v. North Carolina, 376 U. S. 773, the Court 
found a prima facie showing of jury exclusion, absent 
proof of the qualifications of Negroes in the community.2 
See also Reece v. Georgia, 350 U. S. 85, 88 (the burden on 
the state); Patton v. Mississippi, 332 U. S. 463, 468; Norris 
v. Alabama, 294 U. S. 587, 591 (Negroes 7.5% of the popu­
lation, none on juries; prima facie case of denial).3

The lower courts—which must actually administer any 
rule required by the Court—have also placed the burden on 
the state to prove that Negroes are not as well qualified 
as whites. The United States Court of Appeals for the 
Fifth Circuit has held that the burden is on the state, not 
Negro defendants, to show that voter registration officials 
freely and fairly register qualified Negroes as electors, if 
such is the standard for jury service, because “ the fact 
[rests] more in the knowledge of the State.” United States 
ex rel. Goldsby v. Harpole, 263 F. 2d 71, 78 (5th Cir. 1959).
That decision was followed in Harper v. Mississippi,------
Miss. ------, 171 So. 2d 129 (1964).4 This Court’s decision

2 No proof was offered of intelligence and good character, the 
qualifications for jury service provided by North Carolina G. S.
§9-1.

3 To be sure, the Court has always treated evidence of the quali­
fications of Negroes as relevant, Norris v. Alabama, 294 U. S. 587, 
598, but there is no suggestion in the cases that one claiming dis­
crimination must affirmatively show that Negroes are as well 
qualified as whites.

4 See United States ex rel. Seals v. Wiman, 304 F. 2d 53, 59 
(5th Cir. 1962), where the Court relied upon the fact that “ [t]here 
was no testimony . . . that, on the average, Negroes in Mobile 
County are any less qualified for jury service than are whites.” 
See also Bailey v. Henslce, 287 F. 2d 936 (8th Cir. 1961); Henslee 
v. Stewart, 311 F. 2d 691 (8th Cir. 1963).



5

would have forced the defendant in both Goldsby, supra, and 
Harper, supra, to show that Negroes were as well qualified 
as whites to meet the selection standards of the state as to 
voter registration, a task difficult enough for the Depart­
ment of Justice,5 and no doubt impossible for individual de­
fendants. It must be remembered that virtually all Negro 
defendants in capital cases are indigent and usually are rep­
resented by local Negro counsel whenever the jury issue is 
raised, see United States ex rel. Goldsby v. Harpole, supra 
at 82; Whitus v. Balkcom, 333 F. 2d 496, 506-07 (5th Cir. 
1964). Such Negro counsel are few and far between and are 
unlikely in the extreme to have available the investigative 
staffs which the state can muster.

Given the jury selection standards in Alabama and in­
deed in other states,6 the evidence almost entirely within the 
knowledge of state officials ought to continue to come from 
them, as it has in the past. The entirely subjective stand­
ards of juror qualifications of Ala. Code, tit. 30, §21 (1958) 
(“ esteemed in the community for their integrity, good char­
acter and sound judgment” ) coupled with the vague and ad 
hoc procedure approved by the Supreme Court of Alabama 
make it virtually impossible for a defendant to show “ that 
the commissioners applied different standards of qualifica­
tions to the Negro community than they did to the white

5 The former Assistant Attorney General who headed the Civil 
Eights Division has stated, “The federal government has demon­
strated a seeming inability to make significant advances, in seven 
years time, since the 1957 law, in making the right to vote real 
for Negroes in Mississippi, large parts of Alabama, in Louisiana, 
and in scattered counties in other states.” Marshall, Federalism 
and Civil Rights (Columbia Univ. 1964), p. 37. A crucial aspect 
of proposed bills to enforce the Fifteenth Amendment is a shift­
ing of the burden of proof to the county concerned rather than 
the Department of Justice.

6 See Appendix at p. la, infra.



6

community.” 33 U. S. L. Week at 4233. It is totally un­
realistic to believe that a Negro defendant, faced with the 
scheme of a jury selection law “ completely devoid of stand­
ards and restraints,” Louisiana v. United States, 33 U. S. L. 
Week 4262, 4264, which vests “ a virtually uncontrolled dis­
cretion,” id. at 4263, in jury commissioners, will be capable 
of showing “ that the same proportion of Negroes qualified 
under the standards being administered by the commis­
sioners,” U. S. L. Week at 4233. This evidence is peculiarly 
within the knowledge of those who select the jurors. If 
Negroes are not as well qualified as whites, then the jury 
commissioners will have encountered these differences and 
will be able to produce meaningful evidence of them.

