Peters v. Kiff Motion for Leave to File and Brief Amicus Curiae
Public Court Documents
October 4, 1971

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Brief Collection, LDF Court Filings. Peters v. Kiff Motion for Leave to File and Brief Amicus Curiae, 1971. 4ee1ee0d-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1f51fb44-b6e0-4c67-8924-573d36026f44/peters-v-kiff-motion-for-leave-to-file-and-brief-amicus-curiae. Accessed May 17, 2025.
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Isr the (Cmtrt of % laited Octobee T eem , 1971 No. 71-5078 Dean B ene Peteks, v. Petitioner, C. P. K ief, Respondent. ON W BIT OF CEBTIOBAEI TO TH E UNITED STATES COTJBT OF APPEALS FOB TH E F IF T H CIBCTTIT MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. Jack Gbeenbebg James M. Nabbit, III Charles Stephen Ralston 10 Columbus Circle New York, New York 10019 Attorneys for the NAACP Legal Defense and Educational Fund, Inc. I N D E X PAGE Motion for Leave to File Brief Amicus Curiae and Statement of Interest of Amicus ............................... 1 A rgument ...................................................................................... 1 I. The Due Process Clause Requires That Juries Reasonably Reflect a Cross-Section of the Com munity ........................................................................ 2 II. Petitioner Can Challenge the Exclusion of Blacks Under the Reasoning of Barrows v. Jackson .... 4 III. A Decision That White Defendants May Chal lenge Discrimination Against Blacks in Jury Se lection Should Be Made Fully Retroactive ............ 6 Conclusion- .................................................................................... 8 Table op A uthorities Cases: Alexander v. Louisiana, 0. T. 1971, No. 70-5026 ....... 5 Allen v. State, 110 Ga. App. 56, 137 S.E.2d 711 (1964).. 3 Avery v. Georgia, 345 U.S. 559 (1953) ........................... 3 Ballard v. United States, 329 U.S. 187 (1946) ........... 2, 3 Barrows v. Jackson, 346 U.S. 249 (1953) ...................... 2, 5 Carter v. Jury Commission of Greene County, 396 U.S. 320 (1970) ............................................................ 2 Fay v. New York, 332 U.S. 261 (1947) ...................... 2 11 PAGE Hill v. Texas, 316 U.S. 400 (1942) .............................. 4 Maryland v. Madison, 240 Md. 265, 213 A.2d 880 (1965) .............................................................................. 3 Patton v. Mississippi, 332 U.S. 463 (1947) ................ 2 Smith v. Texas, 311 U.S. 128 (1940) ....... ................... 4 Stovall v. Denno, 388 U.S. 293 (1967) .......................... 6 Strander v. West Virginia, 100 U.S. 303 (1880) ....... 4 Turner v. Fouche, 396 U.S. 346 (1970) .......................... 5 United States ex rel. Goldsby v. Harpole, 263 F.2d 71 (5th Cir. 1959) ....................... 5 Vanleeward v. Rutledge, 369 F.2d 584 (5th Cir. 1966).. 3 Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964) ....... 5 Whitus v. Georgia, 385 U.S. 545 (1967) ...................... 3 Williams v. Florida, 399 U.S. 78 (1970) ...................... 2 Witherspoon v. Illinois, 391 U.S. 510 (1968) ............. 6 Statute: 18 U.S.C. §243 ................................................................ 2 I n the ©curt of % Inittfi States O ctober T erm , 1971 No. 71-5078 Dean Rene Peters, v. Petitioner, C. P. K ife, Respondent. o n w r i t o f c e r t i o r a r i t o t h e UNITED STATES COURT OF APPEALS FOR TH E F IF T H CIRCUIT MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND STATEMENT OF INTEREST OF AMICUS Movant N.A.A.C.P. Legal Defense and Educational Fund, Inc., respectfully moves the Court for permission to file the attached brief amicus curiae, for the following reasons. The reasons assigned also disclose the interest of the amicus. (1) Counsel for the petitioner has consent to the filing of a brief amicus curiae by the movant. The present motion is necessitated because counsel for the respondent has re fused consent.1 On January 21, 1972, counsel for amicus mailed to counsel for respondent the final manuscript of this motion and brief. Therefore, respondent received the 1 The letters of petitioner and respondent granting and refusing consent are on file with the clerk of this Court. 