Beecher v. Alabama Brief in Support of Petition for Rehearing

    \

IN THE COURT OF CRIMINAL APPEALS 
OF THE

STATE OF ALABAMA

JOHNNY DANIEL BEECHER,
Appellant,

vs.
STATE OF ALABAMA,

Appellee.

8 DIV. 426

BRIEF IN SUPPORT OF PETITION 
FOR REHEARING

U. W. CLEMON
ADAMS, BAKER, & CLEMON

Suite 1600 - 2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

JACK GREENBERG 
ELAINE R. JONES

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Appellant



TABLE OF CONTENTS

I. Statement of the Case .......................... •..........1
II. Statement of the Facts ...... ............................ii

III. Propositions of Law .................................... iii
IV. Argument ..................................................1

1. This Court Misconceived the Constitutional 
Standard for Determining a Prima Facie Case 
of Jury Discrimination and Erred in Imposing
an Incorrect Burden of Proof on Appellant......... 1

A. Appellant Contends That This Court's 
conclusion That the Evidence Did Not 
Establish a Prima Facie Case of Racial 
Discrimination in ithe Selection of 
Jurors was Based on a Misconception
of the Constitutional Test for Determining
When a Prima Facie Case of Racial— - --- -*
J / J . O V . . J ,  J . U U . U U I . . J . V . U 1 0 . 0  U J . 1 W V A A  •  e * • • c « > » * « . e o o e e * c, „ „ * *  .L

B. Appellant Met His Burden Of Establishing A 
Prima Facie Case of Racial Discrimination.....4

2. This Court Applied an Incorrect Legal Standard 
Inconsistent with the Due Process Clause of the 
Sixth and Four!: 'enth Amendments of the Con­
stitution of the United States in Judging the 
prejudicial Effect of Extrajudicial Influences on
the Members of the Jurt Venire in AppellentHs
Case ..............................................13

A. The Trial Court and This Court Applied an 
Improper Legal Test for Determing the 
Impartiality of Appellant's Venire........ .13

B. On This Record the Denial of Appellant's 
Motion to Individually Voir Dire Jurors 
Out of the Presence of One Another is 
Reversible Error....................... 16



TABLE OF CONTENTS (cont.)

III. This Court Erred in its Review of the Totality
of Circumstances and the Standard of Voluntariness 
It Applied in Affirming the Admissibility of an 
Incriminating Statement Attributed to Appellant ....22
A. The Record Reflects Inherently Coercive

Circumstances Surrounding the Alleged 
Incriminating Statement .................... 22

B. This Court Erred in Not Looking to the
Totality of the circumstances in Determining 
"Voluntariness" .............................28

IV. This Court's Finding That the Record Does Not 
Show the Context of the District Attorney's 
Statement That "No one Took the Stand to Deny It"..34

V. It Was Reversible Erroe for the Trial Court to
Admit into Evidence Testimony on "Tracking" Which
Did Not Comply with the Proper Evidentiary
Stanfiarrl for Admi sslbil.i tv ........................  38

VI. Conclusion

V*.



Statement of the Case
Appellant herein incorporates by reference the Statement 

of the Case set out in Appellant's Brief on Appeal. This 
Court filed its opinion on October 1, 1974. Appellant has 
fifteen days to file a Petition for Rehearing. The Petition for 
Rehearing will be timely filed on October 14, 1974.

v

i



Statement of the Facts

Appellant herein incorporates by reference the facts 
meticulously set out in Appellant's Brief on Appeal. V7ith 
regard to the prosecutor's comment "no one took the stand 
to deny it," the fact that the comment was made by the 
district attorney in referring to the testimony of Ken 
Phillips is uncontradicted and undenied in this regard 
(Tr. 1201, 1202).

11



PROPOSITIONS OF LAW

I.

THIS COURT MISCONCEIVED THE CONSTITUTIONAL 
STANDARD FOR DETERMINING A PRIMA FACIE CASE 
OF JURY DISCRIMINATION AND ERRED IN IMPOSING 
AN INCORRECT BURDEN OF PROOF ON APPELLANT.

Alexander v. Louisiana, 405 U.S. 625 (1972).
Avery v. Georgia, 345 U.S. 559 (1953).
Brooks v. Be to, 366 F-2d 1 (5t.h Cir. 1966).
Carmical v. Craven, 457 F.2d 582 (9th Cir. 1972).
Carter v. Jury Commission of Greene County, 396 
U.S. 320 (1970).
Cassell v. Texas, 339 U.S. 282 (1950).
Coleman v. Alabama, 377 U.S. 129 (1964). 
nxxx v. xcxaa, oxo u .d . *tuu x̂̂ '+x; .
Mobley v. United States, 379 F.2d 768 (5th Cir. 1967).
Neal v. Delaware, 103 U.S. 370 (1881).
Norris v. Alabama, 294 U.S. 587 (1935).
Rabinowitz v. United States, 366 F.2d 34 (5th 
Cir. 1966). t*
Salary v. Wilson, 415 F.2d 467 (5th Cir. 1969).
Scott v. Walker, 358 F.2d 561 (5th Cir. 1966).
Smith v. Texas, 311 U.S. 128 (1940).
Strauder v. West Virginia, 100 U.S. 303 (1880)
Turner v. Fouche, 396 U.S. 346 (1970).
United States ex rel. Seals v. Wiman, 304 F.2d 53 
(5th Cir., 1962).
Wansley v. Slayton, 487 F.2d 90 (4th Cir. 1973). 
Whitus v. Georgia, 385 U.S. 545 (1967).

iii



II.
THIS COURT APPLIED AN INCORRECT LEGAL STANDARD 
INCONSISTENT WITH THE DUE PROCESS CLAUSE OF THE 
SIXTH AND FOURTEENTH AMENDMENTS OF THE CONSTITU­
TION OF THE UNITED STATES IN JUDGING THE PREJUDICIAL 
EFFECT OF EXTRAJUDICIAL INFLUENCES ON THE MEMBERS OF THE JURY VENIRE IN APPELLANT'S CASE.

Coppedge v. United States. 272 F.2d 504, cert. denied, 368 U.S. 855 (1961).
Irvin v. Dowd, 366 U.S. 717 (1961).
Marshall v. United States, 360 U.S. 310 (1959).
United States ex rel. Doqqett v. Yeaqer, 472 F.2d 229 (1973). " “ ' '

III.
THE COURT ERRED IN ITS REVIEW OF THE TOTALITY OF 
CIRCUMSTANCES AND THE STANDARD OF VOT.TTNTARTNFSS 
IT APPLIED IN AFFIRMING THE ADMISSIBILITY OF AN 
INCRIMINATING STATEMENT ATTRIBUTED TO APPELLANT.
Beecher v. Alabama, 389 U.S. 35, 88 
189 (1967).

S. O rf •
Beecher v. Alabama, 408 U.S. 234, 92 
(1972).

S. ct . 2282

Escobedo v. Illinois, 378 U.S. 478, 
1758 (1964).

84 s . Ct.

Glinsey v. Parker, 491 F.2d 338 (6th Cir. 1974).
Jackson v. Denno, 378 U.S. 368, 84 S 
(1964).

. Ct. 1774

Massiah v. United States, 377 U.S. 201, 
Ct. 1199 (1964).

84 S.

Mathis v. United States, 391 U.S. 1, 
1503 (1968).

88 S. Ct.

Miranda v. Arizona, 384 U.S. 436, 86 
102 (1967).

S. Ct •

IV



ppr.l<- v. pate, 367 U.S. 443, 528, 534 (1963) .
Spano v. New York, 360 U.S. 315, 79 S. Ct. 
1202 (1959)
Stovall v. Denno, 388 U.S. 293, 87 S. Ct.
1967 (1967) .
United States v. Bekowies, 432 F.2d 8 (9th 
Cir., 1970).
United States ex--rel O'Connor v. The State of 
New Jersey, 405 F.2d 632 (3rd Cir., 1969).

*

V



I

IV.
THIS COURT'S FINDING THAT THE RECORD DOES NOT 
SHOW THE CONTEXT OF THE DISTRICT ATTORNEY'S 
STATEMENT THAT "NO ONE TOOK THE STAND TO DENY 
IT" IS ERRONEOUS.

Stareet v. State, 266 Ala. 289, 96 So.2d 
686 (1957).

V.
IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT 
TO ADMIT INTO EVIDENCE TESTIMONY ON "TRACKING" 
WHICH DID NOT COMPLY WITH THE PROPER EVIDENTIARY 
STANDARD.

