Petition for Rehearing

    IN THE 

Supreme Court of the United States 
1971 TERM 
  

WILLIAM HENRY FURMAN 

V. 

GEORGIA 

LUCIOUS JACKSON, JR. 

Vv. 

GEORGIA 

A. C. PARK 

V. 

THE STATE OF GEORGIA 

JOHNNIE B. WILLIAMS 

V. 

STATE OF GEORGIA 

WILLIE ARKWRIGHT, 

V. 

STATE OF GEORGIA 

WILLIAM JACK MILLER 

V. 

STATE OF GEORGIA 

UNITED STATES OF AMERICA, 

ex rel. 

VENSON EUGENE WILLIAMS 

Vv. 

LAMONT SMITH (Formerly 

A. L. Dutton), Warden, 

Georgia State Prison 

TOMMIE LEE HENDERSON 

Vv. 

STATE OF GEORGIA 

JULIOUS SULLIVAN 

V. 

THE STATE OF GEORGIA 

JAMES C. THACKER 

V. 

THE STATE OF GEORGIA 

| No. 69-5003 

No. 69-5030 

Nec. 69-3 

(Formerly No. 809, 

October Term, 1969). 

No. 69-5049 

(Formerly No. 2383, Misc., 

October Term, 1969). 

No. 69-5032 

(Formerly No. 1953, Misc, 

October Term, 1969). 

No. 70-5065 

(Formerly No. 6569, 

October Term, 1970). 

No. 70-5066 

(Formerly No. 6570, 

October Term, 1970). 

  
(Formerly No. 6733, 

No. 70-5079 

} October Term, 1970). 

(Formerly No. 825, Misc., 

! No. 69-5006 

October Term, 1969). 

(Formerly No. 5331, 

No. 69-5045 

} October Term, 1970). 

  

   



GEORGE CUMMINGS 

Vv. 

STAd’E OF GEORGIA 

JAMES C. LEE, alias 
MOSES KING, JR. 

Vv. 

THE STATE OF GEORGIA 

JAMES HENRY WALKER 

Vv. 

THE STATE OF GEORGIA 

No. 69-5027 

(Formerly No. 683, Misc., 

October Term, 1969). 

No. 69-5039 

(Formerly No. 5256, 

October Term, 1970). 

No. 70-3 

i (Formerly No. 429, 

October Term, 1970). 

  

ON WRIT OF CERTIORARI TO THE 

SUPREME COURT OF GEORGIA 

  

PETITION FOR REHEARING 

  

P. O. Address: 

132 State Judicial Bldg. 

40 Capitol Square, S.W. 

Atlanta, Georgia 30334 

P. O. Address: 

Chatham County Courthouse 

Savannah, Georgia 

ARTHUR K. BOLTON 

Attorney General 

HaroLp N. HiLr, Jr. 
Executive Assistant Attorney General 

COURTNEY WILDER STANTON 

Assistant Attorney Generzl 

DoroTHY T. BEASLEY 

Assistant Attorney General 

ANDREW J. RYAN, JR. 

District Attorney 

Eastern Judicial Circuit 

ANDREW J. Ryan, III 

Assistant District Attorney  



TABLE OF CONTENTS 

1. CONTEXT OF THE CASES 

II. REASONS FOR GRANTING 
REHEARING 

A. THE DECISION OVERREACHES THE 
SCOPE OF THE QUESTION .. 

B. THE FINDING UNDERLYING THE 
COURT'S BASES ARE DEVOID OF 
COGNIZABLE PROOF 

.. THE JURY'S ROLE INTERCEPTS 
LEGISLATIVE EXCESSES 

. THE END HAS BEEN CONFUSED 
WITH THE MEANS AND THE 
DECISION IS THUS OVER- 
REACHING IN ITS EFFECT 

E. THE DECISION IS BASED ON THE 
MISAPPLICATION OF PRINCIPLES. .. 

CONCLUSION 

TABLE OF CASES 

Aero Mayflower Transit Co. v. Board of 
R.R. Comm'rs.;, 332.1).8. 495 (1947) 

Arkwright v. Smith, 224 Ga. 764 (1968) 

Arkwright v. State, 223 Ga. 768 (1967) 

Arkwright v. State, 226 Ga. 192 (1970) 
cert. No. 69-5032, Supreme Court of the 
United States 

Ashwander v. Tennessee Valley Authority, 
297 U.S, 288 (1936) 

Duncan v. Louisiana, 391 U.S. 145 (1968) 

Ferguson v. Balkcom, 222 Ga. 676 (1966) 

i  



  

TABLE OF CASES (Continued) 

Page 

Ferguson v. Dutton, United States District Court 
Northern District of Georgia, Atlanta Division, 
Case No. 11339, habeas corpus denied February 
26, 1972, appeal pending, U. S. Court of 
Appeals for the Fifth Circuit, No. 71-1827... .. 19 

Ferguson v. State, 215 Ga. 117 (1959) rev’d. 
365 U.S. 57001001)... on ns re 19 

Ferguson v. State, 218 Ga. 173 (1962)......%..... 19 

Ferguson v. State, 219 Ga. 33 (1963), cert. den. 
3S5US. 9. rr. a on 19 

Ferguson v. State, 220 Ga. 364 (1964), cert. den. 
BLUSHONS, i Bra 19 

Henderson v. State, 227 Ga. 68 (1970) Cert. No. 
70-5079, Supreme Court of United States. ..... 10 

In Re Kemmmnler, 136. U.S, 436. (1890)... ......... 40 

Lake Carriers Association v. MacMullan, 
  TRE 1 ,928.Ct. 1749, 32 |. Ed.2d 

SIS en sas 23 

Massey v. Smith, 224 Ga. 721 (1968), cert. den. 
AOS US 01) it nse Seas 18 

Massey v. State, 220 Ga. 333 (1965).......0....... 18 

Massey v. State, 222 Ga. 143 (1966), cert. den. 
$3888. 30. En. ae a 18 

Massey v. State, appeal pending Supreme Court 
of Georgia, Case NO, 27185 civ nin ons ines 18 

McLaughlin v. Florida, 379 U.S. 184 (1964)... ..31, 32 

Miller v. State, 224 Ga. 627 (1968)... .......... 6 

Miller v. State, 226 Ga. 730 (1970) Cert. No. 
70-5065, Supreme Court of the United States... 6 

il 

   



TABLE OF CASES (Continued) 

    

Page 

Park v. State, 224 Ga. 467 (1968), cert. den. 
Park v: Georgia, 395 11.8. 930°(196%Y. 7... .... 4 

Park v. State, 225°Ga. 618 (1969), Cert: No. 
69-3, Supreme Court of the United States. ..... 4 

Peters v. Kiff, U.S. (1972) [slip opinion 
Pp. 10, Na. 71-5078, June 22, 197 =~ AY. con 26 

Reetz y. Bozanich;, 397 U.S. 32 (1970) ..... cvs ee 14 

Reidy, Covert, 334 US. 11957). ............... 11 

Salsburg v. Maryland, 346 U.S. 545 (1954) ...... 30 

Weems v. United States, 
7 US. Modo) >... .. i... 22, 29, 38, 31 

Wilkerson v. Utals, 9S U.S. 130 (1870). .......... 34 

Williams v. Illinois, 399 U.S. 235 (1970)... ....;... 26 

Willioms v. New York, 3372 U.S. 241 (1949). ...... 26 

Williams (Johnnie) v. Smith, 224 Ga. 800 (1968)... 6 

Williams (Johnnie) v. State, 223 Ga. 773 (1967)... 6 

Williams (Johnnie) v. State, 226 Ga. 140 (1970), 
Cert. No. 69-5049, Supreme Court of the 
Unifed States... ... 70 il riers 6 

Williams (Venson) v. Dutton, 431 F.2d 70 
{5th Cir. 1970), Cert. No. 70-5060, 
Supreme Court of the United States........... 8 

Williams (Venson) v. Dutton, 400 F.2d 797 
(3th Cir. 1963), cert. den. 393 U.S. 1103 (1969)... 3 

Williams (Venson) v. State, 222 Ga. 208 (1966), 
cert, den. 335 U.S. 837(1966). . ....... cone. 

Witherspoon v. Illinois, 391 U.S. 510 (1968). ..6, 19, 27 

iil  



  

OTHER 

Page 

Criminal Code of Georgia 326-1601 ....... .0.. . «i... 34 

Ga. Laws 1970, pp. 949, 950, as amended 1971, 
P- 902 (Ga. Code Ann. 827-2530)... ..... os. 25 

Quarles, An Introduction to Georgia’s Criminal 
Code, 5 Ga. St. Bar J. 18351968)... .+.... -. i... 12 

1v 

   



IN THE 

Supreme Court of the United States 
1971 TERM 

  

  

WILLIAM HENRY FURMAN, i 

Petitioner, 

Vv. s No. 69-5003 

GEORGIA, 

Respondent. | 

LUCIOUS JACKSON, JR., i 

Petitioner, 

Y. > No. 69-5030 

GEORGIA, 

Respondent. | 

A. C. PARK, D No. 69-3 

Petitioner, (Formerly 

Vv. 7 No. 809, 

THE STATE OF GEORGIA, October Term, 

Respondent. | 1969). 

JOHNNIE B. WILLIAMS, 1 No. 69-5049 

Petitioner, (Formerly) 
Vv. . No. 2333, 

Misc., 
STATE OF GEORGIA, October Term, 

Respondent. | 1969).  



  

WILLIE ARKWRIGHT, 

Petitioner, 

V. 

STATE OF GEORGIA, 

Respondent. 

