Tollett v. Henderson Brief for Respondent

    cy,-y

IN THE ; : ;■

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1972

No. 72-95

LEWIS S. TOLLETT, Warden 
Tennessee State Prison,

Petitioner,

v.

WILLIE LEE HENDERSON,
Respondent.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT

H. FRED HOEFLE
409 Second National Building 
830 Main Street 
Cincinnati, Ohio 45202

Attorney for Respondent

Washington, D C. • T H IE L  P R E S S  • i202' 393 0625



(i)

TABLE OF CONTENTS

Page

OPINIONS BELOW . ....................................................................  1

JURISDICTION ...........................................................................  2

CONSTITUTIONAL AND STATUTORY PROVI­
SIONS INVOLVED .................................................................  2

QUESTION PRESENTED .........................................................  2

STATEMENT OF THE CASE ....................................................  3

SUMMARY OF ARGUMENT ....................................................  4

ARGUMENT:

I. Blacks Were Unconstitutionally Excluded 
Systematically From Grand Jury Duty in 
Davidson County, Tennessee When Respondent 
Was Indicted, and Petitioner Admitted This 
Fact in Both the District Court and the Court 
of Appeals, Thereby Abandoning and Waiving 
His Right to Argue That Issue Before this C o u rt..........  6

II. Did Respondent’s Failure To Object Before 
Pleading to the Indictment Returned By A 
Grand Jury From Which Members of His Race 
Had Been Systematically Excluded in Violation 
of the Equal Protection Clause of the 
Fourteenth Amendment Constitute a Waiver of 
His Right to Challenge the Composition of that 
Grand Jury in Subsequent Federal Habeas 
Corpus Proceedings When Neither He Nor His
Attorney Had Been Aware of the Right Before
the Plea was Entered? .......................................................13

A. The Rule Requiring Challenge Before P l e a ................13

B. The Rationale of the State Prisoner Habeas
Cases ..............................................................................14



C. The Facts in the Instant Case Clearly Show 
that the Judgment Below Should Be 
Affirmed .......................................................................17

III. Does Systematic Exclusion of Members of a 
Particular Race from Jury Service Constitute a 
Jurisdictional Defect? ............................   24

CONCLUSION ..............................................................   25

TABLE OF CITATIONS

Cases:

Avery v. Georgia, 345 U.S. 559 (1963) ..................................... 10

Bannister v. United States, 446 F.2d 1250 (3d Cir.
1971) ...................................................................................... 18n

Bonds v. State, 421 S.W.2d 87 (1967) .................................. 8, 24

Brady v. United States, 397 U.S. 742 (1970) ..................  17, 18n

Carnley v. Cochran, 369 U.S. 506 (1962) . ................................ 18

Cobb v. Balkcom, 339 F.2d 95 (5th Cir. 1964) ................  15, 16n

Colson v. Smith, 315 F. Supp. 179, 438 F.2d 1075
(5th Cir. 1971) ............................................................ 14 ,24 ,25

Drop Dead Co. v. S.C. Johnson & Sons, 326 F.2d 87
(9th Cir. 1963), cert. den. 377 U.S. 907 ............................. 9

Eubanks v. Louisiana, 356 U.S. 584 (1958) ....................... 10, 24

Fay v. Noia, 372 U.S. 391 ( 1 9 6 3 ) ......................................... passim

Henry v. Mississippi, 379 U.S. 443 (1965) ...............................  17

Humphrey v. Cady, 405 U.S. 5 0 4 (1 9 7 2 ) .................................. 18

In re Donnelly’s Estate, 397 U.S. 286 (1970) ..........................  9

Johnson v. Zerbst, 304 U.S. 458 (1938)............................ passim

Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132
(1948) cert. den. 333 U.S. 846 .......................................... 9-11

Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966).......................  15

McMann v. Richardson, 397 U.S. 759 (1970) .................. 17, 18n



McNeil v. North Carolina, 368 F.2d 313 (4th Cir.
1966) .........................................................................  15, 16n, 17