Allen v. State, 8 Ala. App. 228, 62 So. 971 
(1913).
■q-i-i>-vc? tr c 940 Ala. 587 . 200 So. 418
T T 94T ) • "

Gallant v. State, 167 Ala. 60, 52 So. 739 
(1910) .'
Little v. State, 145 Ala. 662, 39 So. 674 (1905). 
Richardson v. State, 145 Ala. 46, 41 So. 82 (1906).

%•

vi



I.
THIS COURT MISCONCEIVED THE CONSTITUTIONAL 
STANDARD FOR DETERMINING A PRIMA FACIE CASE 
OF JURY DISCRIMINATION AND ERRED IN IMPOSING 
AN INCORRECT BURDEN OF PROOF ON APPELLANT.

A. Appellant Contends That This Court's Conclusion
That The Evidence Did Not Establish A Prima Facie 
Case Of Racial Discrimination In The Selection Of 
Jurors Was Based On A Misconception Of The Con­
stitutional Test For Determining When A Prima Facie 
Case Of Racial Discrimination Is Shown.

For historical reasons, the early decisions of the Supreme 
Court of the United States dealing with jury selection involved 
deliberate discrimination against Blacks. Thus, in Strauder 
v. West Virginia, 100 U.S. 303 (1800)., the issue was the con­
stitutionality of a state statute that explicitly excluded Blacks 
from jury service. Other cases involved undenied, intentional 
exclusion by the administration of statutes racially neutral 
on their face. See, Neal v. Delaware, 103 U.S. 370 (1881). In 
later cases purposeful discrimination was denied; the result was 
the rule that, in the face of total or near-total exclusion of 
Blacks over a period of time, such '"denials on the part of jury 
commissioners were not sufficient to overcome a prima facie case 
of jury discrimination. Norris v. Alabama, 294 U.S. 587 (1935).

A natural outgrowth of these cases was the more recent rule 
that where there is a significant disparity in the number of 
Blacks chosen (short of total exclusion) and there is an opportunity 
to discriminate because the race of prospective jurors was known, 
then it would be presumed that the opportunity had been seized 
upon despite sworn denials by jury commissioners. Avery v. Georgia,



345 U.S. 559 (1953); Whitus v. Georgia, 385 U.S. 545 (1967);
Alexander v. Louisiana, 405 U.S. 625 (1972). Similarly, when 
the disparity occurred in part at a point in the selection 
process where subjective judgments as to qualifications were 
exercised, then a constitutional violation was established.
Turner v. Fouche, 396 U.S. 346 (1970).

The Supreme Court of the United States in Smith v. Texas,
311 U.S. 128 (1940), applied a somewhat different standard than 
deliberate or purposeful discrimination. The Court also held 
unconstitutional, methods of jury selection that had the effect 
of excluding Blacks irrespective of whether jury commissioners 
intended discrimination when they adopted those methods because 
they resulted in non-representative juries. Thus, in Hill v.
Texas, 316 U.S. 400 (1942), the Court ordered an indictment 
quashed on a showing that jury commissioners had not acquainted 
themselves with the Black community, thus failing in their duty 
"not to pursue a course of conduct in the administration of 
their office which would operate to discriminate in the selection 
of jurors on racial grounds." ][d. at 404. Accord: Cassell v. 
Texas, 339 U.S. 282 (1950). And in Alexander v. Louisiana, supra,
the Court stated that "racially neutral selection criteria and 
procedures" must be used.

In concluding that appellant failed to make out a prima 
facie case of discrimination, at least, in part because "the 
evidence disclosed no purposeful design by the Commissioners not 
to include qualified blacks on the roll . . .," this Court's 
decision is in direct conflict with the Supreme Court cases 
discussed above. (Slip Opinion, p. 10).

2



Moreover, the Fifth Circuit's decision in United States
ex rel. Seals v. Wiman, 304 F.2d 53 (1962), cert, denied, 372 
U.S. 924 (1963), squarely holds that purposefulness is not a 
necessary element of a prima facie case of racial discrimination 
in jury selection. After discussing a number of cases which 
contain terms such as "purpose to discriminate," "intentional 
discrimination," "intentional exclusion," and "purposeful 
systematic non-inclusion because of color," the Seals court 
said:

These same cases, however, and others, recognize 
a positive, affirmative duty on the part of jury 
commissioners and other state officials, and show 
that it is not necessary to go so far as to 
establish ill will, evil motive, or absence of 
good faith, but that objective results are largely 
to be relied on in the application of the con­
stitutional test. 304 F.2d at 65.

The question is whether the jury commissioners, given the 
purest of motive, have conformed their "method of selection to 
a system that will produce jury lists reasonably approximating 
that cross-section [of their community.]" Smith v. Yeager, 465 
F.2d 272, 282 (3rd. Cir. 1972). Accord: Carmical v. Craven, 457 
F.2d 582, 586 (9th Cir. 1972).

Review of the above Supreme Court and Circuit Court cases 
demonstrates that the burden of proof on appellant was to show 
a substantial disparity in the representation of Blacks and whites 
on the jury list and, at most, a point in the selection process 
where subjective judgments of those responsible for the selection 
of juries were likely to contribute to the disparity. See, e_.c[. , 
Turner v. Fouche, supra.

3



B. Appellant Met His Burden Of Establishing A 
Prima Facie Case Of Racial Discrimination.
1. Appellant demonstrated a substantial 

disparity in the representation of 
Blacks and whites on the jury lists.

Appellant's undisputed statistical figures show that in 
1970 the total population of Lawrence County, Alabama was 27,281. 
Of that number, 5,114 or 18.7% were Black. The total number of 
persons 21 years and older and therefore presumptively qualified 
for inclusion on the jury rolls was 15,289. Of this number,
2,355 or 15.4% were Black.

Appellant's evidence as to the racial composition of the
!_/jury roll showed that only 5.2% of the total were Blacks, and 

this evidence was buttressed by a showing that the percentage 
of Blacks on each of thirteen of sixteen general venires drawn 
in 1972 ranged from a low of 1.3% to a high of 8.3%. Of that 
total of 1,015 names appearing on those thirteen venires, only

2 J49, or 4.8% were Blacks.
Moreover, it was stipulated by the parties that of the 70 

regular and 5 special jurors originally drawn for the trial in
V

April, 1973, only 5 or 6.7% were Blacks. A second venire was 
drawn in June, 1973. Of 80 jurors summoned, only 4 or 5.0% were 
Blacks. Of 58 jurors actually present on the day of organization., 
only 3 or 5.2% were Blacks. The jury which convicted appellant 
was all-white.

1/ In Appellant's Brief the percentage of 5.1% was used; 
however, the accurate figure is 5.17% which correctly rounds off 
to 5.2% as used by this Court.
2 / The contention that the figures in this paragraph are not 
accurate or conclusive, is considered at pp. 9, 10, 11, infra.

4



Appellant respectfully urges that this Court misapprehended
the above facts. The situation with regard to the jury list in
Lawrence county can be stated as follows: out of every 100 names
drawn from a properly compiled jury list, it would be expected

_3_/that 15 would be those of Blacks. However, on the master
jury list, only 5 out of every 100 names were Black.

Thus, the underrepresentation of Blacks on the revised jury 
list was far greater than 10%. Rather, Blacks were under-

A Jrepresented on the master jury list by over 66%.
The Supreme Coxirt has made it clear that the relevant 

figure in determining whether a particular jury list adequately 
represents a cross-section of the community is not the difference 
between the percentage of Blacks in the community and their 
percentage on the jury list. Rather, what is significant is 
the percent of the Black community excluded from service, or, 
in other terms, the percent of underrepresentation. In Alexander 
v. Louisiana, 405 U.S. 625, 629 (1972), the Court stated the 
facts thusly:

3/ All figures are rounded off to the nearest whole number.
4/ The following table compares the expected number of Black 
jurors per 100 (based on eligible Blacks being 15.4% of the 
population) with the actual number per hundred:

Expected No. 
Black Jurors 
per 100 Juries

Actual No.
per 100 in % Under-
Master List representation

15.4 5.2 66.2

5



In Lafayette Parish, 21% of the population 
was Negro and 21 or over, therefore presumptively 
eligible for grand jury service. Use of question­
naires by the jury commissioners created a pool 
of possible grand jurors which was 14% Negro, a 
reduction by one-third of possible black grand 
jurors. The commissioners then twice culled this 
group to create a list of 400 prospective jurors, 
7% of whom were Negro —  a further reduction by 
one-half.