WILLIAM JACK MILLER, 

Petitioner, 

Vv 

STATE OF GEORGIA, 

Respondent. 
i
 

J 
J 

w
r
 

\.
 

UNITED STATES OF AMERICA, ) 

ex rel. 

VENSON EUGENE WILLIAMS, 

Petitioner, 

V. 

LAMONT SMITH (Formerly 

A. L. Dutton), Warden, 
Georgia State Prison, 

Respondent. 

TOMMIE LEE HENDERSON, 

Petitioner, 

V 

STATE OF GEORGIA, 

Respondent. 

JULIOUS SULLIVAN, 

Petitioner, 

VY. 

THE STATE OF GEORGIA, 

Respondent. 

7) 

\_ 
a 

\- 

\ 
~ 

\   
  

No. 69-5032 
(Formerly 

No. 19353, 

Misc., 

October Term, 

1969). 

No. 70-5065 

(Formerly 

No. 6569, 

October Term, 

1970). 

No. 70-5066 

(Formerly 

No. 6570, 

October Term, 

1970). 

No. 70-5079 

(Formerly 

No. 6733, 

October Term, 

1970). 

No. 69-5006 

(Formerly 

No. 825, 

Misc. 

October Term, 

1969). 

 



  

    

JAMES C. THACKER, Y\ No. 69-5045 

Petitioner, (Formerly 

Y, = OND. 3331, 

THE STATE OF GEORGIA, October Term, 

Respondent. | 1970). 

GEORGE CUMMINGS, 1 No. 69-5027 

Petitioner, (Formerly 
v No. 683, ; > : 

Misc., 
STATE OF GEORGIA, October Term, 

Respondent. 1969). 

JAMES C. LEE, alias 

MOSES KING, JR., Re 
Petitioner, (Formerly 

Y No. 35256 

THE STATE OF GEORGIA, October. Term, 
1970). 

Respondent. | 

JAMES HENRY WALKER, ) No. 70-3 

Petitioner, (Formerly 

Vv. > No. 429, 

THE STATE OF GEORGIA, October Term, 

Respondent. 1970). 

  

PETITION FOR REHEARING 

Comes now the State of Georgia, Respondent herein, 

and petitions this Honorable Court for a rehearing in 

those cases above-styled which were heard and for a 

hearing in those cases which were reversed and re- 

manded without a hearing. The reasons therefor are 

given below.  



  

4 

I. CONTEXT OF THE CASES 

William Henry Furman was convicted of murder by 

a jury in Savannah, Georgia, in September, 1968. He 

admitted on the stand his shooting of the householder 

during the course of his attempt to burglarize the home 

where the young family was sleeping. The twelve-man 

jury of his peers unanimously determined that his sen- 

tence should be death. 

Lucious Jackson, Jr. was convicted of forcible rape 

by a jury in Savannah, Georgia, in December 1968. He 

offered no defense to the evidence that he broke into 

the home of a young mother early one morning, hid in 

a closet with a weapon made by dismantling her scis- 

sors, and attacked and raped her after beating down her 

desperate struggles and demonstrably threatening her 

life. The twelve-man jury determined that the sentence 

for the crime established should be death. 

A. C. (Cliff) Park has twice been convicted and sen- 

tenced to death by juries in Jackson County, Georgia. See 

Park v. State, 224 Ga. 467 (1968), cert. den. Park v. 

Georgia, 393 U.S. 980 (1968); Park v. State, 225 Ga. 

618 (1969), cert. No. 69-3, Supreme Court of the Unit- 

ed States. Park was a purported millionaire and was en- 

gaged in a large scale illegal traffic in beer, wine, and 

whiskey. The local solicitor general, chief prosecuting offi- 

cer of the judicial circuit in which Park resided, who had 

begun an investigation into Park’s operations, was blown 

up when dynamite attached to his car exploded upon 

his starting the ignition. Park was convicted of murder. 

Johnnie B. Williams and Willie Arkwright were joint- 

ly indicted but tried separately for rape in Screven Coun- 

ty, Georgia. The reported account tells the story: 

   



5 

“[ Arkwright] and Williams went to the home of 
the victim, which was in the country with no other 
home nearby, entered the home, robbed her of the 
money she had, then choked her, threatened to 
kill her, and dragged her into the woods, where she 
was held by Williams while, according to [Ark- 
wright], he attempted to have sexual relations with 
her but was unable to do so. The victim testified 
that [ Arkwright] did accomplish his purpose, that 
he then held her while Williams raped her, and 
then [ Arkwright] again raped her. The doctor who 
examined her shortly afterwards at the hospital, 
where she was brought by a neighbor, testified that 
there was male sperm in her vagina and that she was 
in a state of shock or hysteria. After raping the vic- 
tim, Williams stripped her wedding ring and band 
from her finger, and [ Arkwright] and Williams tied 
her to a tree and left her in the woods. She released 
herself and went looking for her four-year old child, 
who was alone at home with her when [ Arkwright] 
and Williams had entered the house. She was picked 
up on the road by a friend, as was her child, who 
had been seen walking down the road. The evidence 
shows the cruel, inhumane, wholly unprovoked, das- 
tardly crime of rape committed upon this helpless 
young woman by [ Arkwright] and his companion.” 
Arkwright v. State, 223 Ga. 768, 770 (1967). 

® ® * 

“The victim testified [in Williams’ trial] that after 
Arkwright had demanded her money and had choked 
her to the floor twice there in the house, she said to 
him, ‘I know you, you’ve been here before and I was 
nice to you,” and then he said to [Williams], ‘yes, 
she knows me, we've got to bump her off.” Ths wife 
of Arkwright testified that she and her husband 
stopped at the victim’s house a short time before the 
date of the alleged rape and her husband talked with 
the victim, who told him that her husband was not  



  

6 

at home and her baby was sick and she could not 
help him get a tire fixed, which he said was flat.” 
Williams v. State, 223 Ga. 773, 774 (1967). 

Williams was sentenced to death by two separate 

juries, the second following a reversal of sentence based 

on Witherspoon v. Illinois, 391 U.S. 510 (1968). See 

Williams v. State, 223 Ga. 773 (1968); Williams v. 

Smith, 224 Ga. 800 (1968); Williams v. State, 226 Ga. 

140 (1970), cert. No. 69-5049, Supreme Court of the 

United States. 

Arkwright was also sentenced to death by two sep- 

arate juries, the second subsequent to Witherspoon, 

supra. See Arkwright v. State, 223 Ga. 768 (1967); 

Arkwright v. Smith, 224 Ga. 764 (1968); Arkwright 

v. State, 226 Ga. 192 (1970), cert. No. 69-5032, Su- 

preme Court of the United States. 

William Jack Miller was convicted of rape and sen- 

tenced to death in Jones County, Georgia, in February, 

1967. His first sentence was set aside due to its failure 

to comport with the rule announced in Witherspoon, 

supra, and he was sentenced to death again, by a differ- 

ent jury. See Miller v. State, 224 Ga, 627 (1968); Mil 

ler v. State, 226 Ga. 730 (1970), cert. No. 70-5065, 

Supreme Court of the United States. His victim was a 

50-year-old woman. The rape was witnessed by her 81- 

year-old mother. Miller threatened his victim in her 

home with a knife and then both were cut with the knife 

before he tore off her clothes, saying, “This is what I 

want.” He held the knife during the whole ordeal and 

when he left he promised to return and kill his victim 

if she rose from the floor within five minutes. He gained 
access to her home when, after questioning her out in 

   



  

7 

the yard, he stole into the house before she, being frigh- 

i tened, had time to run in and secure the doors. 

Venson Williams was convicted and sentenced to 

. death in Gwinnett County, Georgia, in October, 1965, 

for the murder of a police officer. The stark facts are 

summarized as reported: 
[3 

‘. . . Williams and one Truett owned a garage in 
Hartsville, South Carolina, where they were en- 
gaged in the business of rebuilding wrecked auto- 
mobiles. Early in 1964, they purchased a maroon- 
colored 1963 Oldsmobile which had been damaged 
on the left side and rear. They concluded that the 
car could not be resold at a profit if they had to 
purchase the repair parts. Therefore, with the help 
of one Evans, they located and stole a substantially 
identical Oldsmobile in Atlanta, Georgia. Return- 
ing to Hartsville, the three men stopped on a back 
road in Gwinnett County in order to put new regis- 
tration plates and a new ignition switch on the 
stolen car. Responding to a police call reporting 
suspicious activity, three Gwinnett County police 
officers accosted the car thieves. While being ques- 
tioned by the officers, Evans grabbed the gun from 
one of the officers, the other two were then dis- 
armed, and all three of them were bound together 
with their own handcuffs. Williams and Evans then 
took the officers into a little wooded area off the 
road and shot each officer a number of times, mostly 
in the back of the head. The stolen Oldsmobile was 
driven off the road and set afire and the three car- 

- thieves-turned-murderers slinked away in the night, 
leaving the lifeless bodies and the burning car. 

Although Williams, Evans, and Truett had been 
prime suspects very early in the investigation, more 
than a year went by before charges were filed against 
them. The difficulty encountered by the investigating 
officers was in discovering more than circumstantial  



  

8 

evidence connecting the suspects with the crime. The 
breakthrough came when Truett, on a promise of 
immunity from prosecution, agreed to confess par- 
ticipation in the crime and to testify on behalf of 
the prosecution.” Williams v. Dutton, 400 F.2d 
797,799 (5th Cir, 1963), 

The history of his case is reported at: Williams v. State, 
222 Ga. 208 (1966), cert. den. 385 U.S. 887 (1966); 

Williams v. Dutton, 400 F.2d 797 (5th Cir. 1958), cert. 

den. 393 U.S. 1105 (1969); Williams v. Dutton, 431 

F.2d 70 (5th Cir. 1970), cert, No. 70-3066, Supreme 

Court of the United States.’ 

