Selected School Data (Detroit Public Schools) Plaintiffs Exhibit 91

    In THE

(Emtrt nf %  Imtpft
October Term, 1963 

No. 583

John Coleman,

Petitioner,
-v.—•

A labama.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA

BRIEF FOR PETITIONER

Jack Greenberg 
M ichael M eltsner

10 Columbus Circle 
New York 19, New York

Orzell B illingsley, Jr.
1630 Fourth Avenue, North 
Suite 510-512 
Birmingham, Alabama

Attorneys for Petitioner



I N D E X

PAGE

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

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

Constitutional and Statutory Provisions Involved .....  2

Question Presented............................................................ 2

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

A bgum k n t .......................................................................................  8

Petitioner Was Denied Eights Under the Due 
Process and Equal Protection Clauses of the Four­
teenth Amendment When Denied an Opportunity
to Introduce Evidence Establishing Systematic Ex­
clusion of Negroes From the Grand and Petit 
Juries.............................................................   8

Conclusion.........................................................................  13

Table of Cases:

Arrington v. State, 253 Ala. 178, 43 So. 2d 644 ........... 12

Ball v. State, 252 Ala. 686, 42 So. 2d 626, cert. den. 339
U. S. 929..........    9

Baltimore & 0. R. Co. v. United States, 298 U. S. 349 .. 11

Carter v. Texas, 177 U. S. 442 ........... ............................. 11
Clark v. State, 239 Ala. 380, 195 So. 260, cert. den. 311

U. S. 688 ...............................................................   12
Cole v. Arkansas, 333 U. S. 196 .....................................  11

Lombard v. Louisiana, 373 U. S. 255 .......................... 11



11

PAGE

Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123........... 13
Michel v. Louisiana, 350 U. S. 91 .....................................  12

Napue v. Illinois, 360 U. S. 264.................................    8
Niemotko v. Maryland, 340 U. S. 268 .............................. 8

Raley v. Ohio, 360 U. S. 423............................................... 13
Re Oliver, 333 U. S. 257 ....................................................  11

United States ex rel. Goldsby v. Harpole, 263 F. 2d 71
(5th Cir. 1959) ............................................................... 9j 12

United States ex rel. Seals v. Wiman, 304 F. 2d 53 (5th 
Cir. 1962) .......................................................................9, 12

Whitney v. California, 274 U. S. 357 ...................... ........ 13

Statutes:

Code of Alabama, Tit. 14, §318 (1958) .......................... 3
Code of Alabama, Tit. 15, §§278, 279 (1958) ..............  9

Code of Alabama, Tit. 15, §§382(1)-(13) (1958) ........... 2, 6
Code of Alabama, Tit. 30, §21 (1958) .............................. 5

Otheb A uthorities:

17th Decennial Census, Final Report, P. C .(l) 2B, Ala­
bama, p. 8 1 .....................................................................  5



I k  th e

(tart 0! tip llmtefr
October T erm, 1963 

No. 583

JOHK CoLEMAK,
Petitioner,

A l a b a m a .

OK WRIT OF CERTIORARI TO THE SUPREME COURT OF ALABAMA

BRIEF FOR PETITIONER

Opinion Below

The opinion of the Supreme Court of Alabama is not yet 
reported and may be found in the printed record, pp. 28-34.

Jurisdiction

The judgment of the Supreme Court of Alabama affirm­
ing judgment of conviction and sentence to death was en­
tered May 9, 1963 (R. 35) and application for rehearing 
was denied June 20, 1963 (R. 37). Petition for writ of cer­
tiorari was filed in this Court September 17, 1963 and 
granted October 28, 1963 (R. 38).



2

Constitutional and Statutory Provisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case involves Code of Alabama, Title 15, §382(10) 
(1958):

Hearing and determination in appellate court.

In all cases of automatic appeals the appellate court 
may consider, at its discretion, any testimony that was 
seriously prejudicial to the rights of the appellant, and 
may reverse thereon even though no lawful objection 
or exception was made thereto. The appellate court 
shall consider all of the testimony and if upon such 
consideration is of opinion the verdict is so decidedly 
contrary to the great weight of the evidence as to be 
wrong and unjust and that upon that ground a new 
trial should be had, the court shall enter an order of 
reversal of the judgment and grant a new trial, though 
no motion to that effect was presented in the court 
below.

