Company to Pay for Discrimination

    In the Supreme Court of the 
United States

October T erm, 1971 

No. 71-1602

V ....^ ....^ >-* 5  ■ /■ - /»  J h ~ « >

W alter E. Craven, Warden California State 
Prison at Folsom,

Respondent,
vs.

R ichard L. Cabmical,
Petitioner.

Petitioner’s Reply to Respondent’s Brief 
in Opposition to Petition for Writ of Certiorari

E velle J. Y ounger 
Attorney General

E dward A. H inz, J r.
Chief Assistant 
Attorney General— Criminal 

Division
D oris H. Maier

Assistant Attorney General 
— Writs Section

E dward P. O’Brien
Assistant Attorney General

Gloria F. D eHart
Deputy Attorney General 
6000 State Building 
San Francisco, California 91102 
Telephone: 557-0799

Attorneys for Respondent.

S O R G  P R IN T IN G  C O M P A N Y  O F  C A L IF O R N IA , 3 4 6  F IR S T  S T R E E T , S A N  F R A N C IS C O  9 4 I O S



SUBJECT INDEX
Page

Preliminary Statement......................................................  1

I. Review of Certiorari Is Appropriate at This Time 1

II. The Question of When Deliberate By-Pass of a 
Valid State Procedural Rule Precludes Habeas 
Corpus Relief Is an Important One Which Should 
Be Considered and Decided by This Court.........-  3

III. The Decision Below Incorrectly Applied the
Standards Established by This Court............... — 6

Conclusion.....................................................-....................  H



TABLE OF AUTHORITIES CITED 
Cases

Pages
Carter v. Jury Commission, 396 U.S. 320 (1970) ....... 9

Donaldson v. California, 404 U.S. 968 (1971) ..............  8

Fay v. New York, 332 U.S. 261 (1947)  .....................  7
Fay v. Noia, 372 U.S. 391 (1963) ...............................  4

Gaston County v. United States, 395 U.S. 285 (1969) 7, 8, 9 
Griggs v. Duke Power Company, 401 U.S. 424 (1971)..7, 8,10

Hill v. Texas, 316 U.S. 400 (1942) .................................  5
Humphrey v. Cady, 405 U.S. 504 (1972) ........... ........  4

Jefferson v. Hackney, 32 L.Ed. 285 (1972) ................  8,10
Johnson v. Zerbst, 304 U.S. 458 (1938) .................... . 4

Lattimore v. Craven, 453 F.2d 1249 (9th Cir. 1972)..... 2

McMann v. Richardson, 397 U.S. 759 (1970) ........... . 4

People v. Jones, 25 Cal.App.3d 776, 102 Cal.Rptr. 277
(1972)............................................................................  3

Peters v. Kiff, 33 L.Ed.2d 83 (1972) ......................... . 4, 5
People v. Newton, 8 Cal.App.3d 359, 87 Cal.Rptr. 394

(1970)....    6
People v. Sylvester, 3 Crim. 6488 (Sacramento) ............  3

Turner v. Fouche, 396 U.S. 346 (1970) ...........    9

Statutes

Title VII, Civil Rights Act of 1964:
Section 703(a) .............................................................  8
Section 703(h) .............................................................  8,9



In the Supreme Court of the 
United States

October T erm, 1971

No. 71-1602

W alter E. Craven, Warden California State 
Prison at Folsom,

Respondent, 
vs.

R ichard L. Carmical,
Petitioner.

Petitioner’s Reply to Respondent’s Brief 
in Opposition to Petition for W rit of Certiorari

PRELIMINARY STATEMENT
Respondent’s Brief in Opposition to the Petition for 

Writ of Certiorari, in addition to presenting argument on 
the issues raised in the petition sets forth in an “ Introduc­
tion” arguments which he asserts militate against granting 
the petition. We respond first to the contentions raised in 
this introduction, and then to the arguments made.