Tommie Lee Henderson was tried in DeKalb County, 

Georgia, in 1969 for the crimes of kidnapping and mur- 

der. The circumstances, as reported, are as follows: 

“The kidnap victim, a young girl, seventeen years 
of age, a high school senior, was employed on a 
part-time basis at the Southern Bell Telephone Ex- 
change located on East Lake Drive, Decatur, De- 
Kalb County, Georgia. On August 18, 1969, at 
approximately 3:15, she drove her red Volkswagen 
automobile into the parking lot adjacent to the said 
telephone exchange and was preparing to alight 
therefrom to go to work when she was approached 
by two Negro men, one of whom, [Henderson], 
placed a knife against her stomach and ordered her 
to “slide over,” telling her that if she would keep 
her mouth shut she wouldn’t get hurt. The two men 
entered her car and [Henderson] drove the auto- 
mobile from the aforesaid parking lot while the 
  

Williams’ death sentence has previously been set aside below due 
to Witherspoon, Willicms v. Dutton, 400 F.2d 797. (5th Cir. 
1968). Thus he is still subject to a sentencing-only trial. Does 
the Court’s action in his case, together with the broad-scoped 
underlying decision, foreclose consideration of the death penalty 
in Williams’ future trial? 

   



  

9 

other, identified as Benjamin Franklin Edwards, 
rode in the back seat with the girl in the front. At 
one point, the automobile was stopped and the girl 
was forced to get into the back seat. She was driven 
to a secluded spot located in DeKalb County where 
she was forced to disrobe and forceably raped by 
Benjamin Franklin Edwards. She was then per- 
mitted to put her clothes back on and taken by the 
two men to another spot in DeKalb County after 
making several intermediate stops where she was 
again raped by Edwards and forced by him to sub- 
mit to an unnatural sex act. Following that, the 
accused and Edwards resumed a previous argu- 
ment in which they had been engaged which was 
culminated by the accused stabbing Edwards twice 
in the abdomen with a pocket knife. Edwards stag- 
gered from the immediate scene and his body was 
later found by police officers a short distance there- 
from. Thereafter, the kidnap victim, who was, of 
course, the chief witness for the State, was taken 
by the defendant under continuous threat in the 
form of a constantly exhibited knife to different 
places in DeKalb and Rockdale Counties. She was 
taken to the residence of people known to [Hender- 
son| where she was compelled to spend the night 
under the explanation by [Henderson] to them that 
she and [he] were husband and wife. That resi- 
dence was located in Rockdale County, and while 
there [Henderson] forced her to submit to sexual 
relations on at least three separate occasions, all 
the while constantly holding a knife on her and 
threatening to kill her if she made an outcry or 
complaint. The next morning, she was carried to a 
number of other places located in Rockdale Coun- 
ty, still under the same threat. returned to the same 
house where she had spent the night, and there held 
until she was finally rescued by the Sheriff of Rock- 
dale County bursting into the house as [Henderson] 
exited from the rear thereof and fled the scene. The  



  

10 

testimony of a man who observed a struggle be- 
tween the girl and Edwards in the rear seat of her 
car as it was being driven along an expressway, 
followed the car, noted its tag number and reported 
what he had seen to the police, of police officers, 
the sheriff and of medical witnesses was introduced 
by the State in corroboration of the testimony of 
the principal witness. [Henderson] testified under 
oath, his defense being in substance that it was 
Edwards who perpetrated the kidnapping, if there 
was a kidnapping at all, that he did not know that 
Edwards and the girl were not friends, and that he 
thought that the girl voluntarily and willingly ac- 
companied Edwards. [Henderson] denied that he 
had sexual relations with the girl at any time, or 
that he ever exercised any force or made any threats 
to compel her to accompany him or Edwards. The 
jury found [Henderson] guilty. . . . The court 
passed a sentence of death by electrocution as to 
each of [the] counts... .” 

Henderson v. State, 227 Ga. 63, 71-72 (1970), cert. 

No. 70-5079, Supreme Court of the United States. 

(In the interest of what brevity may be achieved in 

this lengthy Petition, the remaining five cases are not 

here summarized). 

The Court granted certiorari in Furman and Jackson 

and fashioned a common question for consideration in 

the two cases: 

“Does the imposition and carrying out of the death 
penalty in this case constitute cruel and unusual 
punishment in violation of the Eighth and Four- 
teenth Amendments?” 

The Court has declared these two sentences, and those 

in the eleven unbriefed and unargued cases, invalid be- 

cause studies and statements, those advanced by Petition- 

   



3 

ers in argument and those unearthed by the Court sua 

sponte and both considered for the first time in this re- 

view, are said to demonstrate that the death penalty is 

“unevenly” imposed by judges and juries in this country 

and is so “infrequently” imposed that it must be imposed 

for the wrong reasons so that its impositions constitute 

prohibited cruel and unusual punishment. Little attention 

has been paid to the cases before the Court, or to whether 

the juries in these cases acted arbitrarily, or to whether 

the penalties in these cases were excessive, or even, for 

that matter, to whether the death penalty is being applied 

constitutionally now or is even capable of constitutional 

application in Georgia presently or in the future. 

In reaching its ultimate conclusion, the Court has un- 

necessarily mortgaged the future by its broad pronounce- 

ment. See Reid v. Covert, 354 U.S. 1, 67 (1957), con- 

curring opinion of Mr. Justice Harlan. 

II. REASONS FOR GRANTING REHEARING. 

A. THE DECISION OVERREACHES THE SCOPE 

OF THE QUESTION. 

The constitutional question framed by the Court is 
limited to these cases and therefore necessarily to the 

circumstances and statutes involved in them. This is a 

fundamental parameter of judicial review, which is con- 

fined to particular and concrete cases or controversies. 

The Court has here set aside its own rules in dealing 

with constitutional questions. Although Mr. Justice 

Stewart calls attention to the rule that the Court will 

not “formulate a rule of constitutional law further than 

is required by the precise facts to which it is to be ap- 

plied,” the Court does not in fact limit consideration  



  

12 

to the murder and rape penalty statutes of Georgia nor 

more narrowly to their application in the circumstances 

of Furman and Jackson. The sentences in these cases are 

instead viewed in the context of the whole nation’s “legal 

system” (Stewart, J., slip opinion, p. 4). The context is 

exploded to country-wide proportions and the objections 

to the sentences imposed in these cases are based on sta- 

tistics and studies and statements drawn nationally. The 

opinions are replete with matter outside the facts of 

“these cases,” and there is no apparent justification for 

the necessity of such a sweeping rule in the decision of 

these cases. 

The yardstick for determining whether the sentences 

are excessive is what “the state legislatures” have enacted 

(Stewart, J., slip opinion, p. 4). If the examination had 

been confined to the context of these cases, the Court 

would have to consider whether the Georgia legislature 

deemed the death penalty necessary, assuming this to 

be a proper inquiry in determining the constitutionality 

of a state penalty, and the opinions are devoid of inquiry 
into the rationale which prompted the Georgia Assembly 
to authorize the imposition of the death penalty in 1968. 

Such a consideration would require remand for further 

factual development. The invidiousness of abandoning 

the proper context is heightened by the fact that Geor- 

gia legislative study committees substantially studied the 

question of retention of the death penalty prior to its 

inclusion in the new Criminal Code of Georgia, which 

became effective July 1, 1969. The Court fails to take 

  

2See references to the House and Senate Reports in Respondent’s 
Brief in Furman v. Georgia, at pp. 58-59. See also Quarles, An 
Introduction to Georgia's Criminal Code, 5 Ga. St. Bar J. 185 
(1968). 

   



13 

into account that the decision in these pre-1969 cases 

steps over the results of interim legislative action. The 

Court rules in effect that the legislative action was not 

justified but it has omitted looking into the justifications. 

The consideration given reached far beyond the ques- 

tion before the Court. Even if it had found that Furman 

and Jackson were the victims of capricious punishment 

determination and wanton jury action, the same infirmity 

does not logically extend to A. C. Park, Johnnie B. Wil- 

liams, William Jack Miller, Willie Arkwright, Venson 

Eugene Williams, Tommie Lee Henderson, or others so 

sentenced simply because they, too, received the death 

penalty from Georgia juries. 

The question was not whether the death penalty in 
America constituted cruel and unusual punishment. 

Other states had no notice that their own statutes were 

being challenged in these specific cases, nor had they 

any real opportunity to present evidence and argument 

on the validity of their statutes and the death penalties 

imposed pursuant thereto. And yet the decision in these 

cases apparently overruled all existing non-mandatory 

death penalty statutes and all extant sentences. This is 

even more extraordinary in that the factual basis for 

reaching the conclusion was not evidence but was in- 

stead selected studies, statistics, lay opinions, and other 

“evidence” which did not meet the most elementary rules 

of admissibility. The basis for the opinions is clearly 

broader than the context of the question posed, and 

broader than the three cases before the Court in which 

it considered argument and ruled. 

Other traditional rules of judicial restraint have also 

seemingly been discarded. The following rules listed by  



  

14 

Mr. Justice Brandeis in his concurring opinion in Ash- 

wander v. Tennessee Valley Authority, 297 U.S. 288, 
341-348 (1936), call for reconsideration in the proper 

context, the Court having departed to the farthest reaches 

from its own concept of appropriate judicial review: 

“2. The Court will not ‘anticipate a question of 
constitutional law in advance of the necessity of 
deciding it.’ . . . ‘it is not the habit of the Court to 
decide questions of a constitutional nature unless 
it is absolutely necessary to a decision of the case.” ” 
Id. at 347. 