Finally, it is said that the disparity between the percent­
age of Negroes on the jury venires and the percentage 
in the eligible population is not sufficient to make out a 
prima facie case, because, while the selection process is 
“haphazard” and “ imperfect,” there is no proof it reflects 
a “ studied” or “purposeful” attempt to discriminate. Lan­
guage implying the necessity for proof of intentional dis­
crimination has appeared in some of the decisions of the 
Court, but it has been thought that the only proof required 
was that a system or course of conduct operate in a dis­
criminatory manner. In Avery v. Georgia, 345 U. S. 559, 
the Court disapproved a jury selection procedure whereby 
names of members of the white and Negro race were put 
on different colored tickets; the Court held that the Negro 
defendant’s prima facie burden had been met by showing 
a system susceptible of operation in a racially discrimina­
tory manner and that the state had the burden of showing 
that purposeful discrimination had in fact not occurred.’ 7

7 See also, for example, the explicit language of Patton v. Mis­
sissippi, 332 U. S. 463, 469, reaffirmed in Eubanks v. Louisiana,



7

But as Mr. Justice Clark said in Burton v. Wilmington Park­
ing Authority, 365 U. S. 715, 725, “ It is of no consolation 
to an individual denied the equal protection of the laws 
that it was done in good faith.” And see, Rideau v. Louisi­
ana, 373 U. S. 723, 726, where the question of who initiated 
the television interview of the defendant’s confession was 
“ irrelevant” ; the fact that it was televised to the community 
was dispositive.

The requirement of proof of “ purposeful” discrimination, 
as well as the requirement that Negroes prove that they are 
as well qualified as whites, will in practice, tend to restrict 
the prohibition of the Fourteenth Amendment to total ex­
clusion, for it is virtually impossible to show a subjective 
desire to discriminate or to show a misapplication of stand­
ards, when vague and subjective standards are applied by 
a jury commissioner “ at his own sweet will and pleasure,” 
Louisiana v. United States, supra, 33 IT. S. L. Week at 4264.

B. The Court found “the over-all percentage disparity” 
between the percentage of Negroes in the population and 
the percentage on the jury venires “ small” , saying: “We 
cannot say that purposeful discrimination based on race 
alone is satisfactorily proved by showing that an identi­
fiable group in a community is under-represented by as 
much as 10%”, 33 IT. S. L. Week at 4233.

Petitioner submits that if numbers are to be used in this 
manner, it should be noted that under-representation on 
the grand jury was only 7.5% in Norris v. Alabama, 294 
U. S. 587; moreover, a showing of a 10% Negro population 
and 0% Negro jury participation would seemingly, under 
the Court’s rationale, fail to meet a Negro defendant’s 
prima facie burden of proving jury exclusion.

356 U. S. 584, 587. See also, Hill v. Texas, 316 U. S. 400; as repre­
sentative of the lower courts, see United States ex rel. Seals v. 
Wiman, 304 F. 2d 53, 65 (5th Cir. 1962).



8

In this case, whereas 26% of the total male population 
in Talladega County are Negroes, only 10%-15% of the 
persons appearing on the grand and petit jury venires 
have been Negroes; additionally, whereas Negroes have 
served on 80% of the grand juries selected (the number 
ranging from 1 to 3), no Negro has ever actually served 
on a petit jury.

The discrepancy between 10-15% and 26% with respect 
to the venires and the greater discrepancy with respect to 
actual service on grand juries (in 20% of the cases, no 
Negro served at all) results in an exclusion ratio of about 
50% (10%-15% in relation to 26%). By reference to the 
exclusion ratio rather than to the percentage discrepancy, 
one would immediately realize that a Negro population 
of 13% with 0% Negro jury participation presents a clear 
prima facie case of discriminatory exclusion. The per­
centage discrepancy there, as here, is about 13%, but the 
meaningful figure is the exclusion ratio, which would there 
be 100%. In this case the ratio is 50%, and the lower 
courts might well read the instant decision as sustaining 
discrepancies between a Negro jury participation of 20- 
30% and a Negro population of 40-60%.

