Brawner v. Smith Petition for Writ of Certiorari to the Supreme Court of Georgia

    I n the

tour! ai %  Imfrfc i>tatpn
October Term, 1969

No. ML.

Curtis Brawner,

—vs.—

S. Lamont Smith, 
Warden, Georgia State Prison.

Petitioner,

PETITION FOR WRIT OF CERTIORARI 
TO THE SUPREME COURT OF GEORGIA

Jack Greenberg 
Norman C. A maker 
James N. F inney

10 Columbus Circle 
New York, New York 10019

H oward Moore, J r.
Peter E. R indskopf

8591/2 Hunter Street, N. W. 
Atlanta, Georgia 30314

Attorneys for Petitioner



I N D E X

Opinion Below ..................    1

Jurisdiction ...... ................................................ -................ - 1

Questions Presented .........................-................................ 2

Constitutional and Statutory Provisions Involved....... 2

Statement .............................................................................  3

The Presentation of the Federal Questions..................  6

R easons F ob G-ranting R elief

I. Certiorari Should be Granted to Determine 
Whether Petitioner Established an Unrebut- 
ted Prima Facie Case of Racial Exclusion of 
Negroes From Jury Service in Violation of 
the Equal Protection Clause of the Fourteenth 
Amendment ............................................................. 7

II. There Was No Valid Waiver by Petitioner of 
His Constitutional Right to Challenge the 
Elbert County Prospective Juror Selection 
Procedures ........................... -............... ...............  15

Conclusion ...........................................    21

A ppendix

Opinion and Judgment of the Supreme Court of
Georgia ................................... .......... -.......................... l a
Denial of Rehearing By the Supreme Court of
Georgia ................................... - .............. -....... —-........  7a

Letter From Prof. John S. DeCani.......................   8a

PAGE



u

Table of Cases

Anderson v. Georgia, 390 U.S. 206 (1968) ...............8,13,15
Avery v. State of Georgia, 345 U.S. 559 (1953) ........... 9,10,

11,12,13

Bostick v. South Carolina, 386 U.S. 479 (1966), re­
versing 247 S.C. 22, 145 S.E.2d 439 ..........................  8

Brawner v. Georgia, 385 U.S. 936 (1966) ......................  4
Brawner v. State, 221 Ga. 680, 146 S.E.2d 737 (1965) .... 4

Carter v. Jury Commission of Greene County, Ala­
bama, No. 908 (Oct. Term 1968) ................................... 9

Cobb v. Balkcom, 339 F.2d 95 (5th Cir., 1964) ............... 15
Cobb v. Georgia, 389 U.S. 12 (1967) .......................... 8,13,15

Doughty v. Maxwell, 376 U.S. 202 (1964) ....................... 13

Eskridge v. Washington State Prison Board, 357 U.S.
214 (1958) .........................................................................  13

Fay v. Noia, 372 U.S. 391 (1963) ..................................17,18

Gideon v. Wainwright, 372 U.S. 335 (1963) ...................  13
Green v. Myers, 401 F.2d 890 (5th Cir., 1968) ............. 16
Griffin v. People of State of Illinois, 351 U.S. 12 (1956) 13

Jackson v. Denno, 378 U.S. 368 (1964) ..........................  13
Johnson v. State of New Jersey, 384 U.S. 719 (1966) ..12,13
Johnson v. Zerbst, 304 U.S. 458 (1938) ...................... 17,18
Jones v. Georgia, 389 U.S. 24 (1967) ........................ 8,13,15

Labat v. Bennett, 365 F.2d 698 (5th Cir., 1966) ...........  20
Linkletter v. Walker, 381 U.S. 618 (1965) ....................... 12

PAGE



Ill

Maxwell v. Bishop, 257 F. Supp. 710 (E.D. Ark. 1966), 
denial of application for certificate of probable cause
rev’d, 385 U.S. 650 (1967) .................. .......... ........... . 7

Maxwell v. Stevens, 348 F.2d 325 (8th Cir. 1965) ......... 7
McGarrah v. Dutton, 381 F.2d 161 (5th Cir., 1967) .......  15
Mobley v. Dutton, 380 F.2d 14 (5th Cir., 1967) ...............  15

Peters v. Rutledge, 397 F.2d 731 (1968) ...................... 15,16
Pearce v. North Carolina, 372 U.S. 937 (1963)  .............. 20
Pierre v. State of Louisiana, 306 U.S. 354 (1939) .......  15

Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 1966) 9
Rearden v. Smith, 403 F.2d 773 (5th Cir., 1968) ...........  16

Salary v. Wilson, C /A  No. 25978 (5th Cir. July 31,
1969) ............................. ............................................. .....  10

Smart v. Balkcom, 352 F.2d 502 (5th Cir., 1965) ........... 15
Strauder v. West Virginia, 100 U.S. 303 (1880) ....12,14,15
Strauss v. Grimes, 223 Ga. 834 (158 S.E.2d 404) ........... 11
Sullivan v. Georgia, 390 U.S. 410 (1968) ...... ....... .....8, 13,15

Turner v. Fouche, No. 842 (Oct. Term 1968) ...................  9
United States ex rel Goldsby v. Harpole, 263 F.2d 71 

(5th Cir. 1959), cert, denied,, 361 U.S. 838 (1959) ....19, 20 
United States ex rel Seals v. Wiman, 304 F.2d 53 (5th

Cir. 1962), cert, denied, 372 U.S. 915 (1963) ...........18, 20
United States v. Atkins, 323 F.2d 733 (5th Cir., 1963) .... 9
United States v. Louisiana, 225 F. Supp. 353, aff’d,

380 U.S. 145 ......................................... ........................... 9

Whippier v. Balkcom, 342 F.2d 388 (5th Cir., 1965) .... 15
Whitus v. Balkcom, 333 F.2d 496 (5th Cir., 1964) .... .12,14,

18,19, 20

PAGE



IV

Whitus v. Georgia, 385 U.S. 545 (1967) ...........2, 7,8,9,10,
11,12,13,14,17,18, 20 

Williams v. State of Georgia, 349 U.S. 375 (1955) ....9,11,
12,13,17

Witherspoon v. Illinois, 391 U.S. 510 (1968)...................6,13

Statutes

28 U.S.C. §1257(3) .............................................................  1

Code of Ala., Tit. 30 §21 .................................................. 9

Ark. Stat. Ann. §§3-118, 3-227, 39-208 ..............................  7

Ga. Code Ann. §92-6307 (1933) .................................. 3,4,7

Ga. Code Ann. §50-127(1) (1968 Supp.) ........................ . 16

Ga. Code Ann. §50-127(3) ................. .................... ............  4

Ga. Code Ann. §59-106 (1965 Rev. vol.) .......................2, 8, 9

Ga. Code Ann. §59-124 .....................................................  5

Ga. Code Ann. §92-6307 (1966 Supp.) ..........................  3

Ga. Code Ann. §50-101 (Acts 1967, p. 835) ..................... 16

Other A uthorities

Finkelstein, The Application of Statistical Decision 
Theory to the Jury Discrimination Case, 80 Harv. 
L.Rev. 338 (1966) .............. ....................................... . 10

PAGE



I n the

intprem? (Eitttrt of %  States
October Term, 1969 

No. .......