If the Court has determined, as it apparently has, that 

the application of the Georgia statutes was unconstitu- 

tional, then for what reasons were the statutes struck 

down, and further, for what reason were all death penalty 
statutes in the country on both the federal and state 

levels, stricken? 

“7. ‘When the validity of an act of the Congress 
is drawn in question, and even if a serious doubt 
of constitutionality is raised, it is a cardinal prin- 
ciple that this Court will first ascertain whether a 
construction of the statutes is fairly possible by 
which the question may be avoided.” ” Id. at 348. 

This applies also to state statutes. See, e.g., Reetz v. 

Bozanich, 397 U.S. 82 (1970) .Noneof reasons given by 

the majority writers preclude constitutional application 

and foreclose the operation of discretionary death penalty 

statutes that can pass constitutional muster. If the ob- 

jections were eliminated, the Court’s bases for finding 

the statutes unconstitutional would be abrogated. But 

   



15 

Georgia, as well as every other state, is deprived by the 

decision of the opportunity to correct its application of 

the statutes in those cases where the objections are ger- 

mane and to defend those cases where the objections are 

without merit. 

Even if the three petitioners are the victims of an 

unconstitutional procedure for determining sentence 

(and it is this process rather than the penalty itself which 

the Court objects to), so that their sentences should be 

set aside for lack of due process or want of equal pro- 

tection, it strains ordinary logic to comprehend what 

poison it is, found in their cases, which fatally affects 

every other death sentence now in existence in the United 

States and which might hereafter be imposed. 

The decision apparently strikes down death penalty 

statutes for other crimes in Georgia as well as death- 

penalty statutes throughout the country. Since no evi- 

dence of infection in the application of the Georgia 

statutes to the instant Petitioners was found necessary, 

an inquiry into other states’ statutes and their applica- 

tion would be superfluous. However, this overlooks the 

right of Georgia, as well as other states which were not 

even represented in these cases, to defend the applica- 

tion of their statutes by proof. 

The question considered by the majority was sought 

to be raised by Petitioners but was rejected by the Court 

in its framing of the query in the grant of certiorari. The 

stract question and implicitly import into its domain every 

stract question and implicitly import into its domain every 

other death penalty case and statute. Rather, it focuses 

on concrete controversies with respect to discretionary 

penalties. The expansion of the question is like taxation  



  

16 

without representation. The result is a decision which 

affects all fifty states and the Federal Government with- 

out giving them a hearing. It transcends the scope of 

the cases and lays aside, as well, the traditional restraints 

on deciding constitutional questions. Such a free-wheel- 

ing approach has led to a multiplicity of conflicts and 

confusing advisory opinions. Its vice is even more acute 

because it is heterogeneous although its cursory import 

is to reverse only the sentences of death in three cases. 

These cases ought thus to be reheard in their proper 

context and limited to the Court-fashioned question and 

the rules of judicial review, and if necessary, remanded 

for factual development. 

The context of the cases has been overlooked in yet 

another area. Petitioners challenge their sentences, not 

the statutes on which they were based. Mr. Justice White, 

for one, overlooks the distinction between the applica- 

tion of the statute in the cases sub judice on the one 

hand and the facial constitutionality of the sentencing 

statutes on the other hand. He does not consider the 

question of unconstitutional application, and yet that 

was the question before the Court. The focus is solely 

on the facial constitutionality of the statutes authorizing 

the death penalty. However, the certiorari-charted course 

was necessarily abandoned because facial unconstitu- 

tionality is reached only by adverting to the utilization 

of the statute. That is, the opinion depends upon a find- 

ing of infrequency of application. 

B. THE FINDING UNDERLYING THE COURT’S 

BASES ARE DEVOID OF COGNIZABLE JUDI- 

CIAL PROOF. 

The majority has devised various tests and standards 

   



17 

by which the sentences in these cases are to be measured 

against the Eighth Amendment. In applying these tests 

and standards, the Court goes completely outside of the 
record and beyond the scope of the cases for “proof” 

upon which to base the findings. It consists of data from 

other jurisdictions having other laws, studies from other 

times having other impediments which contributed to 

infrequency and perhaps arbitrariness. There is no proof 

based on Georgia's experience. 

In concluding that the three death sentences are un- 

constitutionally “unusual,” for example, Mr. Justice 

Stewart’s factual base is the number of persons reported 

to have been received in the prisons of the United States 

from 1961 to 1970, according to the National Prisoner 

Statistics; this does not reflect the number of persons on 

whom the penalty was imposed. Reliance is given to the 

estimate that fifteen percent to twenty percent of those 

convicted of murder are sentenced to death in states 

where authorized.? Florida's, Virginia’s, New Jersey’s, 

and national statistics are also depended on. 

On the other hand, the frequency of the imposition 

of the death penalty in Georgia as a sentence, whether 

set aside, commuted or otherwise not carried out for 

various reasons, is not taken into account and in fact 

would require additional evidence and compilation of 

records. However, it is obvious that such factors are in- 

dispensible in a consideration of whether Furman’s pen- 

altv was “infrequently imposed” in Georgia during the 

period in which he was sentenced, and that Jackson's 

penalty was an “extraordinarily rare imposition.” 

  

3Is this such an infrequent incidence that it is unconstitutionally 
“unusual”?  



  

18 

Mr. Justice Stewart’s third reason is that Petitioners 

were part of a capriciously selected random handful. The 

base number is apparently drawn from the whole coun- 

try, for he refers to “all the people convicted” and to a 

former United States Attorney General’s nation-encom- 

passing statement to a congressional subcommittee. The 

conclusion is devoid of any inquiry into the statistics 

for Respondent, or to the reasons upon which the juries 

here made the somber election of death. The attack of 

capricious selection and wanton imposition is mounted 

upon the juries’ motives in these cases and assumes with- 

out evidence and without even focusing upon the juries 

at all, that they acted recklessly and upon mere whim. 

The conclusion does not rise to permit a judicial find- 

ing of illegality, particularly in view of the admission 

that the basis for the juries’ selection has not been dis- 

cerned. : 

Further, blanket “capriciousness” is reached without 

a consideration of other Georgia cases. A. C. Park’s 

lurid story, for example, briefly described above, supra, 

p. 4, is not separately examined in this regard. Nor 

are the juries’ sentences in the illustrative cases of De- 

Wayne Massey and Billy Homer Ferguson. Massey has 

been sentenced to death three times in consecutive trials 

beginning in 1965; he, a white man, committed rape. 

Billy Homer Ferguson, a white man, was sentenced to 

death by three separate juries in three separate trials in 

  

4The history of the case may be followed in the reports: Massey 
v.. State: 220 Gna. : 883 (1963); Massey v, Staite, 222 Ga. 143 
(1966), cert. den. . 385 U.S. 36; Massey v. Smith, 224 Ga. 721 
(1968), cert. den. 395 U.S. 912. His third sentence is currently 
being challenged on direct appeal to the Supreme Court of Georgia, 
Case No. 27185, argument heard May 8, 1972, Massey is listed in 
Respondent’s Brief in Furman v. Georgia, No. 69-5003, page 3c. 

   



19 

1958, 1961 and 1962. He would not even be counted 

among the “handful” because his sentence was changed 

to life imprisonment due to a Witherspoon v. Illinois im- 

pediment in the selection of the third jury. And yet his 

three death sentences would be germane to a study of 

whether juries imposed it wantonly. 

The factual base which forms the foundation of Mr. 

Justice White’s primary objection of “infrequent imposi- 

tion” is likewise not taken from any study of Georgia 

crimes and sentencing during the period surrounding the 

1968 convictions in these cases, but rather draws instead 

on personal notions of its effectiveness in serving any 

punishment purpose and upon personal exposure to a 

random parade of cases coming before him, not from 

Georgia, but from all over the country. 

The conclusion is that the administration of the stat- 

ues is “now” unconstitutional. But when is “now?” If 

it is taken to mean 1968 to present, then where is the 

evidence of the number, percentage, degree of serious- 

ness, or reason for jury imposition (if jury motive is 

relevant as it appears to be from Mr. Justice Stewart’s 

objection of caprice)? Only the trial records were before 

the Court to demonstrate how the statutes are now being 

administered. To reach the conclusion that rare invoca- 

  

The history of the case is traced in the reports: Ferguson v. 
State, 215: Ga. 117 (1959), reversed, 365 U.S. 570 (1961): 
Ferguson v. State, 218 Ga. 173 (1962); Ferguson v. State, 219 
Ga. 33 (1963), cert. den., 375 U.S. 913; Ferguson v. State, 220 
Ga. 364 (1964), cert. den., 381 U.S. 905; Ferguson v. Balkcom, 
222 Ga. 676 (1966); Ferguson v. Dutton, United States District 
Court for the Northern District of Georgia, Atlanta Division, 
Case No. 11,339, habeas corpus denied February 26, 1972, 
appeal pending, United States Court of Appeals for the Fifth 
Circuit, No. 71-1827.  



  

20 

tion renders the penalty cruel and unusual punishment 

should require at least a factual underpinning which can 

only be provided in an evidentiary hearing. 

Although these cases are seen as “no different in kind 

from many others” involving a conflict between judicial 

and legislative judgment as to what the Constitution 

means or requires, the cases are treated differently in 

that, although confined to Georgia and Texas statutes 

and their utilization in three cases, the conclusions are 

based on “evidence” composed of studies and reports 

and statements concerning not solely those states, but 

rather previous periods of history as well as the in- 

exact evidence of “common sense and experience’ and 

a decade of exposure to capital felony cases. 

