Brown v. Ramsey Brief for Appellants and Joint Appendix

    I n  th e

(Emtr! of tip & M vb

October Term, 1967 

No..............

Isaac Sims, Jr.,
Petitioner,

— v .—

State oe Georgia.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

J ack Greenberg 
J ames M. Nabrit, III  
Conrad K. Harper

10 Columbus Circle 
New York, New York 10019

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

H oward Moore, J r.
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

Attorneys for Petitioner



I N D E X

Opinion B elow ................      1

Jurisdiction .......................................................................... 1

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

Constitutional and Statutory Provisions Involved ........ 4

Statement ...............................   5

A. Facts Regarding Petitioner’s Confession.....  8

B. Racial Discrimination in the Selection of Peti­
tioner’s Grand and Traverse Juries...............  11

Reasons for Granting the Writ

PAGE

I. Petitioner’s Constitutional Rights Were Violated 
by the Use at His Trial of Confessions Which 
(A) Were Judged by Standards of Voluntari­
ness That Were Not in Accord with Constitu­
tional Requirements; (B) Were Obtained in 
Inherently Coercive Circumstances Following 
the Uncontested Physical Brutalization of Peti­
tioner While in Police Custody; and (C) Were 
Obtained in Violation of Petitioner’s Sixth 
Amendment Bight to the Assistance of Counsel 14

Introduction .................................................... .........  14

A. The Standards Applied Below to Determine 
Voluntariness Were Insufficient to Satisfy 
Constitutional Requirements ..........................  16



IV

Table of Cases:

Anderson v. Martin, 375 U. S. 399 ..................................  52
Arnold v. North Carolina, 376 U. S. 773 ........................... 56
Aro Manufacturing Co. v. Convertible Top Co., 377

U. S. 476 ............................................................................ 2
Ashcraft v. Tennessee, 322 U. S. 143..............................  23
Avery v. Georgia, 345 U. S. 559 ....... ...............................51, 52

Blackburn v. Alabama, 361 XJ. S. 199............................... 43
Bostick v. South Carolina, 386 U. S. 479, reversing 247

S. C. 22, 145 S. E. 2d 439 (1965) ................................ 47, 49
Brooks v. Beto, 366 F. 2d 1 (5th Cir. 1966) ....... ............  56
Brown v. Mississippi, 297 U. S. 278..................................  22
Brubaker v. Dickson, 310 F. 2d 30 (9th Cir. 1962), cert, 

den. 372 U. S. 978 ............................................................ 45

Carter v. Texas, 177 TJ. S. 442 ......... ..............................  56
Chambers v. Florida, 309 U. S. 227 ................................  23
Clewis v. Texas, 386 U. S. 707 ......... -.............................. 38
Coleman v. Alabama, 377 U. S. 129...... -...........................  55
Communist Party v. Subversive Activities Control

Board, 367 U. S. 1 ........................................................ 57
Crooker v. California, 357 U. S. 433 ................................  44
Culombe v. Connecticut, 367 U. S. 568 ...................22, 37, 42

Davis v. North Carolina, 384 U. S. 737 .......................22,42

Escobedo v. Illinois, 378 U. S. 478 ...................... 3, 43, 44,46
Eubanks v. Louisiana, 356 U. S. 584 ................................. 56

Fikes v. Alabama, 352 U. S. 191 ............... 3, 22, 35, 36, 38,42

Griffith v. Rhay, 282 F. 2d 711 (9th Cir. 1960), cert, 
den. 364 U. S. 941 ..................................................... 44,45

PAGE



V

Haley v. Ohio, 332 U. S. 596 ............................................ 36, 37
Hamm v. Virginia State Board of Elections, 230 F. 

Snpp. 156 (E. D. Va. 1964), a il’d snb nom. Tancil
v. Woolls, 379 U. S. 1 9 ................... ... ...........................50, 51

Haynes v. Washington, 373 U. S. 503 ...................23, 28, 37
Hartford Life Ins. Co. v. Blincoe, 255 LT. S. 129........... 2
Hernandez v. Texas, 347 U. S. 475 ..................................  56

Jackson v. Denno, 378 IT. S. 368 ...........................6, 7,18,47
Johnson v. New Jersey, 384 U. S. 719 ...........................41, 43
Johnson v. Pennsylvania, 340 IT. S. 881.......................... 37
Johnson v. Zerbst, 304 U. S. 458 ......................................  37

Lisenba v. California, 314 U. S. 219 ..............................  43

Malinski v. New York, 324 IT. S. 401 .............................22, 36
Massiah v. United States, 377 U. S. 201 .......................45, 46
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 ........................................................  48

Maxwell v. Stevens, 348 F. 2d 325 (8th Cir. 1965) .......  48
Messinger v. Anderson, 225 U. S. 436 ........................... 2
Miranda v. Arizona, 384 U. S. 436 ........................—41, 42, 43
Mutual Life Insurance Co. v. Hill, 193 U. S. 551............. 2

Neal v. Delaware, 103 U. S. 370 .......... ........ ...................  56
Norris v. Alabama, 294 U. S. 587 ...................   51, 56
Payne v. Arkansas, 356 U. S. 560 ...................................22, 36
Payton v. United States, 222 F. 2d 794 (D. C. Cir.

1955) ............................................................................... 39,42
Pierre v. Louisiana, 306 U. S. 354 ........ ..... ....................  56
Powell v. Alabama, 287 U. S. 4 5 ........................................  46

PAGE



V I

Rabinowitz v. United States, 366 F. 2d 34 (5th Cir.
1966) ............................-....................................................  50

Reck v. Pate, 367 U. S. 433 ................................................  38
Reece v. Georgia, 350 U. S. 85 ....................................... - 56
Rogers v. Richmond, 365 U. S. 534 .............................. 21, 23

Scott v. Walker, 358 F. 2d 561 (5th Cir. 1966) ...............  56
Sims v. Balkcom, 220 Ga. 7, 136 S. E. 2d 766 (1964) —.2, 55
Sims v. Georgia, 384 U. S. 998 ..........................................  2
Sims v. Georgia, 385 U. S. 537 ..... .............. —2, 7, 8,12,16,17,

18, 38,47, 54
Sims v. State, 221 Ga. 190,144 S. E. 2d 103 (1965) .......6, 20
Smith v. Texas, 311 U. S. 128 ...... ................................ 56
Spano v. New York, 360 U. S. 315  ........................43,45,46
Stein v. New York, 346 U. S. 156 .................................. 40, 42

Turner v. Pennsylvania, 338 U. S. 62 ............................... 37

United States v. Atkins, 323 F. 2d 733 (5th Cir. 1963) 50
United States ex rel. Goldsby v. Harpole, 263 F. 2d 71

(5th Cir. 1959) ................................................................ 56
United States v. Louisiana, 225 F. Supp. 353, aff’d 380

PAGE

U. S. 145 .........................................................................  50
United States ex rel. Seals v. Wiman, 304 F. 2d 53 (5th 

Cir. 1962) ....... ..................................................... -.........  56

Wan v. United States, 266 U. S. 1 ....................-............. 22, 23
Ward v. Texas, 316 U. S. 547 ........................................  23
Watts v. Indiana, 338 U. S. 49 ......................................  36
Whitus v. Georgia, 385 U. S. 545 ........ ...... 3,7,8,11,47,48,

49, 51, 52, 53, 54



VII

page

Williams v. Georgia, 349 U. S. 375 ..............................  52
Wolff Packing Co. v. Court of Indus. Relations, 267 

U. S. 552 .........................................................................  2

Statutes:

23 U. S. C. §1257(3) ........................ ................................... 2

Ark. Stat. Ann. §§3-118, 3-227, 39-208 ............................  48

Ga. Code §27-209 (1933) ............................................32,45,46

Ga. Code §27-212 (1933) .................................................. 32

Ga. Code §38-411 (1933) ........... ........................................ 4, 20

Ga. Code Ann., §59-106 (1965 Rev. Yol.) ......... ....... 4,12, 49

Ga. Code §92-6307 (1933) .... ............................................. 5,12

Ga. Code Ann. §92-6307 (1966 Supp.) .......................... 5,48

Other Authorities:

Finkelstein, The Application of Statistical Decision 
Theory to the Jury Discrimination Cases, 80 Harv.
L. Rev. 338 (1966) ...... ................................................. 53, 54

Harvard Computation Laboratory, Tables of the 
Cumulative B inomial P robability D istribution 
(1955) ................ ................................ .................. ...........  8a

Hoel, Introduction to Mathematical Statistics (1962) 53



In the

Hi!|iirjiitJ? Cfomrt ni %  lu M  BtaUa
October Term, 1967 

No..............

I saac Sims, Jb., 

—v.—

State of Geobgia.

Petitioner,

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 June 22, 1967, rehearing of 
which was denied on July 6, 1967.

Opinion Relow

The opinion of the Supreme Court of Georgia is reported
a t ------  Ga. ------ , 156 S. E. 2d 65. It is set forth in the
appendix, infra, pp. la-5a.

Jurisdiction

The judgment of the Supreme Court of Georgia was 
entered June 22, 1967 (IR. 285, infra, p. 6a)1 and motion

1 The certified record is in two parts: Part One (cited as IE. 
 ) consists of proceedings in this cause following the issuance



2

for rehearing was denied July 6, 1967 (IE. 291, infra, p. 
7a). On September 15, 1967, Mr. Justice Black stayed 
enforcement of the sentence of death upon petitioner pend­
ing the timely filing and disposition of a petition for writ 
of certiorari.

The jurisdiction of this Court is invoked pursuant to 
28 U. -S. C. §1257(3), petitioner having asserted below and 
asserting here deprivation of rights secured by the Con­
stitution of the United States.

Questions Presented2

1. Whether petitioner’s Fourteenth Amendment rights 
were violated by the admission in evidence at his capital 
trial of a confession which he contends was coerced.

of this Court’s mandate in Sims v. Georgia, 385 U. S. 538 (1967) ; 
the first page of this part of the record is denominated Case No. 
24152 in the Supreme Court of Georgia. Part Two (cited as 
H R . ------ ) consists of earlier proceedings, including those re­
viewed by this Court in Sims v. Georgia, supra; the first page of 
this part of the record is denominated Case No. 22939 in the Su­
preme Court of Georgia. Both parts of the record are paginated 
independently with the page numbers at the lower left corner.

2 This Court granted certiorari on questions 2, 4, and 6, in Sims 
v. Georgia, 384 U. S. 998, but decided the case upon another ground 
without reaching any of these questions, 385 U. S. at 539. It is 
well settled that this Court has certiorari jurisdiction over issues 
reserved in prior disposition of a cause. Mutual Life Insurance 
Co. v. Hill, 193 U. S. 551, 553-55; Hartford Life Ins. Go. v. Blincoe, 
255 U. S. 129; Wolff Packing Co. v. Court of Indus. Relations, 
267 U. S. 552; Aro Manufacturing Co. v. Convertible Top Co., 377 
U. S. 476. See Rule 19(1) (a) of this Court, 388 U. S. 948. This 
Court is not bound by the Georgia Supreme Court’s enunciation of 
the law of the case doctrine (IR. 282), in refusing to rule on mat­
ters previously adjudicated, because such a state law determination 
does not fetter the certiorari jurisdiction. See Mr. Justice Holmes’ 
opinion in Messinger v. Anderson, 225 U. S. 436.



3

2. Whether petitioner’s Fourteenth Amendment rights 
were violated by a conviction and sentence to death ob­
tained on the basis of a confession made under inherently 
coercive circumstances within the doctrine of Fikes v. Ala­
bama, 352 U. S. 191.

3. Whether petitioner’s Fourteenth Amendment rights 
were violated by the use of a confession obtained from him 
shortly after an uncontested episode of severe physical 
brutality.

4. Whether petitioner’s Fourteenth Amendment right to 
counsel as declared in Escobedo v. Illinois, 378 U. S. 478, 
was violated by the use of his confession obtained during 
police interrogation in the absence of counsel, or whether 
petitioner’s right to counsel was effectively waived.

5. Whether petitioner has established an unrebutted prima 
facie case of racial exclusion from 'Georgia juries within 
the rule of Whitus v. Georgia, 385 U. S. 545, when:

(1) The process of jury selection from a racially desig­
nated source was identical to that condemned in Whitus; 
and

(2) The resulting exclusion of Negroes from jury lists 
was comparable to that shown in Whitus.

6. Whether petitioner’s conviction is condemned by the 
Equal Protection Clause by reason of racial exclusion from 
the grand and traverse juries that indicted and convicted 
him, where:

(a) local practice pursuant to state statute required 
racially segregated tax books and county jurors were se­
lected from such books;



4

(b) the number of Negroes chosen was only 5% of the 
jurors although Negroes comprise about 20% of the county 
taxpayers; and

(c) petitioner’s offer to prove a practice of arbitrary 
and systematic Negro inclusion or exclusion based on jury 
lists of the prior ten years was disallowed.

Constitutional and Statutory Provisions Involved

This case involves the Sixth and Fourteenth Amend­
ments to the Constitution of the United States.

This case also involves the following Georgia statutes:

Ga. Code §38-411 (1933):

Confessions must be voluntary.—To make a confes­
sion admissible, it must have been made voluntarily, 
without being induced by another, by the slightest hope 
of benefit or remotest fear of injury.

Ga. Code Ann. §59-106 (1965 Rev. Vol.):

Revision of jury lists. Selection of grand and traverse 
jurors.—Biennially, or, if the judge of the superior 
court shall direct, triennial'ly on the first Monday in 
August, or within 60 days thereafter, the board of jury 
commissioners shall revise the jury lists.