Question Presented

Whether petitioner, a Negro under sentence of death, 
was denied rights under the due process and equal protec­
tion clauses of the Fourteenth Amendment when: 1

(1) the trial court refused to permit introduction of proof 
establishing systematic exclusion of Negroes from grand 
and petit juries on the ground that petitioner had waived 
his constitutional rights by failure to raise them prior to 
arraignment and trial; and



3

(2) the Supreme Court of Alabama ignored this alleged 
waiver and affirmed on the ground that petitioner was given 
opportunity to introduce proof of systematic exclusion and 
did not introduce sufficient proof?

Statement

Petitioner, a Negro, was indicted, tried, and convicted1 
of the murder of a white man by juries of Greene County, 
Alabama, and sentenced to death1 2 (R. 1-3).

Because of indigence, petitioner was represented by court 
appointed counsel, Thomas F. Seale, a member of the white 
race, at arraignment and trial (R. 1, 3, 5, 33). Subsequent 
to conviction, Seale was appointed to prosecute an appeal 
to the Supreme Court of Alabama (R. 7). At no time did 
Mr. Seale make any attempt to assert petitioner’s constitu­
tional right to grand and petit juries chosen without sys­
tematic exclusion of the members of the Negro race (R. 18).

1 The facts with respect to the killing and petitioner’s connection 
with it are summarized in the opinion of the Supreme Court of 
Alabama (R. 28-31). Conviction and sentence rested on circum­
stantial evidence alone. The deceased, a screw driver clutched in 
his hand, was found dead of a shotgun wound. There were no 
witnesses to the shooting. The gun which caused death was never 
found. The prosecution sought to link petitioner to a burglary 
where shotgun and shells of the same brand as those causing 
death were stolen. Clothing in petitioner’s possession was the same 
type as that taken from the burglarized store. A  piece of minnow 
net found near decedent’s house matched a larger piece found on 
a farm where petitioner had worked, and a shirt, claimed to belong 
to petitioner, contained particles similar to those found on unused 
shotgun shells at the scene of the killing. The shirt also lacked 
a button which, according to the State Toxicologist, was the same 
as a button found at the scene of the burglary. Petitioner denied 
ownership of the shirt and claimed he was traveling to Cleveland, 
Ohio, to visit his wife at the time the killing occurred.

2 The jury imposed the death penalty. See R. 24 and Code of 
Alabama, Tit. 14 §318 (1958).



4

Subsequent to conviction and sentence, a Negro attorney 
entered the case in petitioner’s behalf. He filed timely mo­
tion for new trial urging, for the first time, that Negroes 
had been systematically excluded from the grand and petit 
juries in violation of the Fourteenth Amendment to the 
Constitution of the United States (ft. 9-11), and later filed 
an amendment to the motion for new trial, alleging that a 
new trial should be granted because of “newly discovered 
evidence” as shown by an attached affidavit of petitioner’s 
mother (R. 12). This affidavit stated that petitioner was 
indicted by a grand jury composed of eighteen white men 
and tried by a petit jury composed of twelve white men and 
that affiant “was informed” after her son’s conviction that 
“ no Negroes, or only a mere token, have been summoned 
for jury duty in Greene County, Alabama, in spite of popu­
lation ratio of the two races in modern times.” The amend­
ment asked the court to take notice of the motion for new 
trial and “ after consideration of the evidence and proof 
which the defendant offers to make, grant said motion” 
(R. 12).

The trial court considered the motion for new trial and 
amendment at a hearing held June 1, 1963 (E. 15-23). At 
the outset, the state moved to strike the amendment, includ­
ing the affidavit, on the ground, inter alia, that the amended 
motion was not germane to the original motion for new 
trial, there being nothing “ about any newly discovered evi­
dence” in the original motion for new trial (E. 16). The 
trial court granted the motion (E. 17) despite the fact that 
the “ newly discovered evidence” pertained to systematic 
exclusion from the juries, an issue raised by the original 
motion for new trial (R. 9-11).