2 brief in ample time to allow it to respond to the arguments made therein, if it so desired, in its brief, due February 9, 1972. (2) Movant N.A.A.C.P. Legal Defense and Educational Fund, Inc., is a non-profit corporation, incorporated under the laws of the State of New York in 1939. It was formed to assist Negroes to secure their constitutional rights by the prosecution of lawsuits. Its charter declares that its purposes include rendering legal aid gratuitously to Ne groes suffering injustice by reason of race who are unable, on account of poverty, to employ legal counsel on their own behalf. The charter was approved by a New York Court, authorizing the organization to serve as a legal aid society. The N.A.A.C.P. Legal Defense and Educational Fund, Inc. (LDF), is independent of other organizations and is sup ported by contributions from the public. For many years its attorneys have represented parties in this Court and the lower courts, and it has participated as amicus curiae in this Court and other courts, in cases involving many facets of the law. (3) Over a long period of time, LDF attorneys have handled, here and in other courts, many cases involving the unconstitutional esclusion of blacks from jury venires.2 Despite success in these cases, the problem of discrimina tion in this vital facet of the administration of criminal justice persists. This experience has led amicus to the con clusion that its goal, the final eradication of jury discrim ination, will be substantially advanced by a decision in the present case that all criminal defendants may challenge such discrimination. Thus, amicus has an interest in the 2 A7.gr., Patton v. Mississippi, 332 U.S. 463 (1947); Sims v. Georgia, 389 U.S. 404 (1967) ; Carter v. Jury Commission of Greene County, 396 U.S. 320 (1970); Turner v. Fouche, 396 U.S. 346 (1970); Alexander v. Louisiana, 0 . T. 1971, No. 70-5026. 3 present case beyond that of the immediate litigants and therefore presents in the attached brief a broader and al ternative basis in support of petitioner’s position. W herefore, movant prays that the attached brief amicus curiae be permitted to be filed with the Court. Respectfully submitted, Jack Greenberg James M. Nabrit, III Charles Stephen Ralston 10 Columbus Circle New York, New York 10019 Attorneys for the NAACP Legal Defense and Educational Fund, Inc. I n the Supreme (Eourt of % United B utts Octobee T eem , 1971 No. 71-5078 Dean E ene Peters, v. Petitioner, C. P. K ief, Respondent. ON W RIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR TH E F IF T H CIRCUIT BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., AS AMICUS CURIAE ARGUMENT Because the petition for writ of habeas corpus was de nied without a hearing, the facts are not in dispute here. Thus, this case presents squarely the issue of whether a white defendant may have his indictment quashed or his conviction reversed on the ground that blacks have been excluded from juries in violation of the Constitution and statutes of the United States. AVe urge that two independent reasons require an affirmative answer: (1) all defendants have the right under the due process clause to be indicted and tried by juries that reflect a cross-section of the com 2 munity, i.e., from which no significant group has been ex cluded; and (2) a defendant has standing to enforce the rights of the excluded group even if he is not a member of it under the reasoning of Barrows v. Jackson, 346 U.S. 249 (1953). I The Due Process Clause Requires That Juries Rea sonably Reflect a Cross-Section of the Community. This case raises squarely the issue left open by this Court in Fay v. New York, 332 U.S. 261 (1947), whether the due process clause alone bars the exclusion of racial groups from juries so that the constitutional rights of defendants not members of the excluded group are violated. See, 332 U.S. at 284, n. 27. Amicus urges that the proper view is that there is an independent due process right to be in dicted and tried by a jury selected from venires that fairly represent a cross-section of the entire community. This requirement arises from “the very idea of a jury” 1 as a democratic institution1 2 whose purpose is to interpose be tween the state and the accused a group of laymen who speak for the community as a whole.3 Here, of course, because of the exclusion of blacks, the jury did not represent the community as a whole. Indeed, it was composed in direct and flagrant violation of the Con stitution and laws of the United States (18 U.S.C. §243) in spite of decisions of this Court dating back nine decades. Strauder v. West Virginia, 100 U.S. 303 (1880); see, Patton v. Mississippi, 332 U.S. 463, 465, n. 3 (1947). The particu 1 Carter v. Jury Commission of Greene County, 396 U.S. 320, 330 (1970). 2 Ballard v. United States, 329 U.S. 187, 195 (1946). 