Thus, in Alexander, the Court did not substract 7% from 
14% for a disparity of only 7%, but calculated that the reduction

- Vwas one-half, d̂ .ep , 50%. Of course, in the present case,
when the deviation of the master list from a cross-section is 
seen to be 66.9% rather than only 10%, it must be concluded

5 / The of vmHf*̂ 270̂ 2?̂ *SOTlf ̂ t2.OP is O'? 1C113 +" P* H
follows: The actual number of Blacks per 100 is divided by the
expected number per 100 (based on their percent of the population). 
The figure obtained is the percent representation. That figure 
is substracted from 100% (representing perfect representation) and 
the result is the percentage of underrepresentation, i_. e_. , the 
percent of eligible blacks excluded from servive.

Thus, <2.c[. , in a county 20% black but with only 8% blacks on 
the jury list, the calculation is as follows:

V8 (actual no./lOO) _ 40%.20 (expected no./lOO) ~
40% — the percentage of the black population represented

on the list. The percentage of Blacks excluded is:
100% - 40% _ 60%.

Thus, the Black population would be underrepresented by 60%, and 
not 12%.

The calculation of the percent underrepresentation on the 
revised grand jury list in this case is as follows:

5.2 = 33.8% 100% - 33.8% = 66.2%15.4

6



that constitutional standards have not been met. Cf. Wansley
v. Slayton, 487 F.2d 90, 100, 101 (4th Cir. 1973)(underrepresenta­
tion of 50% or more is a prima facie case of racial discrimination).

2. Appellant demonstrated that the selection process allowed for subjective judgments 
which were likely to contribute to the 
disparity in Black-white representation 
on the jury rolls.

The evidence clearly demonstrates that the process most 
relied upon in compiling the master list is the key-man system.
This process of contacting "leading citizens" to recommend 
qualified persons for the jury list was exacerbated by the fact 
that the commissioners and the clerk were generally unfamiliar 
with the Blacks in Lawrence County. Moreover, the unfamiliarity 
with the overall racial composition of the jury list and the lack 
of affirmative action to insure that Blacks and whites were 
included in proportions which would provide a reasonable cross- 
section was in dereliction of their affirmative duty to acquaint

6 / An illustration may be used to show why subtracting per­
centages is misleading. Suppose there are three counties: County 
A is 10% black, B is 20% black and C is 80% black. An investiga­
tion discloses that the percentage of Blacks on the jury lists of 
the three counties is as follows: A, 0%; B, 10%; C, 70%.

If, in determining whether the jury lists adequately reflect 
a cross-section of the community, the percentage on the list is 
merely subtracted from the percent in the county, the anomalous 
result is reached that in each case the underrepresentation is the 
same, i.e., 10% (10 - 0 = 10; 20 - 10 = 10; 80 - 70 - 10). 
Undisputably, however, a jury list with no blacks in a county 10% 
black is no where near as representative of the community as is a 
list 70% black in a county 80% black.

If the percentage underrepresentation is used, however, an 
accurate picture is obtained. In County A blacks are 100% under­
represented, in County B, 50%, and in County C, 12.5%.

7



themselves with Blacks. Ehcj_. , Avery v. Georgia, supra; Cassell 
v. Texas, supra; Smith v. Texas, supra; Brooks v. Beto, 366 F.2d 
1 (5th Cir. 1966) ; United States ex rel. Seals v. Wiman, supra; 
Scott v. Walker, 358 F.2d 561 (5th Cir. 1966). Cf. Smith v.
Yeager, supra, citing Carter v. Jury Commission of Greene County, 
396 U.S. 320 (1970); Carmichael v. Craven, supra.

This Court recognized the inadequacy of the procedures 
employed. (Slip opinion, p. 10). However, the court was not 
at that time considering this issue within the proper context 
and applying the appropriate standard. But in case after case, 
the "key-man" system and the attendant circumstances of the 
commissioners' general unfamiliarity with Blacks the 
commissioners' lack of effective affirmative action to insure 
that BiacKs and whites were included on the jury Irsts in 
representative proportions; and, the commissioners' failure to 
pursue a course of action which would provide jury lists reasonably 
approximating a cross-section of the community —  has been held 
to be constitutionally infirm. Where this system results in 
substantial underrepresentation of Blacks, it is prima facie 
racially discriminatory. Smith v. Texas, supra; Salary v. Wil_son, 
415 F.2d 467 (5th Cir. 1969); Rabinowitz v. United States, 366 
F.2d 34 (5th Cir. 1966); Smith v. Yeager, supra. Such under­
representation appellant has shown.

8



not identify them —  when shown a list of the names on the
Jz/actual venires. Appellant's witnesses were selected on

the basis of their familiarity with Blacks, identified an
JL/average of 4 to 5. Scott v. Walker, 358 F.2d 561 (5th Cir.

1966), clearly demonstrates that the type of evidence presented 
by appellant is to be greatly preferred over the oral, 
generalized testimony produced by the state:

Thus, it is that, instead of producing the 
lists with witnesses who could state the race 
of persons listed on each of them . . . , which
would have proven without any doubt, if it had 
been true, that there were more than a token 
token number of Negroes listed, respondent 
depended on oral testimony of the three 
commissioners. . . . [N]ot one of them
identified a single Negro as having been placed 
by him on the general venire list. . ., and they
testified as to their own participation in the 
jury selection system [including Blacks on the 
general venire] in only the vaguest terms, i.e. ,
"one to three," "several," "quite a few." 358 
F.2d at 568.

7 / The issue is the number of Blacks on the master lists.
And while appellant strongly urges that his data as to the number 
of Blacks on the 13 venires considered by Burney, J. is ample 
support of his contentions as to the number on the master list, it is not necessary to conclude that J. Burney's statements were 
untrue, since it is logically consistent —  although highly 
improbable —  that some venires contained 8 to 10 blacks, but 
that the master list was only 5.2% black.
8 / The State would also contend that because some of 
appellant's witnesses stated that they did not know every Black 
in Lawrence county this was sufficient to rebut appellant's 
data. Surely, it is unreasonable to require a single witness 
to know every person 21 years or older in an entire county or 
in any area where there is a large number of people. As shown, 
the procedure of calling witnesses to make racial identifications 
is an appropriate and accurate procedure in this type of case. 
Scott v. Walker, supra.

10



Appellant's contention that the derogation of the 
accuracy of his statistics is unwarranted is even more 
compelling when the attendant circumstances are considered. 
First, the trial court denied appellant's motion to inspect 
the jury rolls in advance. Cf. Scott v. Walker, supra, at 567; 
Mobley v. United States, 379 F.2d 768, 772, 773 (5th Cir.
1967).

Second, the trial court denied appellant the opportunity 
to explore the possibility that previous jury lists contained 
racial designations. This inquiry was relevant to two regards. 
1) If in fact, the previous jury lists contained racial 
designations, then those lists would have provided a means of 
determining the race of a substantial number of jurors —  
especially in light of tne tact that mere was testimony 
indicating that the current lists were derived in part from 
the previous lists. C_f. Scott v. Walker, supra at 568;
Mobley v. United States, supra at 773; and 2) the inquiry was 
relevant to the issues of whether there was a clear opportunity 
to discriminate and whether there existed a pattern and practice 
of racial discrimination.

9 / Although appellant clearly demonstrates that he was not 
required to show purposeful discrimination, he should not have 
been foreclosed from pursuing evidence on this issue. cf.
Coleman v. Alabama, 377 U.S. 129 (1964). It must be noted here 
that in addition to other procedural deficiencies in appellant's 
trial, infra, the trial court's denial of the motion to inspect 
the lists in advance and its exclusion of the evidence as to past 
practices, rises to the level of a denial of an adequate hearing. 
Coleman v. Alabama, supra; Mobley v. United States, supra.

11



This Court's statement that "there was no evidence to 
demonstrate the proportion of'Negroes actually qualified as 
jurors under the statute” (slip op, at p. 11) contradicts the 
Court's recognition that Blacks 21 years of age and older are 
presumptively qualified (slip op. p. 11).

Further, there is no burden on the Black community to 
seek inclusion on the jury rolls and the commissioners' 
positive affirmative mandate to insure a reasonably 
representative cross-section of the community cannot be 
discharged by —  nor can the state rely on —  the failure 
of "black leaders" or "key-man” to seek to include Blacks as 
this Court intimates. (Slip Opinion, p. 10). As the Fifth 
Circuit said in Salary v. Wilson, 415 F.2d 467, 472 (5th Cir., 
1969):

[T]hose charged with administering the jury 
selection machinery may not transfer to the 
Negro community, or to any other segment of the community, the responsibilities placed by 
law upon them, nor may they transmit insufficient 
methods into effectual ones on the basis that 
Negroes are not sufficiently responsive.