The jury commissioners shall 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. 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 se­
lected as grand jurors, shall constitute the body of 
traverse jurors for the county, to be drawn for service 
as provided 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 1878-79, pp. 27, 34; 
1887, p. 31; 1892, p. 61; 1899, p. 44; 1953, Nov. Sess., 
pp. 284, 285; 1955, p. 247.)

Ga. Code §92-6307 (1933):

Entry on digest of names of colored persons.— The 
tax receivers shall place the names of the colored tax­
payers, 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.)3

Statement

Petitioner, Isaac Sims, an indigent, ignorant and illiter­
ate Negro, is under a sentence of death by electrocution im­
posed by the Superior Court of Charlton County, Georgia, 
following his conviction for the crime of raping a white 
woman.

Petitioner had previously been indicted, convicted and 
sentenced to death at the October 1963 Term of the Su­
perior Court for the same offense. That first conviction

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



6

was set aside on habeas corpus by the Georgia Supreme 
Court, which ordered a new trial, on May 7, 1964. Sims v. 
Balkcom, 220 Ga. 7, 136 S. E. 2d 766 (1964). No appeal 
from the first conviction had been taken by Sims’ court- 
appointed counsel, the court reporter had destroyed his 
trial notes, execution had been scheduled for November 13, 
1963, and a commutation of sentence had been denied (II 
R. 87, 95, 336, 338). One of Sims’ present counsel, Mr. 
Moore, then entered the case and initiated the habeas 
corpus proceedings resulting in the Sims v. Balkcom deci­
sion and obtained a stay on the day before Sims’ scheduled 
execution.

The indictment leading to Sims’ second conviction, re­
turned October 6, 1964, charged that Sims raped Nola. Jean 
Boberts on April 13, 1963, in Charlton County (HE. 20-21). 
The trial commenced the next day, October 7, 1964, and a 
jury returned a verdict of guilty without recommendation 
of mercy on October 8,1964 (HR. 22). On appeal the Geor­
gia Supreme Court affirmed the conviction, rejecting all of 
Sims’ federal constitutional claims, Sims v. State, 221 Ga. 
190, 144 S. E. 2d 103 (1965). This Court granted a writ of 
certiorari on five constitutional questions, 384 U. S. 998 
(1966).

On January 23, 1967, the Court reversed and remanded 
the cause for proceedings conforming to Jackson v. Denno, 
378 U. S. 368, without reaching any of the other issues 
raised, 385 U. S. 538. This Court’s mandate duly issued 
(IE. 6-7) and the Georgia Supreme Court, per curiam, 
issued a remittitur on February 23, 1967, directing that (a) 
the Superior Court hold a hearing on the single question 
whether Sims’ alleged confession was vohmtary; (b) wit­
nesses and other evidence might be introduced and con­



7

sidered; (c) if the Superior Court found the confession 
involuntary, a new trial should be ordered; (d) if the Su­
perior Court found the confession voluntary, the conviction 
and sentence were to be affirmed, 223 Ga. 126, 153 S. E. 2d 
567 (1967) (IE, 10-11).

On March 31, 1967, the Superior Court of Charlton 
County held a hearing at which no evidence was taken (IE.
250- 268). The Superior Court, at the request of counsel for 
both parties, agreed to decide whether Sims’ confession was 
voluntary by reviewing the printed record used in this 
Court in Sims v. Georgia, supra, No. 251, October Term, 
1966 (IE. 261-263).4 The Superior Court overruled Sims’ 
various motions for a new trial on the basis of Whitus v. 
Georgia, 385 U. S. 545 (1967) (IE. 256-260, 263-265).5

4 At the March 31, 1967 hearing, in support of petitioner’s posi­
tion that the confession’s voluntariness was to be determined on 
the basis of the printed record in Sims v. Georgia, 385 U. S. 538, 
petitioner stated that the Fourteenth Amendment required not a 
de novo hearing but only a judicial finding on voluntariness (IR.
251- 252). Petitioner offered into evidence as Exhibit I, a certified 
copy of this Court’s opinion in Sims v. Georgia, supra, which is 
reproduced at IR. 17-23. Petitioner also offered into evidence, as 
Exhibit 2, a certified copy of the transcript of record in this Court 
in Sims v. Georgia, supra, which is reproduced at IR. 24-211. 
Both exhibits were received in evidence (IR. 252). The hearing 
was before the same judge who presided at both of petitioner’s 
trials and the solicitor general represented the state at both trials 
(IR. 252-253; HR. 87, 338). One of Sims’ present counsel, Mr. 
Moore, represented him at the second trial (IR. 253). Petitioner 
moved at the hearing that the court find the confession involuntary 
on the basis of the due process clause of the Fourteenth Amendment 
(IR. 265) and the court agreed to rule on that issue after studying 
the record (IR. 267). The court overruled petitioner’s oral motion 
that a factual finding of the confession’s involuntariness be entered 
as required by the Fourteenth Amendment and Jackson v. Denno, 
378 U. S. 368 (IR. 253).

5 At the March 31, 1967 hearing, petitioner moved for a new 
trial on the basis of Whitus v. Georgia, 385 U. S. 545, on the 
grounds that petitioner’s grand and traverse juries were chosen



&

On April 19, 1967, the Superior Court rendered an opin­
ion, holding upon the printed record in Sims v. Georgia, 
385 U. S. 538, that Sims’ confession was voluntary (IR. 227- 
234). On appeal,6 the Georgia Supreme Court affirmed, 
rejecting petitioner’s federal constitutional claims on the 
grounds (1) that the doctrine of law of the case prevented 
litigation of matters previously adjudicated and (2) there 
was no error in finding the confession voluntary (IR. 282- 
284). Rehearing was denied July 6, 1967 (IR. 291).

A. Facts Regarding Petitioner’s Confession

Since the Superior Court of Charlton County, in assess­
ing whether petitioner’s confession was voluntary, wholly 
relied upon the printed certified record before this Court 
in Sims v. Georgia, 385 U. S. 538 (IR. 261-263) and since 
this Court in Sims thoroughly reviewed the applicable facts,

in a manner held unconstitutional in Whitus (IR. 256). In support 
of this motion, petitioner offered in evidence the affidavit of Mr. 
Harper, one of petitioner’s counsel, regarding the number of Ne­
groes on the grand and traverse jury box lists from which peti­
tioner’s grand and traverse juries were selected (IR. 257). The 
Superior Court, considering this motion to be outside the mandates 
issued in this cause, overruled the motion (IR. 260). The affidavit 
was not admitted in evidence (IR. 268) but it was made a part 
of the record and is reproduced at IR. 212-226. Petitioner also 
moved the Court to rule on the demand for a new trial, on the 
authority of Whitus, when it ruled on the confession’s voluntari­
ness (IR. 263-264). The Superior Court similarly considered this 
motion outside the mandates and overruled it (IR. 265).

6 Subsequent to filing a notice of appeal (IR. 3), petitioner 
filed two motions in the Superior Court: (a) Motion for Rulings 
on Oral Motions Made at Hearing, seeking in essence to obtain 
an explicit federal constitutional ruling on the voluntariness of 
petitioner’s confession (IR. 241-242) ; (b) Renewed Motion for 
New Trial on the Authority of Whitus v. Georgia, 385 U. S. 545 
(1967) (IR. 236-238). In an order dated May 9, 1967, the Superior 
Court ruled it was without authority to entertain either motion 
and, therefore, made no ruling on either (IR. 245).



9

petitioner here sets out the relevant portions of this Court’s 
opinion, 385 U. S. at 539-541, 543:

The record indicates that on April 13, 1963, a 29- 
year-old white woman was driving home alone in her 
automobile when petitioner drove up behind her in his 
car, forced her off the road into a ditch, took the woman 
from her car into nearby woods and forcibly raped 
her. When he returned to his car, he could not start 
the engine so he left the scene on foot. Some four hours 
later he was apprehended by some Negro workers who 
had been alerted to be on the watch for him. He told 
these Negroes that he had attacked a white woman. 
They then turned petitioner over to their employer 
who delivered him to two state patrolmen. He was then 
taken to the office of a Doctor Jackson who had previ­
ously examined the victim. Petitioner’s clothing was 
removed in order to test it for blood stains. Petitioner 
testified that while he was in Doctor Jackson’s office 
he was knocked down, kicked over the right eye and 
pulled around the floor by his private parts. He was 
taken to a hospital owned by Doctor Jackson, which 
was adjacent to his office, where four stitches were 
taken in his forehead. Thereafter the patrolmen took 
petitioner to Waycross, Georgia, some 30 miles distant, 
where he was placed in the county jail. During that 
evening, he saw a deputy sheriff whom he had known 
for some 13 years and who was on duty on the same 
floor of the jail where petitioner was incarcerated. He 
agreed to make a statement and was taken to an in­
terview room where, in the presence of the sheriff, the 
deputy sheriff and two police officers, he signed a writ­
ten confession. Two days later he was arraigned.



10

Prior to trial petitioner filed a motion to suppress 
the confession as being the result of coercion. A  hear­
ing was held before the court out of the presence of the 
jury. The sheriff and the deputy testified to the cir­
cumstances surrounding the taking and signing of the 
confession. Petitioner testified as to the abuse he had 
received while in Doctor Jackson’s office. He testified 
that he “ felt pretty rough for about two or three weeks 
[after the incident], more on my private than I did on 
my face” and that he “ was paining a right smart.” 
There was no contradictory testimony taken. The 
court denied the motion to suppress without opinion 
or findings and the confession was admitted into evi­
dence at petitioner’s trial.

At the trial, Doctor Jackson was a witness for the 
State. On cross-examination he denied that he had 
knocked petitioner down while the latter was in his 
office, or that he had kicked him in the forehead but 
made no mention of the other abuse about which peti­
tioner testified. The doctor stated that petitioner was 
not abused in his presence but he refused to say 
whether the patrolmen present abused petitioner as 
he was not in the office at all times while the petitioner 
was there with the patrolmen. In this state of the 
record petitioner’s testimony in this regard was left 
uncontradicted.

* * * # *

Petitioner testified that Doctor Jackson physically 
abused him while he was in his office and that he was 
suffering from that abuse when he made the statement, 
thereby rendering such confession involuntary and the 
result of coercion. The doctor admitted that he saw 
petitioner on the floor of his office; that he helped him



11

disrobe and that he knew that petitioner required hos­
pital treatment because of the laceration over his eye 
but he denied that petitioner was actually abused in 
Ms presence. He was unable to state, however, that 
the state patrolmen did not commit the alleged offense 
against petitioner’s person because he was not in the 
room during the entire time in which the petitioner 
and the patrolmen were there. In fact, the doctor was 
quite evasive in his testimony and none of the officers 
present during the incident were produced as wit­
nesses. Petitioner’s claim of mistreatment, therefore, 
went uncontradicted as to the officers and was in con­
flict with the testimony of the physician.

(A  more detailed statement of the facts of record relevant 
to petitioner’s confession contentions is set out at pp. 24- 
35 infra.)

B. Racial Discrimination in the Selection of Petitioner’s 
Grand and Traverse Juries

In Whitus v. Georgia, 385 U. S. 545, 548, this Court de­
scribed the general Georgia procedure for selecting juries:

Georgia law requires that the six commissioners ap­
pointed 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. 
They are also directed to select from this group a 
sufficient number, not exceeding two-fifths of the whole 
number, of the most experienced, intelligent, and up­
right citizens to serve as grand jurors, writing their 
names on other tickets. The entire group, excepting



12

those selected as grand jurors, constitutes the body of 
traverse jurors. The tickets on which the names of the 
traverse jurors are placed are deposited in jury boxes 
and entered on the minutes of the Superior Court. 
Ga. Code Ann. §§59-108, 59-109. The veniremen are 
drawn from the jury boxes each term of court and it 
is from them that the juries are selected.

Ga. Code §92-6307, at the time of trial in this cause, pro­
vided that “ Names of colored and white taxpayers shall be 
made out separately on the tax digest.” Under local prac­
tice in Charlton County, where petitioner was tried and 
convicted, separate sections of the tax digest were main­
tained for white and Negro names, the whites listed on 
white paper, the Negroes on yellow paper (PR. 82; IR. 68).7 
The jury commissioners, all of whom are white (PR. 83), 
rely upon their personal knowledge of the persons listed 
in the tax digest and their personal opinions of those per­
sons’ character and intelligence, in selecting “upright and 
intelligent citizens to serve as jurors.” Ga. Code Ann. 
§59-106. In practice, they first examine white taxpayers’ 
names, then Negroes’ names. Despite a commissioner’s tes­
timony that no consideration is given to race, the separate 
lists make it clear whether any particular taxpayer is white 
or Negro (PR. 80-81, 84, 91-92).

The 1960 United States Census for Charlton County 
shows 2,656 persons over twenty-one, of whom 728 or 27.4% 
are non-white (PR. 75). Petitioner offered to prove a 
pattern of jury discrimination for the ten years preceding

7 Citations to PR. ------ , refer to the printed certified record in
Sims v. Georgia, 385 U. S. 538, admitted in evidence (IR. 252) 
and reproduced at IR. 24-211. Owing to the accessibility of the 
printed record, citations refer, where possible, only to it.