3 Williams v. Florida, 399 U.S. 78, 100 (1970). 3 lar device used to exclude blacks in petitioner’s case—segre gated tax digests—was struck down by this Court the year after he was convicted in Whitus v. Georgia, 385 U.S. 545 (1967). Whitus essentially followed, as directly controlling, the decision in Avery v. Georgia, 345 U.S. 559 (1953), de cided thirteen years earlier. And see, Vanleeward v. Rut ledge, 369 F.2d 584 (5th Cir. 1966). Essentially, the State of Georgia argues that despite the fact that the juries that indicted and convicted petitioner were composed in clear violation of federal law, its illegal acts are insulated from attack here by the fortuity that the defendant is white.4 We urge that this Court rather adopt the enlightened view of the Supreme Court of Maryland and hold that: “ every person accused of crime has the right to be tried under what has been determined to be the law of the land,” Maryland v. Madison, 240 Md. 265, 213 A.2d 880, 882 (1965). See also, Allen v. State, 110 Ga. App. 56, 137 S.E.2d 711 (1964). In Madison, the court held that a believer in God had the right to be indicted by a jury from which nonbelievers had not been unconstitutionally excluded; in Allen, the court held that a white had the right to be tried by a jury from which blacks had not been similarly excluded. Both deci sions rested on holdings of this Court interpreting federal jury statutes and held that their reasoning applied to con stitutional challenges. As this Court said in Ballard v. United States, 329 U.S. 187, 195 (1946): The injury is not limited to the defendant—there is injury to the jury system, to the law as an institution, 4 In a sense, a white defendant is also denied equal protection by not being allowed to challenge the exclusion of blacks. That is, his conviction stands solely because of his race, since if he were black it would not. See, Maryland v. Madison, 240 Md. 265, 213 A.2d 880, 886 (1965). 4 to the community at large, and to the democratic ideal reflected in the processes of our courts. All three cases recognized that it was a denial of due process in the most fundamental sense to permit a defen dant to be deprived of liberty by a jury that was convened in violation of the Constitution. Again, the decisions rest on the necessity of protecting the jury system as an insti tution whose purpose is to protect the rights of all persons charged by the state by putting the ultimate decision as to their fate in the hands of “a body truly representative of the community.” A jury otherwise constituted “is at war with our basic concepts of a democratic society and a rep resentative government.” Smith v. Texas, 311 U.8. 128, 130 (1940). See also, Hill v. Texas, 316 U.S. 400, 406 (1942). II Petitioner Can Challenge the Exclusion of Blacks Under the Reasoning of Barrows v. Jackson. In Part I we have argued that a white defendant—indeed that all defendants—have a personal right under the due process clause to be indicted and tried by juries selected in accordance with the Constitution. In addition, we urge that white defendants should be given standing to enforce the right of blacks not to be denied equal protection and thus to effectuate fully the constitutional guarantees that this Court has so long sought to enforce. It has been pointed out above that ever since 1880 this Court, in an undeviating line of decisions, has held that exclusion of blacks from jury service violates the law. Sadly, there has been an equally undeviating history of resistance to and circumvention of the holdings of this Court. Despite the passage of ninety years since Strauder, 5 this Court is still called on to strike down unconstitutional jury discrimination. See, Turner v. Fouche, 396 U.S. 346 (1970); Alexander v. Louisiana, O.T. 1971, No. 70-5026. We suggest that one explanation for this unfortunate fact is that jury officials have believed that they could, by and large, get away with unlawful discrimination in most cases. Only blacks could complain; and most black defen dants lacked the resources to, and/or lawyers who would,6 raise and prove jury discrimination claims. If, however, this Court makes it clear that no conviction of any defendant may stand when blacks have been unlaw fully excluded from juries, then there may be a different result. At long last, state officials may decide that they have more to lose than to gain by continuing jury discrim ination. The rights of all concerned—black defendants, white defendants, and black prospective