The court then considered the motion for new trial. Peti­
tioner’s counsel sought to introduce evidence that Negroes 
were systematically excluded from the grand jury which



5

indicted and the petit jury which tried, convicted, and sen­
tenced, by attempting to call as witnesses the two Cir­
cuit Solicitors who had served as prosecuting attorneys at 
petitioner’s trial (E. 17). But the state took the position 
that objections to the grand and petit juries based on exclu­
sion of Negroes “ cannot be raised for the first time on 
motion for new trial” (E. 18). At this point, petitioner’s 
counsel asked to be permitted “ to make an offer of what I 
intend to show” (E. 17), but the court refused, stating it 
would only hear argument on the law (E. 19).

The court indicated, however, that petitioner’s counsel 
might place the two Circuit Solicitors on the stand and pro­
pound questions to them “and if an objection is raised, then 
the Court will rule upon it” (E. 19). Thomas H. Boggs, So­
licitor of the 17th Judicial Circuit of the State of Alabama, 
which includes Greene County, was called (E. 20). He was 
permitted to testify that he had been present at every grand 
jury held in the county for the last 17 years and that he had 
a wide acquaintance among whites and Negroes in the 
County (E. 20, 21). However, when he was asked whether 
the ratio of Negroes to whites in Greene County was four 
to one,3 the trial court sustained an objection on the ground 
that “you cannot go into those matters unless they have 
been raised properly during the trial or in some proceedings 
prior thereto” (E. 22). Once the trial court expressed this 
opinion, counsel sought only “ to get one or two of these 
questions in the record for the purpose of taking an excep­
tion” (E. 22). Mr. Boggs was not permitted to answer addi­
tional questions seeking to establish systematic exclusion

3 According to the 17th Decennial Census, Final Report, P. C. 
(1) 2B, Alabama, p. 81, Greene County has a total population of 
13,600, of whom 2,546 persons are white and 11,504 are non-white. 
There are 775 white males and 2,247 non-white males (the total 
21 years of age and over) eligible for jury service. Code of 
Alabama, Tit. 30, §21 (1958).



6

on the same ground that the issue should have been raised 
prior to indictment and trial and could not be considered 
when raised by motion for new trial (R. 22-23).4 The 
motion for new trial was denied (R. 23).

Petitioner appealed directly from judgment of conviction 
and sentence of death to the Supreme Court of Alabama 
pursuant to the Alabama automatic appeal statute, Code of 
Alabama, Tit. 15, §§382(1)-(13) (1958), which provides for

4 Attorney for Defendant: I can ask whether or not the law 
was complied with?

Court: Yes. The fact that the law was complied with, that is 
a general question, hut the Court will sustain an objection to that 
because the courts have held repeatedly, the Supreme Court of 
Alabama and the Supreme Court of the United States, that you 
can not go into those matters unless they have been raised properly 
during the trial or in some proceedings prior thereto. That is 
the reason I asked you the question before. The case was tried 
by Mr. Boggs and the Court is familiar with it.

Attorney for Defendant: But I would like to get one or two 
of these questions in the record for the purpose of taking an 
exception to it.

Court: You may ask the questions, but the Court will have 
to sustain an objection to them.

Q. Mr. Boggs, you were present when the Grand Jury, which 
indicted Johnny Coleman, was convened, were you not?

A. I was.
Q. How many persons were on that grand jury?
A. Eighteen.
Q. Were any negroes on that grand jury?
Solicitor: I object to that, may it please the Court. It is an 

illegal mode of raising that which should have been raised by 
motion to quash the indictment.

Court: Sustain the objection.
Attorney for Defendant: I wrant to ask one more question, 

and then I won’t have any further question to ask—two more' 
your Honor. ’

Q. Were there any negroes on the petit jury that tried this 
defendant ?

Solicitor: I object to that, may it please the Court, on the 
ground that it should have been properly raised by motion to 
quash the venire if the Fourteenth Amendment was to be taken 
advantage of in this matter.