13

trial but this offer of proof was disallowed because of a 
recent jury list revision (PE. 5, 8, 12, 70, 93, 95). The 1963 
Tax Digest shows 1,959 taxpayers, of whom 410, or 20.4% 
are Negroes (PE. 74). The record does not reveal how 
many of these 1,959 taxpayers were individuals. The 1964 
tax digest lists 1,553 individual taxpayers, of whom 380 or 
24.4% are Negro individual taxpayers (Harper Affidavit, 
IE. 213).8 Of the 147 names on the September 3, 1964, 
grand jury list, from which petitioner’s grand jury was 
selected, approximately 7 or 4.7% were Negroes (Harper 
Affidavit, IE. 213). Of the 479 names on the September 3, 
1964 traverse jury list, from which petitioner’s traverse 
jury was selected, approximately 47 or 9.8% were Negroes 
(Harper Affidavit, IE. 212-213). Of the panel of 99 jurors 
chosen for the October, 1964 Term of the Charlton Superior 
Court, from which the grand and traverse jurors were 
selected in Sims’ case, approximately 9 or 9% were Negroes 
(Harper Affidavit, IE. 213-214). At the trial only 5 of the 
99 names were identified as Negroes (PE. 74, 89-90, 297- 
298).

A  comparison of the September 3, 1964 grand and trav­
erse jury lists with the Colored Tax Payer section of the 
1964 tax digest revealed that the names of Negroes where 
they appeared on those lists, were virtually without excep­
tion consecutively listed out of alphabetical order (Harper 
Affidavit, IE. 214).

8 The Harper affidavit was excluded from evidence but made a 
part of the record, see n. 5, supra.



14

Reasons for Granting the Writ

I.

Petitioner’ s Constitutional Rights Were Violated by 
the Use at His Trial o f  Confessions Which (A ) Were 
Judged by Standards o f  Voluntariness That Were Not 
in Accord With Constitutional Requirements; (B ) Were 
Obtained in Inherently Coercive Circumstances Follow­
ing the Uncontested Physical Brutalization o f  Petitioner 
While in Police Custody; and (C ) Were Obtained in 
Violation o f  Petitioner’ s Sixth Amendment Right to the 
Assistance o f  Counsel.

Introduction

The evidence upon which Sims was convicted consisted 
principally of testimony by the prosecutrix that Sims 
“ forced her car off the road, dragged her into the woods, 
pulled her clothes off, and raped her” (PR. 334), and that 
he “kept choking her and threatened to kill her if she 
screamed” (ibid.). In addition, there was testimony by the 
mother of the prosecutrix and her physician, Dr. Jackson, 
as to her condition after the attack, and evidence of admis­
sions and confessions by the defendant.9 The circumstances

9 At petitioner’s trial the State introduced testimony concerning 
an alleged oral confession by petitioner Isaac Sims to Deputy 
Sheriff Jones (PR. 210), and a written confession signed by Sims 
purporting to give the details of the crime (PR. 226-27). Both 
the alleged oral confession (which Sims denied making) and the 
signed statement were obtained April 13, 1963, while petitioner 
was in custody in the Ware County Jail, as the sole suspect in a 
capital felony. The prosecution also introduced testimony of a 
state investigator that on the afternoon of April 15, 1963, he read 
the written confession of Sims who said it was true (PR. 238). 
Sims stated at trial that he did not understand what he was doing 
when he signed the confession and that he was innocent of the 
crime (PR. 141, 248).



15

of these admissions and confessions, which Sims contends 
were involuntary and obtained by coercion, are set forth in 
detail infra. The text of a written confession signed by 
Sims while in custody appears at PE. 226-227. This confes­
sion was written by a deputy sheriff and read to Sims, who 
is unable to read or write. The first three sentences and last 
three paragraphs of the statement were admittedly not 
statements made by Sims but, rather, assertions of the 
voluntariness of the confession written by the deputy and 
read to Sims (PE. 100-101, 103-104, 218-219).

Petitioner denied understanding the import of the state­
ment and denied his guilt in sworn testimony at a voir dire 
hearing and in an unsworn statement before the jury (PE. 
134-135, 248). Sims, in his mid-twenties at the time of 
arrest, was a pulpwood worker who quit school at age 
seventeen or eighteen, having completed only the third 
grade (PR. 128-130). His understanding is severely limited 
as is illustrated by the following testimony, which is a 
mere sample of his incapacity as revealed in the record:

Mr. Moore: Do you know what is meant by “ the 
statement can be used against you in court” ?

Mr. Sims: Statement can be used against me!
Mr. Moore: Statement can be used against you in 

court. Do you know what that means?
Mr. Sims: No, sir.
Mr. Moore: Do you know what it means to be in­

formed of your legal rights ?
Mr. Sims: Well, that’s like being good or something?
Mr. Moore: Is that what it means to you, Isaac?
Mr. Sims: Yes, sir (PR. 136).

#  #  *  #  *



16

Mr. Moore: Isaac, do you know what “ Constitu­
tional rights” means?

Mr. Sims: Do you mean good or something?
Mr. Moore: Is that what it means to you, Isaac?
Mr. Sims: Yes, sir (PR. 137).

A. The Standards Applied Below to Determine Voluntariness 
Were Insufficient to Satisfy Constitutional Requirements.

1. The Superior Court’s Opinion, April 19, 1967.

Following the remand in Sims v. Georgia, 385 U. S. 538, 
the Superior Court ostensibly complied with this Court’s 
mandate by making an independent factual inquiry into 
the voluntariness of petitioner’s confession, and duly enter­
ing findings of fact and conclusions of law. Examination 
of those findings and conclusions, however, compellingly 
demonstrates that Isaac Sims has still not been given the 
hearing on his claims of coercion required by the Consti­
tution and by this Court. The Superior Court has so 
persistently made findings unsupported by the record, ig­
nored material evidence, and declined to resolve material 
evidentiary disputes, that no inference is possible but that 
the Superior Court resolved the issue of coercion by ref­
erence to standards inconsistent with the law of the Four­
teenth Amendment. We believe (as we shall show in the 
succeeding subparts of this Petition) that application of 
proper Fourteenth Amendment standards invalidates peti­
tioner Sim s’ confession as a matter of law. However this 
may be—whether or not a finding of voluntariness might 
be made on this record consistently with proper Four­
teenth Amendment standards—the failure of the Courts 
below to apply such standards is alone a sufficient reason 
for a second grant of certiorari and reversal of Sims’ 
conviction.



17

The Superior Court’s opinion is divided into three prin­
cipal sections: uncontroverted facts, controverted facts, 
and findings of fact. No section fairly reflects the record, 
focuses on relevant issues, or addresses or resolves the 
factual controversies which the Fourteenth Amendment 
makes determinative. For example, in the section reciting 
purportedly uncontroverted facts, the Superior Court states 
that there were no threats of violence against Sims while 
he was in the Ware County Jail or the interview room. 
The Court makes no mention of Sims’ testimony he was 
scared, that he was suffering by reason of earlier un­
contested brutality, and that the Ware County officers 
“ scolded” him a little while he was in the interview room. 
(Compare IE. 230 with PE. 139, 143.) Similarly the Su­
perior Court states Sims was not denied the use of a tele­
phone. It makes no mention of the fact that Sims was not 
offered the use of a telephone. (Compare IE. 230 with 
PE. 222.) The Superior Court states that Deputy Sheriff 
Dudley Jones wrote Sims’ statement as it was made by 
Sims. Yet the record uncontradictedly shows that those 
portions of the statement referring to its voluntary char­
acter with Sims having been warned of his legal rights 
were inserted by the officers, not spoken by Sims. (Com­
pare IE. 230 with PE. 228-229.)

In the section of its opinion concerning purportedly con­
troverted facts, the Superior Court erroneously asserts 
that Dr. Jackson denied dragging Sims on the floor by his 
private parts. (Compare IE. 232 with PE. 204-207.) As 
this Court noted, Dr. Jackson did not deny or mention this 
abuse in his testimony, Sims v. Georgia, 385 U. S. at 541. 
The Superior Court also erroneously asserts that Sims 
nowhere claimed that anyone other than Dr. Jackson struck



18

him (IE. 232). The record clearly shows that Sims stated 
“ they,” referring to white state patrolmen in Dr. Jackson’s 
office, kicked and possibly beat him (PE. 248). This Court 
accurately concluded, on the same record, that, “ Petitioner’s 
claim of mistreatment, therefore, went uncontradicted as 
to the officers and was in conflict with the testimony of 
the physician.” Sims v. Georgia, 385 U. S. at 543.

The most striking feature of the Superior Court’s “ Find­
ings of Fact” is their failure to resolve evidentiary con­
flicts which the Superior Court itself identified (albeit in 
some matters erroneously, as we have just noted). No find­
ings at all are made concerning the critical events in Dr. 
Jackson’s office, and no findings are made which would 
suggest the irrelevancy of those events—no findings, for 
example, that the effects of the brutality practiced on Sims 
in Jackson’s office were attenuated by passage of time. 
Unless it be assumed that the Superior Court failed 
palpably to do the job of fact-finding which Jackson v. 
Denno and this Court’s mandate in Sims commanded, one 
can only conclude that the Superior Court thought these 
factual matters irrelevant. No clearer display of inat­
tention to proper federal standards for determining the 
admissibility of a confession can be conceived.

The Superior Court, in its findings of fact, does conclude 
that Sims “knowingly waived” his right to have an at­
torney; that Sims “knew that any statements he made 
could be used against him in court” ; and “ [tjhat based upon 
observation of the defendant’s demeanor while testifying 
under oath, his reactions and responses to questions pro­
pounded upon direct and cross-examination, it is the opin­
ion of the Court that he has the mental capacity to under­
stand the instructions of the officers and the nature and



19

effect of the statement he made and signed” (IR. 234). 
These findings are made in the teeth of the record. Sims’ 
stunted mental capacity rendered him unable—even in the 
safety of the courtroom—to explain words or phrases such 
as “normal and ordinary” (PR. 144), “ legal rights” (PR. 
136), “ constitutional rights” (PR. 137), “ freely and volun­
tarily” (PR. 136), “ the right to have a lawyer” (PR. 137), 
or that “ a statement can be used against you in court” 
(PR. 136). Allowing all due deference to the mystique of 
demeanor which the Superior Court invokes, it is simply 
fanciful to find that Sims could “knowingly” waive his right 
or “knew” any statement made by him could be used against 
him in court. The Superior Court, it should be noted, no­
where intimates that Sims was an untrustworthy witness 
or was feigning the extremity of mental dullness evident 
in his testimony. It is uncontested, of course, that Sims is 
an illiterate, and that he quit school in the third grade 
when he was seventeen or eighteen.

The Superior Court also found as facts that “ there was 
no violence or threats of bodily harm, and no duress or 
coercion practiced upon the defendant” (IR. 234). This 
finding is wholly without foundation in the record for, as 
has been said supra, Sims’ statements are uncontradicted 
as to Dr. Jackson’s dragging him on the floor by his private 
parts and as to violence which the state patrolmen prac­
ticed on him (PR. 131, 204-207, 248).

Finally, the Superior Court found “ that at the time the 
confession was made the defendant was in possession of 
mental freedom to confess or deny his participation in the 
crime, and that he voluntarily, knowingly and freely made 
the confession in the interview room of the Ware County 
Jail, in Waycross, Georgia on April 13, 1963, at 10:30



20

P.M.” (IR. 234). This finding is a penetrable conclusion, 
based on nothing stronger than the partial, incomplete and 
unsupported findings that precede it. We think that, in its 
totality, the court’s opinion speaks for itself and estab­
lishes beyond peradventure a failure to apply proper con­
stitutional standards in passing on the admissibility of 
Sims’ written confession.

2. The Georgia Supreme Court Opinions of 
July 14, 1965, and June 22, 1967.

The Georgia Supreme Court in its July 14, 1965 opinion, 
221 Ga. 190, 144 S. E. 2d 103, seems to have taken the same 
narrow view as the Superior Court with regard to the ap­
plicable test for voluntariness. Its opinion gives little evi­
dence of an examination of the totality of the circum­
stances surrounding the confession. There is, for example, 
no mention of the physical brutality to which Sims was 
subjected while in custody during the investigation process. 
Nor is there any discussion of the many other factors such 
as Sims’ mental condition, injuries, education, isolation, etc., 
which are federally pertinent. Rather, the court apparently 
found it sufficient to resolve the issue that there was testi­
mony that petitioner was advised of certain rights; that the 
Sheriff testified “ that no threats or promise of hope or 
benefit or reward were made to induce Sims to make a state­
ment” (PR. 335); and that there was thus, a “ prirna facie 
showing that the statement was freely and voluntarily made 
and admissible in evidence. Code §38-411”  (PR. 336).

Following this Court’s reversal of the decision of July 14, 
1965 and the Superior Court’s rendition o f its opinion of 
April 19, 1967, the Georgia Supreme Court reconsidered 
the case on June 22, 1967 (IR. 285), handing down the 
judgment whose review is now sought. In the June 22, 1967



21

opinion the Georgia Supreme Court reviewed in greater de­
tail the circumstances which took place in Dr. Jackson’s 
office but quoted in extenso from its former opinion as 
to the manner in which the written confession was obtained. 
The Georgia Supreme Court relied dispositively on the in­
adequate findings of the Superior Court, holding: “The 
trial judge, as the trier of fact, who presided at the trial 
when the various witnesses testified, had the opportunity 
of judging the credibility of such witnesses and it cannot be 
said the decision of the trial court finding that the con­
fession was voluntarily made was error for any reason 
assigned”  (IE.. 284).

There is no intimation here of a shift from the Georgia 
Supreme Court’s earlier, artifically restrictive and federally 
erroneous view of “voluntariness,” and no correction of the 
insufficient consideration given the federal issue by the 
Superior Court. It is therefore clear, we submit, that peti­
tioner has never had a decision of the issue of voluntariness 
made with reference to the appropriate constitutional stand­
ards at any level—neither by the trial judge, or the state 
appellate court. To give effective life to its earlier man­
date and to assert the meaningfulness of the inquiry which 
that mandate required, the Court should again review 
this case and should reverse petitioner’s conviction on the 
authority of Rogers v. Richmond, 365 II. S. 534.