I
REVIEW BY CERTIORARI IS APPROPRIATE AT THIS TIME
Respondent advances three points alleged to militate 

against the granting of the petition: 1) that the ease was 
remanded for a hearing to prove or disprove the facts 
alleged; 2) that the “clear thinking” test at issue is no 
longer in use in Alameda County and accordingly does not 
present an important problem in the administration of



2 :

justice; and 3) that the state’s claim as to the impact of the 
decision is wholly speculative. We disagree with respond­
ent’s characterization of the case and submit that review at 
this time will prevent the development of significant prob­
lems in the administration of justice and the needless waste 
of time in the increasingly crowded state and federal 
courts.

It is of course true that the facts as developed at a hear­
ing in the District Court on remand may prove to be dif­
ferent than those alleged in the petition. However, if, as 
the District Court found and as petitioner has urged in 
this Court, the facts alleged in the petition do not demon­
strate that the jury panel was unconstitutionally selected, 
return of this case for an evidentiary hearing would result 
in a totally unwarranted waste of limited judicial resources. 
Moreover, if the facts developed at a hearing do in fact dis­
prove the allegations of the petition, the states comprising 
the Ninth Circuit are left with a decision which establishes 
what is in our view a totally erroneous statement of the 
law and its application to the jury selection process, or at 
least, with conflicting statements of the applicable standard. 
Compare Lattimore v. Craven, 453 F.2d 1249,1251 (9th Cir. 
1972).

Respondent has claimed that the case has no significance 
because the test at issue was discontinued in 1968, and the 
state’s claim of retrials in the hundreds is speculative. We 
submit that the potential impact of this interpretation of 
the criteria for jury selection is enormous because it may 
require not only retrials in Alameda County, but is totally 
retroactive and applicable throughout the Ninth Circuit. 
We do not know how many counties in California or states 
in the Ninth Circuit utilize “ intelligence” tests. However, 
challenges to such tests on the basis of disproportionate



representation have been made in Los Angeles County, the 
most populous in California, and in Sacramento County.1

Finally, the case in its present posture raises a signi­
ficant issue of deliberate by-pass—the extent to which 
federal courts should inquire into the motives and knowl­
edge of counsel years after the event where there is no 
question of the fairness of the trial or the justice of the 
result.

We submit that this case raises issues of significance 
which should be determined by this Court at this time, and 
that further proceedings in this case, and in the others 
which will inevitably be filed should certiorari be denied, 
will unnecessarily burden both state and federal judicial 
systems.

3

II
THE QUESTION OF WHEN DELIBERATE BY-PASS OF A VALID 

STATE PROCEDURAL RULE PRECLUDES HABEAS CORPUS 
RELIEF IS AN IMPORTANT ONE WHICH SHOULD BE CON­
SIDERED AND DECIDED BY THIS COURT

In his state court trial, respondent Carmical raised no 
question concerning the racial composition of the jury 
panel from which the jury which tried him was selected. 
For the reasons stated in our petition, we take the position 
that Carmical’s failure to challenge the panel before trial 
in accordance with state procedure precludes granting 
relief on federal habeas corpus, without further inquiry 
into counsel’s or respondent’s reasons, at least in cases 
where there is no credible claim of incompetence of counsel.

Respondent in opposing the petition for writ of certiorari 
on this question asserts that the decision below Avas correct 
because the state did not “ fulfill its burden of demonstrat­

1. See, Donaldson v. California, 404 U.S. 968 (1971) ; People 
v. Jones, 25 Cal.App.3d 776, 102 Cal.Rptr. 277 (1972); People v. 
Sylvester, 3 Crim. 6488 (Sacramento).



4
ing an affirmative, intelligent waiver of known constitu­
tional rights . . . citing Johnson v. Zerbst, 304 U.S. 458 
(1938), and Fay v. Noia, 372 U.S. 391 (1963), and two 
recent cases decided by this Court: Humphrey v. Cady, 405 
U.S. 504 (1972); Peters v. Kiff, 33 L.Ed.2d 83 (1972). 
(Brief at 7-8.)