Court: Sustain the objection.



7

direct appeal from the trial court in capital cases (R. 28). 
The Supreme Court of Alabama has a “duty” where such 
an appeal is taken “ to examine all the evidence for revers­
ible error without the necessity of seasonable objection” 
(R. 34).

The Supreme Court, in affirming, did not discuss whether 
the failure of petitioner’s court appointed counsel to object 
to exclusion of Negroes from the juries, prior to arraign­
ment and trial, acted as a waiver of petitioner’s constitu­
tional rights although the court found generally “nothing 
in the record to indicate inadequacy or incompetence” on 
the part of counsel (R. 33). The manner in which the court 
disposed of the appeal, however, completely put to one side 
the question of alleged waiver, for, after determining that 
petitioner “was given an opportunity on the hearing of the 
motion for a new trial to adduce evidence of any systematic 
exclusion” (E. 32), the court held there was “no sufficient 
proof” to establish systematic exclusion of Negroes from 
grand and petit juries (E. 32, 33). The Supreme Court 
stressed that “the burden of proof was upon the defendant 
to establish the alleged racial discrimination,” and found, 
“ There was no evidence in the record of the population of 
the two races nor of the ratio of properly qualified Negroes 
as compared to properly qualified whites. The transcript is 
completely devoid of any proof whatsoever tending to sup­
port appellant’s allegation” (E. 32, 33).

The Supreme Court of Alabama denied application for 
rehearing June 20, 1963 (E. 37).



8

A R G U M E N T

Petitioner Was Denied Rights Under the Due Process 
and Equal Protection Clauses of the Fourteenth Amend­
ment When Denied an Opportunity to Introduce Evi­
dence Establishing Systematic Exclusion of Negroes 
From the Grand and Petit Juries.

This Court has a duty to determine independently facts 
or constructions upon which federal constitutional issues 
rest, see e.g., Napue v. Illinois, 360 IT. S. 264, 272. “ In cases 
in which there is a claim of denial of rights under the Fed­
eral Constitution, this Court is not bound by the conclusions 
of lower courts, but will re-examine the evidentiary basis 
on which those conclusions are founded,” Niemotko v. Mary­
land, 340 U. S. 268, 271.

The Supreme Court of Alabama found petitioner “ was 
given an opportunity at the hearing on motion for new trial 
to adduce evidence of any systematic exclusion” (R. 32) 
from the grand jury which indicted and petit jury which 
tried him. Reasoning from this premise, the court affirmed 
petitioner’s conviction and sentence to death on the ground 
that he had not introduced sufficient proof of systematic 
exclusion of Negroes to meet the burden of proof imposed 
upon him to establish his Fourteenth Amendment claim 
(R. 32, 33).

Far from establishing, however, that petitioner was ac­
corded an opportunity to present proof of systematic ex­
clusion, the record shows clearly that persistent attempts 
to develop such evidence were thwarted repeatedly by rul­
ings of the trial judge.

Subsequent to conviction, a Negro attorney entered the 
case for petitioner, and moved for a new trial on the ground,



9

inter alia, that Negroes were systematically excluded from 
the grand and petit juries (E. 10, 11).5 At the outset of the 
hearing held on the motion for new trial, the court struck 
an amendment to the motion for new trial which incorpo­
rated an affidavit of petitioner’s mother stating that her son 
was indicted by an all-white grand jury and tried by an 
all-white petit jury from which Negroes were systematically 
and intentionally excluded (E. 13). This affidavit was struck 
apparently on the ground that it was not “germane to the 
original motion” for new trial (E. 16), a conclusion unsup­
ported by the record as both the affidavit and the motion 
for new trial claimed systematic exclusion of Negroes from 
juries (R. 10,11,13).

At this point, petitioner’s counsel sought to call as wit­
nesses the two Circuit Solicitors who had served as prose­
cuting attorneys at petitioner’s trial (E. 17). The State ob­
jected on the ground that systematic exclusion cannot “be 
raised for the first time on motion for new trial,” relying 
on Ball v. State, 252 Ala. 686, 42 So. 2d 626, a Supreme 
Court of Alabama decision announcing such a rule (E. 18).6 
Petitioner’s counsel asked if he could “make an offer of 
what I intend to show” (R. 19), but the court indicated the 
proper procedure would be to have “Mr. Boggs and Mr.