For all the foregoing reasons, appellant clearly 
demonstrated that Blacks were systematically excluded from 
the master jury rolls of Lawrence County. On this basis, 
appellant must be granted a new trial.

12



II
THIS COURT APPLIED AN INCORRECT LEGAL 
STANDARD INCONSISTENT WITH THE DUE 
PROCESS CLAUSE OF THE SIXTH AND 
FOURTEENTH AMENDMENTS OF THE CONSTI­
TUTION OF THE UNITED STATES IN JUDGING 
THE PREJUDICIAL EFFECT OF EXTRAJUDICIAL 
INFLUENCES ON THE MEMBERS OF THE JURY 
VENIRE IN APPELLANT'S CASE.

A. The Trial Court And This Court Applied An Improper 
Legal Test For Determining The Impartiality Of 
Appellant's Venire.
This Court and the trial court erroneously imposed upon 

the appellant the burden of demonstrating that the newspaper 
accounts had actually prejudiced the jury against him.
Marshall v. United States, 360 U.S. 310 (1959) Irvin v. Dowd, 
366 U.S. 717 (1961). The rule of Marshall and Irvin, is 
that impartiality is not a technical conception. Irvin, supra, 
at 724. In Marshall, supra, the High Court ordered a new 
trial despite the statement by jurors, as here, that they 
would not be influenced by the news articles. Irvin re­
affirmed the rule in Marshall that the effect of prejudicial 
information is not cured by the statement of a juror that he 
will not be influenced by adverse publicity.

Here, the build-up of prejudice is clear and convincing, 
Irvin, supra at 724. Close examination of the record includes

13



C. Appellant's Prima Facie Case Of Racial 
Discrimination Was Not Rebutted By The 
State's Evidence.

Appellant's procedure for determining the number of 
Blacks on the jury list is an appropriate and sanctioned method 
of establishing the racial composition of a jury list. For 
example, in Scott v. Walker, supra, the Fifth Circuit Court 
of Appeals in considering a claim by appellant Scott that only 
a token number of Blacks were on the jury lists said that 
"producing the lists with witnesses who could state the race 
of persons listed on each of them . . . would have proven 
without any doubt . . . that there were more than a token
number of Negroes listed." 358 F.2d at 568 (emphasis added).

Second, once appellant had made a showing of the number 
of Blacks on the jury list, it was incumbent upon the State 
to go forward and show that there were more Blacks if, as it 
contends, there were in fact more Blacks on the lists. Id.
Or as the United States Supreme Court in Turner v. Fouche, supra, 
stated: W

"If there is a 'vacuum' it is one which the 
State must fill, by moving in with sufficient 
evidence to dispel the prima facie case of 
discrimination." 396 U.S. at 361.

This burden was not met by the oral testimony of a 
commissioner that a former commissioner had told him the list 
was 20% Blacks; particularly in view of the fact that it was 
shown that he knew less than 100 Blacks. Nor was it met by the 
oral statement of a witness that he had observed an average of 
8 to 10 Blacks on venires —  especially where the witness could

9



articles from the nine year coverage of the case. The 
testimony of the general manager of the daily newspaper in 
Lawrence County, the sites of the trial, in explaining 
massive first and second page coverage of appellant's case 
testified, that there was "a great deal of interest in the 
case" in Lawrence County (R. 112) and that no other murder 
case had received such consistent coverage (R. 137, 138).

The record reflects that appellant introduced over 
eighteen (18) newspaper articles which contained facts which 
jurors were not entitled to know about the appellant and

wwhich were devastating to his cause. Coppedge v. United 
qtafp.q. 772 F.2d 504. 508 cert, denied 368 U.S. 855 (1961) . 
Among the many details of the two previous convictions were 
specific reports of the content and circumstances surrounding 
two prior confessions, both of which were reversed by the 
Supreme Court (R. 87, 127). Further, there was reporting 
that the appellant, a black male, had hence been convicted 
of murdering a pregnant white woman. There was not in this 
trial nor has there ever been evidence of pregnancy. The 
evidence is therefore clear and convicing that the avalanche

10/ See Footnote 16 (Appellant's Brief at p. 34).

14



of newspaper articles, all of which are in the record before 
this Court contained prejudicial information which should not

iyhave come to the knowledge of the jury. Marshall, supra.
The record is replete with evidence of the newspaper, 

radio and television coverage afforded appellant's trial 
which purported to include "facts" from his previous trials. 
It requires little argument "that the newspaper articles con­
tained facts which should not have come to the knowledge of 
the jury." Coppedge, supra at 508. The details of the prior 
confessions of appellant in an inflammatory case such as this 
is clearly prejudicial. "It is too much to expect of human 
nature that a juror would volunteer in open court, before 
his fellow jurors that he would be influenced in his verdict 
by a newspaper story. . . . "  Coppedge, supra at 508. Also 
see Marshall, supra; Irvin, supra.

Of the forty-four veniremen who were qualified for jury
V«service, twenty-five admitted they had read or heard about 

the Beecher case (Tr. 466-596). Additionally, on the jury 
which tried appellant, five jurors, as recently as the day 
before trial, had read an article setting forth the "facts" 
and procedural history of appellant's cases (D. Exs. 18, 19).

11/ See Statement of the Facts (Appellant's Brief at pp. 9-12).

15



As in Dowd, supra, the finding of impartiality of the jurors 
in this case does not meet constitutional standards.

The third trial of this appellant did not begin when 
the petit jury was empaneled and the first witness sworn.
It began during the pre-trial publicity; appellant was con­
victed during the public voir dire when opinions cemented and 
veniremen recounted from newspaper coverage the events in 
Beecher's first and second trials. The Supreme Court of the 
United States had twice reversed this case on confession 
issues. With the magnitude and horror of the crime with 
which he again stands convicted, on this record placing the
D iin 'c lt if i  O n  L i i x s  d j p p s l . i c i r i ' t  o i~  G hG V v^nc r \  -i n  r l  n /r> r\ -P 

-  w — — — j r ------ J  --- -------------- -----------

veniremen when there is a clear showing of probable bias, 
offends the due process clause and the Sixth Amendment of 
the Constitution of the United States. This appellant in 
this, his third trial, has not been afforded a fair and

W
impartial jury to which he is constitutionally entitled.

B. On This Record The Denial Of Appellant’s Motion To 
Individually Voir Dire Jurors Out Of The Presence 
Of One Another Is Reversible Error.
In the face of all of the pre-trial publicity, a great

deal of which over half of the prospective veniremen had

16



12/
either read or heard about (exactly 25 out of 44 veniremen),
the trial judge denied appellant's motion to voir dire the
jurors individually out of the presence of each other (R. 505;
Tr. 466-67). Appellant urges upon this Court that this was
manifest error and mandates a reversal of his conviction.
Those jurors who may have survived the blanket of publicity
which weighed the balance against the appellant, were most
assuredly exposed to it during the collective voir dire.
United States ex rel. Doggett v. Yeager, 472 F.2d 229 (1973),
Coppedge, supra. Of the three jurors who were challenged for
cause, two of them detailed their bias and prejudices against
this appellant based on "discussions" in which they had
engaged (R. 660, 575, 685) . One juror stated in the presence
of the other jurors that her daughter had outlined the facts
of appellant's case [as read in the newspapers by the daughter]
and that the venirewoman did not doubt the facts of the case

13/
as reported by the daughter (R. 580). One venireman (Goodwin) 
reported in the presence of the others, "I think he is guilty 
because if he hadn't been, he wouldn't have been stuck twice

ljy See Appellant's Brief at p. 34.
13/ See Appellant's Brief at p. 34. See statements made in 
presence of all jurors. App. Br. at p. 12-13, R. 498.

17



before" (R. 643, 644, 646). The testimony of venireman 
Littrell is a study in inflammatory mythology (R. 660).

The Court of Appeals in Coppedge, supra, emphasized
that:

[h]ad one or more of them [jurors] said they 
would be so influenced [by newspaper articles] 
and especially if they had explained why the 
damage to the defendant would have spread to 
the listening other jurors. In view of the 
nature of the articles, the Court should have 
made a careful, individual examination of 
each of the jurors involved, out of the presence 
of the remaining jurors as to the possible 
effect of the articles.