In Humphrey v. Cady, the defendant had raised constitu­
tional questions concerning the Sex Crimes Act in the state 
court proceedings, but the defendant’s counsel failed to 
file a brief on the questions as requested by the trial judge. 
When counsel failed to act, the court concluded that the 
state petition was sufficient to support the order continuing 
confinement. No appeal was taken from the order. The 
District Court concluded that the failure of counsel to file 
a brief amounted to a deliberate strategic decision to 
abandon the constitutional claims and barred federal 
relief. On these facts, this Court held that a hearing was 
necessary to determine the reason for counsel’s failure to 
file a brief and the extent of the defendant’s participation. 
This Court noted that a defendant is not necessarily bound 
by counsel’s decision.

We submit that in the instant case different circum­
stances require a different result, and that despite the use 
of the “knowing and intelligent waiver” standard in 
Humphrey, failure properly to challenge a jury should pre­
clude federal habeas corpus relief without further inquiry 
as to the reasons.

This Court’s use of the “knowing and intelligent waiver” 
standard in Humphrey cannot logically or even usefully 
be extended to all trial decisions which involve constitu­
tional rights;2 both the burden on the courts and the

2. Inquiry into motivation must end somewhere. Cf., McMann 
v. Richardson, 397 U.S. 759, 768-69 (1970). In McMann, this Court 
held that a counseled defendant was not entitled to a hearing on 
his allegation that his plea of guilty was motivated by a coerced



potential for disrupting the administration of justice are 
too great. Are we, for instance, to have a federal judicial 
inquiry into the motives and knowledge of counsel who fail 
to cross-examine a witness or who do not call a possible 
witness? Are we to conduct, years later, a federal court 
hearing to determine whether a defendant made a “knowing 
and intelligent waiver”  of his right to testify or his right 
not to testify ?

Respondent points out that in Peters v. Kiff, supra, this 
Court upheld a habeas petitioner’s claim of systematic 
racial exclusion even though the claim was not raised at 
trial. We note that the opinions constituting a majority in 
that case did not discuss the issue of deliberate by-pass, so 
apparently it was not raised as an issue in the case. It was 
pointed out in the dissenting opinion, however, that Hill v. 
Texas, 316 U.S. 400 (1942) on which Mr. Justice White’s 
concurring opinion relied, was expressly limited to cases 
where timely objection had been made. 33 L.Ed.2d at 99 
(fn). Since the question was not ruled on, the case does not 
preclude consideration of the question here. Moreover, in 
Peters, the Court was establishing a new rule of standing 
which at least provided a reason for reaching the issue 
despite the doctrine of deliberate by-pass. In the instant 
case, respondent insists that the rule applied by the Court 
of Appeal is not a new rule; thus, there is no reason for 
setting aside valid state procedural rules.8 3

confession. This Court considered his plea a “ plain by-pass”  of 
state remedies in regard to testing the confession and commented 
that whether it was intelligent depended on whether he was so 
incompetently advised by his counsel he should be afforded another 
chance. There has been no claim of incompetent counsel here.

3. It is our position that the Court of Appeal incorrectly inter­
preted the existing law while purporting to follow it, thus, in effect 
establishing a new rule. If this Court does establish a different 
standard, it should be prospective only, in accordance with Peters.



As pointed out in our petition, no legitimate interest of 
a criminal defendant is protected by permitting collateral 
attack on federal habeas corpus where he has failed to 
raise the issue at the proper point in the trial process. The 
state, however, has a compelling interest in the finality of 
trials which have been fairly conducted with a jury satis­
factory at the time. We submit that the reasons which 
dictate the use of the “knowing and intelligent waiver” 
standard in appropriate cases do not apply here and no 
legitimate interest of the defendant is protected by apply­
ing it.

6

I l l
THE DECISION BELOW INCORRECTLY APPLIED THE 

STANDARDS ESTABLISHED BY THIS COURT
Respondent urges that the decision below is not in con­

flict with decisions of this Court and that the state’s posi­
tion that the case improperly applied decisions of this 
Court is based on a semantic quibble over the word “ objec­
tive” (Brief at 9-10).