This puts in bold relief the magnified parameters of 

the Court’s inquiry. Although nodding reference is made 

to the question of sentences in these three cases and to 

the conclusion that “what was done in these cases vio- 

lated the Eighth Amendment,”® the context is departed 

from and the Court wanders far afield in gathering the 

“evidence.” Not only is the “evidence” an overextension 

of the judicial notice rule, it is ofttimes irrelevant to the 

context of the cases, in terms of time and place. What 

is completely missing is any real evidence at all, and 

more, any real and pertinent evidence of the situation 

in Georgia currently. There is no evidence of what the 

degree of infrequency is in Georgia, and there is no 

evidence that whatever the degree, the purposes of pun- 

ishment acceptable to the Court are not “measurably” 

accomplished. 
  

White, J., slip opinion, p. 5. 
"White, J., slip opinion, p. 3. 
8White, J., slip opinion, p. 5. 

   



21 

The Court has traditionally required a substantial 

degree of evidence of discrimination before it strikes 

down a statute because it operates discriminatorily. It 

is said that the discretionary death penalty statutes for 

murder and rape in Georgia are applied unequally to 

the black and the poor and that therefore the State is 

prohibited from allowing a discretionary death penalty. 

The evidence upon which a finding of discrimation rests 

for Mr. Justice Douglas again does not include any study 

of Georgia’s experience at all. Instead, it consists in stud- 

ies and statements made prior to 1968 and not even of 

Georgia: a pre-1962 study in Pennsylvania which in- 

cluded only people on death row and went back as far as 

1914; a Texas study that went back as far as 1924; a 

warden’s statement from 1928; a former United States 

Attorney General’s statement (Douglas, J., slip opinion, 

pp. 10-12). Mr. Justice Marshall admits that it is a 

judicial assemblage of information which, forms the basis 

for the decision, rather than any evidence on the record. 

He says: “The amount of information which we have 

assembled and sorted is enormous” (Marshall, J. slip 

opinion, pp. 57-58). Whether the death penalty was 

arbitrarily imposed on Furman and Jackson in Georgia 

in 1968, and whether the death penalty is arbitrarily im- 

posed in 1972, is not known and is not taken into ac- 

count, and herein lies the bed of sand. 

If the test for Eighth Amendment “unusualness” in 

punishment is to embrace non-discriminatory application, 

then the cases should be remanded for a development of 

those facts, and the penalty should be viable so long as it 

is devoid of arbitrary application. 

The decision composes no more than an unproved 

accusation. The discretionary death penalty per se was  



  

22 

not before the Court in these cases, and the effect of 

the decision is to circumvent the context as well as the 

record in the absence of a full development of facts with 

respect to the factors found pertinent by the Court. 

It cannot be overlooked that the process has been 

vastly changed in the last decade so that the possibilities 

of discrimination in sentencing are materially reduced, 

and so that current studies need to be made in order to 

make stick the indictment which this decision finds 

against the penalty. Substantial revisions of the jury se- 

lection methods, the development of public defender sys- 

tems, the provision for appointed attorneys at earlier 

and earlier stages of the proceedings, the elimination of 

the scrupled juror infection, and the advent of bifurcated 

trial all serve to illustrate that the obstacles envisioned 

by the Court are not necessarily insurmountable and 

what is more, that they may have been surmounted al- 

ready. The effect of these palpable and relevant innova- 

tions must be given due weight in a current examination 

of facts before the penalty is removed as an option for jur- 

ies in murder and rape cases now and in the future. 

What was said in Weems v. United States, 217 U.S. 349 

(1910), is applicable here: “Time works changes, brings 

into existence new conditions and purposes.” Id. at 373. 

The new conditions affecting the sentencing process 

should not be overlooked. 

The importance of the absence of relevant factual in- 

formation is highlighted by Mr. Justice Marshall’s recog- 

nition that facts must be considered: 

“All relevant material must be marshalled and 
sorted and forthrightly examined. We must . . . be 
. . . exacting in examining the relevant mate- 
rial. . . .” (Marshall, J., slip opinion, p. 3). 

   



  

23 

Even the finding of moral unacceptability of the penalty 

to the people of the United States is found not on the 

basis of fact, but on the substitution of the Court’s judg- 

ment for that of the citizenry. (Marshall, J., slip opin- 

ion, p. 51). Is it appropriate judicial policy to substitute 

the opinion of the Court for the opinion of citizens or for 

the Court to surmise and then act on what it believes the 

people would conclude if they were asked? Such conject- 

ure finds no place in the application of constitutional 

principles here any more than it would were the Court 

faced with a state statute not yet construed by the state 

courts and open to various interpretation. See Lake Cai- 

riers’ Association v. MacMullan, 11.8. ol. ,:92.8.C¢, 

1749, 32 1.. Ed. 237 (1972). The hypothetical conclu- 

sion is not enhanced by pointing to unproved and gen- 

eralized accusations which would “convince” the people 

if they were to consider them. 

  

The decision does not square with some fundamental 

principles of judicial review. Even if the Court’s reasons 

were ultimately proved right, they are not based on em- 

pirical evidence adduced in a judicial proceeding. The 

laws of Georgia and the imposition of sentences in 

these cases are invalidated without examining Georgia’s 

performance. The decision is premature; the business is 

unfinished. 

C. THE JURY’S ROLE INTERCEPTS LEGISLATIVE 

EXCESSES. 

The Framers sought to curb the Federal Congress 

by inserting the cruel and unusual punishment clause 

in the Bill of Rights. It was to “guard against ‘the abuse 

of power’ ” by the legislative branch. (Brennan, J., slip 

opinion, p. 10). The Supreme Court has in the interim 

declared that the States are likewise curbed. The mean-  



  

24 

ing should be the same for the States as for the fed- 

eral government, i.e. it curbs state legislatures from 

enacting cruel and unusual punishment provisions. 

The decision with respect to appropriate penalty was 

the legislature’s, when the Bill of Rights was written, not 

the jury’s. The advent of the practice of jury discretion 

in sentencing inserted a new and very direct and im- 

mediate safeguard against governmental excesses in crim- 

inal punishments. 

Since the Framers intended to limit the Congress, and 

thereby protect the people from legislatively-imposed 

cruel and unusual punishments, the delegation of punish- 

ment selection by the legislature back to the people them- 

selves, to be exercised by their juries, itself achieved the 

protection envisioned by inclusion of the Clause in the 

Bill of Rights. In other words, the very action of statu- 

torily giving juries discretion removes the categorical 

setting of punishment by the legislature and thus sub- 

stantially guarantees the inability of the legislature to 

abuse its power in this regard. 

The interposition of jury discretion injected an element 

which changes the complexion which would have existed 

if the penalty had been mandatorily set by the legislature. 

The jury is not the State. It is a body selected coopera- 

tively by the State and the defendant. Thus, to say that 
the State arbitrarily subjects a defendant to an unusually 

severe punishment in these cases disregards the jury’s 

discretion. “Arbitrarily” cannot describe the action of 

the State when a jury intervenes and exercises its judg- 

ment in choosing one of several alternative punishments. 

The jury’s role is even more extended in Georgia cur- 

rently because the sentencing phase of the trial separately 

follows the finding of guilt and the jury thus becomes 

   



25 

more knowledgeable about all that is relevant to setting 

an appropriate sentence.’ 

The infrequency and rarity which is found objection- 

able by the Court is not in the legislature’s enactment 

(i.e., an “unusual” punishment conjured up by the state 

legislature to be imposed for a particular crime), but in 

the application by juries representing the people in im- 

plementing the law. As said, the jury is a unique micro- 

cosm of the people themselves; it is not a governmental 

body. So, absent any discrimination, its discretionary 

selection of a statutory penalty which would not other- 

wise be cruel and unusual punishment (i.e., the penalty 

as enacted is per se cruel and unusual punishment, so 

the jury could not impose it), should not be subject to 

Eighth Amendment consideration because the intent of 

the Clause was not to curtail juries acting in their dis- 

cretion and performing faithfully to their oaths. 

The Court has overlooked the distinction. Considera- 

tion is instead directed to the death penalty as a legisla- 

tively-proscribed punishment and does not meet the ques- 

tion posed by these cases, whether the jury-selected 

penalty, a product of the “common-sense judgment of a 

jury”,'® derived as appropriate after an exercise of duty- 

bound discretion, is cruel and unusual punishment. 

In each of these cases, the death penalty was imposed 

by a jury fairly drawn from the community. The jurors 

were a random selection of those differing attitudes which 

exist in different combinations throughout each com- 

munity. A particular jury of twelve persons in Savannah 

  

%Ga. Laws 1970, pp. 949, 950, as amended 1971, p. 902 (Ga. 
Code Ann. $27-2534). 

Duncan v. Louisiana, 391 U.S. 145, 156 (1968).  



  

26 

will have represented on it at most only twelve occu- 

pations, twelve age levels, twelve educational back- 

grounds, twelve family situations, twelve economic cir- 

cumstances, etc.’ The jurors do not represent the com- 

munity in the sense that they are elected to convey the 

community’s collective sentiments and to be its spokes- 

men. The jurors instead represent the community in the 

sense that they come from it and therefore sit as a parcel 

of it, though partitioned from it. They are a representative 

group; they do not represent that broader body from 

which they come. They bring to the jury room their own 

individual views and not the collective view of their 

neighbors. The queries are, “Do 1 believe this man is 

guilty?” and “What punishment do I believe should be 

imposed?” It is not, “What would my neighbors have 

me do in this case?” 

As a result, it is inevitable that harsher penalties will 

be imposed upon some the nature of whose offense is no 

worse than that of another who receives a lesser penalty. 