Coppedge, supra, 272 F.2d at p. 608.
This the trial judge failed to do. In this case, with twenty- 
five members of the panel —  over 58% —  who had read or 
discussed articles concerning the previous trials, reported 
confessions, and inflammatory circumstances surrounding the 
crime with which appellant is charged, the trial judge denied 
appellant's motion to question these jurors individually out 
of the presence of the other jurors. Not only did this error 
cause jurors to sit who had the probability of partiality 
but the entire procedure spread the damage to the listening 
jurors. Marshall, supra; Irvin, supra; Coppedge, supra.
The United States Supreme Court has clearly disapproved of 
conducting an examination to determine prejudice in the 
presence of other veniremen. Irvin, supra, 366 U.S. at 728;

18



Marshall, supra. In Marshall, the examination of each of
the seven jurors who had seen one or more of the news 
articles was conducted individually outside of the presence 
of the remaining jurors. And although assured by the jurors' 
assurances they would disregard what they had read, the Court 
found that:

The prejudice to the defendant is almost 
certain to be as great when that evidence 
reaches the jury through news accounts as 
when it is part of the prosecutor's 
evidence. 360 U.S. at 312-13.

Even the safeguards afforded the defendant in Marshall have
been denied this appellant. Initially, appellant's motion
for a change of venue from Cherokee to Lawrence County was
denied by the trial judge on March 12, 1973 (R. at ).

Since the situs of the second trial was in Cherokee 
County and the case had received much publicity, most of 
which is in the record before this court, and was before the 
trial court appellant moved for a change of venue for 
appellant's third trial (R. at ). The trial judge,
Judge Powell, denied that motion stating that in his opinion 
the appellant could fairly be tried a third time in Cherokee 
County and so set a trial date of March 12, 1973.

Appellant's counsel on the duly appointed date sought 
vainly to select a jury. A panel of 56 jurors was called 
and the trial judge denied appellant's motion to voir dire the

19



jurors individually out of the presence of one another;
and the court excused over 30 veniremen challenged for 
cause by the appellant when responses such as the following 
were made:

(1) Those two convictions would be in the 
back of my mind during the trial of 
the case.

(2) Since Beecher has twice been found 
guilty of the murder, he is "either 
guilty or probably guilty" of that 
offense. (Exhibit B)

(3) I go along with the 24 jurors [in the 
two previous trials] who have said he 
is guilty.

Eventually, the entire panel was tainted with bias against 
the appellant.

Only when the trial judge found it impossible to impanel 
a jury in Cherokee County, after one and one-half day of voir 
dire did he grant appellant's motion for a change of venue, 
whereupon the trial was moved to tfie judge's "home county" 
of Lawrence County, Alabama.

Again requiring appellant's counsel to voir dire jurors 
in the presence of one another, the trial judge refused to 
grant a change of venue upon a showing of probable bias.
The trial judge simply was not inclined to move the case a 
second time although it meant moving "to a county free from 
prejudice." Code of Ala. Tit. §269.

20



Biased opinions formed from specific knowledge by 
members of the jury panel of the factual details surrounding 
the two previous trials and convictions of this appellant, 
coupled with the collective voir dire of the jury panel in 
the presence of one another in which individual jurors 
expressed additional bias based on rumor, supposition and 
hearsay, deprived appellant of his Sixth Amendment right to 
an impartial jury.

21



Ill
THIS COURT ERRED IN ITS REVIEW OF THE 
TOTALITY OF CIRCUMSTANCES AND THE 
STANDARD OF VOLUNTARINESS IT APPLIED 
IN AFFIRMING THE ADMISSIBILITY OF AN 
INCRIMINATING STATEMENT ATTRIBUTED TO 
APPELLANT.

A. Record Reflects Inherently Coercive Circumstances 
Surrounding Alleged Incriminating Statement.
The constitutional precondition for admissibility of

any alleged confession is that the statement if made, was
one of absolute free will after the defendant had been
fully apprised of his right to remain silent. Even then,
the question in each case is whether a defendant's will was

_ . t 1 • • . , 1, .. — T T , T> t~\\r T T Daf o
O V B i ' D O J T l i e  a l  L i l t s  L X iL ltS  i l t s  a .J . - 1 - t S ^  k z k a  v_-v^axa_ ‘

367 U.S. 433 (1961).
In the instant case deputy Phillips, during appellant's

wait as the jury deliberated his fate during his second
trial, began interrogating Beecher by asking him questions
about what he thought the jury would do0 During this time,
Phillips was well aware that Beecher was represented by 

!4/
counsel.

During Phillips testimony at the third trial, Phillips 
not only could not remember what happened or the conversation 
of the first ten minutes of the interrogation but only

14/ Tr. 1804.

22 -



15/
remembered the statement allegedly uttered by the appellant.
Beecher, on the other hand, not only explicitly remembered
what he said but how deputy Phillips interrogated him and
most importantly, that he never made the statement he is

16/
accused of mating. Whereas, Phillips claims to recall only 
this one statement allegedly made by appellant after being 
with appellant for approximately forty-five minutes.

Further, as this court has recognized, at the time of 
the alleged statement to which Phillips testified, Beecher 
had gone through two trials and was awaiting the verdict of 
the second trial. >. He was alone with Phillips, who was uniformly 
dressed with badge, billy club and gun which certainly created 
an intimidating atmosphere which in itself was coercive.
The United States Supreme Court in Miranda v . Arizona, 384 U.S. 
436, 86 S. Ct. 102 explicitly stated that before any statement 
can be elicited from an accused for purposes of introducing 
such statement into evidence, the accused must be given the 
Miranda warning. The deputy, fully apprised of the fact that 
the appellant was represented by counsel, proceeded to 
question the appellant.

15/ Tr. 1105-9.
1§/ Tr. 1084. Also see "Totality" at ___, infra.

23



This court points to the fact that Beecher had 
appointed counsel of which Phillips was aware (Slip op. at 
14-15). At the same time, this court failed to make 
appellant's Sixth Amendment right to counsel under the 
United States Constitution little more than an empty right, 
if as in this case, Beecher's right to consult with such 
counsel was abrogated when he needed such consultation.
Spano v. New York, 360 U.S. 315, 79.S. Ct. 1202 (1959);
Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964). 
Consequently, appellant’s Sicth Amendment rights have virtually 
been repealed if the State of Alabama for the third time per­
mits this appellant to be convicted and sentenced on grounds

11/which are constitutionally infirm. Jackson v. Denno, 378

\j/ Since the time of Beecher's incarceration on June 17,
1964, he has been consistently unlawfully interrogated by 
law enforcement officers and those secured by the law in 
whose custody he has been. In Beecher I and II, which the 
United States Supreme Court reversed appellant was subjected 
to unlawful interrogation. Also while he was being transferred 
on April 6, 1973, from Scottsboro to Moulton for arraignment 
(R. 754-55). Sheriff Collins and the district attorney of 
Jackson County who are required to adhere to the laws of the 
State of Alabama and of the United States again proceeded to 
interrogate this hapless appellant. And now deputy Phillips, 
an individual sworn to uphold the law, interrogates appellant 
when appellant was under his custody and control. Phillips 
admits that he knew appellant had appointed counsel; yet, he 
proceeded to interrogate anyway (R. 1111). The fruits of this 
illegal interrogation were conveniently told to the district 
attorney some three years later prior to the third trial 
(R. 1115).

24



U.S. 368, 84 S. Ct. 1774 (1964); Escobedo v. Illinois, 378 
U.S. 478, 84 S. Ct. 1758 (1964); Stovall v. Denno, 388 U.S.
293, 87 S. Ct. 1967 (1967); Glinsey v. Parker, 491 F.2d 338 
at 340 (6th Cir. 1974).

This transcript clearly points to the fact that Beecher 
was interrogated outside the presence of counsel and without 
any Miranda warning. This court has failed to recognize the 
importance of that interrogation. Assuming that the form of 
interrogation to which Beecher was subjected was not the 
usual formal jailhouse interrogation present in Miranda. 
Nevertheless, the appellant was interrogated by officer Phillips; 
the appellant was in the custody of Phillips and Phillips knew 
the appellant had counsel. This fact situation amounts to 
in-custody interrogation to which the rule of Miranda un­
questionably applies.

It does not matter whether the accused was formally or
Vinformally interrogated as long as he was in the presence of 

a police officer and not able to move about unrestrained.
The United States Supreme Court has been explicit in finding 
that surreptitious interrogations are as constitutionally 
reprehensible as those conducted in the jailhouse. Massiah 
v. United States, 377 U.S. 201, 84 S. Ct. 1199 (1964). See 
also, United States ex rel O'Connor v. The State of New Jersey,

2 5



405 F .2d 632 (3rd Cir., 1969). Clearly the court must
recognize the inescapable fact that Beecher was not 
afforded his federal constitutional rights under the rule 
of Massiah. The United States Supreme Court spoke on this 
very issue in Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct.
55 when the court said the accused "requires the guiding 
hand of counsel at every step in the proceedings against 
him." Id. at 69, S. Ct. at 64. Also see United States v. 
Bekowies, 432 F.2d 8 (9th Cir., 1970) where the court said 
that "a suspect must be warned of his constitutional rights 
prior to any custodial interrogation."