Ctjbtis Brawn EE,

-vs.
Petitioner,

S. L amont Smith, 
Warden, Georgia State Prison.

PETITION FOR WRIT OF CERTIORARI 
TO THE SUPREME COURT OF GEORGIA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Georgia, entered 
in the above-entitled cause on May 8, 1969. Motion for a 
rehearing was denied on May 22, 1969.

Opinion Below

The opinion of the Supreme Court of Georgia, set forth
in the appendix, infra, pp. la-6a, is reported at ...............
Ga............. , 167 S.E.2d 753.

Jurisdiction

The judgment of the Supreme Court of Georgia was en­
tered on May 8, 1969 and motion for rehearing was denied 
on May 22,1969.

The jurisdiction of this Court is invoked pursuant to 
28 U.S.C. §1257(3), petitioner having asserted below and



asserting here deprivation of the rights secured by the 
Constitution of the United States.

Questions Presented

1. Whether petitioner established an unrebutted prima 
facie case of racial exclusion from Elbert County, Georgia 
juries in violation of the Fourteenth Amendment where 
the process of jury selection was from a racially designated 
source identical to that condemned in Whitus v. Georgia, 
385 U.S. 545, and the resulting exclusion of Negroes was 
comparable in the two cases.

2. Whether petitioner may be held to have waived his 
right to challenge prospective juror selection procedures 
as racially discriminatory where petitioner was not con­
sulted on the decision by his white, court-appointed trial 
counsel and trial counsel’s decision not to challenge racial 
jury selection practices was based on fear that raising the 
issue would create additional racial hostility towards peti­
tioner.

Constitutional and Statutory Provisions Involved

This case involves the Fourteenth Amendment to the 
Constitution of the United States.

This case also involves the following Georgia statutes: 
Ga. Code Ann. §59-106 (1965 Rev. v o l.) :

59-106. (816, 819 P. C.) Revision of jury lists. Selec­
tion of grand and traverse jurors.—Biennially, or, if 
the judge of the superior court shall direct, triennially 
on the first Monday in August, or within 60 days there­
after, the board of jury commissioners shall revise the 
jury lists.



3

The jury commissioners shall select from the hooks 
of the tax receiver upright and intelligent citizens to 
serve as jurors, and shall write the names of the per­
sons so selected on tickets. They shall select from these 
a sufficient number, not exceeding two-fifths of the 
whole number, of the most experienced, intelligent, and 
upright citizens to serve as grand jurors, whose names 
they shall write upon other tickets. The entire number 
first selected, including those afterwards selected as 
grand jurors, shall constitute the body of traverse 
jurors for the county, to be drawn for service as pro­
vided by law, except that when in drawing juries a 
name which has already been drawn for the same term 
as a grand juror shall be drawn as a traverse juror, 
such name shall be returned to the box and another 
drawn in its stead. (Acts 1878-9, pp. 27, 34; 1887, p. 21; 
1892, p. 61; 1899, p. 44; 1953, Nov. Sess., pp. 284, 285; 
1955, p. 247.)

Ga. Code Ann. §92-6307 (1933):
92-6307. (1086) Entry on digest of names of colored 

persons.— The tax receivers shall place the names of 
the colored taxpayers, in each militia district of the 
county, upon the tax digest in alphabetical order. 
Names of colored and white taxpayers shall be made 
out separately on the tax digest. (Acts 1894, p. 31.) l

Statement

On February 6, 1965, petitioner, Curtis Brawner, a 
twenty-seven year old Negro, was involved in an incident 
at a coal yard in Elberton, Georgia, in which a leading

1 This section, applicable when petitioner was tried, was repealed 
in 1966, Ga. Code Ann. §92-6307 (1966 Supp.).



4

white citizen was killed. Brawner was indicted, tried, and 
convicted of murder and sentenced to death, at the March 
1965 Term of the Elbert Superior Court. The Supreme 
Court of Georgia affirmed Brawner’s conviction and death 
sentence. Brawner v. State, 221 Ga. 680, 146 S.E.2d 731 
(1965). This Court denied certiorari. Brawner v. Georgia, 
385 U.S. 936 (1966). Petitioner then sought habeas corpus 
from the City Court of Beidsville, Georgia. The petition 
was denied and no appeal was taken.

Petition for writ of habeas corpus was then presented 
to the United States District Court for the Southern Dis­
trict of Georgia. An evidentiary hearing was held after 
which the cause was transferred to the United States Dis­
trict Court of the Middle District of Georgia. That Court 
dismissed the federal application without prejudice, so that 
appellant might first exhaust his state remedies.

Petitioner filed a petition for writ of habeas corpus in 
the Superior Court of Tattnall County.2 In both his federal 
and state court petitions, Brawner for the first time chal­
lenged the Elbert County prospective juror selection sys­
tem on the grounds of racial exclusion of Negroes.

Petitioner’s evidence showed that the names of prospec­
tive jurors were drawn from tax receiver’s books, and that 
the names in these books were segregated by race pursuant 
to state statutory law (Ga. Code Ann. §92-6307, supra). 
Petitioner further presented evidence, based on United 
States census data for 1960, as to the population 21 years 
and older in Elbert County, Georgia : 3,474 white males, 
3,843 white females, 1,272 non-white males and 1,545 non­

2 Ga. Code Ann. §50-127(3) requires that a petition for writ of 
habeas corpus must be filed in the Superior Court of the County 
in which the petitioner is incarcerated.



5

white females (R. 723).3 In percentage terms, non-whites 
constitute approximately 27% of the total population aged 
21 years or older. Non-white males account for approx­
imately the same percentage of the total number of males 
21 years or older in the County.4 Petitioner introduced 
evidence from the 1963 tax digest for Elbert County which 
indicated that it contained the names of 3,416 resident 
white males, 1,344 resident white females, 669 resident 
Negro males, and 302 resident Negro females. Negroes 
comprise approximately 16% of the total number of tax­
payers contained in the 1963 tax digest, and Negro males 
in the digest comprise the same percentage of the total 
number of males (R. 194-195).