The state does not contest the proposition that the statis­
tics presented by Carmical below were sufficient to make 
out a prima facie case of jury discrimination based on the 
cases decided by this Court.4 However, these statistics were 
not the only information presented to the court. The peti­
tion showed that the disproportion was due to an objective 
test of 25 questions which was given to all prospective 
jurors. While respondent’s brief states that “ the test was 
culturally biased so that blacks would fail it in greater

4. We note, however, that the “ statistics”  presented to the 
District Court and to this Court (Brief at 5) also showed that of 
47 jurors chosen from the two selected districts in 1966, the year 
of Carmical ’» trial, 6 were Negroes, a percentage of 12.8. As of 
1968 Nevroes constituted 12.4 of the county population. See, 
People v.N ewton, 8 Cal.App.3d 359, 389, 87 Cal.Bptr. 394, 414 
(1970).



proportions than whites” (Brief at 11), this is not supported 
by any allegation in the petition. In his testimony and affi­
davit, the psychologist concluded that the test must measure 
something other than average intelligence because it was 
difficult to come to the conclusion that such a high per­
centage of non-whites were below average. The possible 
reason given was that some questions (20, 21 and 25) had a 
“ cultural bias” and could account for the difference. It was 
the opinion of the psychologist that the test was made up 
without considering cultural differences. Thus, there is 
nothing to support the statement that the test was biased 
“ so that” blacks would fail it. The test was before the courts 
below and is before this Court. It is obviously racially 
neutral. Even if it is “ culturally biased,” whatever that 
may mean, that does not make it unconstitutional. Any jury 
panel must deal with problems and issues couched in. the 
language and values of the prevailing culture. There is no 
constitutional requirement that tests to screen jurors must 
be so phrased that proportional percentages of various 
groups are chosen. Indeed, this Court has held directly to 
the contrary. See, Fay v. New York, 332 U.S. 261 (1947). 
We also note that respondent’s and the psychologist’s other 
criticisms of the test—that it was too short, that the pass­
ing grade was too high, and that a time notice should have 
been given—apply equally to everyone taking the test. 
While these factors may have made the selection process 
imperfect, again, it was completely “ racially neutral.” 

Respondent urges that the decision below
“comes squarely within the rationale of Griggs v. 

Duke Power Company, 401 U.S. 424 (1971), and 
Gaston County v. United States, 395 U.S. 285 (1969), 
holding invalid tests or other selection methods that 
serve no valid purpose and that have a racially dis­
criminatory impact, regardless of the intent behind 
their use.” (Brief at 11.)

7



He then urges that the test for jury discrimination should 
be no less stringent than for job discrimination, citing, to 
buttress this conclusion, Jefferson v. Hackney, 32 L.Ed. 285 
(1972). Neither Origgs nor Gaston applies to this case, and 
Jefferson provides support for the state’s position herein.

In Griggs, this Court indicated that it granted review 
“ to resolve the question whether an employer is 

prohibited by the Civil Rights Act of 1964, Title VII, 
from requiring a high school education or passing of a 
standardized general intelligence test as a condition 
of employment in or transfer to jobs when (a) neither 
standard is shown to be significantly related to success­
ful job performance, (b) both requirements operate to 
disqualify Negroes at a substantially higher rate than 
white applicants, and (c) the jobs in question formerly 
had been filled only by white employees as part of a 
longstanding practice of giving preference to whites.”

Section 703(a) of the Civil Rights Act provides inter alia 
that it shall be an unlawful practice for an employer to 
classify his employees in ways to adversely affect his status 
because of Ms race, color, religion, sex or national origin. 
Section 703(h) provides that is is not unlawful to give or 
act on the results of a professionally developed ability test 
provided the test “ is not designed, intended or used to dis­
criminate because of race, color, religion, sex or national 
origin.”