If an exclusion ratio of 50% is not sufficient to shift 
the burden to the state, it is apparent that only complete 
or virtual exclusion will be subject to judicial correction. 
Admittedly, it may be difficult to draw a bright line at 
which the burden will no longer be on the state. But where 
the exclusion ratio is so large, the standards of jury 
selection so subjective, the method of selection so “hap­
hazard” and the knowledge concerning jury selection so 
personal to the jury commissioners (who have not shown 
Negroes less qualified than whites), petitioner submits that 
trial counsel will have an intolerable burden in any case 
where token inclusion is practiced.



9

C. The opinion of the Court places an intolerable burden 
of proof on the Negro defendant in another respect also. 
While acknowledging that unconstitutional discrimination 
“may well” result if a prosecutor consistently—and re­
gardless of trial considerations—exercises peremptory 
strikes, so that no Negro could serve on a jury in any 
criminal case, the Court avoids decision because petitioner 
failed to make the necessary proof. It is respectfully sub­
mitted that petitioner, having shown that no Negro has 
served on any petit jury in Talladega County, should not 
have to prove that the prosecutor abused his prerogatives.

Petitioner is obligated by the Court’s decision to place 
the prosecutor on the stand to secure admissions about 
his intentions during the striking process, admissions which 
can be expected to be few since they would, in all proba­
bility, be of an incriminating nature. See 18 U. S. C. 
§243, Fay v. New York, 332 U. S. 261. The defendant in 
an isolated criminal case, unfamiliar with the continuous 
course of criminal prosecutions in the county, is unequipped 
to give evidence on such matter as the prosecutor’s striking 
practices, but the prosecutor is in an excellent position 
to do so. He can easily establish the absence of a dis­
criminatory pattern of peremptory strikes by showing that 
Negroes have served on some juries or that defense counsel 
bear a substantial portion of responsibility for the con­
sistent striking of Negroes.

By placing on the defendant the burden of establishing 
that the prosecutor struck Negroes for reasons unre­
lated to the outcome of the case, the Court has formulated 
a rule of law removed from the realities of trial strategy 
and courtroom conduct. For all practical purposes the 
petitioner will receive but illusory protection from Fay v. 
Noia, 372 U. S. 391 and Townsend v. Sain, 372 U. S. 293, 
because of the Court’s requirement that he adduce more



proof than he has already so laboriously placed on the 
record in this case.

II.

The Court Apparently Did Not Adequately Appreci­
ate the Extent to Which Racial Discrimination Infects 
the Jury Selection Process in Talladega County.

Suppose that Talladega County had the following rule 
of court:

In any case in which the defendant is a Negro, the 
solicitor shall inquire of counsel for the defendant 
whether he desires to have Negroes serve on the jury. 
If counsel for the defendant does not desire them, all 
Negroes on the venire shall be struck. In all other 
cases jury selection shall proceed as otherwise required 
by law.

No one for a moment would doubt that any conviction 
occurring under such circumstances would violate the Four­
teenth Amendment. Anderson v. Martin, 375 U. S. 399; 
Peterson v. City of Greenville, 373 U. S. 244. The court 
would not indulge in an inquiry as to whether counsel for 
defendant would have arrived by his own “mental urges,” 
373 U. S. at 248, at a conclusion to strike Negroes.

But this is precisely what happened here. The record 
is clear that this solicitor, without variation, at the com­
mencement of criminal eases inquired of counsel for the 
defendant whether he desired to have Negroes on the jury:

If I am trying a case for the State, I will ask them 
what is their wish, do they want them, and they will 
as a rule discuss it with their client, and then they 
will say, we don’t want them. If we are not going to



11

want them, if he doesn’t want them, and if I don’t 
want them, what we do then is just take them off. 
Strike them first (E. 27).

This is corroborated by other testimony of the solicitor:

Many times I have asked, Mr. Love for instance, I 
would say there are so many colored men on this jury 
venire, do you want to use any of them (E. 20).

This unseemly custom where the prosecutor invites con­
sideration of jurors on the basis of their race appears to 
be as invariable as a rule of court and no evidence in the 
record qualifies this conclusion. Eegardless of the view 
the Court takes as to what constitutes misuse of strikes, it 
ought not approve such conduct on the part of a prosecutor.