Petitioner further showed the Court below that of a total 
of 2,047 names on grand and petit jury lists, only 26, or a 
little better than .01% were Negroes (R. 180, 183, 187). 
Of 48 names on the trial jury panel, two were Negro, and 
these were preemptorially challenged by the State (R. 120).

The foregoing evidence was undisputed. Moreover, the 
State failed to introduce any evidence to explain the 
blatant disparities reflected by the statistical evidence.

Petitioner also introduced evidence by way of a deposi­
tion from his white court-appointed trial counsel. Counsel 
stated that he never discussed the question of challenging 
the array of jurors on grounds of racial exclusion with 
petitioner (R. 113, 119). He had never made such a chal­
lenge himself, nor were there any white lawyers in his cir­
cuit who had, and there are no Negro lawyers in the area

3 The certified record in the case consists of consecutively num­
bered pages 1 through 825, arranged in five parts. “R .” refers to 
the numbers stamped in blue ink at the lower left hand corner of 
each page of the record, “ a” following a number refers to a page 
of the Appendix, infra.

4 Women, though qualified, are not compelled to serve on juries 
and may be excused upon request. 6a. Code Ann. §59-124.



6

(R. 136). Petitioner, counsel testified, was charged with 
the murder of a white man who was well liked by the white 
community (R. 118). Trial counsel stated that “ feeling was 
pretty high in Elbert” against Brawner, and a challenge to 
the array could only have led to “ increased feeling or 
sentiment against the man” (R. 119).

The Superior Court denied the petition, inter alia, on 
the ground that petitioner should have challenged the array 
prior to his trial and his omission constituted a waiver of 
his right to do so. Sua sponte, the Court found that peti­
tioner’s sentence was illegal under the scrupled juror rule 
of Witherspoon v. Illinois, 391 U.S. 510 (1968) and re­
manded the case to the Superior Court of Elbert County 
for resentencing (R. 75-76). The Court’s order and judg­
ment was entered on January 21, 1969 and petitioner duly 
filed an appeal of that order and judgment in the Supreme 
Court of Georgia. Petitioner contended that his failure to 
challenge the jury selection processes at the time of his 
trial did not constitute a valid waiver of his right to do so, 
and further urged that a prima facie case of racial discrim­
ination in jury selection had been established below. On 
May 8, 1969, the Supreme Court of Georgia entered an 
order affirming the judgment and order of the Superior 
Court of Tattnall County, Chief Justice Duckworth dis­
senting. On May 15, 1969, petitioner filed a motion for re­
hearing. The motion was denied on May 22, 1969, Chief 
Justice Duckworth dissenting (7a).

The Presentation of the Federal Questions

The federal questions were raised in the petition for 
writ of habeas corpus at the inception of this action and 
throughout the proceedings; in the brief on appeal to the 
Supreme Court of the State of Georgia, and in the petition



7

for rehearing addressed to that Court. It was alleged that 
petitioner’s rights under the Fourteenth Amendment to the 
Constitution of the United States had been violated because 
the jury which tried him was the product of racially dis­
criminatory selection procedures. It was further alleged 
that petitioner had not constitutionally waived his right to 
vindicate his federal claim. The lower state court ruled 
that petitioner had waived his right to raise the federal 
question (E. 72). The Supreme Court of Georgia affirmed 
the lower court’s finding of waiver (5a) ; and further stated 
that the rule of Whitus on which petitioner based his unre­
butted prima facie claim of racial discrimination is non­
retroactive (5a).

REASONS FOR GRANTING RELIEF

I.

Certiorari Should be Granted to Determine Whether 
Petitioner Established an Unrebutted Prima Facie Case 
of Racial Exclusion of Negroes From Jury Service in 
Violation of the Equal Protection Clause of the Four­
teenth Amendment.

Georgia Code §92-6307, effective at the time of peti­
tioner Brawner’s trial6 provided that “names of colored 
and white taxpayers shall be made out separately on the 
tax digest.” Under local practice of Elbert County, where

6 Although the statute requiring racial designations on the tax 
records has since been repealed in Georgia, the persistence of simi­
lar requirements in other states makes the issue as worthy of con­
sideration now as it was at the time of Whitus. See, e.g., Ark. 
Stat. Ann. §§3-118, 3-227, 39-208, sustained in Maxwell v. Stevens, 
348 F.2d 325 (8th Cir. 1965), and again sustained following 
Whitus in Maxwell v. Bishop, 257 F.Supp. 710 (E.D. Ark. 1966), 
denial of application for certificate of probable cause rev’d, 385 
U.S. 650 (1967).



8

Brawner was tried and convicted, separate sections of the 
tax digest were maintained for white and Negro names 
(E. 185).

Georgia law requires that the jury commissioners—who 
are appointed by the Superior Court—“ select from the 
books of the tax receiver upright and intelligent citizens 
to serve as jurors, and shall write the names of the per­
sons so selected on tickets.” Ga. Code Ann. §59-106.

Petitioner Brawner’s claim of systematic racial discrim­
ination in prospective grand and petit juror selection in 
Elbert County, Georgia, and the factual record on which it 
is based are identical to those presented to this Court in 
Whitus v. Georgia, 385 U.S. 545 (1967).6 See also Bostick 
v. South Carolina, 386 U.S. 479 (1966), reversing 247 S.C. 
22, 145 S.E.2d 439; Sullivan v. Georgia, 390 U.S. 410 (1968), 
reversing 223 Ga. 157, 154 S.E.2d 247; Jones v. Georgia, 
389 U.S. 24 (1967), reversing 223 Ga. 157, 154 S.E.2d 228; 
Cobb v. Georgia, 389 U.S. 12 (1967), reversing 222 Ga. 733, 
152 S.E.2d 403; Anderson v. Georgia, 390 U.S. 206 (1968), 
reversing 223 Ga. 174, 154 S.E.2d 246.

In both cases all-white jury commissioners relied upon 
their personal knowledge of persons listed in the tax digest 
in applying vague statutory qualifications for jury service. 
At the time they select persons from the tax digest, white 
jury commissioners are palpably confronted with the racial 
identity of each taxpayer. This racial reminder is the more 
efficacious because the provision governing jury selection, 
Ga. Code Ann. §59-106, gives no specific guidance to the

6 The same statutorily required segregated tax digest was used 
in that ease, and Whitus presented evidence in the lower court 
that Negroes comprised 42.6% of the population 21 years or older, 
27.1% of the names on the segregated tax digest, and only 8% of 
the names on the grand and petit jury rolls. As was true in 
Brawner’s case, no Negro served on the jury which tried Whitus.