In Miranda, as in the instant case, the question presented 
dealt with the Fifth Amendment right of the accused to be 
free from compulsory self-incrimination and the Sixth 
Amendment right of the accused to have the assistance of 
counsel.

The United States Supreme Court has made it clear that 
with respect to the Fifth Amendment, the conditions under 
which the alleged confession was made in no way can be 
admitted if it abrogates the involuntariness test. Miranda, 
supra; Massiah, supra. It necessarily follows that the 
court will not consider the question of voluntariness unless 
there is a clear waiver by the accused of his Sixth

26



Amendment right to the assistance of counsel after being 
fully apprised of his right to have his attorney.

To be sure, this court does not expect appellant to be 
fully apprised of all of his constitutionally protected rights 
just because he has been in custody for seven years and has 
been through two trials. The court in Miranda made it

explicitly clear that:
"Assessments of the knowledge the defendant 
possessed, based on information as to age, 
education, intelligence or prior contact 
with authorities, can never be more than 
speculation; a warning is a clearcut fact.
Id., at 468, 469 S. Ct. at 1625.

The contention that the alleged confession herein was 
not the product of formal interrogation by public officers 
is not important. The uncontradicted testimony of Phillips 
(R. 1142, 1143) here is that the deputy sheriff subtly or 
otherwise, commenced the conversation by probing Beecher as 
to what disposition the jury was likely to make of the case.
In this situation, psychological coercion obviously could have 
been exerted. Miranda, supra, at 466-467, S. Ct. at 1613-1618, 
and, therefore, the burden is on the state to affirmatively 
show that Beecher knowingly and intelligently waived his Fifth 
and Sixth Amendment rights. The state clearly has not met 
that burden. Therefore, on the legal history of this case

t'4
27



and the record presently before this Court, appellant urges 
this court to find that the alleged statement should have 
been suppressed due to the principles laid down in Miranda, 
Escobedo, Massiah, supra, and all of the cases subsequent 
which have espoused these inescapable fundamental principles 

of law.

B. This Court Erred In Not Looking To The Totality Of 
The Circumstances In Determining "Voluntariness."
The Supreme Court of the United States has twice 

reversed convictions of this appellant on inadmissibility 
of confessions. Beecher v. Alabama, 389 U.S. 35, 88 S. Ct.
189 (1967); Beecher v. Alabama, 408 U.S. 234, 92 S. Ct. 2282 
(1972). Both times this appellant was tried, convicted, 
sentenced and given the death penalty as a result of con­
fessions illegally obtained from the appellant and introduced 
by the State. Twice those convictions have been overturned. 
And now a third time, the State is trying to convict appellant 
on a statement he is alleged to have made to a deputy while 
appellant was awaiting the jury's decision in his second 
trial, a trial in which he was convicted and sentenced to 
death. Subsequently, that conviction was later reversed by 
the Supreme Court of the United States. Beecher v. Alabama,

28



408 U.S. 234, 92 S. Ct. 2282 (1972).
The statement is alleged to have been made to a deputy

Kenneth Phillips, while Phillips and Beecher sat alone while
the jury deliberated during the course of his second trial.
This statement was alleged to have been made to a man who,

18/
in 1964, was part of the massive manhunt for appellant and
at the time of the alleged confession, he was a deputy guarding
appellant as appellant awaited for the jury to finish deliber- 

19/
ating. Consequently, on the basis of these facts, it is 
impossible for Phillips to be an impartial observer.

Phillips testified that Beecher looked into the ceiling
-r* i  cl * , , T*r*-i rl  o f  0 3 - 0 C ’t2TILO ^  2 2T T  1 rp

20/
a guilty man. I don’t deserve to walk the streets." Beecher 
is alleged to have confessed to a crime he did not commit. 
Appellant had just gone through a trial in which he had 
vigorously denied committing the crime he has been accused of 
committing. It appears highly improbable that this appellant, 
in the midst of a second trial for the same offense, having 
been incarcerated for seven years, one case reversed on a 
confession issue, with lawyers who during his second trial

w R. 1153.

w R. 1104, 1144

2 0 / R. 1104, 1144

- 29 -



who had unsuccessfully opposed an inadmissible confession, 
admit to an officer guarding him that he had committed the 
crime with which he was charged. This Court should take 
notice that this appellant has twice been convicted and 
sentenced to death by the State of Alabama unconstitutionally 
by means of "confessions." The totality of circumstances 
surrounding Beecher I, II and now III makes any incriminating 
statement attributed to appellant out of the presence of 
counsel while alone with any law enforcement officer, to be 
extremely suspect of illegality and unconstitutionality. In 
light of the past history of this case, the State has a tre­
mendous Durden to snow voluntariness which on the faces 
surrounding this "confession," it failed to carry. This 
alleged statement clearly should have been ruled inadmissible.

On voir dire and in the presence of the jury, Phillips
emphatically stated that he does not remember the first ten
minutes of the conversation, and only remembers the statement

21/allegedly made by appellant. Holding this alleged statement 
"voluntary" and admissible makes mockery of the Fifth Amendment 
rights of this appellant. Phillips is so uncertain as to the 
total surroundings of the questioning as to have developed

2j/ Tr. 1105-09.

30



22/
amnesia for the first ten minutes of the conversation. It
is revealing that with amazing clarity of thought he remembers 
the alleged "confession" which he repeats to the prosecutor 
after the reversal in Beecher II. Yet he cannot remember the 
circumstances surrounding such an important statement as the 
one allegedly made by the appellant or anything else that 
was said. Be mindful that Phillips is a deputy and was so 
at this time which cast an additional burden on him, not only 
to report the total circumstances of the interrogation of 
appellant, but to report it fairly and timely. Justice demands 
a more accurate accounting by Phillips if his testimony is to

so 1 pyprif "fro Ico ‘tl'io ovsrridin.0, fcictoir in. ilic conviction 
23/

of appellant.
This Court must require and justice demands that on 

review this Court hold the admission or the alleged "confession" 
was reversible error, and violative of appellant's Fifth 
Amendment rights under the Constitution of the United States. 
There should be proof beyond a reasonable doubt and to a 
moral certainty that appellant is guilty of the crime with 
which he is charged. As one makes a straightforward

22/ Tr. 1105-09.
23/ See Appendix A.

- 31 -



assessment of the factual circumstances surrounding this 
case, it becomes clear that this is another of a series of 
attempts to convict Beecher "out of his own mouth." Miranda, 
supra.

On the evidence presented to this Court in view of the
totality of the circumstances, and the testimony of both
Phillips and the appellant on voir dire in the record of this
case, appellant urges this Court to view this case from a
total perspective as it is obligated to do. We urge the
Court to read appellant's testimony on voir dire in the 

24/record. Appellant Beecher expressly remembered not making
the alleged statement he is accused of making, but remembers

25/
the entire interrogation by Phillips.

The state has not proven by any means that appellant 
made the statement and if the state assumed that the state­
ment was made, this Court must look to the "totality of the 
circumstances" surrounding the confession. Spano v. New York, 
360 U.S. 315, 79 S. Ct. 1202, Tikes v. Alabama, 352 U.S. 191, 
77 S. Ct. 281. Under these tests, Beecher's conviction 
cannot stand.

Appellant contends that a review of the totality of the

24/ Tr. 1083-86.
2_y Tr. 1083-86.

- 32 -



circumstances surrounding the "alleged confession" and of 
the previous Beecher cases would mandate that it was 
reversible error for the trial court to rule it admissible.

V>

33



IV

THIS COURT'S FINDING THAT THE RECORD 
DOES NOT SHOW THE CONTEXT OF THE 
DISTRICT ATTORNEY'S STATEMENT THAT 
"NO ONE TOOK THE STAND TO DENY IT"
WAS ERRONEOUS.

On the motion for a mistrial, the trial court stated
that it would give each counsel an opportunity to make a
statement concerning the district attorney's alleged comment

26/on the failure of the defendant to take the stand. (Tr.
1201).