5 The failure of petitioner’s white court appointed counsel to 
raise the jury discrimination issue corroborates the conclusion of 
the United States Court of Appeals for the Fifth Circuit that 
white lawyers in the south “ rarely, almost to the point of never, 
raise the issue of systematic exclusion.” United States ex rel. 
Goldsby v. Harpole, 263 F. 2d 71, 81 (5th Cir. 1959); United 
States ex rel. Seals v. Wiman, 304 F. 2d 53, 68 (5th Cir. 1962).

6 Alabama law requires objections to systematic exclusion of 
Negroes from the grand jury be raised by plea in abatement 
before defendant enters a plea to the merits and objections to 
the petit jury venire be raised before entering upon trial. Failure 
to object at proper times acts as a waiver. Ball v. State, 252 Ala. 
686, 42 So. 2d 626, cert. den. 339 U. S. 929; Code of Ala., Tit. 15, 
§§ 278, 279 (1958).



10

Banks sworn and placed upon the stand and you may pro­
pound the questions to them if you care to do so; and if an 
objection is raised, then the Court will rule upon it” (R  19).

Petitioner’s counsel called Solicitor Thomas H. Boggs as 
a witness. He was permitted to testify that he was always 
present when the Greene County grand jury was convened, 
and that he had a wide acquaintance among both Negroes 
and whites in the county. When asked about the population 
ratio between Negroes and whites in the county, he stated 
that there were many more Negroes than whites. But when 
he was asked, “Whether in your best judgment you think 
it would be four to one!” (R  21), objection was sustained 
for the reason “ that you cannot go into those matters unless 
they have been raised properly” (R  22). After this ruling, 
petitioner’s counsel attempted only “ to get one or two of 
these questions in the record for the purpose of taking an 
exception” (B. 22). The trial court again sustained objec­
tions on the ground that the jury issue was not properly 
raised on motion for new trial (B. 22, 23).

Totally unsupported, then, is the finding of the Supreme 
Court of Alabama that petitioner “was given an opportunity 
on the hearing of the motion for new trial to adduce evi­
dence of any systematic exclusion” (B. 32). The trial judge, 
at the urging of the attorney for state, ruled that “you 
can not go into those matters unless they have been raised 
properly during the trial or in some proceedings prior 
thereto” (B. 22), and he sustained objections to questions 
which sought to establish the population ratio of the races 
in Greene County (B. 21) and the absence of Negroes from 
grand jury and petit jury (B. 22). The failure of the trial 
court to permit petitioner to establish the population ratio 
between the races in Greene County is especially significant, 
for the Supreme Court of Alabama affirmed, in part, on the



11

ground that there was no evidence of population ratio 
(R. 32).

As petitioner was denied an opportunity to develop evi­
dence of violation of his constitutional rights, his conviction 
cannot be affirmed on the ground that he has not introduced 
“ sufficient proof” to meet his “burden of proof” (R. 32, 33), 
for such a result would make a mockery of the constitutional 
right to equal protection of the laws which he claimed. 
Carter v. Texas, 177 U. S. 442.7

The hearing accorded petitioner did not meet the stand­
ards of the due process clause. Such a hearing “ includes 
the right to introduce evidence and have judicial findings 
based upon it.” Baltimore A 0. R. Co. v. United States, 
and cases cited, 298 U. S. 349, 368, 369, 369n.28, 29; Re 
Oliver and cases cited, 333 U. S. 257, 273, 273n.31, 275; cf. 
Lombard v. Louisiana, 373 U. S. at 255 (Justice Harlan 
dissenting). Nor is due process satisfied when an appellate 
court considers such evidence of systematic exclusion as 
may be in a record if petitioner has had no opportunity to 
make a full presentation of proof. Cole v. Arkansas, 333 
U. S. 196.8

The State of Alabama, in its Brief in Opposition to 
Certiorari, argued as if petitioner were seeking to invali­

7 In the Carter ease, this Court reversed the judgment of a state 
court which held that a Negro claiming systematic exclusion from 
the grand jury had not “presented to the court . . . any evidence 
whatever in support of it,” 177 U. S. at 446, on the ground that 
the defendant “offered to introduce witnesses to prove the allega­
tions . . . and the court . . . declined to hear any evidence upon 
the subject.” 177 U. S. at 448, 449.