9

commissioners in their choice of jurors. Bather, the statute 
requires the commissioners to employ vague, subjective 
criteria—uprightness and intelligence—which themselves 
permit a broad discretion that may be exercised in a dis­
criminatory manner. Cf. United States v. Louisiana, 225 
F.Supp. 353, 396-97, aff’d, 380 U.S. 145; United States v. 
Atkins, 323 F.2d 733 (5th Cir. 1963), and cases there cited; 
Rabinowitz v. United States, 366 F.2d 34, 58 (5th Cir. 
1966).7

Georgia’s statutory requirement of racial segregation of 
tax records and the exclusive resort to such records in the 
compilation of grand and traverse jury rolls had on at 
least two occasions been condemned by this Court prior to 
its holding in Whitus. See Avery  v. State of Georgia, 345 
U.S. 559 (1953); Williams v. State of Georgia, 349 U.S. 
375 (1955). In Avery, supra, at p. 562, this Court held:

“ Even if the white and yellow tickets were drawn from 
the jury box without discrimination, opportunity was 
available to resort to it at other stages in the selection 
process. And, in view of the case before us . . .  we 
think that petitioner has certainly established a prima 
facie case of discrimination.”

Mr. Justice Frankfurter, concurring in Avery, pointed 
out that the unconstitutionality of the procedure sprang 
from “opportunities to discriminate, [which] experience 
tells us there will inevitably be when such differentiating 
slips are used.” Avery, swpra, at p. 564. Avery, as did

7 An appeal currently pending before the Court challenges the 
juror qualifications of Ga. Code Ann. §59-106, as unconstitutionally 
vague and directly contributory to the persistence of racial dis­
crimination in jury selection in that state. Turner v. Touche, No. 
842 (Oct. Term 1968). A  similar challenge is also pending with 
respect to Alabama’s statutory qualifications (Code of Ala., Tit. 
30 §21). Carter v. Jury Commission of Greene County, Alabama, 
No. 908 (Oct. Term 1968).



10

Whitus and Brawner, presented unrebutted statistical evi­
dence that the opportunity to discriminate had been re­
sorted to. In Avery, it was found that Negroes comprised 
25% of the population of Fulton County—where the trial 
had taken place—14% of the names in the racially segre­
gated tax digest, and 5% of the current jury list. No 
Negro was on the panel of 60 names from which Avery’s 
jury was selected. In the words of Mr. Justice Frankfurter: 
“ The mind of justice, not merely its eyes, would have to 
be blind to attribute such an occurrence to mere fortuity.” 
Avery, supra, at p. 564,

Increasingly, courts have come to recognize the validity 
and usefulness of scientific method in evaluating the re; 
suits of jury selection procedures. Determination of prob­
abilities based on actual statistics by generally accepted 
scientific methods, though consistent with intuitive judg­
ment, such as is reflected in the statement of Mr. Justice 
Frankfurter above, reinforces that judgment and makes 
it more reliable.8 The probabilities of the selection results 
found in this case have been determined:

“Assuming the combined jury list was selected at ran­
dom from the 1960 population aged 21 and over, 
the probability of 26 or fewer non-white names out 
of a total of 2,047 names is 2.35 x 10~279, which can

8 See Whitus v. Georgia, supra, at p. 552, n. 2 citing Finkelstein, 
The Application of Statistical Decision Theory to the Jury Dis­
crimination Cases, 80 Harv. L. Eev. 338 (1966) :

“ While unnecessary to our disposition o f  the instant case, it is 
interesting to note the probability involved in the situation 
before the court. . . . Assuming that 27% of the list was made 
up of the names of qualified Negroes, the mathematic prob­
ability of having 7 Negroes on a venire of 90 is .000006.”

And see Salary v. Wilson, C /A  No. 25978 (5th Cir., Julv 31 
1969), at p. 12, n. 11.



11

be written as a decimal followed by 278 zeroes and 
the number 235.

“Assuming the combined jury list was selected at 
random from the 1963 tax digest instead of from 
the population aged 21 and over, [the] probability 
of 26 or fewer non-white names out of a total of 
2,047 names is 1.04 x 10-162, which can be written as 
a decimal followed by 161 zeroes and the number 104.” 9

The Supreme Court of Georgia denied petitioner Brawn- 
er’s claims on the ground that Whitus’ holding is nonretro­
active :

“In Strauss v. Grimes, 223 Ga. 834, 835 (158 SE2d 
404), this Court held: ‘We do not believe that retro­
active application of the Whitus ease . . .  is required 
in the present case, where the grand jury indictment 
was returned December 22, 1964, and no challenge was 
made to the composition of the grand jury at the time 
of the trial, but was first made in a post conviction 
habeas corpus proceeding.’ ” (5a)

This ruling casts serious doubt and confusion on the sig­
nificance of the Whitus holding and the holdings of Avery 
and Williams as well because it threatens to limit the hold­
ings of each case to their respective narrow factual show­
ings. The struggle to vindicate Fourteenth Amendment 
rights in jury selection procedures has been long and dif­
ficult. The ruling of the Georgia Supreme Court, if unad­
dressed by this Court, can only confuse and thus disserve 
principles and rules which are settled.

9 See statement of Professor John S. deCani, infra, at 8a.



12

This Court has said that in deciding whether to limit 
a rule to prospective application, the purpose of the “new 
standard’ would be considered, as well as the reliance 
placed upon prior decisions, and the effect of the new rule 
on the administration of justice (emphasis supplied). Link- 
letter v. Walker, 381 U.S. 622 (1965); Johnson v. State of 
New Jersey, 384 U.S. 719 (1966). Thus, even before the 
principles governing retroactivity come into play, there 
must he a departure from settled doctrine. However, 
Whitus announced no new or different principles; it re­
stated the unconstitutionality—on equal protection grounds 
—of trying a Negro defendant under a system which ex­
cludes members of his race from jury service. That prin­
ciple has been consistently adhered to for nearly ninety 
years. See Strauder v. West Virginia, 100 U.S. 303 (1880). 
Nor did this Court’s holding that petitioner Whitus’ evi­
dence constituted a prima facie ease represent a new or 
radical departure from previous constitutional interpreta­
tion. Nothing said by the Court in Whitus suggests that 
the evidentiary question there presented was one of first 
impression or gave rise to considerations of retroactivity. 
To the contrary, this Court pointed out that the circum­
stances there presented were:

“ akin to those condemned in Avery  v. State of Georgia, 
345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). There 
the names of prospective Negro jurors were placed in 
the jury box on yellow tickets. Here the Commissioners 
used the . . . tax digest which was required by law to 
be, and was maintained on a racially segregated basis. 
. . .  It is this old ‘system of selection’ condemned by 
the Court of Appeals [Whitus v. Balkcom, 333 F.2d 
496 (5th Cir,, 1964] ‘and the resulting danger of abuse 
which was struck down in Avery * # Williams v. 
State of Georgia, 349 U.S. 375, 382, 75 S.Ct. 814, 819,



13

99 L.Ed. 1161 (1955).” Whitus, supra, at p. 551 (em­
phasis supplied).10

Moreover, this Court has relied on Whitus to reverse 
judgments of the Supreme Court of Georgia in analogous 
cases without inquiry into the retroactivity question. Jones 
v. Georgia, supra; Cobh v. Georgia, supra; Anderson v. 
Georgia, supra; Sullivan v. Georgia, supra. The ruling of 
the Georgia Supreme Court ignores, and is, indeed, at war 
with the impressive contrary implication of these cases.