In Rogers, supra, the Court invalidated a conviction rest­
ing on a confession which the trial judge and the State’s 
highest court had approved, since it appeared they both 
“ failed to apply the standard demanded by the Due Process 
Clause of the Fourteenth Amendment for determining the 
admissibility of a confession” (365 U. S. at 540). The error 
of the Connecticut courts was in determining admissibility



22

“by reference to a legal standard which took into account 
the circumstance of probable truth or falsity” (365 U. S. 
at 543).

In Isaac Sims’ case, it is apparent that the courts below 
made a similar error. Ignoring facts and circumstances 
plainly pertinent under federal standards, and narrowly 
concentrating on the immediate scene of the confession, to 
the exclusion of vital earlier events that affected Sims’ will 
to make it, the Superior and Supreme Courts appraised 
the case in terms of only the most obvious and obtrusive, 
immediately contemporaneous, external coercive influences. 
They restricted their attention to the sorts of blatant duress 
made relevant by the Georgia statutory standard for the ad­
missibility of confessions—threats and promises—and thus 
ignored a multitude of the more subtle factors which this 
Court has recognized as pertinent to the inquiry whether 
a confession is in fact, as the Fourteenth Amendment re­
quires, a free and uncompelled act: the accused’s mental 
feebleness, Culombe v. Connecticut, 367 U. S. 568; lack of 
education, Fikes v. Alabama, 352 U. S. 191; fears bred of 
race, Payne v. Arkansas, 356 U. S. 560; the stripping of the 
accused, Malinski v. New York, 324 U. S. 401; physical bru­
tality, Brown v. Mississippi, 297 U. S. 278; failure to warn 
the accused of his rights to silence and to appointed counsel, 
Davis v. North Carolina, 384 U. S. 737.

Furthermore this Court long ago condemned as unduly 
restrictive a review of confessions that was limited to deter­
mining whether they were induced by immediate duress, in 
such forms as promises or threats. Mr. Justice Brandeis 
wrote in Wan v. United States, 266 U. S. 1,14-15:



23

The court of appeals appears to have held the prison­
er’s statements admissible on the ground that a con­
fession made by one competent to act is to be deemed 
voluntary, as a matter of law, if' it was not induced by 
a promise or a threat; and that here there was evi­
dence sufficient to justify a finding of fact that these 
statements were not so induced. In the Federal courts, 
the requisite of voluntariness is not satisfied by estab­
lishing merely that the confession was not induced by 
a promise or a threat. A confession is voluntary in 
law if, and only if, it was, in fact, voluntarily made. 
A  confession may have been given voluntarily, al­
though it was made to police officers, while in custody, 
and in answer to an examination conducted by them. 
But a confession obtained by compulsion must be ex­
cluded, whatever may have been the character of the 
compulsion, and whether the compulsion was applied 
in a judicial proceeding or otherwise. Bram v. United 
States, 168 U. S. 532.

At least since Chambers v. Florida, 309 U. S. 227, 239, the 
rule of Wan has been the law of the Fourteenth Amend­
ment. See also Ward v. Texas, 316 U. S. 547, 555; Ashcraft 
v. Tennessee, 322 U. S. 143, 154. Petitioner has thus not 
had a determination of voluntariness in the courts below 
which is consistent with constitutional standards. Rogers 
v. Richmond, 365 U. S. 534; Wan v. United States, 266 
U. S. 1; cf. Haynes v. Washington, 373 U. S. 503, 516-517, 
note 11. The Court should granted certiorari so to declare.



24

B. Petitioner’s Confession Was Obtained in Inherently 
Coercive Circumstances and After He Had Been Phys­
ically Brutalized While in Custody, and Its Use to 
Convict Him Violates the Due Process Clause of the 
Fourteenth Amendment.

1. Facts and Circumstances Surrounding the Confession.

Isaac Sims was taken into custody by Sgt. George Sims 
and Trooper Peacock of the State Patrol at about 3 :00 p.m. 
on April 13, 1963 (PE. 184-185). On orders from Sheriff 
Sikes, petitioner was taken by Sgt. Sims to the medical 
office of Dr. Joseph M. Jackson (PE. 185). He was taken 
directly to Dr. Jackson’s office from the place where the 
police took him in custody (PE. 184-185). It is clear that 
the officers took Sims to Dr. Jackson’s office as a part of 
their investigative process, so that his clothes might be 
removed and examined for evidence of the crime (PE. 
205, 206-207).

Petitioner Sims testified very clearly that he was bru­
talized while in custody at Dr. Jackson’s office. He gave 
such testimony both in the pre-trial hearing outside the 
presence of the jury (PE. 131), and in his unsworn state­
ment, before the jury (PE. 248). Sims stated that he was 
in Dr. Jackson’s office with seven or eight white state 
patrolmen. When asked what happened to him there, Sims 
said (PE. 131):

Well, Dr. Jackson, he knocked me down and kicked 
me over my eye lid and busted my eye on the right 
side.

Q. Did anything else happen to you! A. And he 
grabbed me by my private and drug me on the floor.

Sims’ statement before the jury was to the same effect 
(PE. 248):



25

Well, they brought me over to Dr. Jackson’s office 
and they carried me in there, about six or seven State 
Patrols, and Dr. Jackson beat me, and taken my clothes 
off, and then carried me over to the bigger hospital 
and stitched my eye up where they kicked me over the 
eye, and put me on some white clothes—white pants, 
but I kept my shirt I had on.

Q. While you were in Dr. Jackson’s office did he 
drag you around the floor ? A. Yes, sir.

=£ # # # #
Q. (By the Defendant’s Attorney) What happened 

to you while you were in Dr. Jackson’s office? A. 
Well, he pulled me by the privates.

When Sims testified in the pre-trial hearing he was 
cross-examined, but the prosecutor never ashed Sims a 
single question about what happened to him in Dr. Jack- 
son’s office (PR. 137-143). In addition, the prosecutor put 
on no testimony at all to rebut Sims’ claim that he was 
beaten, kicked over the eye, and pulled by his private 
parts in the presence of six to eight officers.

The prosecutor never ashed any witness a single ques­
tion about what happened in Dr. Jackson’s office. Sgt. 
George Sims, the officer who took petitioner to and from 
Dr. Jackson’s office (PR. 185), was never asked what hap­
pened in the office.10 The other officers who were present 
were never called to testify or identified by name.11 The 
prosecutor did not ask Dr. Jackson a single question (on

10 Dr. Jackson said that he presumed that the officers in the office 
with Sims were the ones who brought him there (PR. 202).

11 The exception was Trooper Peacock who was mentioned by Sgt. 
Sims (PR. 184) but did not testify.



26

direct or re-direct) about what happened while Sims was 
in his office (PR. 189-197, 208).

Defense counsel did cross-examine Dr. Jackson about 
the events in his office (PR. 202-207). Certain aspects of 
Sims’ testimony were confirmed by Dr. Jackson, who said:

(a) that Sims was brought to his office (PR. 202);

(b) that police officers and troopers were there and he 
was not alone with the defendant (PR. 202);

(c) that Sims’ clothes were removed (PR. 202);

(d) that he (Dr. Jackson) “assisted him slightly” and 
gave him “ a little help” in removing his clothes, including 
his pants and his underpants (PR. 202-203, 206-207);

(e) that Sims was down on the floor while in the office 
(PR. 203, 204);

(f) that by the time Sims left the office he “had a place 
over his eye that required .some treatment” (PR. 204) ;12

(g) that when Sims left “he was taken over to the 
hospital and the place was treated that I told you about” 
(PR. 207);

(h) that at the hospital Dr. Aztui put four stitches in the 
injury over Sims’ eye (PR. 207).

Dr. Jackson’s explanation of what happened to peti­
tioner in his office was highly evasive and partly in the 
form of denials of knowledge about what happened to 
Sims. Asked whether the State Patrolman “put the place

12 A state investigator observed the injury on his face two days 
later (PR. 242).



27

over Ms eye,” Jackson answered, “ I don’t know who put 
it there” (PR. 204). When asked if the officers were heating 
Sims he said:

A. You’ll have to ask the officers.
Q. I ’m asking you, Dr. Jackson. I ’m asking you 

whether or not the officers were beating the defendant. 
A. I will say that I wasn’t there all the time (PR. 204).

Referring to the “place” over Sims’ eye, Jackson was 
asked:

Q. He didn’t have it over his eye when he came 
into your office, did he? A. I didn’t see him till after 
he got in.

Q. And when you first saw him in your office he 
didn’t have it? A. I couldn’t see it. He was sort of 
slumped over, sort of falling around, like. Most any­
thing could have happened to him (PR. 204).

Dr. Jackson denied that he knocked Sims down (PR. 
204) or that he kicked him (PR. 205). But when asked 
whether Sims was kicked he said only: “ I don’t know 
that he was” (PR. 205). Earlier, Dr. Jackson was asked 
whether Sims was knocked down and he said: “ I don’t 
know whether he was knocked down or fell down” (PR. 
203).

Dr. Jackson was asked:

Q. Did you find him down on the floor? A. He 
sort of fell in the floor.

Q. He just sort of fell? Where were you standing 
at the time he sort of fell? A. I was standing on my 
feet.

Q. Were you standing near him? A. Fairly close.



28

Q. Were you standing as close as I am to you, or 
closer? A. Probably a little closer.

Q. Where you could touch him? A. I think he could 
touch me.

Q. And you could touch him? Right? A. Yes (PR. 
204).

Thus, Dr. Jackson’s testimony was that Sims was close 
enough to touch him when he fell on the floor, but Dr. 
Jackson did not know “ whether he was knocked down or 
fell down” (PR. 203). Later Jackson said Sims was on the 
floor when he entered the room (PR. 205). In Jackson’s 
own words, “ Most anything could have happened to him” 
(PR. 204). Despite all this, throughout the entire trial the 
prosecutor avoided any inquiry into what happened to 
Sims in Dr. Jackson’s office. Although Dr. Jackson denied 
on cross that he knocked Sims down or kicked him, the 
prosecution asked no questions about this and called none 
of the policemen to corroborate the doctor’s denial. Plainly 
Sims was injured while in custody. There was no sug­
gestion that he resisted arrest or anything of that nature.

Moreover, the doctor gave no testimony denying Sims’ 
claim that he was pulled by his private parts and dragged 
on the floor. There was no rebuttal or denial of this 
testimony at all and it stands uncontradicted and uncon­
tested in the record. The language of the Court in Haynes 
v. Washington, 373 U. S. 503, is pertinent in appraising 
the State’s failure to rebut Sims’ claim of brutality:

We cannot but attribute significance to the failure of 
the State, after listening to the petitioner’s direct 
and explicit testimony, to attempt to contradict that 
crucial evidence; this testimonial void is the more



29

meaningful in light of the availability and willing 
cooperation of the policemen who, if honestly able 
to do so, could have readily denied the defendant’s 
claims. (373 IJ. S. at 510.)

In addition to the evidence of physical brutality, there 
are, of course, a variety of other facts to be considered in 
appraising the totality of circumstances surrounding the 
confessions. They reveal that Sims was bewildered, help­
less, alone, hungry, in pain and in fear when he signed 
his written statement.

Isaac Sims is an indigent, ignorant, illiterate Negro, who 
cannot read and can write only his name (PR. 130). He has 
spent most of his life in Charlton County in the southeast 
part of Georgia (PR. 129). Both of his parents are dead; 
his closest relatives in Charlton County were two sisters 
(PR. 128). At the time of his arrest he was in his twenties; 
the record leaves his exact age unclear.13 Sims was unable 
to tell what year he was born (PR. 128). He went to the 
third grade in school, quitting when he was “ seventeen or 
eighteen” (PR. 130). He testified, “Well, I didn’t go [to 
school] too much on account of I had to help my father 
work, and he taken me out of school” (PR, 129). He worked 
as a pulpwood worker, earning forty to sixty dollars a week. 
He is indigent, had appointed counsel at his first trial, and 
has proceeded in forma pauperis throughout the case.

The record reveals his limited mental capacity in many 
instances. He did not know the year he was born; nor could

13 The confession stated that he was 27 on the day of arrest in 
April 1963 (PR. 226) ; he testified that he was 29 at the trial in 
October 1964 (PR. 247), but his birthdate was February 5 (PR. 
128).



30

he state when his father died (PE. 128). He was totally un­
able to explain words and phrases such as “normal and 
ordinary” (PR. 144), “ legal rights” (PR. 136), “ constitu­
tional rights” (PR. 137), “ freely and voluntarily” (PR. 
136), “ the right to have a lawyer” (PR. 137), or that “ a 
statement can be used against you in court” (PR. 136). 
Sims “ stutters” when he speaks (PR. 122).

Sims was a Negro charged with the rape of a white 
woman—a capital felony in Georgia. The prosecutrix was 
the unmarried daughter of the local postmaster (PR. 61). 
At about 2 :00 or 2 :30 p.m. Sims was taken into custody and 
held at gunpoint some five miles from the scene of the 
crime by two Negro men who had been ordered by their 
boss, a local white man, to look for any “ stray man” (PR. 
169, 175-176). He was then taken by this white man, Noah 
Stokes, accompanied by several other men, to state troopers 
who carried him to Hr. Jackson’s office where Sims was 
brutalized as we have described above. After Sims was 
treated at the hospital for his eye injury, the police took 
him to the Ware County Jail in Waycross, some thirty or 
thirty-five miles away from Folkston and located outside 
the county where the crime occurred, for “ safe keeping” 
(PR. 233-234, 242).