Norris v. Alabama, 294 U.S. 587 (1935) .................................. 10

Patton v. Mississippi, 332 U.S. 463 (1947) .......................... 10, 24

Peters v. Kiff, 407 U.S. 493 (1 9 7 2 ) .................................... passim
Scogin v. United States, 446 F.2d 416 (8th Cir. 1971).......... 18n

State ex. rel. Henderson v. Russell, 459 S.W.2d 176
(1970)   21

State ex. rel. Lawrence v. Henderson, 433 S.W.2d 96
(1968)    13

State v. Kagabein, (Ark. S.Ct. #5665) .......................................  12

Strauder v. West Virginia, 100 U.S. 303 ( 1 8 8 0 ) .................. 10, 12

United States v. Harpole, 263 F.2d 71 (5th Cir. 1959),
cert. den. 361 U.S. 838  15,21

United States v. Liquori, 430 F.2d 842 (2d Cir. 1970)..........  18n

United States ex rel. Rogers v. Warden, Attica State
Prison, 381 F.2d 209 (2d Cir. 1967) ........................................ 17

United States v. Spector, 343 U.S. 169 (1952) ................. .. . 9

Wade v. Yaeger, 377 F.2d 841 (3d Cir. 1967) ..........................  15

Walters v. City of St. Louis, Mo., 347 U.S. 231 (1954).............  9

Washington v. United States, 401 F.2d 915 (DC 1968).............  14

Whippier v. Balkcom, 342 F.2d 388 (5th Cir. 1 9 6 5 ) ................ 15

Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964) ..................  21

Whitus v. Georgia, 385 U.S. 545 (1 9 6 7 ) ...............................  8, 10

Wintersv. Cook, 466 F.2d 1393 (5th Cir. 1972) . .12 ,21-23 ,25  

Windom v. Cook, 423 F.2d 721 (5th Cir. 1970) .....................  15

Other Authorities:

18U.S.C. §243 ...........................................................................  25

28 U.S.C. §2241 ...........................................................................  2

( Hi)



(iv)

Constitution of the United States
Fourteenth Amendment ............................................ .. passim

Federal Rules of Criminal Procedure, Rule 12(b)(2)................13



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1972

No. 72-95

LEWIS S. TOLLETT, Warden 
Tennessee State Prison,

Petitioner,

v.

WILLIE LEE HENDERSON,
Respondent.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the United States Court of Appeals for 
the Sixth Circuit is reported at 459 F.2d 237, and 
appears in the Petition for Certiorari at page la. The 
opinion of the United States District Court for the 
Middle District of Tennessee is reported at 342 F. Supp. 
113, in the Petition for Certiorari at page 13a, and in the 
Appendix at page A. 21.



2

JURISDICTION

Jurisdiction is vested in this Court by virtue of the 
order herein granting certiorari on October 16, 1972, and 
is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution of 
the United States provides in pertinent part:

No state shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of 
the United States; nor shall any state deprive any 
person of life, liberty, or property, without due 
process of law; nor deny to any person within its 
jurisdiction equal protection of the laws.
The Federal habeas corpus statute, Title 28, United 

States Code, § 2241, provides in pertinent part:
(a) Writs of habeas corpus may be granted by the 
Supreme Court, any justice thereof, the district 
courts and any circuit judge within their respective 
jurisdiction . . .
(c) The writ of habeas corpus shall not extend to a 
prisoner unless—

(3) He is in custody in violation of the 
Constitution or laws or treaties of the United States.

QUESTION PRESENTED

Whether a semiliterate black youth of 20, unaware of 
his right to object to his 1948 indictment for first degree 
murder by a grand jury from which members of his race 
had been systematically excluded in violation of the 
Fourteenth Amendment to the United States Constitu­



3

tion, has waived his right to object in a subsequent habeas 
corpus action by pleading guilty to that indictment on 
the advice of counsel who was himself unaware of, and 
did not advise the defendant of, his right to object.

STATEMENT OF THE CASE

Respondent and two other men were arrested in 
Nashville, Tennessee for the armed robbery and shooting 
of a liquor store employee, which occurred on January 
22, 1948. When the victim died on February 12, 1948 
[Of pneumonia, according to Respondent; See Petition 
for Writ of Habeas Corpus, A. 9], first degree murder 
indictments were returned by the Davidson County, 
Tennessee Grand Jury. The Grand Jury was at that time 
an all-white body; the first Negro to serve on said grand 
jury was not called until 1953.