We have urged supra that the question of retroactivity 
simply does not arise where this Court applies settled doc­
trine. But the Georgia Supreme Court, in refusing to fol­
low the holding of Whitus, voiced the fear that the retro­
active application of that case “ could bring about disastrous 
results, making it possible that . . . dangerous criminals 
would be turned loose upon society” (5a). Such a pos­
sibility standing alone has not deterred this Court from 
giving more far reaching constitutional rules retroactive 
application.11 Moreover, that policy consideration is out­
weighed by the fundamental principle with which it comes 
in conflict. In Johnson v. New Jersey; supra, this Court

10 Even if the Court concluded that Whitus is nonretroactive, 
that ruling would not— in view of Avery and Williams— be dis­
positive of Brawner’s constitutional claims. Since the circum­
stances in all four cases are strikingly similar and since as be­
tween Brawner and Whitus they are identical, Brawner’s claims—  
as were Whitus’— should have been vindicated on the basis of 
Avery and Williams.

11 Eskridge v. Washington State Prison Board, 357 U.S. 214 
(1958), applying the rule of Griffin v. People of State of Illinois, 
351 U.S. 12, requiring the State to furnish transcripts of the trial 
to indigents on appeal, to a 1935 conviction. See also Gideon v. 
Wainwright, 372 U.S. 335 (1963) and Doughty v. Maxwell, 376 
U.S. 202 (1964) : Eight of indigent accused felon to have counsel 
at the expense of the state; and see Jackson v. Denno, 378 U.S. 
368 (1964), whose rule concerning coerced confessions was retro­
actively applied on a collateral attack; and Witherspoon v. Illi­
nois, 391 U.S. 510 (1968).



14

stated that retroactive application is justified with respect 
to constitutional rules which affect “the very integrity 
of the fact-finding process. . . at p, 727. The ultimate 
constitutional principle vindicated by Whitus and earlier 
cases—the rights of a Negro criminal defendant to fair 
and impartial jury selection procedures—is such a rule.

Some of the very practical dangers which the rule guards 
against were alluded to by this Court more than eighty 
years ago:

“The very fact that colored people are singled out and 
. . . denied . . . all right to participate in the adminis­
tration of the law, as jurors, because of their color . . . 
is practically a brand upon them . . .  an assertion of 
their inferiority, and a stimulant to that race prejudice 
which is an impediment to securing to individuals of 
the race that equal justice which the law aims to secure 
to all others.

# « #'
“ It is well known that prejudices often exist against 
particular classes in the community, which sway the 
judgment of jurors, and which, therefore, operate in 
some cases to deny to persons of those classes the full 
enjoyment of that protection which others enjoy.” 
Strauder, supra, at pp. 308, 309.

The integrity of juries and jury selection procedures go 
to the heart of the fact finding process. The fact of Negro 
exclusion from juries is evidence of the very prejudice 
which a Negro defendant on trial for his life must be pro­
tected against. Whitus v. Balkcom, supra. The chronic 
absence of Negroes on juries—although they comprise a 
substantial percentage of the population—is evidence to 
an all-white jury of official complicity in perpetuating racial 
bigotry. The fairness of the trial of a Negro criminal



15

defendant—particularly where, as in this case, the charge 
is murder of a white person—in such circumstances is 
severely jeopardized by an atmosphere of officially sanc­
tioned pre-judgment.

Petitioner was tried and convicted by a grand and petit 
jury from which Negroes were racially excluded in viola­
tion of his rights under the equal protection clause of the 
Fourteenth Amendment. Accordingly, his conviction should 
be reversed. Strauder v. West Virginia, supra; Pierre v. 
State of Louisiana, 306 U.S. 354 (1939); Jones v. Georgia, 
supra; Cobb v. Georgia; Anderson v. Georgia, supra; Sul­
livan v. Georgia, supra.

II.

There Was No Valid Waiver by Petitioner of His 
Constitutional Might to Challenge the Elbert County 
Prospective Juror Selection Procedures.

Petitioner challenged the selection procedures of the 
juries which indicted and tried him for the first time 
on petition for writ of habeas corpus. The United States 
District Court of the Middle District of Georgia dis­
missed the application without prejudice, on the ground 
that petitioner had failed to exhaust his state remedies. 
Until recently, the State of Georgia, through its courts, 
"imposed rigid, sometimes technical restrictions” on such 
applications for writ of habeas corpus. Peters v. Rutledge, 
397 F.2d 731, 737 (5th Cir., 1968).12 * 14 In 1967 the Georgia 
legislature enacted a habeas corpus act which created a

12 For other eases in which the Fifth Circuit has alluded to the 
difficulties concerning such applications, see McGarrah v. Dutton,
381 F.2d 161, 165 (5th Cir., 1967) ; Mobley v. Dutton, 380 F.2d
14 (5th Cir., 1967); Whippier v. Balkcom, 342 F.2d 388 (5th Cir., 
1965) ; Smart v. Balkcom, 352 F.2d. 502 (5th Cir., 1965) ; C oll v. 
Balkcom, 339 F.2d 95 (5th Cir. 1964).