That the comment "No one took the stand to deny it" 
was made by the district attorney in referring to the 
testimony of Ken Phillips is uncontradicted and undenied.
(Tr. 1201, 1202). Neither does appellee's brief contend 
otherwise (Brief for Appellees, pp. 18, 19). For this Court 
to conclude under these circumstances that there is no basis 
on which to make a finding as to the context of the admitted 
statement is to utterly disregard the statement of counsel who 
is a sworn officer of the court. Moreover, the trial court's 
direct statement that it would accept statements from counsel 
on the hearing of the motion, placed such statements on a par 
with the testimony of a witness. Hence, it could be concluded 
that the context of the prosecutor's comment was shown to be 
in reference to the testimony of Phillips.

26/ It must be noted that appellant's counsel were under the 
impression that the reporter was taking down all argument. It 
was only on the hearing of the motion for a mistrial that they 
were made aware that the argument was not being recorded 
(Tr. 1199-1201).

34



A balancing of the equities and fairness would suggest 
that where the vital interests of a defendant are concerned, 
doubts should be resolved in the defendant's favor and a 
new trial granted.

It is clear from this record that appellant was the only 
one who could take the stand to deny Phillips' testimony; 
and a finding that the remark was in reference to Phillips' 
testimony requires that appellant's conviction be reversed 
and a new trial ordered. Street v. State, 266 Ala. 289,
96 So.2d 686 (1957).

W

35



V.
IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT 
TO ADMIT INTO EVIDENCE TESTIMONY ON "TRACKING"
WHICH DID NOT COMPLY WITH THE PROPER STANDARD 
FOR ADMISSIBILITY.

Wilson, the parolee who testified at appellant's trial 
did not train the dogs, which he testified he trailed. 
Instead, they were trained by someone else (Tr. 911). He 
only walked behind the dogs and did not know how the dogs 
were trained. On occasion, he would take a man out into the 
woods and later take the dogs there and begin tracking the 
person. In order for the dogs to track someone, the dogs 
must first be given something that contains the scent of 
the person they are tracking. Gallant v. State, 167 Ala.
60, 52 So. 739 (1910); Allen v. 5 Late, Ala. App. 22S; 62 
So. 971 (1913).

In the instant case, at no time were the dogs given the
scent of Beecher (Tr. 975-77). The dogs tracked from a shoe
print which was supposed to have been that of appellant.
Later during the day of the escape, William Wilson brought
dogs in from Atmore Prison (R. 818) and began tracking from
the area from which appellant escaped —  never receiving the

27/
scent of appellant and never catching appellant.

27/ Claude Sisk, the highway convict guard during the time 
that Beecher escaped, emphatically stated that there was no 
way by which Beecher could have firrived at the Chisenall house 
by the time he arrived at the house after discovering Beecher's 
escape (Tr. 854-855). Further, at the time when he arrived at 
the Chisenall house, shortly after Beecher's escape and before 
which time Beecher could not have arrived at the house, no one 
was present at the Chisenall home (R. 852-853).

36



Consequently, some time later, after the dogs left 
the barn, they went up the side of a mountain, stopping at 
a deserted log cabin where they discovered a man's white 
undershirt. This was not Beecher’s shirt, because the record 
shows he had his undershirt on when he was shot three days 
later in another state (R. 268-69). The evidence has yet 
to establish that the dogs were tracking appellant. The 
state offered no evidence as to whose "undershirt" was found 
nor was it offered in evidence. It is not possible for the 
tracks to have been appellant's if the dogs were trained to 
trail the scent or track of the prints shown them behind the 
barn. The dogs went to a cabin where they, in effect, "treed" 
an undershirt. The undershirt was not appellant's. There­
fore it is not possible for the dogs to have been trailing 
appellant.

Thereafter, at no point in time, did the dogs ever show
any signs of following the same trail. The dogs just picked
up a trail and began following it into a sage field (R. 980).
At this point, the dogs were scattered by a helicopter and
thereafter not only did the dogs lose the trail they were
following, but lost all sense of perspective because it took
approximately an hour to gather the dogs (R. 980). Thereafter,
the dogs picked up an anonymous trail which the dogs followed
to a strip mining pit area where, approximately 75 people
were gathered (R. 980-81). Wilson clearly testified that:

"After having lost the original scent for 
a period of time, oh, thirty minutes to an 
hour, they would if they ran across a fresh 
scent of another person, they would probably 
run it." (R. 983) .

After the dogs had been gathered, a new scent was picked up.
37



5

Clearly, this evidence should have been ruled inadmissible
because there was nothing which survives even a cursory
analysis. The entire testimony simply has no probative
value and should have been held inadmissible. Richardson
v. State, 41 So. 82, 145 Ala. 46 (1906). This would hold
true even if Wilson had trained the dogs himself. There is
no evidence that the alleged dogs were trained to track human
beings; there is evidence that Mr. Wilson did not train them.
A fundamental bases required for such testimony simply was
not established and it was prejudicial error to admit it.
Little v. State, 39 So. 674, 145 Ala. 662 (1905).

Finally, the dogs were placed on a truck and taken to a
nearby river where a person was supposed to have been seen
(R. 981-82). At this point, the dogs definitely had no scent

28/which resulted in one dog swimming into the river to a stump.
Again this is evidence that the dogs were not trailing
appellant from the outset. Hereafter, the dogs never picked
up another scent even after crossing the river which clearly
shows that at no point and time can appellant be placed at
or near the scene of the crime as the state would have this 

29/Court be1ieve.

23/ R. 983.
?g/ Interestingly enough, appellant brings to the Court's
attention that this "evidence" of tracking was presented by 
the State for the first time in this, appellant's third trial.

38



The state would have this honorable Court believe 
that Mr. Sisk who was the highway guard did not have the 
ability to judge distance and time. Sisk emphatically stated 
that Beecher did not have time to reach the chisenall home 
from the time of his escape to the time of the Sisk arrival, 
and that Mrs. Chisenall was not at home, when he, Sisk, 
arrived (R. 852-53).

Yet, the state would have this Court believe the wild
goose chase of five dogs that are not of a particular pedigree
over that of a person who at the outset was in extreme
proximity to appellant. Dogs may be able to trail a track,
but they cannot judge distances and equate that distance
with time and determine the amount of time it would take one
to travel that distance on foot. Mi.. Sj.sk could cuiu he
unqualifiedly stated that there was no way in which appellant

30/could have arrived at the victim's home before Sisk did.
Under the law of the State of Alabama for such testimony 

as Mr. Wilson's to be admissible, he must be qualified to track 
humans with the dogs, and must have trained the dogs. 
Richardson, supra. Or, at a minimum, the dogs must have been 
used by the witness for two years and that the witness must 
have at least ten years experience in handling bloodhounds 
and that will carry the burden of qualification. Burks v.
State, 200 So. 418, 240 Ala. 587. Wilson had only worked 
with the dogs for approximately one year (Tr. 910-11).

Therefore, it is respectfully submitted that any evidence 
presented by the state from the tracking of the bloodhounds 
to try and place appellant at the scene or in the vicinity

30/ R. 854-55. 39



of the crime is not only inadmissible, but does not and 
cannot carry the burden of proof that is so necessary to 
make the state's case. Hence, appellant contends the 
admissibility of Wilson's testimony at trial was prejudicial 
error and requires that appellant's conviction be overruled.

to

40



CONCLUSION

For the reasons stated throughout this petition for 
Rehearing and Brief in support thereof, appellant Johnny Daniel 
Beecher prays that this Court will reverse his unlawful 
conviction; and remand this cause for a new trial.

Respectfully submitted,

U. W. demon
ADAMS, BAKER, & CLEMON 
Suite 1600 - 2121 Building 
2121 Eighth Avenue North 
Birmingham, Alabama 35203

JACK GREENBERG 
ELAINE R. JONES

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Appellant

W

-41-



CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of October,
1974, I have served copies of the foregoing Brief in Support 
of Petition for Rehearing upon the following persons by 
mailing to each, postage prepaid, a copy of same:

John T. Black, District Attorney 
Ninth Judicial circuit 
Centre, Alabama
William Baxley, Attorney General 
State of Alabama 
Montgomery, Alabama

V Attorney for Appellant



APPENDIX A



I

i .

1
V j1 ■' r'
7

J iL jli2 j

"M y  country, may she ever be right, but, right or wrong, my country." - ccm m oo oreStephendecatur

DECATUR, ALABAMA, 35301, FRID aY, JUNE 22,1973 U

!>hdndM2O
HX
>

I T

i g e e e m e E 3

By TOMMY STEVENSON 
MOULTON — A member of the jury 

which sentenced Johnny Daniel Beecher 
to life imprisonment for the 1964 murder 
of Mrs. Martha Jane Chisenall said today 
the disputed testimony of a Cherokee 

■ County deputy sheriff was a key, but not 
all-important, factor in the jury’s 
decision.Ken Phillips, who was guarding 
, Beecher while the jury was deliberating 
in Beecher’s second trial in the case, 
testified Beecher told him “I’m scared of 
the electric chair because I’m  guilty.” 