Respondent signed a confession, but later claimed that 
the confession had been coerced. His mother retained 
counsel, and a plea of guilty was entered in March, 1948, 
resulting in a 99 year sentence. Neither he nor his 
attorney was aware at the time of the plea that blacks 
had been systematically excluded from grand jury service 
in Davidson County, nor that he had a right to object to 
the indictment on those grounds (A. 95-96).

In 1968, Respondent filed a habeas corpus action in 
the state court, alleging for the first time that he had 
been denied the equal protection of the laws in violation 
of the Fourteenth Amendment to the United States 
Constitution in that members of his race had been 
systematically excluded from the grand jury which had 
indicted him. (A. 45-46) Proof at the evidentiary hearing 
established that no black was to serve on the Davidson 
County grand jury until 1953 (A. 102, A. 123, A. 142).



4

The trial judge was called as a witness and testified that 
Negroes on the jury list were designated by a mark of 
“colored” following their names, or merely “John Jones, 
C.” (A. 105). The state trial judge in the habeas corpus 
action denied the petition, (A. 63-65), the Tennessee 
Court of Criminal Appeals affirmed (A. 143-A. 169), and 
the Tennessee Supreme Court, denied certiorari (A. 143).

Thereafter, Respondent filed a petition for a writ of 
habeas corpus in the United States District Court for the 
Middle District of Tennessee, Nashville Division, alleging 
the systematic exclusion issue. The District Court, relying 
on the records in the state proceeding, found for the 
Respondent on the issue of systematic exclusion (which 
was conceded by Petitioner to Respondent) and on the 
issue of whether Respondent had waived his right to 
object by entering a plea of guilty without first objecting 
to the indictment. The District Court granted the petition 
and ordered the release of Respondent (A. 21-A. 33). The 
United States Court of Appeals for the Sixth Circuit 
affirmed (Pet. cert, la-12a; 459 F.2d 237). This Court 
granted certiorari on October 16, 1972.

SUMMARY OF ARGUMENT

The evidence adduced herein completely substantiates 
the findings below of systematic exclusion of blacks from 
the grand jury which indicted Respondent, a black man. 
Further, the Petitioner conceded in both the District 
Court, and in the Court of Appeals for the Sixth Circuit 
that blacks had been systematically excluded from that 
grand jury, and is thereby foreclosed from denying that 
fact before this Court.

Further, it is clear that Respondent did not waive his 
right to object by pleading guilty without first objecting



5

to the indictment. The rights involved, to the equal 
protection of the laws and to due process of law, are 
rights conferred on Respondent by the Fourteenth 
Amendment to the federal Constitution, and are 
therefore federal rights. Waiver of federal rights is a 
federal question, and the federal definition of waiver 
must be applied to the particular facts. Where, as here, 
Respondent is without knowledge of these rights, and his 
attorney is also unaware, and did not advise Respondent 
of the violation of his rights and of his right to object 
thereto, there cannot be an intentional relinquishment or 
abandonment of a known right or privilege, and, absent a 
showing of a deliberate trial strategy to intentionally 
bypass state procedural requirements, no waiver can be 
inferred or presumed. Further, where an indictment is 
returned by an unconstitutionally constituted grand jury, 
that indictment should be declared void rather than 
voidable, thereby rendering any plea thereto ineffective 
for any purpose, including as a basis for an inferred 
waiver of the defendant’s rights.



6

ARGUMENT
I.

BLACKS WERE UN CONSTITUTIONALLY 
EXCLUDED SYSTEMATICALLY FROM GRAND 
JURY DUTY IN DAVIDSON COUNTY, TENNESSEE 
WHEN RESPONDENT WAS INDICTED, AND PETI­
TIONER ADMITTED THIS FACT IN BOTH THE 
DISTRICT COURT AND THE COURT OF APPEALS, 
THEREBY ABANDONING AND WAIVING HIS 
RIGHT TO ARGUE THAT ISSUE BEFORE THIS 
COURT.