This Court has ruled that characteristic of our criminal 

justice system acceptable. Williams v. Illinois, 399 U.S. 

235, 243 (1970), citing Williams v. New York, 337 U.S. 

241, 247 (1949). 

Thus, the fact that less atrocious crimes in some in- 

stances receive a greater penalty than the most terrible 

crimes cannot be a contributing factor in a finding of un- 

constitutionality. If it is, the earlier decisions are in error, 

and uniformity of punishment is mandated. But automatic 

  

The jury room is imbued with “qualities of human nature and 
varieties of human experience, the range of which is unknown and 
perhaps unknowable.”Peters v. Kiff, U.S. £1972) "ISUHD 
opinion p. 10, No. 71-5078, June 22, 1972]. 

   



27 

death penalties would remove individuality in sentencing, 

which has become a hallmark of modern sentencing pro- 

cedures. We are going in circles. 

D. THE END HAS BEEN CONFUSED WITH THE 

MEANS AND THE DECISION IS THUS OVER- 

REACHING IN ITS EFFECTS. 

The insertion of jury discretion acts as a safeguard 

against legislative imposition of unusual punishment. If 

the juries infrequently impose it, it is not constitutionally 

“unusual” punishment. If the cause for infrequency is 

discriminatory or arbitrary action in some cases, then the 

process by which such result is reached is of course wrong 

and voidable as a lack of due process or equal protection. 

But jury misbehavior in some cases should not invalidate 

the penalty itself in all cases and disallow its use here- 

after. It confuses constitutional error in the procedure 

in particular cases with constitutional error in end result 

in all cases. Finding constitutional error in procedure 

should not invalidate the result per se for this and every 

other case and all time. 

If the result of the procedure in sentencing is rational 

imposition (not “rational selectivity”, as a given jury 

does not select one defendant for a death sentence and 

another defendant for life imprisonment), what voids the 

sentence? The Court has overlooked the paradox that it 

hangs its holding of unconstitutionality on a blanket 

finding of discrimination and then restricts the flexibility 

which the State should have in implementing procedures 

which would avoid discrimination. 

In Witherspoon v. Illinois, supra, the procedure re- 

sulted in a death-prone jury and therefore the defendant 

was entitled to a more impartial jury penalty-wise. The  



  

28 

same result should be the parameter of these cases and 

any others in which it appears that the procedure resulted 

in an arbitrary sentence in a specific case. The core of 

the objection is what happens in the jury room, for it is 

the arbitrariness of the jury which is found intolerable 

here. Given the finding of actual arbitrariness on which 

the Court’s decision is based, the sentences which are so 

infected should be reset by other juries. This requires a 

case-by-case analysis of facts, not an obliteration of the 

end result when properly achieved even in the exercise 

of discretion. 

If it is the possibility of arbitrariness which the Court 

here concludes is objectionable, then the procedure by 

which juries determine sentence should be revised by 

whatever means and methods the State may devise to 

avert arbitrary selection of a penalty by a jury. The vice 

seems to lie in the discretionary role of juries (see Doug- 

las, J., slip opinion, pp. 8-9). Thus, juries might be given 

more cautionary instruction, or be required to state the 

reasons for their imposition of the death penalty. The 

separation of trials into two stages, penalty being ad- 

dressed independently of guilt, contributes greatly to 

this end. But reaching the same goal by striking the 

penalty is not only unwarranted judicially since it is not 

the only possible way to avoid discrimination, it foments 

chaotic results by calling for the elimination of every 

maximum penalty which is not frequently used. 

E. THE DECISION IS BASED ON THE MISAPPLI- 

CATION OF PRINCIPLES. 

(1) Only a “necessary” punishment is constitutional. 

Mr. Justice White's analysis means that every statutory- 

provided maximum punishment is constitutionally im- 

   



29 

permissible if it is imposed infrequently, because the in- 

frequency factor is taken to show a lack of necessity. 

Mr. Justice Stewart reasons that death is cruel because 

it exceeds in kind rather than degree, punishments legis- 

latively determined to be necessary. The yardstick is 

what state legislatures have spoken. Where a particular 

penalty is only a maximum which may be discarded by a 

jury in favor of a statutorily provided minimum, then any 

maximum must similarly fail in an alternative-sen- 

tencing statute. It does not stand to reason that legislative 

authorization of lesser penalties, resulting in the maxi- 

mum not being mandatory, thereby renders the maximum 

“cruel.” (See Stewart, J., citing White, J., slip opinion, 

p. 4). Moreover, the rationale results in the subjugation of 

sovereign states to each other, in terms of penalty for 

criminal offense: each state may not impose a greater 

sentence “in kind rather than degree” than its sister 

states have determined necessary, i.e., mandatory. It 

would then follow that a state could not impose a prison 

term where other states impose only a fine. 

Weems v. United States, 217 U.S. 349 (1910), is relied 

upon for this test of necessity, but the Court there did 

not couch the question of constitutionality in terms of 

whether or not the State could show that the punishment 

was necessary. The Court was cognizant of quite a dif- 

ferent frame. In speaking of the powers of the legislature 

to define crimes and their punishment, it said: 

“We concede the power in most of its exercises. We 
disclaim the right to assert a judgment against that 
of the legislature of the expedience of the laws, or 
the right to oppose the judicial power to the legis- 
lative power to define crimes and fix their punish- 
ment, unless that power encounters in its exercise  



  

30 

a constitutional prohibition. In such case not our 
discretion but our legal duty, strictly defined and im- 
perative in its direction, is invoked. Then the legisla- 
tive power is brought to the judgment of a power 
superior to it for the instant. And for the proper 
exercise of such power, there must be a comprehen- 
sion of all that the legislature did or could take into 
account,—that is, a consideration of the mischief 
and the remedy. However, there is a certain subordi- 
nation of the judiciary to the legislature. The func- 
tion of the legislature is primary, its exercise forti- 
fied by the presumptions of right and legality, and 
is not to be interfered with lightly, nor by any judi- 
cial conception of its wisdom or propriety. They 
have no limitation, we repeat, but constitutional 
ones, and what those are the judiciary must judge. 
We have expressed these elementary truths to avoid 
the misapprehension that we do not recognize to the 
fullest the wide range of power that the legislature 
possesses to adapt its penal laws to conditions as 
they may exist, and punish the crimes of men ac- 
cording to their forms and frequency.” Id. at 378- 
379. 

It is thus clear that a state is not required to show 

the “necessity” of a particular punishment in order for 

it to be constitutional. This is in conformance with the 

principle that one who attacks a state statute has the 

burden of proving that it does not serve a legitimate state 

purpose.’ 

The point is not merely one of who has the burden, 

but also highlights the higher degree of showing which 

  

124ero Mavflower Tronsit Co. v. Boord of R. R. Comm’rs., 332 
U.S. 495, 506 (1947) (burden on challenger is to show statute 
had “no reasonable relation” to permissible end). “The presump- 
tion of reasonebleness is with the State.” Salsburg v. Maryland, 
346 11.5. 545..553 (1954). 

   



  

31 

must be made in order to overturn a legislative enact- 

ment. In other words, it is not voidable simply because 

it is not shown that it is “necessary” but rather, it is 

voidable only if it is shown that it does not serve a valid 

purpose. Expediency and wisdom are not relevant to a 

consideration of constitutionality. A statutory prohibi- 

tion may indeed not be absolutely necessary in the ser- 

vice of a legitimate state purpose, but absent any other 

impediment its service of that purpose to a recognizable 

degree passes constitutional muster. 

In Weems, the Court said of the punishment there 

being considered: 

“It has no fellow in American legislation. Let us 
remember that it has come to us from a govern- 
ment of a different form and genius from ours. 
[Spain] It is cruel in its excess of imprisonment and 
that which accompanies and follows imprisonment. 
It is unusual in its character. Its punishments come 
under the condemnation of the Bill of Rights, both 
on account of their degree and kind. And they 
would have those bad attributes even if they were 
found in a Federal enactment, and not taken from 
an alien source.” Id. at 377. 

In the instant case, the Court not only failed to take 

into consideration a comprehension of all that the Geor- 

gia legislature did or could take into account in au- 

thorizing the imposition of the death penalty in 1968, 

but it went further and extended its ruling to the post- 

1969 statute and failed to comprehend all that the leg- 

islature did or could have taken into account in its leg- 

islative studies prior to the enactment of the new Crim- 

inal Code of Georgia. 

McLaughlin v. Florida, 379 U.S. 184 (1964), is cited  



  

32 

to illustrate a case in which the statute was declared im- 

permissible because based on race. McLaughlin illus- 

trates also, however, that the test of necessity of legis- 

lation is applied only in the examination of statutes with 

a racial classification, and where the equal protection 

clause is invoked to challenge it: 

“There is involved here an exercise of the state 
police power which trenches upon the constitution- 
ally protected freedom from invidious official dis- 
crimination based on race. Such a law, even though 
enacted pursuant to a valid state interest, bears a 
heavy burden of justification, as we have said, and 
will be upheld only if it is necessary, and not merely 
rationally related, to the accomplishment of a per- 
missible state policy.” Id. at 196. 

Mr. Justice Brennan also gives undue regard to the 

test of “necessity.” A part of his test provides for a find- 

ing of unconstitutionality if the death penalty “cannot be 

shown to serve any penal purpose more effectively than 

a significantly less drastic punishment.” This neglects the 

principle that legislative expediency and the wisdom of 

its actions is not a judicial question. It has not been the 

job of the courts to determine which punishment best 

meets penal purposes. That is the legislature’s domain, 

as is the weighing of alternatives. Such a division should 

be adhered to because of the facilities for research and 

study and gathering of facts and testimony and the 

opinion of experts which the legislature is particularly 

equipped to assemble and the courts are not. The ap- 

propriate judicial consideration is whether the penalty 

authorized by the legislature meets penal purposes, not 

whether a different penalty could better meet such pur- 

poses without exacting the higher price from the pen- 

alized. Absent any other afflictions (such as excessive- 

   



  

33 

ness), the legislatively-authorized penalty should be re- 

garded as meeting constitutional muster unless it is shown 

that it does not serve a valid penal purpose. 