8 This is especially true in light of the Supreme Court of Ala­
bama’s refusal to consider all of the evidence available. In his 
brief petitioner asked the Supreme Court to take judicial notice 
of U. S. Census population figures for Greene County (see note 3, 
supra) but the Court refused, holding that there was no evidence 
of population figures.



12

date the Alabama rules of law which require that objection 
to formation of the grand jury be made prior to entering a 
plea to the indictment and that objection to the petit jury 
venire be made before trial, or else that such objections 
are considered waived.9 Petitioner, however, has not at­
tacked the reasonableness of these procedural requirements 
for the reason that the Supreme Court of Alabama did not 
choose to rest its affirmance on the ground of waiver, but, 
as it has done in similar cases in the past, Clark v. State, 
239 Ala. 380, 195 So. 260, cert, denied 311 U. S. 688,10 clearly 
and unmistakably rested its decision on the ground that 
petitioner did not introduce sufficient proof of systematic 
exclusion (E. 32, 33).11

The opinion of the Supreme Court suggests that the 
court chose to ignore the failure to raise the question of 
systematic exclusion because the case came to that court 
under the automatic appeal statute, cf. Arrington v. State, 
253 Ala. 178, 182, 43 So. 2d 644, 648, where the duty of the 
court is “ to examine all evidence for reversible error with­
out the necessity of seasonable objection” (R. 34). But 
the reason that the Supreme Court of Alabama put the 
waiver rule to one side and decided the case as it did are

9 See note 6, supra.
10 In Clark v. State, supra, the Supreme Court of Alabama found 

“without regard to the tardiness in presenting the question of the 
exclusion of qualified persons of the Negro race . . .  we may say 
that the evidence offered in support of this contention by the 
defendant fails to show . . . [Negroes were] systematically or 
arbitrarily excluded.” 239 Ala. 380, 386, 195 So. 260, 264.

11 As the Supreme Court of Alabama did not treat the consti­
tutional rights asserted as being waived but on the contrary ruled 
they were not established by evidence, petitioner has made no 
attempt to argue that a white, court appointed, lawyer in Alabama 
could not effectively waive such constitutional rights. See United 
States ex rel. Goldsby v. Harpole, 263 F. 2d 71, 81 (5th Cir. 1959); 
United States ex rel. Seals v. Wiman, 304 F. 2d 53, 68 (5th Cir. 
1962). Cf. Michel v. Louisiana, 350 U. S. 91.



13

not relevant here. Where the highest court of a state holds 
a federal question is properly before it and then proceeds 
to consider and dispose of that issue, this Court is no longer 
concerned with whether a litigant has complied with the 
proper state procedures for raising the question. Manhat­
tan Life Ins. Co. v. Cohen, 234 U. S. 123, 134; Whitney v. 
California, 274 U. S. 357, 360-1; Raley v. Ohio, 360 U. S. 
423, 436.

Petitioner was denied an opportunity to introduce proof 
of systematic exclusion of Negroes from the grand and 
petit juries when absence of such proof served to affirm his 
conviction. In this, he has been denied basic procedural 
fairness, and rights he sought to assert have been unconsti­
tutionally abridged.

CONCLUSION

Wherefore, for the foregoing reasons, petitioner prays 
this Court reverse the judgment of the court below.

Respectfully submitted,

Jack Gbeenbebg 
M ichael M eltsneb

10 Columbus Circle 
New York 19, New York

Obzell B illingsley, Jb.
1630 Fourth Avenue, North 
Suite 510-512 
Birmingham, Alabama

Attorneys for Petitioner



38