The police testimony is that at about 6 :30 p.m., while con­
fined in a cell at the Ware County Jail, Sims orally admitted 
“ raping” or “molesting” a white woman in Folkston in a 
conversation with Deputy Sheriff Dudley Jones whom Sims 
had known for more than a dozen years previously14 (PR. 
113, 209-210, 214-216). Jones did not testify that he gave 
Sims any warnings prior to eliciting this admission, either

14 Sims denied making this oral confession (PR. 134, 138-139).



31

as to Sims’ right to remain silent, that his statement would 
be used against him, or as to his right to counsel. Jones 
testified that Sims then agreed when asked if he wanted 
to make a statement to the sheriff ( Pit. 113, 210).15

Sims remained alone in a cell until about 10:00 or 10:30 
that evening when he was taken to the “ interview room” 
in the jail (PE. 210, 223). Sims had not been fed since he 
was taken into custody some 8 hours earlier and he was 
still in pain from the injury sustained in Dr. Jackson’s 
office.16 There were four white officers in the “interview 
room” with Sims: they were the Sheriff and Deputy Sheriff 
of Ware County, the Chief of Police, and the Constable.17 
Sims testified that he was “ scared” (PE. 143). As to his 
treatment, he said, “ they didn’t beat me, but they kind of 
scolded me a little” (PE. 139). None of Sims’ testimony 
in these regards was rebutted.

Since his arrest, petitioner had not been in touch with 
any relative, friend or attorney. He had not been offered 
the use of a phone (PE. 222) and he had not been taken be­
fore a magistrate in accordance with Georgia law (PE. 235-

15 Sims also denied this (PR. 133).
16 Sims testified at PR 135-136:

A. Well, I felt pretty rough for about two or three weeks, 
more on my private than I did on my face.

Q. When you said you felt pretty rough, what did you mean, 
Isaac ? A. Well, I was paining a right smart.

Q. Were you paining a right smart when you were in the 
room with Sheriff Lee and Deputy Sheriff Jones? A. Yes, sir.

Q. Now, after you were taken into custody up until the time 
you were taken upstairs had you been given anything to eat? 
A. No, sir.

Q. Were you hungry? A. Yes, sir; I could have eat.
17 The Police Chief and Constable were not called as witnesses.



32

236).18 He was in jail in the adjoining county some 30 or 
35 miles from Folkston (PR. 67, 242).

The record does not make it clear how long Sims was in 
the interview room before the confession was given and 
signed,19 or to what extent, if any, Sims was interrogated.

18 Georgia law specifically required bringing petitioner promptly 
before a magistrate where, as here, the arrest was made without a 
warrant:

“Duty of person arresting without warrant.— In every case 
of an arrest without a warrant the person arresting shall with­
out delay convey the offender before the most convenient officer 
authorized to receive an affidavit and issue a warrant. No such 
imprisonment shall be legal beyond a reasonable time allowed 
for this purpose and any person who is not conveyed before 
such officer within 48 hours shall be released.” Ga. Code 
§27-212 (1933).

Even if the arresting officers had a warrant, they were similarly 
obligated:

“ Officer may make arrest in any county. Duty to carry pris­
oner to county in which offense committed.—An arresting offi­
cer may arrest any person charged with crime, under a war­
rant issued by a judicial officer, in any county, without regard 
to the residence of said arresting officer; and it is his duty to 
carry the accused, with the warrant under which he was ar­
rested, to the county in which the offense is alleged to have 
been committed, for examination before any judicial officer of 
that county.

“The county where the alleged offense is committed shall pay 
the expenses of the arresting officer in carrying the prisoner to 
that county; and the officer may hold or imprison the defen­
dant long enough to enable him to get ready to carry the 
prisoner off. (Acts 1865-6, pp. 38, 39; 1895, p. 34.)” Ga. Code 
§27-209 (1933).

19 Sheriff Lee testified (PR. 104) :
Q. Do you know what time on the evening of April 13, 1963, 

that you started taking this statement? A. Well, the state­
ment was short. It wouldn’t have taken but just a few minutes.

Q, How many minutes? A. Oh, ten or fifteen minutes.
Q. Did you start taking the statement at 10:30 or did you



33

When asked whether he questioned Sims, Sheriff Lee said, 
“ I don’t think so,” then, “ I could have,”  and finally, “ I just 
don’t recall right now” (PR. 105). Sims said he was ques­
tioned by Lee (PR. 135,140), and also that he was “ scolded” 
(PR. 139).

Deputy Sheriff Jones wrote out the confession and read 
it to Sims. He admittedly wrote out some matter which 
Sims did not say. The Sheriff, and his deputy who actually 
wrote the confession, testified petitioner did not say that 
the statement had been made freely and voluntarily or that 
he had been informed of his legal rights, although the writ­
ten statement includes those words. In fact, petitioner does 
not even know the meaning of “ freely and voluntarily” 
(PR. 136). Every word in the confession asserting its volun­
tariness and its having been made with knowledge of the 
legal consequences was inserted not by petitioner but by 
his inquisitors. The deputy sheriff crossed out several 
words in the original statement, including the words, “ I 
have read” when it was learned the petitioner could not 
read (PR. 229).

The sheriff testified that he told petitioner that before 
he made a statement he was entitled to an attorney and

conclude it at 10:30? A. Well, I wouldn’t say we finished at 
10:30 or started at 10:30. It was approximately 10.

Q. So you questioned him from 10 to 10:30! A. How is 
that?

Q. You questioned him from 10 to 10:30? A. I didn’t say 
that.

Q. You started at 10? A. I didn’t say that.
Q. You started at 10:30, then? A. I said that we could 

have finished at 10 :30 or started at 10 :30. I don’t recall.
Deputy Sheriff Jones said that Sims was brought down at 10:30 
(PR. 113); that it took him approximately twenty to thirty minutes 
to write down Sims’ statement (PR. 119), and five or six minutes to 
read it to him (PR. 121-122).



34

that petitioner said he did not want one (PR. 99-100, 224). 
The sheriff also said that he told petitioner “ that the state­
ment he was going to give could be used against him in 
court”  (PR. 99-100, 225). On each of the occasions at trial 
when Sheriff Lee recounted his warning to Sims, he failed 
to mention that he advised Sims of his right to remain 
silent (PR. 99-100, 224-225). However, a sentence at the 
end of the confession written by the deputy recites: “ I have 
been informed of my legal rights by Sheriff Robert E. Lee 
that I did not have to make any statement whatsoever, 
knowing that this statement can be used against me in a 
court of law” (PR. 227). No one offered Sims the use of a 
phone or advised him that a lawyer would be appointed if 
he could not afford one.

On Monday afternoon, April 15, 1963, Agent F. F. Cor­
nelius of the Georgia Bureau of Investigation brought Sims 
in handcuffs from the jail in Waycross back to the sheriff’s 
office in Folkston (PR. 237, 241). Cornelius questioned Sims 
in the sheriff’s office in the presence of five other police of- 
cers20 (PR. 239-240). Cornelius read the statement Sims had 
signed on Saturday night to Sims, asked him if it was true, 
and Sims said, “Yes, sir” (PR. 238). Cornelius did not cau­
tion Sims that he was not required to answer and could 
remain silent, or otherwise advise him of his rights (PR. 
241). Sims apparently still had no attorney and had not 
seen any friends or relatives during the period since his 
arrest (PR. 241-242). He was first taken before a magis­
trate on April 15th (PR. 66). The record is silent on 
whether the questioning by Cornelius came before or after 
that proceeding. But a warrant charging Sims with the

20 None of these five officers testified at the trial.



35

crime had been issued at some time before he was brought 
back to Folkston and made the admissions to Cornelius 
(PR. 239).

2. The Confessions Were Obtained in Inherently Coercive 
Circumstances; Their Use Violated the Due Process 
Clause; and the Decision to the Contrary by the Courts 
Below Warrants Review Here by Reason of Its Incon­
sistency With Pertinent Decisions of This Court.

The Court has consistently held that the voluntariness 
of a confession must be determined in the context of all 
the surrounding circumstances as they appear from the 
Court’s independent examination of the uncontested facts 
on the entire record. Examination of the record in this 
case makes it plain that each of the confessions allegedly 
given by Sims to the law authorities while he was in cus­
tody were given in inherently coercive circumstances and 
were not voluntary.

The recitation of the facts above demonstrates that Fikes 
v. Alabama, 352 U. S. 191, should have compelled the 
Georgia courts to exclude Sims’ confessions. The similari­
ties between this case and Fikes are numerous and signifi­
cant. In both cases the petitioner was a Negro in his 
mid-twenties charged with a sexual assault upon the daugh­
ter of a local public official in a southern community. Both 
Fikes and Sims had attained only third grade educations 
when they quit school in their late teens. Sims, like Fikes, 
is of limited mentality. In this case, as in Fikes, the peti­
tioner was first arrested by civilians; was not arraigned or 
taken before a magistrate prior to his confession; was 
carried to a jail far from the scene of the crime; and was 
allegedly advised of some of his legal rights by a law



36

enforcement officer before confessing. Sims saw no friend, 
relative or counsel; Fikes saw his employer, but his father 
and a lawyer were denied access to him. The Fikes record 
contained “ no evidence of physical brutality” (352 U. S. at 
197). But Isaac Sims made a strong and largely uncon­
tested showing that he was brutalized and suffered injury 
requiring medical treatment, while in the custody of officers 
who were engaged in an investigative process.

The Fikes case involved a longer period of custody and 
questioning before the confession, viz., five days in Fikes 
as against 7 or 8 hours in this case. But even a short period 
of time may be sufficient to overpower a suspect’s will 
(Haley v. Ohio, 332 U. S. 596), and the denial of food to 
petitioner during his confinement bears directly upon the 
confession’s alleged voluntariness ( Walts v. Indiana, 338 
U. S. 49, 53; Payne v. Arkansas, 356 U. S. 560, 567), as does 
the stripping of petitioner in Dr. Jackson’s office (.Malinski 
v. New York, 324 U. S. 401). The physical beating suffered 
by Sims is sufficient to counterbalance the comparatively 
short period of questioning revealed by the record. As Mr. 
Justice Frankfurter (joined by Mr. Justice Brennan) said 
concurring in Fikes v. Alabama, 352 U. S. 191, 198:

It is, I assume, common ground that if this record had 
disclosed an admission by the police of one truncheon 
blow on the head of petitioner a confession following 
such a blow would be inadmissible because of the Due 
Process Clause.

Sims has more than met the requirement that he show 
“ one blow.” It is not disputed that while engaged in their 
investigation the police took Sims to Dr. Jackson’s office 
where he sustained injuries requiring medical treatment



37

(four stitches over the eye), which he claimed were received 
from blows and kicks in the presence of the police, an 
episode the prosecution has never troubled to deny or re­
but. We submit that it is plain that the prosecutor never 
asked a question or put on a witness to deny Sims’ version 
of this incident because he could not honestly do so (cf. 
Haynes v. Washington, 373 U. S. 503, 510).

The element of violence in this case makes it as strong, 
if not stronger than Fikes, swpra, and similar cases where 
the Court has viewed the circumstances as sufficiently coer­
cive to strike down convictions. See, particularly, Haynes 
v. Washington, 373 IT. S. 503; Culombe v. Connecticut, 367 
U. S. 568; Turner v. Pennsylvania, 338 U. S. 62; Johnson v. 
Pennsylvania, 340 U. S. 881 {per curiam; facts stated in 
Culombe v. Connecticut, 367 U. S. 568, 628).

And, of course, the fact that Sims’ signed statement con­
tains assertions of voluntariness, composed by the police, 
does not suffice to save the confession in view of the other 
circumstances. A strikingly similar recital also dictated 
by the police was disregarded by the Court in striking down 
the conviction in Haley v. Ohio, 332 U. S. 596, 598, 601. 
Sims’ testimony indicates he did not even comprehend the 
meaning of the recitals of voluntariness or understand the 
significance of the warnings he was given. His supposed 
waiver of the right to counsel could not, given his lack of 
understanding and inability to understand common legal 
terms expressed in ordinary language, be regarded as “ an 
intentional relinquishment or abandonment of a known 
right or privilege,” Johnson v. Zerbst, 304 U. S. 458, 464. 
Plainly, petitioner did not know a lawyer’s function or 
understand how a lawyer could be of assistance to him.



38

Here, as in Fikes, “ The totality of the circumstances that 
preceded the confessions . . . goes beyond the allowable 
limits” (352 U. S. at 197). The conclusion applies equally 
to the alleged oral admission to Deputy Jones, the signed 
statement, and the testimony that the signed statement was 
reaffirmed two days later. Tor, as in Clewis v. Texas, 386 
U. S. 707, 710, “ There is here no break in the stream of 
events from the time Sunday morning when petitioner was 
taken to the police station to the time 'Tuesday morning 
some nine days later that he signed the statement in issue, 
sufficient to insulate the statement from the effect of all 
that went before.” Indeed, Sims’ case is even more com­
pelling than Clewis, where the Court did not consider the 
contentions of physical mistreatment, 386 U. S. at 709. It 
is uncontradicted that Sims was brutalized in Dr. Jackson’s 
office, 385 U. S. at 540-541, 543. The length of time between 
Clewis’ earlier coerced confessions and the later confession 
there in issue was nine days, 386 U. S. at 709-710, but 
this Court found that length of time insufficient to vitiate 
the effect of the earlier coerced confessions on the later 
one. In Sims’ case, the length of time between the violence 
in Dr. Jackson’s office and the written confession was ap­
proximately five hours. As in Clewis, “no lawyer was pres­
ent, nor had petitioner been advised of his right to have 
one appointed” at the time of the written statement, 386 
U. S. at 710. Moreover, the record here uncontradictedly 
shows that Sims was “ physically weakened and in intense 
pain” from having been dragged on the floor by his private 
parts, Reck v. Pate, 367 U. S. 433, 442, and there is no 
evidence that Sims received any medical attention for this 
pain which affected him for two or three weeks after the 
date of his capture (PR. 135-136).