The inappropriateness of the inquiry forced by the 

standard of necessity is demonstrated by the suggestion 

that specific deterrence does not depend on the death 

penalty for achievement but rather that “effective ad- 

ministration of the State’s pardon and parole laws can 

delay or deny his release from prison, and techniques of 

isolation can eliminate or minimize the danger while he 

remains confined.” Brennan, J., slip opinion, pp. 44-45). 

The alternative suggestions of life sentence without 

possibility of parole or life sentence in isolation or with 

threat of isolation are matters which must be considered 

in the context of practicality and reality, in the first place, 

and cannot be said to comport with concepts of human 

dignity to such a greater degree, that death is consti- 

tutionally disallowed. Aside from whether the death 

penalty is “fatally offensive to human dignity” being 

basically a value judgment rather than a legal judgment, 

which requires great deference to legislative and jury 

will, the close association between what is condemned 

as being offensive to human dignity (swiftly-executed 

death penalty) and the suggested replacement (long- 

term prison sentence; life imprisonment with threat of 

isolation; life imprisonment with little hope of parole), 

is overlooked. Can it be said, judicially, that the death 

penalty so offends human dignity that it is constitutionally 

prohibited when the far more enduring physical, mental, 

and emotional pain inherent in the suggested alterna- 

tives constitutes “significantly less drastic punishment” 

which does not offend judicial concepts of human dignity?  



  

34 

There appears no authority for the proposition that a 

penalty must be “necessary” as opposed to a different 

penalty, for the protection of society, in order to be 

constitutional (Brennan, J., slip opinion, p. 48). If this 

were a proper standard, then a State would be put to the 

task of proving that any maximum penalty is “neces- 

sary”. But how, for example, can it be proved that 20 

years is a necessary maximum for burglary,” that it is a 

better deterrent than a five-year term, and that it better 

serves penal purposes? 

As Mr. Justice Marshall pointed out, this Court in 

Wilkerson v. Utah, 99 U.S. 130 (1870), construed the 

Clause to prohibit “unnecessary cruelty”. (Marshall, J., 

slip opinion, pp. 9-10). This does not mean that a pun- 

ishment to be constitutional must be more “necessary” 

than a lesser punishment. But the penalty is considered 

unconstitutional if a less severe penalty would as well 

serve the legitimate legislative wants. The question is not 

whether less will do, but whether the legislative enact- 

ment serves a valid state purpose. 

(2) Infrequency of administration renders a penalty 

unconstitutionally “unusual”. 

Contained in the decision is the proposition that it is 

the infrequency of application of the death penalty 

which in great part contributes to its unconstitutionality 

as a discretionary punishment. Infrequency is equated 

with “unusualness”, but what is overlooked is that the 

Clause prohibits legislative or judicial pronouncement of 

unusual punishments. As pointed out earlier, the intro- 

duction of the discretionary jury, long after the enactment 

  

13Criminal Code of Georgia §26-1601. 

   



33 

of the Bill of Rights, guards against governmental ex- 

cess. The non-governmental jury was not the object of 

the Framers’ curtailment, and therefore, the inquiry of 

whether it frequently or infrequently imposes a punish- 

ment is unrelated to the prohibition against unusual pun- 

ishments cor.tained in the Constitution. 

Secondly, what the fatal degree of infrequency is, is 

subject to conjecture and debate. It is not defined in 

any utilizable way what degree of frequency is consti- 

tutionally required. If only twenty per cent of those con- 

victed of burglary received the maximum punishment, 

does this render it unconstitutional as a permissible pun- 

ishment per se for burglary? If only twenty per cent of 

those convicted for income tax evasion receive a prison 

term, whereas the other eighty per cent receive a fine, 

is the imprisonment unconstitutionally impermissible? 

Apparently, twenty per cent is too infrequent (See Mr. 

Justice Burger’s dissent, slip opinion, p. 13, footnote 11). 

Even assuming that the degree of unconstitutional in- 

frequency is agreed upon, and assuming further that 

imposition in Georgia fell below this line, why does 

infrequency per se render a particular punishment for- 

ever unimposable on a discretionary basis? Since that 

degree of frequency may rise, it is over-zealous and un- 

necessary to ban the discretionary penalty for all time 

and even for those cases of “most atrocious crimes” in 

present times “that deserve exactly” the death penalty? 

Although it seems to be said that infrequency per se 

renders the death penalty unconstitutional, this is con- 

tradicted in Mr. Justice White’s conclusion, which states 

that infrequency merely creates a prima facie case of 

constitutionally forbidden cruel and unusual punishment,  



  

36 

which may be rebutted by an explanation distinguishing 

the cases on a meaningful basis. No opportunity has 

been given to present factually the reasons for the im- 

position in certain cases as opposed to others. No com- 

parative study of those cases in which it is imposed are 

examined along with those cases in which it was not im- 

posed in Georgia to see whether it was constitutionally 

authorized in the death cases. Infrequency may render 

the penalty invalid for lack of equal protection, but this 

comparative approach does not logically lead to voidance 

of all such penalties now extant or hereafter to be im- 

posed. 

In addition to the inappropriateness of using infre- 

quency as a test in these cases, the conclusions reached 

upon a consideration of it are not supported. On the 

basis of logic, infrequent imposition does not necessarily 

destroy a penalty’s efficacy as a “credible threat.” Ob- 

viously, if a particular penalty is never imposed and this 

fact becomes common knowledge, then that particular 

penalty ceases to be a brake on behavior. But where it 

stands not only as a beacon of warning but more, a bea- 

con tested by the unheeding whose recently broken craft 

is visible to those who would otherwise disregard it, then 

it cannot be said that it is not a credible threat. Capital 

felons were undeniably being sentenced to death during 

Furman’s and Jackson’s day, and continue to receive the 

ultimate penalty. Thus, in order for the conclusion to 

be reached that the death penalty is no longer a credible 

threat in Georgia because of its infrequent application, 

consideration of the facts cannot be avoided. In other 

words, a broad constitutional line is drawn between pun- 

ishments “so seldom” imposed and those not so cate- 

gorized, without examining the incidence of infrequency, 

   



37 

the reasons therefor, or whether in fact infrequency de- 

stroys the credible threat aspect of punishment which is 

served at least to some degree by the greater and more 

widespread public knowledge which a death case as op- 

posed to a prison term case, receives. 

To summarize, if infrequency itself renders the pun- 

ishment unconstitutional, then the degree of infrequency 

must be set and the facts as to Georgia’s utilization of 

the penalty must be examined. If, on the other hand, 

infrequency constitutes only a prima facie case so that 

a rational basis for the degree would outweigh its fatal 

effect, then the opportunity for refuting the evidence 

of infrequency must be given. In any event, the decision 

goes too far on too little. The demise of such a tradi- 

tional ingredient in the makeup of our criminal justice 

system should not be so easily or fuzzily achieved. 

The standard, moreover, falls in on itself. The argu- 

ment is that a penalty is cruel and unusual for the per- 

son who draws it because others in like circumstances are 

given lesser punishments by other juries or judges. But 

if the penalty is appropriate in the case where it is im- 

posed, what makes it cruel and unusual punishment just 

because others have not received it? Does the fact that 

few burglars get the maximum of 20 years imprison- 

ment render that maximum unconstitutional? It can- 

not be that the mere fact of unequal sentencing renders 

the maximum unconstitutional, because uniform sen- 

tencing is not required by our Constitution. It cannot be 

because the sentence was excessive, because as recog- 

nized by a great part of the Court, if not the entire Court, 

the crimes here involved were atrocious and called for 

proportionate punishment. 

The Court concludes that the penalty, since not regu-  



  

38 

larly given, must therefore be based on discrimination and 

arbitrariness and consequently is cruel and unusual pun- 

ishment. It is not infrequency per se which renders it 

“cruel and unusual”, but rather the poison of discrim- 

ination which is presumed to account for the infrequency 

which makes the latter a measure of unconstitutionality. 

The fallacy is in presuming that discrimination exists 

simply because the penalty is infrequently imposed. It 

is admittedly only an inference, unsupported by any 

finding of current arbitrariness by death-deciding juries, 

and yet the whole decision pivots around it. At the least, 

this overlooks the presumption that the jury acts fairly 

and discharges the duties undertaken in its oath. Dis- 

carding the presumption is antithetical to our cornerstone 

reliance on the jury system in its present and even more 

expansive role under the bifurcated system. Hinging the 

decision to overturn discretionary death penalty on an 

assumption that juries act capriciously when they impose 

it, simply because it is infrequently imposed, is an un- 

founded legal conclusion and should be reconsidered all 

the more because of the far-reaching effect it has, not 

only on the death penalty but also on other discretionary 

sentences. The modern role of the jury has itself been 

undermined. 