Petitioner contends herein that blacks were not 
systematically excluded from grand jury duty in 
Davidson County, Tennessee in 1948. Yet Petitioner 
conceded in both the District Court and in the Court of 
Appeals that blacks were systematically excluded from 
jury duty in violation of law, and elected to proceed in 
both courts solely on the issue of waiver.

The following is excerpted from Petitioner’s brief in 
the Court of Appeals:

STATEMENT OF THE CASE
The petitioner-appellee, hereinafter referred to as 

Henderson, was a black youth about twenty years of 
age when he was indicted by the Davidson County, 
Tennessee Grand Jury in 1948 on a charge of 
murder in the first degree. Black people had been 
systematically excluded from grand jury duty prior 
to the time o f Henderson’s indictment and for some 
time after his indictment in 1948. . .

Henderson filed a petition for writ of habeas 
corpus in the United States District Court, Middle



7

District of Tennessee, Nashville, Tennessee, on 
December 29, 1970, alleging among other things 
that his constitutional rights had been violated 
because blacks had been systematically excluded 
from the grand jury which indicted him. The 
respondent [Petitioner herein] agreed that blacks 
had been systematically excluded and that the only 
issue before the court was whether or not 
Henderson had waived his right to question the 
composition of the indicting grand jury by failure to 
object to the composition prior to entering the plea. 
[Brief of Petitioner herein, respondent in the Court 
of Appeals, Lewis S. Tollett, Warden, Sixth Circuit, 
pages 1-3; (Emphasis supplied).]
In the first excerpt from Petitioner’s brief in the Court 

of Appeals, Petitioner admits as fact to the Court of 
Appeals that blacks were in fact systematically excluded 
from grand jury duty at the time Respondent was 
indicted, and Petitioner also admits that Respondent is 
black. In the second excerpted paragraph of that brief, 
Petitioner is admitting that he had conceded the same 
points in the District Court, and that Petitioner elected in 
the District Court to proceed solely on the issue of 
waiver.

The District Court found that not only had Henderson 
established his claim that blacks had been systematically 
excluded from the grand jury which indicted him, but 
that Petitioner had conceded the issue in Henderson’s 
favor:

[Tennessee] concedes—as it is apparent it 
must—that Henderson has proved everything neces­
sary fully to support his contention that members of



8

his race were systematically excluded from the 
grand jury which indicted him. [Tennessee] thus 
asserts “ . . . that the only (remaining) issue is 
whether or not [Henderson] has waived his right to 
question the composition of the indicting grand 
jury . . . , ” (A. 25-A. 26; Emphasis supplied).
Further, on appeal, the Court of Appeals for the Sixth 

Circuit found:
The Respondent [Petitioner herein] does not 
contest the finding o f impermissible exclusion on 
appeal. He bases the appeal entirely on the claim 
that Henderson waived any right to attack the 
indictment because he did not make his challenge 
before pleading to the charges and because he pled 
guilty to the indictment. (Pet. cert. 3a-4a; Emphasis 
supplied.)

The Court of Appeals found that the evidence adduced in 
the District Court completely and fully supported 
Henderson’s contentions, and the District Court’s finding 
of impermissible exclusion under the standards set by this 
Court in Whitus v. Georgia 385 U.S. 545 (1967), and by 
the Tennessee Supreme Court in Bonds v. State, 421 
S.W.2d 87 (1967).1 * *

1 The Sixth Circuit said (Pet. cert. 4a, n.2):
The evidence showed that no Negro had served on the 

Davidson County Grand Jury in the years prior to 1948 and 
that no Negro was to serve on that panel until 1953, when a 
single Negro was called to duty: this despite the fact that 
Negroes made up over 25% of Davidson County’s population.
An explanation for this startling disparity may be found in 
the evidence. Proof at the hearing showed that whenever a 
Negro citizen’s name appeared in the venire list from which 
grand jurors were selected by the county judges, a “c” or 
“col” abbreviation was placed before his name; officials were 
thus provided with a simple means of determining which 
citizens might be appropriately “excused” from grand jury



17

to an intentional ‘bypassing’ of state procedures. Henry 
v. Mississippi 379 U.S. 443,451 (1965); Fay v. Noia, 
supra." Henderson v. Tollett, Opinion, Pet. Cert. 7a.