16

right of collateral attack based upon claims not previously 
raised.13 The explicit purpose of Georgia’s Habeas Cor­
pus Act of 1967, and the standards of valid waiver which 
it sets forth have led the Court of Appeals for the Fifth 
Circuit to presume that “ the new Act seems to have 
expressly adopted the federal standard of waiver.” Peters 
v. Rutledge, supra, at p. 737.14 13 14 *

13 “ Be it Enacted by the General A ssembly of Georgia : 
“ Section 1. Statement of Legislative Intent and Purpose. The

General Assembly finds that expansion of the scope of habeas corpus 
in federal court by desisions [sic] of the United States Supreme 
Court, together with other decisions of said court (a) substantially 
curtailing the doctrine of waiver of constitutional rights by an 
accused and (b) limiting the requirement of exhaustion of state 
remedies to those currently available, have resulted in an in­
creasingly larger number of state court convictions being col­
laterally attacked by federal habeas corpus based upon issues and 
contentions not previously presented or passed upon by courts 
of this State; that such increased reliance upon federal courts 
tends to weaken state courts as instruments for the vindication 
of constitutional rights, with a resultant deterioration of the fed­
eral system and federal-state relations; that to alleviate said 
problems, it is necessary that the scope of state habeas corpus be 
expanded and the state doctrine of waiver of rights be modi­
fied . . Laws, 1967, p. 835.

“ Section 50-127 . . .
“ (1) Grounds for Writ. Any person imprisoned by virtue of 

a sentence imposed by a state court of record who asserts that 
in the proceedings which resulted in his conviction there was a 
substantial denial of his rights under the Constitution of the 
United States or of the State of Georgia of the laws of the State 
of Georgia may institute a proceeding under this Section. Rights 
conferred or secured by the Constitution of the United States shall 
not he deemed to have been waived unless it is shown that there 
was an intentional relinquishment or abandonment of a known 
right or privilege which relinquishment was participated in by 
the party and was done voluntarily, knowingly and intelligently.”  
Laws, 1967, p. 836 (Emphasis added).

14 After the Act went into effect the federal courts modified
their earlier practice with respect to collateral attack of Georgia 
judgments and adopted a stringent rule of exhaustion of state 
remedies. Peters v. Rutledge, supra; Green v. Myers, 401 F.2d 
890 (5th Cir., 1969); Rearden v. Smith, 403 F.2d'773 (5th Cir.



17

The Superior Court ruled that petitioner’s habeas peti­
tion was “without merit” because the challenge to the 
array had not been raised by trial counsel (E. 72). The 
Court took no account of trial counsel’s testimony as to 
the circumstances which compelled his silence beyond 
noting that: “ Counsel for the accused stated that he did 
not challenge the array because he thought it was best 
not to raise that point” (R. 72).

The Supreme Court of Georgia noted the holding of 
the Superior Court:

“ The court held that [the claim] was without merit 
since there was no challenge to the array when the 
appellant was tried” (4a).

However, the Georgia Supreme Court does not appear 
to have rested its decision on that ground because it pro­
ceeded to discuss the applicability of Whitus to the merits 
of petitioner’s claim. I f  the Supreme Court of Georgia’s 
decision does rest on an affirmance of the Superior Court’s 
finding that Brawner waived his right, it is clearly con­
trary to the factual record and should be reversed.16

Whether a federal right has been waived is a federal 
question. Fay v. Noia, 372 U.S. 391 (1963). It is an 
established constitutional principle that a valid waiver is 
an “intentional relinquishment or abandonment of a known 
right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 
(1938).

16 A  state court determination, as a matter of discretion, of a 
federal constitutional question raised at a late stage of a case does 
not preclude this court from assuming jurisdiction and deciding 
whether state court action in the particular circumstances was, 
in effect, an avoidance of a federal right. Williams v. State of 
Georgia, 349 U.S. 375 (1955).



18

“ [Cjourts indulge every reasonable presumption 
against waiver of fundamental constitutional rights,” 
and “ do not presume acquiescence in the loss of fun­
damental rights.” Johnson v. Zerbst, at p. 464.

A choice made by counsel not participated in by the 
petitioner does not automatically bar relief. Fay v. Noia, 
supra; and see United States ex rel. Seals v. Wiman, 304 
F.2d 53 (5th Cir. 1962), cert, denied 372 U.S. 924 (1963). 
In this case petitioner’s trial counsel did not consult with 
him on the question of whether or not a challenge to jury 
selection procedures should be made (R, 113, 119). Fur­
thermore, it cannot be said, on the basis of the record, 
that trial counsel’s forebearance was based on “ strategic, 
tactical, or any other reasons that can fairly be described 
as the deliberate by-passing of state procedures.” Fay 
v. Noia, supra, at p. 439.

The factual circumstances surrounding the question of 
waiver in this case are materially identical to those which 
obtained in the case of Whitus v. Balhcom, 333 F.2d 496 
(5th Cir. 1964).16 The Court of Appeals found the fol­
lowing facts concerning the alleged waiver by Whitus:

The two Negro petitioners were tried in the Superior 
Court of Mitchell County, Georgia, for the murder 
of a white farmer. They were convicted and sen­
tenced to die. Mitchell County is a small county in 
rural Georgia. No Negro has ever served on a grand 
jury or on a petit jury in Mitchell County. The at­
torneys for the petitioners were fully aware of this 
fact. They were also fully aware of the hostility that 
an attack on the all-white jury system would generate 
in a community already stirred up over the killing.

16 Affirmed sub nom. Whitus v. Georgia, 385 U.S. 545 (1967).



19

Without consulting the defendants, the attorneys de­
cided not to object, in the trial or on appeal, to the 
systematic exclusion of Negroes from either jury. 
At p. 498.

Brawner’s trial counsel was fearful of the harmful 
effects to his client were he to raise the jury discrimina­
tion issue (R. 119) and his decision to remain silent was 
dictated by that fear.

In such circumstances there is a strong inference that, 
counsel was no less fearful of likely harmful effects to his 
own social and professional life. United States ex rel. 
Goldsby v. Harpole, 263 F.2d 71 (5th Cir., 1959) cert, 
denied 361 II.S. 838 (1959). The Fifth Circuit has taken 
judicial notice of the fact “ that lawyers residing in many 
southern jurisdictions rarely, almost to the point of never, 
raise the issue of systematic exclusion of Negroes from 
juries.” Goldsby, at p. 82.

The reality of Brawner’s trial counsel’s decision to re­
main silent is identical to that which was found and suc­
cinctly summarized by the Fifth Circuit in Whitus v. 
BaVkcom, supra, at pp. 498-499:

“ The petitioners and their attorneys had no desire 
to give up their right to be tried by a jury chosen 
without regard to the race of the jurors. It was not 
to their interest to do so—except as a choice of evils. 
A choice of evils was indeed the only state remedy 
open to them. The petitioners could choose to be 
prejudiced by the hostility an attack on the all-white 
jury system would stir up. Or they could choose to 
be prejudiced by being deprived of a trial by a jury 
of their peers selected impartially from a cross-sec­
tion of the community. This is the ‘grisly’, hard,



20

Hobson’s choice the State puts to Negro defendants 
when it systematically excludes Negroes from juries; 
white defendants are not subjected to this burden.