39

3. The Physical Violence Inflicted on Sims Is Sufficient by 
Itself to Invalidate the Confessions; and This Court 
Should Grant Certiorari to Declare That No Confession 
Obtained Shortly After Physical Brutality Is Practiced 
Upon an Accused May Be Admitted Against Him Con­
sistently With the Fourteenth Amendment.

We submit that the physical violence inflicted on Sims 
while in custody, during a police effort to find evidence of 
the crime by examination of his clothes, is alone sufficient 
to vitiate the confessions obtained thereafter. It is con­
ceded that he was stripped of his pants and underpants in 
a room full of men. No witness has denied his story that 
he was pulled by his private parts and dragged across the 
floor. His version was not even challenged by cross-exam­
ination. It is conceded that he sustained injuries requiring 
medical treatment while in a room containing a doctor and 
policemen. No one told any story about how Sims received 
his injuries except Sims. Dr. Jackson’s evasions are plain 
on the record and have been noted by this Court; he offered 
no explanation of Sims’ injury.

In Payton v. United States, 222 F. 2d 794, 796-97 (D. C. 
Cir. 1955), a confession was obtained while an accused had 
blood on his shirt, having been recently bleeding as the 
result of force reasonably used by the officers to effect his 
arrest and confinement. The Court excluded a confession 
and reversed a conviction on the ground that admission of 
a confession following so shortly after violence upon the 
prisoner—albeit reasonably necessary violence—was im­
proper. Judge Fahy wrote for the Court (at 797):

We assume the officers had authority to use the force 
reasonably necessary to effect the arrest and confine­
ment. But when a confession is elicited so soon after



40

the use of violence upon the prisoner, resulting in 
bloodshed, the compelling inference is that the confes­
sion is not the free act of the prisoner. It is imma­
terial that other coercion did not occur at the very 
moments he was questioned and signed the statement. 
Violence at the hands of the Police admittedly had oc­
curred within about an hour. A  confession made in 
such circumstances, and thereafter repudiated by the 
accused, should not be admitted in a criminal trial in 
a Federal court. “ The undisputed facts showed that 
compulsion was applied. As to that matter there was 
no issue upon which the jury could properly have been 
required or permitted to pass.” Ziang Sung Wan v. 
United States, 266 U. S. 1, 16-17; . . . [other citations 
omitted].

Judge Fahy quotes (222 F. 2d at 797, note 5), from the 
opinion in Stein v. New York, 346 U. S. 156, 182, as fol­
lows:

“ Physical violence or threat of it by the custodian of a 
prisoner during detention serves no lawful purpose, 
invalidates confessions that otherwise would be con­
vincing, and is universally condemned by the law. 
When present, there is no need to weigh or measure 
its effects on the will of the individual victim.”

The Stein opinion further states in language that is 
relevant here:

Slight evidence, even interested testimony, that it 
[defendant’s injury] occurred during the period of 
detention or at the hands of the police, or failure by 
the prosecution to meet the charge with all reasonably



41

available evidence, might well have tipped the scales 
of decision below. Even here, it would have force 
if there were any evidence whatever to connect the 
admitted injuries with the events or period of inter­
rogation. But there is no such word in the record. 
(346 U. S. at 183, emphasis added.)

As we have seen, there is ample evidence to show that 
■Sims’ injury occurred during detention and the prosecu­
tion has made no effort to meet the charge with any evi­
dence. Nor can it matter that the same officers who later 
obtained Sims’ confessions were not shown to have been 
present when he was mistreated. There was no showing 
that the coercive impact of his mistreatment during the 
investigative process (in the presence of seven or eight 
officers by Sims’ account) was at all eliminated by his be­
ing transported thirty or more miles to another county and 
turned over to other officials. Sims testified as to his con­
tinuing pain for a prolonged period far beyond the last of 
the confessions. The oral admission to Deputy Jones was 
said to have occurred at about 6:30, less than three hours 
after Sims was injured. The written statement followed a 
few hours later after a period of isolated confinement. 
The final admission of the accuracy of the signed statement 
to state investigator Cornelius must obviously fall if the 
statement itself is excluded. It is clearly tied to the written 
statement. In any event, it occurred after petitioner had 
been returned to Folkston, the scene of his original beat­
ing and again in a room with six policemen.

If the confession involved here had been introduced at 
a trial held after June 13,1966, the conviction would plainly 
be summarily reversed on the authority of Miranda v. 
Arizona, 384 U. S. 436; Johnson v. New Jersey, 384 U. S.



42

719; ef. Davis v. North Carolina, 384 U. S. 737, 739. The 
courts below did not have the benefit of the specific guide­
lines set forth in Miranda, and concededly the full panoply 
of protection given by that decision is not available to 
Sims. But in an important sense Miranda—apart from 
its specific guidelines—represents a distillation of the les­
sons learned through the long experience of this Court in 
the review of in-custody confession cases. It plainly reflects 
sensitive awareness of a problem the Court has recognized 
before, namely, that:

What actually happens to them [prisoners] behind the 
closed door of the interrogation room is difficult if not 
impossible to ascertain. Certainly, if through excess 
of zeal or aggressive impatience or flaring up of temper 
in the face of obstinate silence a prisoner is abused, 
he is faced with the task of overcoming, by his lone 
testimony, solemn official denials. (Culombe v. Con­
necticut, 367 U. S. 568, 573-574, opinion of Justice 
Frankfurter, joined by Justice Stewart.)

We urge that in light of this consideration, the Court 
now grant certiorari to declare unequivocally that any 
in-custody confession which follows close upon the spilling 
of the prisoner’s blood while he is alone in the hands of 
officers (Payton v. United States, supra)—a confession fol­
lowing a blow (Fikes, supra, Justice Frankfurter, concur­
ring) or unexplained evidence of injury to a prisoner dur­
ing detention (Stein, supra)—must be excluded without 
further inquiry whether the prisoner’s will was overborne 
by the brutality.

We recognize that this rule has not been uniformly fol­
lowed in the past and that confessions have been sustained



43

notwithstanding physical violence as in Lisenba v. Cali­
fornia, 314 U. S. 219. But we urge such a general prin­
ciple as consistent with the spirit and learning of Miranda 
v. Arizona, 384 U. S. 436. Lisenba dates from an era when 
this Court’s concern in state criminal cases was with the 
performance of the state courts, not the police. Long before 
Miranda, that concern had broadened. See Blackburn v. 
Alabama, 361 IT. S. 199; Spano v. New York, 360 IT. S. 315. 
There can be no justification for police brutality upon a 
prisoner, and no legitimate police interest in beatings. 
There will be explanations offered, of course (although not 
even those were offered here), and speculation that the 
prisoner was hard-headed and remained unaffected. Mi­
randa counsels that no ear be given to these unlitigable 
matters. Where blood has flowed, no confession made soon 
after should be tolerated consistent with due process of 
law.

C. The Decision Below Violates Petitioner’s Sixth 
Amendment Right to Counsel in Conflict With 
Escobedo v. Illinois, 378 V. S. 478, and Other 
Decisions of This Court.

Petitioner’s trial commenced some four months after the 
decision in Escobedo v. Illinois, 378 IT. S. 478; thus that 
decision may be applied in judging his case. Johnson v. 
New Jersey, 384 IT. S. 719. The Escobedo decision focused 
on the right to counsel under the Sixth Amendment in ap­
praising in-custody confessions. This Sixth Amendment 
emphasis is in contrast to the reliance upon protection of 
the Fifth Amendment privilege against self incrimination 
in Miranda v. Arizona, 384 U. S. 436.

Most of the elements present in Escobedo were present 
in this case. When Sims’ confessions occurred “ the investi­



44

gation [was] . . .  no longer a general inquiry into an un­
solved crime but ha[d] begun to focus on a particular sus­
pect, the suspect ha[d] been taken into police custody, the 
police carr[ied] out a process of interrogations that lends 
itself to eliciting incriminating statements, . . . and the 
police ha[d] not effectively warned him of his absolute 
constitutional right to remain silent . . . ” (378 U. S. at 490- 
491).

However, it could not be said on this record that Sims 
had “ requested and been denied an opportunity to consult 
with his lawyer.” Sims never requested a lawyer for he 
was incapable of understanding how a lawyer might help 
him, had no funds to hire a lawyer, was given no opportu­
nity to consult with friends or family, or even to use a 
telephone, and was not informed of his right as an indigent 
to appointed counsel.

We submit that in these circumstances the general prin­
ciple enunciated in Escobedo and in cases decided earlier 
require the conclusion that Sims was denied the assistance 
of counsel in violation of the Sixth Amendment as made 
applicable to the States by the Due Process Clause of the 
Fourteenth Amendment. Even before Escobedo, it had been 
recognized that the right to counsel might be violated by 
in-custody interrogation in the absence of counsel. The 
Ninth Circuit so held in Griffith v. Rhay, 282 F. 2d 711 (9th 
Cir. 1960), cert. den. 364 U. S. 941. The Court of Appeals 
there adopted the reasoning of Crooker v. California, 357 
U. S. 433, 438-440, that— apart from questions of voluntari­
ness—interrogation in the absence of counsel might deny 
due process if an accused “ is so prejudiced thereby as 
to infect his subsequent trial with an absence” of funda­
mental fairness. On all the circumstances of the case, in­



45

eluding education and mentality of the accused, the Court 
of Appeals found Griffith’s interrogation without counsel 
fundamentally unfair and his confession inadmissible de­
spite a failure to request counsel. See also the opinion 
of Judge Browning in Brubaker v. Dickson, 310 F. 2d 30 
(9th Cir. 1962), cert. den. 372 U. S. 978, generally in accord 
with Griffith v. Bhay, supra. We ask that this Court con­
sider whether a similar ruling is not required on this record.

An additional point may be made with respect to Sims’ 
confession to state investigator Cornelius on Monday, April 
15. This took place after a warrant against Sims had been 
issued by a judicial officer. The warrant is not in the record 
and it cannot be determined on this record whether it was 
issued upon the basis of the prior confession (though this 
seems likely) or some other showing against Sims. In 
any event, at this stage Sims was, though not yet indicted, 
plainly in the position of an “ accused” being held in antici­
pation of trial. See Ga. Code §27-209, quoted supra note 18. 
He still had no lawyer, but following his confession and the 
issuance of a warrant against him he was plainly accused 
and, for every relevant purpose, in a position exactly 
comparable to a man under indictment. He surely was in 
need of a lawyer to prepare for the inevitable trial and to 
advise him.

The premise of Spano v. New York, 360 U. S. 315, 324- 
327 (concurring opinions) and Massiah v. United States, 
377 H. S. 201, is that indictment marks the point in the 
criminal process when investigation is completed and trial 
preparation begins. At this point, “ ‘when consultation, 
thoroughgoing investigation and preparation [are] vitally 
important, the defendants . . .  [are] as much entitled to such 
aid [of counsel] . . .  as at the trial itself.’ ” Massiah v.



46

United States, 377 U. S. 201, 205.21 Obviously, in the pro­
ceedings in petitioner’s case the period following issuance 
of the warrant rather than that following indictment was 
the stage envisaged by this language. It should be noted 
that petitioner was formally indicted no earlier than a few 
days before trial on each of the two occasions on which he 
was tried.22

We submit that the principles of Spano and Massiah 
require that this confession be excluded under the Sixth 
Amendment. To be sure, unlike Spano and Massiah, Sims 
had not yet been formally indicted at the time of the ad­
mission to Cornelius. But he was more than a suspect at 
this point. In every realistic sense he was “ the accused” 
(Gu. Code §27-209) and was “ scheduled to be tried” once 
the police had obtained his signed confession and a war­
rant against him. The subsequent interrogation by Cor­
nelius was more than an interrogation focusing on a suspect. 
Cornelius sought a final nail in the coffin which was already 
almost closed by the signed confession. This final confes­
sion closed the ease, and after it effective aid and advice 
by counsel “ at the only stage when legal aid and advice 
would help” {Spano, supra, 360 U. S. at 326) became im­
possible. The refusal of the courts below to apply Escobedo 
in these circumstances, independently of other issues, war­
rants this Court’s review.

21 Quoting from Powell v. Alabama, 287 U. S. 45, 57.
22 The exact dates of the first indictment and of commencement 

of the first trial are not in this record. But Sims was indicted at 
the October 1963 term and the date of sentencing October 9, 1963, 
appears (PR. 251, 256). The second indictment was filed October 
6, 1964 (PR. 1) ; trial commenced October 7, 1964 (PR. 46, 198, 
249) and the verdict was returned October 8,1964 (PR. 2).



47

II.

Certiorari Should Be Granted to Resolve the Conflict 
of the Judgment Below With This Court’s Decision in 
W hitus v. Georgia, 385 U. S. 545; and to Determine 
That the Refusal o f the Courts Below to Permit Evidence 
of the Systematic Exclusion o f Negroes From Jury Ser­
vice Denied Petitioner the Equal Protection o f the Laws.