Generally, a voluntary guilty plea, entered upon the 
advice of competent counsel, implies an intentional and 
knowing abandonment of rights, United States ex. rel. 
Rogers v. Warden o f Attica State Prison, 381 F.2d 
209 (2d Cir. 1967). This Court has also held that 
where the advice given by counsel was “within the 
range of competence demanded of attorneys in criminal 
cases,” the plea of guilty would not be set aside, McMann 
v. Richardson, 397 U.S. 749 at 771 (1970).

As the Sixth Circuit said below, however, “That line of 
cases [referring to McMann, supra., and Brady v. United 
States, 397 U.S. 742] did not establish a new general test 
for examining conduct alleged to constitute a waiver of 
federal rights; in fact, it reemphasized the importance of 
Johnson v. Zerbst [supra.] as the governing authority on 
the subject.” (Pet. Cert. IGa-lla, n.5). The Sixth Circuit 
indicated that Brady, supra., and its related cases dealt 
with inaccurate legal advice and its effect upon a guilty 
plea which was sought to be vacated because it was 
involuntary, and are thus distinguishable from the case at 
bar, in which no challenge to the plea itself has been 
made.4

4 The Sixth Circuit discussed the inapplicability of Brady, 
supra., and its related cases to the present situation at length [Pet. 
Cert. 1 la n.5 (Continued from page 10a)] :

That line of cases did not establish a new general test for 
examining conduct alleged to constitute a waiver of federal 
rights; in fact it reemphasized the importance of Johnson v. 
Zerbst, 304 U.S. 458, 464 (1938), as the governing authority 
on the subject. See Brady v. United States, 397 U.S. at 748 
n.6. It did not suggest that a valid guilty plea waived the right 
to challenge all pre-pleading defects when a defendant



18

Fay v. Noia, supra., established that mere failure to 
comply with a state procedural requirement does not 
constitute, necessarily, a waiver of rights bestowed by the 
United States Constitution. It also established that the 
finding of such a waiver by a state court does not bar the 
federal courts from independently determining the issue 
of waiver in a federal habeas corpus proceeding, since 
waiver of federal rights is a federal question; that a choice 
of counsel not participated in by the defendant would 
not automatically bar relief; and that actions or inaction 
of counsel would be imputed to the defendant alleged to 
have waived the state procedural requirement only where 
it appears affirmatively that the acts or omissions 
constituting the purported waiver were knowingly and 
voluntarily participated in by the accused as a deliberate 
strategy intended as a bypass of a known state procedural 
requirement. Further, the showing of the defendant’s 
participation must be affirmative, as “acquiescence in the 
loss of fundamental rights is not to be presumed,” and 
the Courts must “indulge every reasonable presumption

neither knew nor could have known of the right at the time 
he entered his plea. It did not deal with a situation in which 
counsel’s advice was competent judged by the time and place 
at which it was given, but grossly inadequate in light of the 
clearly established constitutional law of the period.

The Brady line of cases dealt only with challenges to the 
guilty plea itself; no such challenge has been made here. For 
this reason alone we believe that Brady and its successors 
cannot govern our decision here. Given the uniqueness of the 
concerns which necessarily affect any evaluation of the 
validity of a guilty plea in our system (see Brady, 397 U.S. at 
749-59; McMann, 397 U.S. at 774) the Brady line of cases 
cannot provide a useful model for the practical application of 
the Johnson v. Zerbst standards in general. See the excellent 
discussion of this point in United States v. Liquori, 430 F.2d 
842 (2d Cir. 1970); cf. Scogin v. United States, 446 F.2d 416 
(8th Cir. 1971); Bannister v. United States, 446 F.2d 1250 
(3d Cir. 1971).



19

against waiver,” Johnson v. Zerbst, supra.; waiver cannot 
be presumed from a silent record, Carnley v. Cochran, 
369 U.S. 506 (1962).