jurors—may finally become realities. Thus, this case is closely analogous to Barrows v. Jack- son, 346 U.S. 249 (1953). There, the Court held that a white homeowner could raise the constitutional right of blacks not to be denied equal access to housing by state action as a defense to an action for damages for violating a racial restrictive covenant. The specific basis for allowing stand ing to a white to raise the constitutional rights of blacks was that it was necessary for the effective enforcement of those rights. Otherwise, the use of restrictive covenants would be encouraged (346 U.S. at 254), just as here the continuation of discriminatory jury selection would be en couraged. And the refusal to allow petitioner to challenge the composition of his jury would have the sole effect “ of giving vitality to” unlawful racial discrimination. See, 346 U.S. at 258. 6 See, United States ex rel. Goldsby v. Harpole, 263 F.2d 71, 82 (5th Cir. 1959); Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964). 6 It is true that in Barrows the Court was led to its holding partly by the fact that since it was unlikely that black prospective property buyers would come before the courts, the only way to protect their rights would be to allow white property owners to defend in damage actions. On the other hand, the right of blacks to be free of discrimination in the jury selection process can and has been raised by blacks themselves. Nevertheless, Barrows should not be distinguished on that ground. As the experience of ninety years has shown, the problem of jury discrimination per sists despite the fact that blacks can and do raise the issue. For the reasons set out above, we urge that only by allow ing all defendant to challenge illegal jury selection meth ods will this blot on the administration of justice be eradi cated once and for all. Thus, the same concepts of public policy that were determinative in Barrows should govern here. Ill A Decision That White Defendants May Challenge Discrimination Against Blacks in Jury Selection Should Be Made Fully Retroactive. Petitioner, in his brief, explains why, under the standards set out by this Court in Stovall v. Denno, 388 U.S. 293 (1967), a decision that white defendants may challenge the illegal exclusion of blacks from juries should be made fully retroactive. We add two brief comments. First, we urge that the most analogous case is Wither spoon v. Illinois, 391 TJ.S. 510 (1968). There, this Court held that its new rule that persons with scruples against the death penalty could not be excluded from juries in capi tal cases was to be fully retroactive. This was because the wrongful exclusion of such persons “undermined ‘the very integrity of the . . . process’ ” by which a defendant’s fate 7 was determined. 391 U.S. at 523, n. 22. Similarly here, for the reasons set out above, the unlawful exclusion of blacks totally undermines the proper functioning of the jury system. Second, we suggest that the retroactive giving to white defendants a right long enjoyed by blacks will not have a harmful effect on the administration of justice, i.e., it would not result in a general jail release. It must be remembered that what is involved here is the possible application of the Whitus decision to whites. Therefore, an examination of the impact of Whitus on black prisoners is instructive. (1) According to data available from the Georgia Depart ment of Corrections, in the year July 1967—July 1968 (the year following Whitus), a substantial majority of the in mates of the Georgia prison system were black (5139 out of 8629). Thus, the retroactive application of a decision favorable to petitioner in this case would affect a minority of those convicted in Georgia. (2) As the figures cited above show, Whitus had the potential of releasing nearly 60% of those incarcerated in Georgia when it was handed down. Nevertheless, subsequent figures indicate no such general jail delivery. Thus, in 1971 the number of blacks and the total number of prisoners was approximately the same (4991 out of 8205) as in 1967-68. There is no reason to expect any more deleterious effect from a decision in this case than there was from Whitus. 8 CONCLUSION For the foregoing reasons, the judgment of the Court of Appeals for the Fifth Circuit should be reversed. Respectfully submitted, Jack Greenberg James M. N abrit, III Charles Stephen Ralston 10 Columbus Circle New York, New York 10019 Attorneys for the NAACP Legal Defense and Educational Fund, Inc. MEILEN PRESS INC. — N. Y. C. 219