A. Whitus v. Georgia Governs This Case.

Petitioner Sims’ claims of discrimination in the selec­
tion of Charlton County grand and traverse juries are 
identical to those vindicated by this Court in Whitus v. 
Georgia, 385 U. S. 545. See also Bostick v. South Carolina, 
386 IT. S. 479, reversing 247 S. C. 22, 145 S. E. 2d 439 
(1965). Whitus was decided by this Court the same day 
as Sims v. Georgia, 385 IT. S. 538; but in reversing Sims 
solely on the basis of Jackson v. Denno, the Court did not 
decide Sims’ jury discrimination claim, 385 IT. S. at 539. 
The Superior Court of Charlton County, Georgia, and the 
Georgia Supreme Court thereafter refused to consider the 
effect of Whitus on this case (IR. 245, 256-260, 263-265, 
282).

The process of juror selection in Whitus is so similar 
in design and operation to the process here, and the re­
sulting exclusion of Negroes so nearly alike, that the 
Whitus holding will be whittled away to an intolerably nar­
row factual base if the decision below is permitted to stand. 
Certiorari should be granted to reaffirm Whitus and to con­
firm its applicability to the facts of the present record.

In Whitus, 385 IT. S. at 548, this Court described the 
general Georgia procedure for selecting juries—the proce­
dure used in this case (PR. 76-80, 84, 86-87):



48

Georgia law requires that the six commissioners ap­
pointed 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 
persons so selected on tickets.” Ga. Code Ann. § 59- 
106. They are also directed to select from this group a 
sufficient number, not exceeding two-fifths of the whole 
number, of the most experienced, intelligent, and up­
right citizens to serve as grand jurors, writing their 
names on other tickets. The entire group, excepting 
those selected as grand jurors, constitutes the body 
of traverse jurors. The tickets on which the names of the 
traverse jurors are placed are deposited in jury boxes 
and entered on the minutes of the Superior Court. Ga. 
Code Ann. §§ 59-108, 59-109. The veniremen are drawn 
from the jury boxes each term of court and it is from 
them that the juries are selected.

Ga. Code §92-6307, effective at the time of petitioner Sims’ 
trial,23 as at Whitus’, provided that “ Names of colored and 
white taxpayers shall be made out separately on the tax 
digest.” Under local practice of Charlton County, where 
petitioner was tried and convicted, separate sections of the 
tax digest were maintained for white and Negro names, the 
whites listed on white paper, the Negroes on yellow paper

23 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 and Sims (I). 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).



49

(PE. 82). The jury commissioners,, all of whom are white 
(PE. 83), rely upon their personal knowledge of the persons 
listed in the tax digest and their personal opinions of those 
persons’ character and intelligence, in selecting “ upright 
and intelligent citizens to serve as jurors.” Ga. Code Ann. 
§59-106. In practice, they first examine white taxpayers’ 
names, then Negroes’ names. Despite a commissioner’s 
testimony that no consideration is given to race, the sepa­
rate lists make it clear whether any particular taxpayer is 
white or Negro (PE. 80-81, 84, 91-92).23

This procedure is identical in ail material regards to the 
procedure invalidated in Whitus (and in Bostick, supra), 
presenting in its key feature—the selection of jurors, in the 
discretion of jury commissioners, from tax records main­
tained with statutorily required racial designations— an 
identically fatal potential for racial exclusion or limitation. 
At the time they select persons from the tax digest, white 
jury commissioners are palpably confronted with the racial 
identity of each taxpayer. This statutory reminder is the 
more efficacious because the provision governing jury se­
lection, Ga. Code Ann. §59-106, gives no specific guidance 
to the commissioners in their choice of jurors. Eather, the 
statute requires the commissioners to employ vague, sub­
jective criteria—uprightness and intelligence—which them­
selves invite a broad discretion that may be exercised in 24

24 Among the evidence proffered by petitioner but excluded by 
the trial court (PR. 5, 8, 12, 70, 93, 95) were jury boxes clearly 
indicating the race of prospective jurors. The traverse or petit 
jury box for August 9, 1954, showed seven persons following 321 
names, who were given special numbers, i.e., “1C” through “7C” 
(PR. 279) and the traverse jury box for August 1, 1960, showed 
six persons, following 331 names, who were listed as “colored” 
(PR, 288).



50

a discriminatory 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; Babinowitz v. United States, 366 F. 2d 34, 58 (5th 
Cir. 1966).

In Hamm v. Virginia State Board of Elections, 230 F. 
Supp. 156 (E. D. Va. 1964), aff’d sub nom. Tancil v. Woolls, 
379 U. S. 19, a three-judge district court declared that 
Virginia statutes requiring that lists of voters and tax­
payers be kept in separate books according to race violated 
the Fourteenth Amendment. The district court stated that 
it was now

axiomatic that no State can directly dictate or casually 
promote a distinction in the treatment of persons solely 
on basis of their color. To be within the condemna­
tion, the governmental action need not effectuate 
segregation of facilities directly. Cf. Anderson v. 
Martin, 375 U.S. 399, 402, 84 S.Ct. 454, 11 L.Ed. 430 
(1964). The result of the statute or policy must not 
tend to separate individuals by reason of difference 
in race or color. No form of State discrimination, no 
matter how subtle, is permissible under the guarantees 
of the Fourteenth Amendment Freedom. 230 F. Supp. 
at 157-158.

And when used as the basis for jury selection, the dis­
criminatory effect of segregated tax lists is far from 
“ subtle.” The vice of using such lists is two-fold under 
Charlton County practice. First, the jury commissioner 
has the means of willful racial discrimination ready to 
hand. Second, even if a commissioner wishes not to dis­



51

criminate, lie is nonetheless required to make a judgment 
as to the proportions in which white and Negro taxpayers 
shall be chosen for jury service. For it is only after con­
sidering the white list that the white jury commissioner 
turns to the Negro list; thus, he obviously must make the 
conscious decision at some point that there are enough 
whites and that Negroes shall now be selected. It will not 
do to say that this result is the inevitable product of a 
selection process that starts with tax lists that the State, 
for other legitimate reasons, may require to be kept in 
segregated form. For the precise holding of Hamm is 
that the State has no interests which justify the segre­
gated lists and that they are unconstitutional in themselves. 
By refusing to give full weight to the Hamm decision and 
to this Court’s affirmance of it, the Georgia Supreme Court, 
in a capital case, has permitted one unconstitutional prac­
tice to spawn a more vicious one. In so doing, we submit, 
it has decided this case in a fashion that conflicts with 
Whitus, and with several earlier applicable decisions of this 
Court, thereby making review by certiorari appropriate 
under Buie 19(1)(a), Cl. 2.

The Georgia Supreme Court tried to minimize the signifi­
cance of the racially segregated tax lists on the ground that 
the jury commissioners acted without regard to race (PR. 
330). But such protestations of good faith are not in these 
circumstances sufficient. Norris v. Alabama, 294 U. S. 587. 
A  selection procedure which provides unnecessary oppor­
tunities for discrimination violates the Fourteenth Amend­
ment, whether or not those opportunities are proved to have 
been seized. In Avery v. Georgia, 345 U. S. 559, a conviction 
was reversed because the names of potential jurymen were



52

placed on different colored slips according to race. The 
trial judge testified that he selected the slips without 
regard to color, but Chief' Justice Vinson stated that “ 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.” Id. at 
562. And Justice Frankfurter, concurring said: “ We may 
accept the testimony of the judge who drew the slips from 
the box as to the honesty of his purpose ; that testimony 
does not refute the fact that there were opportunities to 
discriminate, as experience tells us there will inevitably be 
when such differentiating slips were used.” Id. at 564. Both 
in Avery and here the use of a procedure relying upon 
racial differentiation of prospective jurors denies equal 
protection. As this Court concluded in Williams v. Georgia, 
349 U. S. 375, 382, “ it was the system of selection and the 
resulting danger of abuse which was struck down in Avery 
and not an actual showing of discrimination on the basis 
of comparative numbers of Negroes and whites on the jury 
lists.” That conclusion is no less applicable here. Cf. 
Anderson v. Martin, 375 U. S. 399.

We believe that Whitus v. Georgia, 385 U. S. 545, 551, 
relying upon both Avery and Williams, declared a per se 
rule invalidating jury selection procedures that include 
resort to statutorily segregated tax records. We urge the 
Court therefore to grant review here, in order to clarify 
and confirm that meaning of Whitus. If, however, Whitus 
is a decision of somewhat narrower scope, its result depend­
ing in material part upon the actual showing there made 
of racial disproportions in the composition of jury lists, 
certiorari should nonetheless be granted in this ease. For 
the factual showing here is so like that in Whitus that to let



53

Sims’ conviction stand is to condone and invite lower 
court distinctions of Whitus that reduce it to a trifling 
and insignificant holding and render it a derelict.

The constitutional infirmities inherent in Charlton 
County’s juror selection procedures are amply, indeed dra­
matically, demonstrated by a review of the statistical re­
sults of the system’s operation. Employing the technique 
to determine mathematical probability noticed by Mr. Jus-, 
tice Clark writing for the Court in Whitus, 385 U. S. at 
552, n. 2, and applying the formula given in the Appendix, 
infra, p. 8a, to the facts of this case, the probability is 
approximately 0.00002, or one in 50,000, that non-racial jury 
selection would yield no more than 5 Negroes on a jury list 
of 99 when Negroes constituted 20% of the tax list from 
which jurors’ names were selected.25 See Finkelstein, The 
Application of Statistical Decision Theory to the Jury Dis­
crimination Cases, 80 Harv. L. Eev. 338 (1966). The prob­
ability of this occurrence is so minute that statisticians 
would uniformly reject the hypothesis that selection was 
made without regard to race. See, e.g., Hoel, Introduction

25 The 1960 United States Census for Charlton County shows 
2,656 persons over twenty-one, of whom 728 or 27.4% are non­
white (PR. 75). The tax digest books show 1,838 Charlton County 
taxpayers in 1961, of whom 367 or 19.9% are Negroes (PR. 74), 
and 1,908 taxpayers in 1962, of whom 420 or 22% are Negroes 
(PR. 74). There were 1,959 Charlton County taxpayers in 1963, 
of whom 410 or 20.4% were Negroes (PR. 74). Of the 99 jurors 
chosen by the judge for the October 1964 Term of the Charlton 
County Superior Court, from which the grand and petit jurors 
were selected in petitioner’s ease, only 5 or about 5% were iden­
tified as Negroes (PR. 74, 89-90, 297-98). No statistics regarding 
the number of taxpayers in 1964 were introduced at trial nor 
w'ere the names and racial identification of taxpayers in the 1964 
jury boxes proffered at trial.



54

xo Mathematical Statistics 49 (1962).26 As in Whitus, the 
state did not introduce evidence to rebut petitioner’s prima 
facie case. Thus we submit there is no ground on which 
the thrust of Whitus can be avoided here. Nor can the 
Whitus holding be made effective if decisions such as that 
of the Georgia courts in this case are left unreviewed.27

26 The only jury commissioner who testified stated that jurors 
were selected on the basis of being “ intelligent, upright and good 
citizens” (PE. 78). In order to sustain the state’s contention that 
these factors rather than race accounted for the disparity between 
the number of Negroes on the tax list and those selected for the 
jury lists, it would be necessary to assume that on the average three 
to four times as many whites met these subjective qualifications 
than did Negroes. See Finkelstein, supra, where the method of 
analyzing the subjective qualifications issue is discussed. No evi­
dence of any such superior rate of qualifications on the part of 
white taxpayers was introduced by the State nor is there any evi­
dence that this small number of Negroes appearing on the jury 
list was the result of the application of the statutory criteria.

27 For the information of the Court, petitioner submitted the 
affidavit of one of his counsel at the March 31, 1967, hearing in 
the Superior Court in support of a motion urging the controlling 
effect of Whitus (IR. 256-257). The Superior Court overruled the 
motion (IR. 260), did not admit the affidavit in evidence (IR. 268), 
but permitted the affidavit to be made a part of the record where 
it is reproduced at IR. 212-226. The affidavit concerns the number 
and race of individual taxpayers on the 1964 tax digest and jury 
lists. The affidavit’s essential information is here set out to aid 
the Court and to correct the apparently inaccurate data in the 
Brief for Respondent at 29, n. 2, Sims v. Georgia, 385 U. S. 545.

The 1964 tax digest listed 1,553 individual taxpayers, of whom 
380 or 24.4% were Negro individual taxpayers (Harper Affidavit, 
IR. 213). Of the 147 names on the September 3, 1964, grand jury 
list, from which petitioner’s grand jury was selected, approxi­
mately 7 or 4.7% were Negroes (Harper Affidavit, IR. 213). Of 
the 479 names on the September 3, 1964 traverse jury list, from 
which petitioner’s traverse jury was selected, approximately 47 
or 9.8% were Negroes (Harper Affidavit, IR. 212-213). Of the 
panel of 99 jurors chosen for the October, 1964 Term of the 
Charlton Superior Court, from which the grand and traverse 
jurors were selected in Sims’ case, approximately 9 or 9% were 
Negroes (Harper Affidavit, IR. 213-214).

A comparison of the September 3, 1964 grand and traverse jury 
lists with the Colored Tax Payer section of the 1964 tax digest



55

B. The Georgia Courts Unconstitutionally Refused to Receive 
Petitioner’s Proffered Proof of Racial Discrimination in 
the Selection of Jurors.