The Court in Griggs was concerned solely with interpret­
ing the meaning of the Act. The Court noted that the objec­
tive of Congress was to achieve equality of job opportuni­
ties and remove past barriers:

“Under the Act, practices, procedures or tests neutral 
on their face, and even neutral in terms of intent can­
not be maintained if they operate to ‘freeze’ the status 
quo of prior discriminatory employment practices 
What is required by Congress is the removal of arti-

8



fieial, arbitrary, and unnecessary barriers to employ­
ment when the barriers operate invidiously to dis­
criminate on the basis of racial or other impermissible 
classification . . . .  The Act proscribes not only overt 
discrimination but also practices that are fair in form 
but discriminatory in operation. The touchstone is 
business necessity. If an employment practice which 
operates to exclude Negroes cannot be shown to be 
related to job performance, the practice is ‘prohibited.’ 
Id. at 4319.

The Court then went on to discuss the meaning of section 
703(h) authorizing test not “ designed, intended or used to 
discriminate . . (Emphasis added by Court). The Court 
noted that the Equal Employment Opportunity Commis­
sion, with enforcement responsibility, had issued guidelines 
interpreting this section to permit only the use of job 
related tests. The Court then reviewed the legislative his­
tory of the Act and concluded that the guidelines expressed 
the will of Congress. Id. at 4320-21.

Thus, the decision is based entirely on statutory con­
struction and not on constitutional requirements. We sub­
mit that such a decision interpreting a statute and related 
to the entirely different problems of employment is entirely 
inapplicable to the instant ease. There is no constitutional 
violation in a jury selection process unless intentional dis­
crimination on grounds of race is shown. The Griggs ease 
does not change in any way the position of the Court 
expressed in Carter v. Jury Commission, 396 U.S. 320 
(1970) and Turner v. Fouche, 396 U.S. 346 (1970).

Gaston involved the interpretation of the Voting Eights 
Act of 1965 which suspended the use of any test or device 
as a prerequisite to registering to vote in a jurisdiction in 
which less than 50% of the voters were registered. The 
burden was on the jurisdiction to rebut the presumption of

9



discrimination. The court concluded that it was appropriate 
to consider whether a test had the effect of denying the 
right to vote because the jurisdiction had maintained sepa­
rate and inferior schools.

Respondent cites Jefferson in support of his argument 
on the basis that this Court distinguished Griggs not on 
grounds of statutory interpretation but on grounds that 
the Griggs test had no legitimate purpose while the Texas 
statute in Jefferson served a reasonable supportable pur­
pose of the state. Thus, his argument continues, the present 
case is within Griggs because the clear-thinking test served 
no legitimate function (brief at 11, note 8). Respondent 
not only misapprehends Jefferson, but misstates the “ facts” 
in the instant case.

First, there is nothing in the record before this Court 
to establish by allegation or otherwise that the test in 
question served “no legitimate function whatever.” The 
function of the test was to select jurors of ordinary intelli­
gence pursuant to California statutes. That it did this less 
than perfectly does not make it constitutionally deficient. 
Second, in Jefferson, this Court declined to find invidious 
discrimination in the unequal reduction of benefits among 
AID classes merely because there was a larger percentage of 
Negroes and Mexican Americans in the class with the 
greatest reduction, where there was no intent to discrimi­
nate in establishing the reductions. "While Jefferson in­
volved the distribution of benefits and the interpretation 
of the Social Security Act and thus had no necessary appli­
cability to the jury discrimination problem, it does stand 
for the proposition that disparity in racial percentages 
absent a showing of intentional discrimination does not 
constitute a violation of equal protection.

We submit that the use of the test at issue here, even if 
it was imperfect, did not violate constitutional standards

1 0



and that the decision of the court below was clearly erro­
neous and in conflict with decisions of this Court.

CONCLUSION
For the above reasons, we respectfully submit that the 

petition for Writ of Certiorari be granted.
Dated: October 4, 1972

1 1

E velle J. Y ounger 
Attorney General

E dward A. H inz, Jr.
Chief Assistant 
Attorney General— Criminal 

Division
D oris H. Maier

Assistant Attorney General 
—"Writs Section

E dward P. O’Brien
Assistant Attorney General

Gloria F. D eH art
Deputy Attorney General

Attorneys for Respondent.