Recently, these principles were reaffirmed by this 
Court in Humphrey v. Cady, 405 U.S. 504 (1972). That 
unanimous decision [In which, however, Justices Powell 
and Rehnquist did not participate] reiterated that a 
purported waiver of a federal Constitutional right by not 
pursuing state remedies must be “the product of an 
understanding and knowing decision by the [federal 
habeas corpus] Petitioner himself, who is not necessarily 
bound by the decision or default of his counsel.” The 
Court went on to hold that there can be a waiver only 
where the Petitioner himself “made a deliberate, strategic 
waiver of his claim in State Court.”

Finally, in its most recent jury exclusion case, Peters v. 
Kiff, supra., the Supreme Court upheld a federal habeas 
Petitioner’s claim of racial exclusion even though the 
claim was not raised at any time in the state courts. 5

Respondent concludes from Peters v. Kiff, supra., that 
failure to object to the composition of the grand or petit 
jury in the state court does not constitute waiver of the 
right to object in a later federal habeas corpus proceeding.

C. The Facts in the Instant Case 
Clearly Show that the Judgment 

Below Should Be Affirmed.

There is no real dispute that in the instant case blacks 
were unconstitutionally excluded from the grand jury 
which indicted Respondent; that Respondent was

5 The fact that systematic exclusion was first raised in the 
federal habeas corpus action was only briefly noted in footnote 1 
of the opinion of Mr. Justice Marshall, and was briefly commented 
on in the footnote to the Chief Justice’s dissent.



20

unaware of the violation of his rights and of his right to 
object there to until years after the conviction and 
sentence (A.88); that his trial counsel was unaware that 
blacks had been systematically excluded from grand jury 
service; and tnat counsel did not advise Respondent of his 
rights, that the rights were violated, and that he had a 
right to object to the indictment. Both Respondent and 
counsel were without knowledge of this “substantial 
constitutional right.” (Pet. Cert. 10a-l la).

The Respondent at the time of his indictment was a 20 
year old black youth who had had less than a sixth grade 
education. His failure to object to the indictment cannot 
be held to have been an intentional abandonment of a 
known right or privilege. One cannot be said to have 
waived a right, the existence of which was unknown to 
him at the time of the alleged waiver.

Waiver cannot be imputed to Respondent due to the 
acts or omissions of his counsel. Since counsel was 
unaware of the right or its violation, he cannot be said to 
have made a deliberate decision to waive the right to 
object as a matter of trial strategy in an attempt to 
bypass state procedural requirements; and, at any rate, 
such an attempt to bypass state procedures will not be 
construed as a waiver unless it is shown that Respondent 
had knowingly participated in the decision to proceed 
without making the objection, while fully aware of his 
right to object. Fay v. Noia, supra.

Petitioner’s argument assumes what has not been 
proven: that Respondent’s counsel knew of the right and 
deliberately failed to object to its violation. There is no 
evidence whatsoever to permit such an inference. Yet 
even if such were the case, would counsel have advised 
Respondent of the right? As Judge Galbreath said in the



21

concurring opinion of the Court of Criminal Appeals of 
Tennessee, which denied relief to Respondent, “No 
lawyer in this state would ever have thought of objecting 
to the fact that Negroes did not serve on the grand jury in 
Tennessee in 1948,” State ex. rel. Henderson v. Russell, 
459 S.W.2d 176, 179 (1970).

Moreover, as stated by the Fifth Circuit in United 
States v. Harpole, supra., at page 82:

As Judges of a circuit comprising six states of the 
deep South, we think that it is our duty to take 
judicial notice that lawyers residing in many southern 
jurisdictions rarely, almost to the point of never, raise 
the issue of systematic exclusion of Negroes from 
juries.