Prior to his trial, petitioner offered to prove by certified 
jury boxes and lists covering the period 1954-1963 a pat­
tern of arbitrary exclusion or limitation of Negroes on the 
jury lists of Charlton County. “Jury lists for a ten year 
period were offered in evidence. All were excluded except 
for the lists of jurors from which the juries who indicted 
and convicted were taken.” Opinion of Georgia Supreme 
Court (PE. 331). Petitioner also offered these lists to 
prove that the presence of a Negro on the grand jury which 
reindicted petitioner following the reversal of his conviction 
in Sims v. Balkcom, 220 Ga. 7, 136 S. E. 2d 766 (1964), 
was the result of arbitrary inclusion on the 1964 jury list. 
These offers of proof were ruled inadmissible apparently 
on the ground that the grand and petit jury lists in the 
County had been revised during the summer of 1964, immedi­
ately prior to petitioner’s reindictment and trial (PR. 5, 
8, 12, 70, 93, 95). The ruling was affirmed by the Georgia 
Supreme Court on the ground that no showing had been 
made of discrimination in the composition of the grand and 
petit juries involved in the instant case (PE. 331).

It is a principle needing no elaboration that in a jury 
discrimination case, “ . . . this Court must reverse on the 
ground that the defendant ‘offered to introduce witnesses 
to prove the allegations . . . and the [state trial] court de­
clined to hear any evidence on the subject. . . . ’ ” Coleman 
v. Alabama, 377 U. S. 129, 133, quoting with approval, in a

revealed that the names of Negroes where they appeared on those 
lists, were virtually without exception consecutively listed out of 
alphabetical order (Harper Affidavit, IE. 214).



56

unanimous opinion, from Carter v. Texas, 177 U. S. 442, 
448-49. With the notable exceptions of Coleman and Carter, 
this Court has consistently reviewed jury discrimination 
cases on a record covering a number of years. E.g., Neal v. 
Delaware, 103 U. S. 370, 397 (no Negro had ever served as 
ju ror); Norris v. Alabama, 294 U. S. 587, 591 (no Negro had 
served within witnesses’ memory); Pierre v. Louisiana, 306 
U. S. 354, 361 (ibid.); Smith v. Texas, 311 U. S. 128, 129 (7 
years); Eubanks v. Louisiana, 356 U. S. 584, 586 (18 years); 
Hernandez v. Texas, 347 U. S. 475, 482 (25 years); Reece v. 
Georgia, 350 U. S. 85, 87 (18 years); Arnold v. North Caro­
lina, 376 U. S. 773, 774 (24 years); and see Brooks v. Beto, 
366 F. 2d 1, 9 (5th Cir. 1966) (no Negro had ever served 
as grand ju ror); Scott v. Walker, 358 F. 2d 561, 572 (5th 
Cir. 1966) (6 years); United States ex rel. Seals v. Wiman, 
304 F. 2d 53, 63, n. 5 (5th Cir. 1962) (11 years); United 
States ex rel. Goldsby v. Harpole, 263 F. 2d 71, 78 (5th Cir. 
1959) (no Negro had served within witnesses’ memory).

Notwithstanding this substantial body of precedent, es­
tablishing beyond peradventure the pertinency of a pattern 
or practice of past discrimination as a basis for interpreting 
the significance of the composition of particular juries in 
the case at issue, the state trial court refused to permit 
petitioner to examine a jury commissioner regarding the 
number of Negroes in a petit jury box compiled just two 
years prior to trial.

The Solicitor General: Your Honor, we will make 
our objection . . .  as to going into a [1962] jury 
list that doesn’t have anything to do with the present 
grand jury or petit jury. . . .  We say under the law 
he [petitioner] is entitled to a cross section of petit



57

jurors and grand jurors, but that could only per­
tain to this petit jury and this grand jury—not some 
that used to be.

The Court: 1 am of the opinion that would be 
right (PR. 88-89).

Petitioner was thus thwarted in his attempt to make a 
full record upon which a continuing pattern or practice 
of racial discrimination in jury selection in Charlton 
County might have been based. His contention of sys­
tematic exclusion or limitation of prospective Negro jurors 
in selection of his grand and petit juries was thus de­
prived of the evidentiary support which derives from plac­
ing present practices in the meaningful context of past 
actions. As this Court has recognized, “ Institutions, like 
other organisms, are predominantly what their past has 
made them. History provides the illuminating context 
within which the implications of present conduct may be 
known.” Communist Party v. Subversive Activities Con­
trol Board, 367 U. S. 1, 69. Petitioner seeks nothing more 
than to have his day in court on his federal constitutional 
claims. This he has been denied, and with it the equal pro­
tection of the laws. Certiorari should be granted to estab­
lish the point—not yet declared by this Court, but, we sub­
mit, obvious and obviously ignored below—that one refill­
ing of a jury box does not make a ten-year history of racial 
exclusion irrelevant to the federal contention of systematic 
discrimination in juror selection.



58

CONCLUSION

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

Respectfully submitted,

J ack Greenberg 
James M. Nabrit, III 
Conrad K. Harper

10 Columbus Circle 
New York, New York 10019

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

H oward Moore, J r.
859% Hunter Street, N.W. 
Atlanta, Georgia 30314

Attorneys for Petitioner



A P P E N D I X



l a

24152. SIMS v. THE STATE.

1. Questions adjudicated upon the first appearance of a 
case before this court become the law of the case and 
cannot be readjudicated by subsequent appearance here.

2. The judgment of the trial court finding the defendant’s 
confession to have been voluntarily made was not error 
for any reason assigned.

Argued June 12, 1967—Decided June 22, 1967—Rehear­
ing denied July 6, 1967.

Rape. Charlton Superior Court. Before Judge Hodges.

The defendant has twice been convicted of rape by force 
in the Superior Court of Charlton County. His first con­
viction was reversed by this court in Sims v. Balkcom, 220 
Ga. 7 (136 SE2d 766). After his second trial an appeal 
was taken to this court where such second conviction was 
affirmed (Sims v. State, 221 Ga. 190 (144 SE2d 103)); how­
ever, on certiorari the U. S. Supreme Court reversed the 
judgment of this court on one ground only (Sims v. Geor­
gia, 385 U. S. 538 (87 SC 639, 17 LE2d 593)). Thereafter, 
the judgment of the U. S. Supreme Court was made the 
judgment of this court and the case was remanded to the 
Superior Court of Charlton County for a hearing before 
the court as to the voluntariness of the defendant’s con­
fession. See Sims v. State, 223 Ga. 126 (153 SE2d 567). 
On the hearing the trial court found the confession had 
been voluntarily made and the conviction was affirmed. The 
appeal is from this judgment.

Howard Moore, Jr., Jack Greenberg, James M. Nabrit, 
III, Conrad K. Harper, for appellant.



2a

Dewey Hayes, Solicitor General, Arthur K. Bolton, At­
torney General, Marion 0. Gordon, Assistant Attorney 
General, Mathew Robins, Deputy Assistant Attorney Gen­
eral, for appellee.

Nichols, Justice. After the remittitur from this court 
was made the judgment of the trial court the defendant 
sought again to present questions for decision by the trial 
court which had been previously adjudicated and affirmed 
by this court on the appearance of the case reported in 
221 Ga. 190. The judgments of the trial court there af­
firmed are established as the law of the case and the 
enumeration of error seeking to re-adjudicate such ques­
tions presents nothing for decision by this court. See 
Rawlins v. State, 126 Ga. 96 (54 SE 924), and Reece v. 
State, 211 Ga. 339 (85 SE2d 773), reversed on other 
grounds 350 U. S. 85 (76 SC 167, 100 LE 77).

2. The U. S. Supreme Court in reversing the prior de­
cision of this court held that a separate hearing should be 
had on the question of the voluntariness of the defendant’s 
confession. This hearing was held after the remittitur 
from this court was made the judgment of the trial court 
and by agreement the question was considered by the trial 
court based upon the record previously made in the case.

The trial took place prior to June 14, 1966, and the strict 
requirements of Miranda v. Arizona, 384 U. S. 436 (86 SC 
1602, 16 LE2d 694, 10 ALR3d 974), do not apply. See 
Johnson v. New Jersey, 384 U. S. 719 (86 SC 1772, 16 
LE2d 882); Gunter v. State, 223 Ga. 290, 294 (154 SE2d 
608).



3a

The defendant testified that after being arrested he was 
taken to the office of Dr. Jackson where several people were 
present. The defendant was then asked by his attorney: 
“ Q. And did anything happen to you after you got in Dr. 
Jackson’s office? [fol. 169] A. Yes, sir. Q. What happened 
to you Isaac? A. Well, Dr. Jackson, he knocked me down 
and kicked me over my eyelid and busted my eye on the 
right side. Q. Did anything else happen to you? A. And 
he grabbed me by my private and drug me on the floor. 
Q. Did he drag you by your private on the floor? A. Yes 
sir. Q. Did that hurt you, Isaac? A. Yes, sir. Q. Did it 
hurt you a lot? A. Yes, sir; pretty bad.”

On cross examination the defendant testified that deputy 
sheriff Dudley was present when he made a statement, 
that he remembered the deputy sheriff telling him that 
anything he said could be used against him in court, that 
he had known the deputy sheriff for twelve or thirteen 
years, was not afraid of him and if he (the deputy sheriff) 
had read anything in the statement which the deputy 
sheriff took down as he (the defendant) made his state­
ment which was wrong he would not have been afraid to 
tell him that it was wrong. He testified that he did not 
remember if he was advised of his right to counsel.

The physician, Dr. Jackson, who the defendant accused 
of knocking him down, pulling him around by his private 
and kicking him, testified on the trial of the case that he 
did not knock the defendant down and did not kick him. 
He further testified that the defendant was in his office for 
only fifteen or twenty minutes and that the only thing he 
did was help remove the defendant’s pants and shorts so 
that they could be “ checked”  as a result of the charges 
made against him. The officers testifying in the case testi­



4a

fied as to the circumstances surrounding the defendant 
making the confession. These circumstances are fully set 
forth in Sims v. State, 221 Ga. 190, 197, supra, as follows: 
“ The undisputed evidence as to the time and manner in 
which the statement was taken is as follows: The offense 
was committed about 10 a. m. on April 13, 1963. About 3 
p. m. of the same day the defendant was arrested by Ser­
geant Sims of the State Patrol. Under instructions of 
Sergeant Sikes of Charlton County he was taken to the of­
fice of Dr. Jackson, and then to the jail in Waycross where 
he was placed in the custody of Ware County Sheriff Lee. 
About 6 :30 p. m. of the same day, one Dudley Jones, a Dep­
uty Sheriff of Ware County, saw the defendant whom Jones 
had known for twelve years or more. No one else was 
present—Jones asked him what ‘he was doing up there.’ 
Sims replied that he ‘got in trouble with a white woman 
in Folkston, Georgia’ ; ‘that he raped a white woman in 
Folkston.’ Jones asked him whether he wanted to make a 
statement to that effect to the sheriff. Sims replied that 
he did. Jones took him to the sheriff’s office where his 
statement was taken, reduced to writing, and signed at 
about 10:30 p. m. on April 13, 1963. Sheriff Lee testified 
that before the defendant made any statement he advised 
him that he was entitled to an attorney and that the de­
fendant said he did not want an attorney; he advised Sims 
that any statement he made could be used against him. 
The sheriff further testified that no threats or promises 
of hope of benefit or reward were made to induce Sims to 
make a statement. His statement was reduced to writing 
and signed by Sims in the presence of the sheriff, the Chief 
of the Ware County Police, Jones, the deputy sheriff of 
the county, and B. C. Worley, a constable. On April 15, 
1963, after Sims had been transferred to the Charlton



5a

County jail at Folkston, F. F. Cornelious of the Bureau 
of Investigation read to the defendant his written state­
ment of April 13 and he asked Sims if it was true. Sims 
replied, ‘Yes sir, that is right.’ ”

The trial judge, as the trier of fact, who presided at 
the trial when the various witnesses testified, had the op­
portunity of judging their credibility and it cannot be said 
the decision of the trial court finding that the confession 
was voluntarily made was error for any reason assigned.

Judgment affirmed. All the Justices concur.



6a

SUPREME COURT OF GEORGIA

Atlanta, June 22, 1967

The Honorable Supreme Court met pursuant to adjourn­
ment. The following judgment was rendered:

Isaac Sims, Jr., v. The State.

This case came before this court upon an appeal from 
the Superior Court of Charlton County; and, after argu­
ment had, it is considered and adjudged that the judgment 
of the court below be affirmed. All the Justices concur.



SUPREME COURT OF GEORGIA

Atlanta, July 6, 1967

The Honorable Supreme Court met pursuant to adjourn­
ment. The following order was passed:

Isaac Sims, Jr., v. The State.

Upon consideration of the motion for a rehearing filed 
in this case, it is ordered that it be hereby denied.



8a

APPENDIX ON COMPUTATION

The probability that no more than five Negroes would be 
selected out of 99 when Negroes constituted 20% of the tax 
list from which the selections were made may be computed 
by using a formula known as the cumulative binomial dis­
tribution. The value of this formula can be determined 
either by using ready-made tables or approximation meth­
ods. We have used the table appearing in Harvard Com­
putation Laboratory, Tables of the Cumulative Binomial 
Probability Distribution (1955). Using that table we have 
the following for the probability P that no more than five 
Negroes would be selected:

v = 5

P ( v  = 5) = v !  (n-v)
nI pvQn v

v  = 0 

v  = 5 991
v : (99 -v ) :

T ( 0 . 2 0 ) V ( 0 . 8 0 ) " ~ V

v = 0

=  0 . 00002+

A  description of the derivation and terms of the formula 
and the use of the tables appears in Finkelstein, The Ap­
plication of Statistical Decision Theory to the Jury Dis­
crimination Cases, 80 Harv. L. Eev. 338 (1966).



» 8  MORTON 8TR«rr 
►iSW YORK K, N.T.

38