“ The constitutional vice is not just the exclusion of 
Negroes from juries. It is also the State’s requiring 
Negro defendants to choose between an unfairly con­
stituted jury and a prejudiced jury. We hold that 
this discrimination violates both the equal protection 
and the due process clauses of the Fourteenth Amend­
ment.”

The ruling of Georgia’s Supreme Court is diametrically 
opposed to the ruling of the Court of Appeals for the 
Fifth Circuit in Whitus v. Balhcom, supra, and to the 
ruling and disposition of that case by this Court. In 
Whitus, the Fifth Circuit undertook a painstaking ex­
amination and discussion of the development and applica­
tion of the federal rule of waiver, and carefully analyzed 
the facts of that case in the context of its discussion of 
the rule. In its opinion, the Supreme Court of Georgia 
does neither, and completely ignores the factual identity 
of the two cases. The Court also completely ignores the 
consistency of the Whitus ruling with earlier Fifth Circuit 
opinions in strikingly analogous cases. See United States 
ex rel. Seals v. Wiman, supra; United States ex rel. 
Goldsby v. Harpole, supra; Labat v. Bennett, 365 F.2d 698 
(5th Cir., 1966). Conflict has thus been engendered be­
tween two judicial systems in a matter of fundamental 
constitutional importance and that conflict can only have 
deleterious effects on the development of the federal 
waiver rule and on the relationship between state and 
federal courts unless it is promptly resolved by this Court. 
Pearce v. North Carolina, 372 U.S. 937 (1963).



21

CONCLUSION

For the foregoing reasons a writ of certiorari should 
be granted and the judgment below reversed.

Respectfully submitted,

Jack Greenberg 
Norm an C. A makeb 
James N. F inney

10 Columbus Circle 
New York, New York 10019

H oward Moore, J r.
Peter E. R indskopf

859% Hunter Street, N. W. 
Atlanta, Georgia 30314

Attorneys for Petitioner



APPENDIX



302

Supreme Court of Georgia 

Decided May 8, 1969 

25131. Brawker v. Smith, Warden.

1. The order of the court was a final judgment from which 
an appeal could be taken.

2. The case of Whitus v. Georgia, 385 U.S. 545 (87 SC 
643, 17 LE2d 599), will not be given retroactive appli­
cation in a case in which no challenge to the array of 
jurors, on the ground of racial discrimination, was made 
at the time of the appellant’s trial.

3. The court did not abuse its discretion in determining 
that incriminatory statements of the appellant, intro­
duced in evidence on his trial, were voluntarily made 
after he had been fully advised of his constitutional 
rights.

Opinion and Judgment of the
Supreme Court of Georgia



2a

Mobley, Justice. This appeal is from a judgment in a 
habeas corpus case. The appellant was convicted of murder 
and given a death sentence on March 9, 1965. The judge 
hearing the habeas corpus proceeding made findings of 
fact and law, and determined that the appellant’s convic­
tion was not invalid on any ground made in the habeas 
corpus petition, but found that his sentence was illegal 
under the rulings made in Witherspoon v. Illinois, 391 
U.S. 510 (88 SC 1770, 20 LE2d 776), because jurors had 
been excused for cause by reason of their conscientious 
opposition to capital punishment. The order noted that the 
Witherspoon case had been followed by this court in Miller 
v. State, 224 Ga. 627 (8) (163 SE2d 730); and Arkwright 
v. Smith, 224 Ga. 764 (1) (164 SE2d 796).

It was stated in the order as follows: “In fashioning a 
remedy this court is aware that the full entitlement set 
forth in the decision of the Supreme Court of Georgia will 
require independent judicial action by the original sen­
tencing court, i.e., the Superior Court of Elbert County, 
Georgia. The court has been advised that the competent 
authorities in Elbert County are prepared to initiate such 
action. Rather than enter an order declaring invalid the 
custody under which petitioner is currently being held, 
it is the court’s opinion that the smooth administration of 
justice will be best furthered by a stay of these habeas 
corpus proceedings pending compliance by the Superior 
Court of Elbert County with the directions contained in 
the Witherspoon, Miller and Arkwright cases cited above 
herein.”

It was then ordered: that the “proceedings in this matter 
be stayed for a period not to exceed 90 days. . that 
the respondents be restrained and enjoined from carrying

Opinion and Judgment of the Supreme Court of Georgia



3a

out the sentence of death by execution, and from quarter­
ing the appellant in that portion of the Georgia State 
Prison set aside for those awaiting execution; and that 
the appellant “be remanded to the custody of the respon­
dent who is directed to arrange for the return of petitioner 
to the lawful authorities of Elbert County, Georgia for 
retrial, the only question to be decided by the court upon 
retrial will be the sentence imposed upon the verdict as 
stated in the Witherspoon case and in the Miller case.”

1. The respondent has filed a motion to dismiss the ap­
peal on the ground that the order appealed from is not a 
final judgment. There is language in the order which in­
dicates that this is true. However, the order decides all 
questions made in the case, and no provision is made for 
any further determination in the matter on a future hearing.

If the judge trying a habeas corpus case involving a per­
son whose liberty is being restrained by virtue of a sen­
tence imposed by a State court of record finds in favor of 
the petitioner, he is authorized to “ enter an appropriate 
order with respect to the judgments or sentence in the 
former proceedings and such supplementary orders as to 
rearraignment, retrial, custody, bail or discharge as may 
be necessary and proper.” Ga. L. 1967, pp. 835, 836 (Code 
Ann. §50-127 (7)). The judge in the present case exer­
cised this authority by ordering the remand of the appel­
lant to the custody of the warden, who was directed to 
arrange for his return to the lawful authorities of Elbert 
County for retrial on the question of his sentence only.

The only question before the court was the validity of 
the present confinement and the sentence under which he 
was restrained, and the judge had no authority to deal 
with a future imprisonment under another sentence. Balk-

Opinion and Judgment of the Supreme Court of Georgia



4a

com v. Craton, 220 Ga. 216, 218 (138 SE2d 163); Balkcom 
v. Hurst, 220 Ga. 405 (139 SE2d 306); Dutton v. Knight, 
223 Ga. 140 (153 SE2d 714). He had no authority to exer­
cise any supervisory control over the appellant. His duty 
had been discharged when he made his findings of law and 
fact, and remanded the appellant to the custody of the 
warden, with directions that he be returned for retrial 
on the question of his sentence in the Superior Court of 
Elbert County. It was thus a final judgment, and one 
from which an appeal could be taken.