Several years later, in Whitus v. Balkcom, 333 F.2d 496 
(1964), at 507, the same Circuit stated:

The fact, standing alone, that no Negro has ever served 
on a jury in the particular county where his case is 
tried strongly indicates, if it does not create a 
presumption, that there was a tacit agreement by the 
bar of that county not to raise the constitutional 
issue. In such case the Negro would have no adequate 
remedy.
In Winters v. Cook, supra., the Fifth Circuit ruled that 

Winters [the habeas petitioner], who had no idea that he 
could object to the jury composition, did not waive his 
right to raise the issue later, even though the right was 
known to his counsel, who did not object, ostensibly on 
tactical grounds. The Court said, at 1396, “That white 
lawyers representing black clients often fail to raise an 
objection to jury composition has been recognized as a 
problem in this circuit.” In footnote 2 on the same page, 
the court stated “ . . . such an extreme discrimination 
could not exist without the knowledge o f the State trial



judge. It was his duty to ascertain that Winters had 
knowledge of his relevant rights.” (Emphasis supplied.) 
[The Fifth Circuit based its decision in part on the 
invalidity of Winters’ guilty plea which was given without 
knowledge of the right to object. That issue is not 
relevant herein, the validity of Respondent’s plea not 
having been challenged below.]

The language quoted from the State court herein and 
the Fifth Circuit cases raises sinister implications: that 
even if Respondent’s lawyer knew of the violation of his 
client’s right in time to object, as Petitioner incorrectly 
argues, does it necessarily follow that the failure to object 
was a trial tactic? It would seem more likely that failure 
to object in Tennessee in 1948 resulted from a 
conspiracy, however tacit [perhaps even subconscious] 
among the bar and even the bench, to refrain from 
asserting this right which was peculiar to Negroes at that 
time6.

Petitioner relies on the reasoning of Judge Clark in his 
dissent in Winters v. Cook, supra. That reasoning does not 
apply herein, as in the Winters case trial counsel was fully 
aware of the impermissible exclusion of blacks from jury 
service in time to make an objection, and in the instant 
case, Respondent’s trial counsel had no idea of 
Respondent’s rights, much less of the fact that they were 
violated. In Winters, trial counsel used the possibility of 
objecting to the venire as a negotiating lever to obtain a 
favorable plea bargain for the defendant. Such was not 
the case herein. Judge Clark wrote, at page 1399:

Counsel testified that these constitutional objections 
were the “pry bar” that he used in getting the state to 
allow the defendant to enter a guilty plea..........

6Until June 22, 1972, when Peters v. K iff supra. , was decided.



23

Where, as here, a privately retained lawyer who is 
well-versed in the defense of murder charges 
deliberately refrains from making a known consti­
tutional objection to the composition of the jury in 
exchange for important and material concessions 
from the prosecution, there has been a deliberate 
by-pass and waiver under Fay and Henry. (Emphasis 
supplied.)
Clearly, the result below is not inconsistent with the 

position taken by Judge Clark in Winters. In the instant 
case there is no evidence of deliberate bypass of state 
procedure by Respondent’s counsel. There is absolutely 
nothing in the evidence that shows an intent to waive a 
right to achieve a strategic advantage. There is no showing 
that counsel had made positive use of the constitutional 
right in any manner. There is no showing that either 
Respondent or his attorney were aware of the right or of 
its violation. There is consequently no waiver of 
Respondent’s right to raise the systematic exclusion issue 
in federal habeas corpus proceedings, which he has done.

It was established beyond doubt in the evidentiary 
hearings below that Respondent was not aware of his 
right to object to the composition of the indicting grand 
jury at any stage of the proceedings. There was no 
deliberate choice by either Respondent or his counsel 
which could conceivably be interpreted as an intentional 
relinquishment of a known right, nor was there any 
indication of any intentional bypassing of state 
procedures. Hence, there was no waiver and the decisions 
below should be affirmed.



24

III.

DOES SYSTEMATIC EXCLUSION OF MEMBERS OF A
PARTICULAR RACE FROM JURY SERVICE CONSTI­
TUTE A JURISDICTIONAL DEFECT?