Moreover, the conclusion that “infrequent” imposition 

of a penalty ceases to serve a legitimate State purpose to 

that degree required by the Constitution is devoid of pre- 

vailing support in these cases. Neither the incidence of 

infrequency in Georgia in present time nor the underlying 

reasons for whatever infrequency exists have been exam- 

ined. Further, there is no evidence that the factor of in- 

frequency per se leaves unaccomplished to a constitution- 

ally acceptable degree any of the purposes for imposing 

   



39 

penalties for criminal conduct. Mr. Justice White reasons 

that a particular punishment must be regularly imposed if 

it is to meet the proscription against cruel and unusual 

punishment. But this seems to be confused with the con- 

cept that statutory prohibition of conduct which is not 

prohibited in fact, becomes unenforceable against one vio- 

lator. Obviously, a person cannot be punished for doing 

something which the rest of the community does without 

sanction. But whether that same individual may be 

punished more stringently than one who commits the 

same crime, fact-for-fact, has been permitted to exist as 

a by-product of our system of granting heterogenous and 

unrelated juries a wide-degree of discretion in sentencing. 

Mr. Justice Brennan’s opinion also exhibits reliance 

on this erroneous standard. He challenges that “no one 

has yet suggested a rational basis that could differentiate 

in those terms the few who die from the many who go 

to prison.” Brennan, J., slip opinion, p. 38). The basic 

flaw in this approach is that we have long since rejected 

the notion that sentencing must be uniform. Thus, a 

comparison of those who receive a greater sentence from 

a different jury which did not contain the same attitudinal 

elements as any other jury, may not lead to a distinguish- 

able factor, whether it is the death penalty or some other 

penalty that is under examination. The question is not, 

what justifies sending these persons to their death and 

those persons to prison, but rather, was the death penalty 

for those who received it obtained discriminatorily? If in 

examining this specific case, it is concluded that they 

were not infected with discrimination, then the factor 

of infrequency which is built on arbitrariness loses any 

potency it might have had, even if “infrequency” is a 

valid criteria in determining whether a sentence imposes  



  

  

40 

cruel and unusual punishment. 

Nor does infrequency illustrate that society has re- 

jected the punishment. The point is that society has not 

rejected the punishment in those cases in which it im- 

poses it. Society’s willingness to impose the death penalty 

in even 100 cases per year (if Mr. Justice Brennan’s fig- 

ure is correct; see slip opinion, p. 43) indicates unques- 

tionably that society has not rejected the death penalty 

for all cases. Even rejection for many cases should not 

destroy the constitutionality of it when properly and ap- 

propriately applied with all due process in cases wherein 

society believes it should be imposed.™ 

(3) “Unequal” application of penalties in sentencing 

is an inappropriate Eighth Amendment test. 

The Court has concluded that the death penalty is 

unequally applied to certain classes of people, without 

taking into account the factual situations involved, or 

the fact that persons not in those classes also have re- 

ceived the penalty, and that therefore the discretionary 
penalty cannot stand. The rationale is that the sentences 

in these cases must fall, because the penalty was not im- 

posed in similar cases, and the Georgia penalty statutes 

fall because they allow discretion, which discretion has 

led to unequal application. The Fourteenth Amendment 

equal protection clause is thus incorporated into the 

Note that Mr. Justice Marshall reads In Re Kemmler, 136 U.S. 
436 (1890), as standing foday for the proposition that punish- 
ment is not unconstitutional because “unusual” so long as the 
legislature has a humane purpose in selecting it. Slip opinion, 
p. 10. Mr. Justice Brennan and Mr. Justice White construe “un- 
usual” as meaning infrequently imposed, and strike the penalty 
simply because of infrequent imposition, regardless of whether a 
humane or valid State purpose underlies it. 

   



41 

Eighth Amendment cruel and unusual punishment pro- 

hibition. 

If this is judicially correct, then a punishment un- 

equally imposed on one may not be imposed on anyone. 

Unequal application in the past, here surmised and un- 

related, in any event, to the present and future, has led 

to the routing of the penalty itself when it should instead 

be limited to the process. 

The element of equality of imposition here required 

of the death penalty has not been required of other pun- 

ishments but now, apparently, it is also their obligation. 

The equation of “unusual” with lack of equal protection 

thus invalidates the whole system of discretionary penal- 

ties because the obvious result of jury leeway in sentenc- 

ing is unequal application. Such a question was not be- 

fore the Court in these cases, and, even if ultimately 

proved correct, it did not receive a full airing or the 

consideration due such a far-reaching result. The thesis 

that the Eighth Amendment prohibits the application of 

a particular penalty “selectively to minorities whose mem- 

bers are few, who are outcasts of society, and who are 

unpopular, but whom society is willing to see suffer 

though it would not countenance general application of 

the same penalty across the board”, (Douglas, J., slip 

opinion, pp. 5-6), should not outlaw the discretionary 

death penalty in Georgia. One reason is that persons 

other than those in the group described have received the 

penalty, and their sentences are thus not the result of any 

discrimination against the groups mentioned. 

Obviously, where discrimination is shown, the penalty 

should be set aside and the defendant sentenced fairly. 

But what authority warrants the striking of the penalty  



  

42 

itself, for all persons and for all times and for all cir- 

cumstances? If indeed discrimination exists in some 

cases, the penalty should be wholly available for imposi- 

tion when the impediment is removed or where it was 

not present in the first place. 

The arbitrariness alluded to in these opinions cannot 

be said to exist in every case in which the punishment is 

imposed, and this clearly illustrates the separability of the 

penalty from the objectionable element. The Court’s fail- 

ure to acknowledge this separability urges reconsidera- 

tion. 

CONCLUSION 

For any or for all of the reasons stated, this Petition 

for Rehearing should be granted, and the cases should 

be set down for reargument on the regular calendar. 

Respectfully submitted, 

  

ARTHUR K. BOLTON 

Attorney General 

J} S$) 
  

HAroLD N. HiLL, JR. 

Executive Assistant 

Attorney General 

   



  

COURTNEY WILDER STANTON 

Assistant Attorney General 

  

P. O. Address: 

BY, 
  132 State Judicial Bldg. 

40 Capitol Square, S.W. DcoroTHY T. BEASLEY 

Atlanta, Georgia 30334 Assistant Attorney General 

IS J 

ANDREW J. RYAN, JR. 

District Attorney 

P. O. Address: Eastern Judicial Circuit 

  

Is, 

Chatham County Courthouse ANDREW J. RYAN III 

Savannah, Georgia Assistant District Attorney 

  

CERTIFICATE OF COUNSEL 

I certify that this Petition is presented in good faith 

and not for delay. 

C — She tL 
po a); LA L 2% q ar iT an 

DoroTHY T. BEASLEY 

  

   



    

44 

CERTIFICATE OF SERVICE 

I, Dorothy T. Beasley, Attorney of record for the Re- 

spondent herein, and a member of the Bar of the Su- 

preme Court of the United States, hereby certify that in 

accordance with the Rules of the Supreme Court of 

the United States, I served the foregoing Petition for 

Rehearing on the Petitioners by depositing copies of the 

same in a United States mailbox, with first class postage 

prepaid, addressed to counsel of record at their post 

office addresses: 

JACK GREENBERG 

JAMES M. NasBrit, III 

JACK HIMMELSTEIN 

EL1ZzZABETH B. DUBOIS 

JEFFRY A. MINTZ 

ELAINE R. JONES 

CoNRAD K. HARPER 

CHARLES S. RALSTON 

10 Columbus Circle 

Suite 2030 

New York, New York 10019 

B. CLARENCE MAYFIELD 

910 West Broad Street 

Savannah, Georgia 31401 

MICHAEL MELTSNER 

Columbia University Law School 

435 West 116 Street 

New York, New York 10027 

 



  

45 

BosBY L. HILL 

208 East 34th Street 

Savannah, Georgia 31401 

ANTHONY G. AMSTERDAM 

Stanford University Law School 

Stanford, California 34305 

HowARD MOORE 

Moore, Alexander & Rindskopf 

Suite 1154 

Citizens Trust Company Bank Bldg. 

75 Piedmont Avenue, N.E. 

Atlanta, Georgia 30303 

WESLEY R. ASINOF 

3424 First National Bank Bldg. 

Atlanta, Georgia 30303 

JoHN H. RUFFIN, Jr. 

1101 Eleventh Street 

Augusta, Georgia 30903 

THOMAS M. JACKSON 

655 New Street 

Macon, Georgia 31201 

LIMERICK L. OpoMm 

Industrial Building 

Savannah, Georgia 31401  



    

46 

JOHN W. HENDRIX 

Drew & Hendrix 

201 Independent Life Bldg. 

906 Drayton Street 

Savannah, Georgia 31401 

HOKE SMITH 

Smith, Cohen, Ringel, Fohler, Martin & Lowe 

2400 First National Bank Tower 

Two Peachtree Street, N.W. 

Atlanta, Georgia 30303 

REBER F. BouLT, JR. 

CHARLES MORGAN, JR. 

5 Forsyth Street, N.-W, 

Atlanta, Georgia 30303 

MR. LAUGHLIN MCDONALD 

17 South Circle Dr. 

Chapel Hill, North Carolina 

AARON BUCHSBAUM 

Two Whitaker Building 

Savannah, Georgia 31401 

JAMES E. YATES, III 

19 East Bay Street 

Savannah, Georgia 31401 

HowARD A. McGLASSON, JR. 

JouN F. M. RANITZ, JR. 

P.O, Box 736 

Savannah, Georgia 31402 

 



  

47 

FRANK B. HESTER 

803 Fulton Federal Bldg. 

Atlanta, Georgia 30303 

GEORGE P. DILLARD 

558 Church Street 

Decatur, Georgia 30030 

MICHAEL V. DISALLE 

425 13th Street, N.W. 

Washington, D. C. 20004 

ATTORNEYS FOR PETITIONERS 

This. 34_day of July, 1972. 

CC \\ r— 
Na A 0) 
oY NA C.. gre "80 2 

> [1 a XL 
  

7 
DoroTHY T. BEASLEY