2. The first and second enumerations of error contend 
that the court erred in denying the appellant’s petition for 
writ of habeas corpus on the ground that his conviction 
and sentence are unconstitutional under the due process 
and equal protection clauses of the United States Consti­
tution because the appellant, a Negro, was indicted by a 
grand jury, and tried by a traverse jury, illegally com­
posed due to racial discrimination. The court held that 
this ground was without merit since there was no challenge 
to the array when the appellant was tried.

The appellant introduced in evidence figures from the 
Census of 1960, showing the number of white and non­
white persons living in Elbert County; the composition 
of the jury lists at the time of the appellant’s trial, which 
were selected from segregated tax digests, and the dis­
parity between the percentages of Negroes in the county, 
and on the tax digests, and the Negroes on the jury lists 
at the time of the appellant’s trial. It is contended that 
under the ruling of the Supreme Court of the United States 
in Whitus v. Georgia, 385 U.S. 545 (87 SC 643, 17 LE2d 
599), this constituted prima facie evidence of purposeful 
discrimination.

Opinion and Judgment of the Supreme Court of Georgia



5a

The Whitus ease was decided January 23, 1967, nearly 
two years after the appellant’s trial. In Strauss v. Grimes, 
223 Ga. 834, 835 (158 SE2d 404), this court held: “We do 
not believe that retroactive application of the Whitus case, 
385 U.S. 545, supra, is required in the present case, where 
the grand jury indictment was returned December 22, 
1964, and no challenge was made to the composition of the 
grand jury at the time of the trial, but was first made in 
a post conviction habeas corpus proceeding.” It was 
pointed out that retroactive application of the Whitus case 
could bring about disastrous results, making it possible 
that persons convicted many years ago of serious crimes 
might establish racial discrimination in the selection of the 
juries trying them, to which no challenge was made, and 
because of the inaccessibility of witnesses to again indict 
and convict them, these dangerous criminals would be 
turned loose upon society. Certiorari was denied in Strauss 
v. Grimes, supra, 391 U.S. 903 (88 SC 1651, 20 LE2d 417). 
See also Massey v. Smith, 224 Ga. 721 (1).

The court did not err in denying this ground of the 
petition for habeas corpus.

3. The third enumeration of error contends that the 
appellant’s conviction and sentence are unconstitutional 
under the due process and equal protection clauses of the 
United States Constitution because “a confession was in­
troduced in evidence against him which was involuntarily 
given in the absence of counsel.”

At the hearing the appellant testified: He was 23 years 
of age at the time he was indicted. He finished high school 
at the age of 20. He did not know the meaning of the 
words “ freely and voluntarily,” “ remote,” “benefit,” and 
“coercion.”  At the time he made statements to the law

Opinion and Judgment of the Supreme Court of Georgia



6a

enforcement officers he had not been advised that any­
thing he said would be used against Mm, or that he would 
be furnished free counsel. He had been struck on the head 
during the incident in which the homicide occurred, and 
had lost blood from this wound. When the officers were 
talking to him his head was hurting “ real bad,”  and he was 
tired, cold, and hungry.

The depositions of L. Adger Moore, Sheriff of Elbert 
County, and George Ward, Chief of Police of Elberton, 
were introduced in evidence. Both testified that: Prior to 
the time they questioned the appellant, they told him that 
he did not have to make any statement to them, that he 
could remain completely silent, that if he did make a state­
ment, it could and probably would be used against him, 
and that he was entitled to an attorney, and that if he 
did not have the money to hire an attorney, the judge 
would appoint him an attorney at no cost to him. The 
appellant replied that he was ready to talk to them and 
that he did not need a lawyer. His statements were made 
without the offer of any reward or relief to induce him to 
make the statements, and without any threats to him 0r to 
any members of his family.

Under this conflicting evidence, the judge was authorized 
to find that the appellant had been advised of his consti­
tutional rights prior to making the oral statements which 
were introduced in evidence on his trial for murder. The 
evidence does not show such coercive circumstances as to 
render the incriminatory statements inadmissible in evi­
dence, and it was not error to deny this ground of the 
appellant’s petition for habeas corpus. Compare Frazier v. 
Warden, U.S. (No. 643, October Term, 1968, decided April 
22, 1969).

Judgment affirmed. All the Justices concur.

Opinion and Judgment of the Supreme Court of Georgia



7a

Denial of Rehearing by the Supreme Court of Georgia

Clerk ’s O ffice , S upreme C ourt op G eorgia

Atlanta May 22,1969

Dear Sir:

Case No. 25131, Curtis Brawner v. The State

The motion for a rehearing was denied today.

D u ck w o rth , C.J., dissents and dissents from judgment 
rendered May 8, 1969.

Yours very truly,

H enry H . C obb, Clerk

Order also entered this date staying the remittitur pend­
ing petition to the Supreme Court of the United States.

PER



8a

Letter From Prof. John S. deCani

UNIVERSITY OF PENNSYLVANIA 
P hiladelph ia  19104

Wharton School of 
Finance and Commerce

D epartm ent  of S tatistics 
and  Operations R esearch

August 15, 1969
James N. Finney, Esq.
c /o  NAACP Legal Defense Fund
Suite 2030
10 Columbus Circle
New York, New York

Dear Mr. Finney:

In answering your questions, I take the following as 
given:

1. The United States Census for 1960 shows the popula­
tion of Elbert County, Georgia, aged 21 and over to be 
composed of 7317 white persons and 2817 non-white per­
sons.

2. The Elbert County, Georgia, Tax Digest for 1963 
contains the names of 4760 white persons and 971 non­
white persons.

3. The Elbert County Jury Revision of August, 1963, 
contains the names of 2021 white persons and 26 non­
white persons on the combined Traverse and Grand Jury 
Lists.



9a

Letter From Prof. John S. deCani

Assuming the combined jury list was selected at random 
from the 1960 population aged 21 and over, the probability 
of 26 or fewer non-white names out of a total of 2047 
names is 2.35 x 10-279, which can be written as a decimal 
followed by 278 zeroes and the number 235.

Assuming the combined jury list was selected at ran­
dom from the 1963 Tax Digest instead of from the popula­
tion aged 21 and over, probability of 26 or fewer non­
white names out of a total of 2047 names is 1.04 x 10“162, 
which can be written as a decimal followed by 161 zeroes 
and the number 104.

I believe that any competent statistician, faced with the 
same data, would conclude that the combined jury list 
was not selected at random from either the population 
aged 21 and over or the Elbert County Tax Digest for 
1963.

Sincerely yours,

/ s /  J o h s  S. deCani 
John S. deCani 
Associate Professor

JSdeC :rms



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