The District Court herein concluded that the 
indictment herein, having been returned by a grand jury 
from which blacks had been systematically excluded, was 
void, and, since a void indictment confers no jurisdiction 
upon the trial court, a plea to such an indictment is of no 
legal effect. [A.26], citing Bonds v. State, supra. In 
Colson v. Smith, 315 F. Supp. 179, affirmed at 438 F.2d 
1075 (5 Cir. 1971), the Atlanta District Court followed 
the same reasoning. The Courts of Appeal in each case 
indicated that in their views, while the petitioners were 
entitled to relief because there was no waiver under 
Zerbst and Fay, the indictments were not void, but 
voidable. Yet, in Patton v. Mississippi, supra., and again in 
Eubanks v. Louisiana, supra., this Court held that 
indictments returned by grand juries from which 
members of a given race had been systematically 
excluded “cannot stand” as to any member of the 
excluded race indicated by such a grand jury.

In Peters v. Kiff, supra., this Court said: “if . . . 
Negroes were systematically excluded from . . . grand . . . 
juries, then he was indicted and convicted by tribunals 
that fail to satisfy the elementary requirements of due 
process, and neither the indictment nor the conviction 
can stand.’’’ (Emphasis supplied.) Since Peters raised the 
issue for the first time in a federal habeas corpus 
proceeding, the time for objecting to a nonjurisdictional 
defect had long since passed. The question arises: does 
Peters v. K iff mean that systematic exclusion gives rise to 
a jurisdictional defect, rendering the indictments and 
convictions of impermissibly constituted juries void ab 
initio?



25

Such a ruling would simplify cases such as the instant 
case. If indictments returned by such juries were void, the 
right to object could never be waived by pleading to a 
void indictment. Public policy might be served by 
accomplishing what 18 U.S.C. §243 [providing criminal 
penalties for public officials convicted of discriminatory 
jury selection] has apparently failed to do-terminate 
once and for all the deplorable practice of excluding 
minority groups from jury service. At least one circuit is 
waiting for a determination of this issue. In note 1 of its 
opinion in Winters v. Cook, supra., the Fifth Circuit said:

We do not reach the issue whether a jury from 
which blacks are systematically excluded constitutes a 
jurisdictional or a nonjurisdictional defect. Although 
it was strongly intimated in Colson [v. Smith, 438 
F.2d 1075] that where Negroes are excluded from 
the jury the defect is nonjurisdictional, the Supreme 
Court has recently ascribed such fundamental status 
to the right to be tried by a jury from which 
Negroes are not systematically excluded that we 
have some doubt as to the validity of the 
implications in Colson. Citing Peters v. Kiff, supra.
It would seem that the quoted language from Patton 

and Peters v. K iff would indicate that indictments 
returned by improperly constituted grand juries, from 
which members of minority groups are systematically 
excluded, are void. Yet this Court has not yet so ruled 
specifically. Precedent and public policy would seem to 
require such a ruling.

CONCLUSION

It is respectfully submitted that the facts of this case 
fall squarely within the purview of Fay v. Noia, supra., 
and Johnson v. Zerbst, supra. In order to give Petitioner



26

the relief demanded, this Court will necessarily have to 
overrule Fay and Zerbst, on which countless decisions 
have been based. Zerbst alone has been cited in more 
than three thousand reported cases since it was 
announced. The Court will also have to redefine waiver 
and will have to reexamine and determine new standards 
for federal review of allegedly unconstitutional state 
action. A reversal here will effectively remove the 
jurisdiction of the federal judiciary in areas where state 
and local government will have the last word in 
interpreting its own alleged violation of the United States 
Constitution. Past experience indicates that, if such 
occurred, the Bill of Rights would soon be rendered 
meaningless in many jurisdictions.

The Petitioner insists that if Respondent prevails 
herein, “the floodgates would be open,” and a horde of 
convicts would descend upon Davidson County, Tennes­
see, creating an intolerable burden on that County to 
retry or release these prisoners. It is somewhat ironic that 
the very authority, which deliberately violated Respond­
ent’s rights in imprisoning him for almost a quarter 
century, now begs the Court for relief because such a 
result would inconvenience that authority. The judgment 
below should be affirmed, and Respondent ordered 
released or retried within a reasonable time.

Respectfully submitted,

H. FRED HOEFLE
409 Second National Building 
830 Main Street 
Cincinnati, Ohio 45202
Telephone: 513/241-1268

Attorney for Respondent