CONCLUSION

By requiring petitioner to prove that Negroes are as 
qualified as whites for jury service in Talladega County 
the Court has ignored contrary precedents on which both 
parties relied at the trial. Placing this burden on the de­
fendant stigmatizes the Negro race and is extremely unfair 
in practice. The Court also fails to attribute due signifi­
cance to the disparity between the percentage of Negroes 
in the county (26%) and their percentage on petit jury 
venires (10-15%). Despite complete exclusion of Negroes 
from petit jury service, the Court unfairly requires peti­
tioner to show that the prosecutor was more interested in 
banishing Negroes than in winning cases. In both cases 
the burden is placed on virtually resourceless counsel for 
indigent defendants in capital cases, while the state has 
pertinent information and the ability to gather more. 
Finally, the Court erroneously approved an unvarying prac­
tice of prosecutor-mifwEed conferences with defense attor­



12

neys as to whether Negroes should be stricken as a pre­
liminary matter, a practice which if embodied in a formal 
rule of court would be clearly unconstitutional.

This is a capital case,8 and petitioner respectfully urges 
that it not be concluded without the most solemn considera­
tion of the substantial practical and doctrinal propositions 
urged herein, especially when the briefs and arguments of 
the parties did not focus on several propositions adopted 
by the Court for the first time.

Respectfully submitted,

J ack Greenberg

J ames M. Nabrit, I I I  
Suite 2030 
10 Columbus Circle 
New York, New York 10019

Orzell B illingsley, J r.
P eter A. H all

1630 Fourth Avenue North 
Birmingham, Alabama

Attorneys for Petitioner

F rank H effron 
M ichael Meltsner 
Melvyn Zarr 

Of Counsel

8 See, e.g., Williams v. Georgia, 349 U. S. 375, 391 ( “ That life 
is at stake is of course another important factor . . . ” ) ;  Hamilton 
v. Alabama, 368 U. S. 52, 55 (“When one pleads to a capital charge 
without benefit of counsel, we do not stop to determine whether 
prejudice resulted.” ) ; Chambers v. Florida, 309 U. S. 227, 241 
( “Due process of law . . . commands that no such practice as that 
disclosed by this record shall send any accused to his death” ) ; 
Powell v. Alabama, 387 U. S. 45, 56; Patterson v. Alabama, 294 
U. S. 600; and see generally, Prettyman, Death and the Supreme 
Court.



13

CERTIFICATE OF COUNSEL

The undersigned attorney for petitioner hereby certifies 
that the foregoing Petition for Rehearing is presented in 
good faith and not for delay.

T h is.......day of April, 1965.

Attorney for Petitioner



APPENDIX

Qualifications for Jury Service in Eleven Southern States

Voter Good Character
Alabama None Code of Ala., Tit. 30, §21: “Male citizens . . . gen­

erally reputed to be honest and intelligent men and 
esteemed in the community for their integrity, good 
character and sound judgment.”

Florida Fla. Stat. Ann., §40.01 Fla. Stat. Ann., §40.01: “Law abiding citizens of 
approved integrity, good character, sound judgment 
and intelligence.”

Georgia None Ga. Code Ann., §59-201 (grand jurors) : “The most 
experienced, intelligent and upright persons.”
Ga. Code Ann., §59-106 (jurors generally) : “Upright 
and intelligent citizens.”

Louisiana None, but compare LSA-R.S. §15-172 
(juror qualifications) with LSA-R.S. 
§18-31 (voter qualifications).

L.S.A.-R.S. §15-172: “Persons of well-known good 
character and standing in the community.”

Mississippi Miss. Code Ann., §1762 None
North Carolina None N.C. General Statutes, §9-1: “Persons . . .  of good 

moral character.”
South Carolina S. C. Code Ann., §38-52 S.C. Code Ann., §38-52: “Male electors . . .  of good 

moral character.”
Virginia None None
Arkansas Grand Juror: Ark. Stat. §39-101 

Petit Juror: Ark. Stat. §39-206
Ark. Stat. §39-101: “Temperate and good behavior.” 
Ark. Stat. §39-206: “ Good character.”

Texas Vernon’s Ann. Tex. Stat., Art. 2133, 
“ Qualified to vote” .

Vernon’s Ann. Tex. Stat., Art. 2133: “Good moral 
character.”

Tennessee None Tenn. Code Ann., §22-203: “ Integrity, fair character, 
sound judgment.”