Peters v. Kiff Motion for Leave to File and Brief Amicus Curiae

    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.



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