Lawrence County juryman Rayford 
W. Green, a Town Creek industrial 
worker, said the defense did nothmg to 
convincingly disprove Phillips testimony 
and that “was what lacked in the opinion 
that Beecher was guilty.

“We had some questions when we 
j went back to deliberate and felt like the

state should have presented some mare 
witnesses,” Green said, but the 
testimony of Phillips was definite/ a
factor in our decision.

“We wondered why the defense did 
not do much to try and disprove what he 
said. Wre also wondered why the defense 
did not call any witnesses when it ct me 
their turn.”What Green did not know was tiat, 
while Phillips was being questioned oi t of 
the .presence of the seven-man, five- 
woman jury on a defense motion to 
disallow his testimony, it had been argued 
that the alleged confession was in 
violation of several U.S. Supreme Court 
decisions on the rights of defendants, 
including decisions in two previous 
Beecher trials.

The three-member defense team, led 
by Birmingham Attorney U. W. Clemon, 
argued that the confession Phillips said

Beecher made was similar to the 
confessions entered into the first two 
trials, in 1S64 and 1969, which caused the 
overturning of the guilty decisions in both 
trials on the grounds of “gross coercion.”

Clemon contended that any 
confession made by the defendant without 
the presence of a lawyer or without prior 
warnings as to the defendant’s rights, was 
inadmissable under guidelines set by the 
courts in such landmark decisions as the 
Miranda and Escobedo cases.

The prosecution handled by 9th . 
Judicial Circuit Court Dist. Atty. John T. 
Black of Ft. Payne, claimed that since the 
alleged confession was completely 
voluntary and came as a result of no 
prodding by Phillips, it should be allowed.

Tbe defense also contested Phillips’s' 
claim that the confession was voluntary 
and put Beecher on the stand during the 
See BEECHER On Page A-5

)

[NOTE: 
Article in support of Motion
for New Trial]



Beecher
(Continued from Page 1)
hearing to contradict Phillips’s 
testimony.

Beecher said that what he had really 
said was “if the people of Cherokee 
County have the same opinions about me 
as the people of .Jackson County (where 
the crime took place and where the first 
trial was), then they’ll find me guilty.”

Beecher further testified that his 
statement came in reply to direct 
questioning by Phillips. The testimony by 
Beecher was his second appearance on 
the stand in the trial, but both 
appearances came during voire dire 
hearings out of the presence of the jury.Wh'CI'l AA at' rr o n
County and associated with the case from 
its beginning, ruled that Phillips could 
testify before the jury on the alleged 
confession, defense lawyer Thomas 
Divens,of New Orleans, said, of Powell, 
“I can’t believe it; he’s just asking for 
! another trial. The courts will never let it 
stand. It’s like he wants to try it again.”

Immediately after the jury 
announced its decision shortly before 3 
p.m. Thursday, demon served notice of 
another appeal. And that appeal will 
likely center around Powell’s decision to 
allow Phillips’s testimony as well an 
numerous exceptions taken to Powell’s 
rulings throughout the trial.

Thursday’s concluding proceedings in 
the case were taken up largely by the 
summations of both the defense and the 
prosecution after Clemon announced the 
defense would call no witnesses.

Black, in making the case for the 
prosecution, emphasized the confession 
allegedly made to Phillips and the 
i material evidence in the case. He said 
I that state bloodhounds had traced 
Beecher from the point where he escaped* 
from a prison work gang, to the Chisenall 
home, and into the mountains behind the 
home where Mrs. Chisenall’s body was 
found.

Black said the bindings around Mrs.
1 Chisenall’s hands and feet were made of 
material similar to that of Beecher’s 
prison shirt, and that the belt around her 
neck, with which she was strangled was of

---------!---------- -----------
the type issued to inmates.

The defense countered with the 
argument that the trail the dogs traced 
was not necessarily that of Beecher and 
that the testimony of Phillips was 
politically motivated because he had a lot 
to gain in his profession by contributing to 
the conviction of a “famous man” like 
Beecher.

The defense also pointed to the 
testimony of Beecher’s work gang guard. 
Claude Sisk, who said there was not 
enough time for Beecher to get to the 
Chisenalt home and ahdnot Mrs Chisenall 
before Sisk arrived in his truck.

The summations and the charge by 
Judge Powell occupied all of the 
morning’s proceedings and it was not 
until lunch that the jury began 
deliberations on the second floor of the 1 
Lawrence County courthouse.

Green said that the deliberations 
were relaxed and that he felt “we all 
entered into the deliberations with open 
minds.

“Everybody had a hand in the 
discussions and there was no pressure on 
anyone to go along with the crowd,” 
Green said.

“First of all we went over all the 
evidence very carefully and if there was 
any doubt on the part of anyone, we would 
stop and talk over whatever they were 
wondering about.”

Green said that the testimony of Sisk, 
considered the most convincing evidence 
for the defense, was dismissed because of 
the time element.

“Nine years is a long time and we 
didn’t think Sisk’s memory of just how 
long it took him to get to the house would 
be that good,” Green said.

The jury took less than two hours in’ 
arriving at its devision and sentencing 
Beecher to the maximum sentence. 
Beecher’s two previous conviction; 
resulted in death sentences, but due to the "|" 
recent Supreme Court decision- life 
imprisonment is now the most severe 
penalty possible.



APPENDIX B

v



APPENDIX

r  V / \  A A / V ' :i : i 7 r ^ . ^ ^ r V > T /  :'f | : i  j j f ; \ >

Ay' /-V V' V V /N/ r ^
Hanwvffle, i b t a ,  Tuesday, March 13, 1973

❖  i f  f t
,.V

The T ire s Sccltsboro Bureau

CENTRE —  Circuit Judge 
Newton 15. Powell of Decatur 
was expected to grant ̂ a 
change of venue this morning 
in the third murder trial ot 
Johnny D. Beecher.
rowel! yesterday released 

SO jurors who were challenged 
by the defense, but last night 
ordered t'ne remaining jurors 
on the panel of 53 to return 
and directed Sheriff Mac Gar­
rett to deliver summonses to 
additional potential jurors.
Cherokee County Circuit 

Court Clerk Fred Green said 
todav that Powell told him 
last night that after the jurors 
reported today, he was going 
to grant the defense’s request 
for a change of venue. Ac­
cording to one unverified re­
port, the trial will he moved 
to adjoining DeKaib County.
Beecher has been convicted 

twice of the June, 1361 rape- 
slaving of Mrs. Martha Jane 
Chisenhali. a young white 
woman who resided near Ste­
ven on in Jack.cn County. In 
;• \ \ I- aether was given

The TJ. S. Supreme Court 
reversed both convictions, and 
in so doing, threw out sepa­
rate confessions attributed to 
Beecher, who was a 32-year- 
old' convicted rapist with a 
record of four escapes when 
he fled a Camp Scottsboro 
work detail on the day Mrs. 
Chisenhali was abducted.
U. W. demon of Birming­

ham, a member of a team of 
attorneys hired by the 

Turn To Page 4
4

Beecher
Continued From Page One 

NAACP's Legal Defense Fund 
tc represent Beecher in his 
third murder trial, yesterday 
questioned individually and at 
length the 56 persons who 
reported as prospective jurors 
i:i the trial.
Under interrogation by de­

mon, the 30 jurors who were 
excused by the court gave an 
extensive range of answers. 
Vhe jurors offered these opin­
ions under questioning:
—  Since Beecher has twice 

been found guilty of the min­
der, he is “either guilty or 
probably guilty” of that of- 
icnsc.1 _  “He must have had 
something to do with case or 
he wouldn’t have been tried
twice.” . .—  “Those two convictions
would he in the back of my 
mind during the trial of the
C3S6.’*_  “The grand jury would 
not have indicted him again if 
they didn’t have some evi­
dence.” ._  “I think it is up tc the
defense to present evidence 
that he is not guilty.”
_  “I go along with the 21 

jurors (in the two piev.ous 
trials) who have said he is 
guilty.”

_ “I believe he is guilty
until he is proven innocent, 
since two juries have found 
him guilty.”While the interrogation ot 
the challenged jurors was 
under way. Judge Powell sev- 
ora! lines pointed out that Ins 
burden of proof is on the 
state, that a person wao ha.-> 
been charged with a crime is 
pi esumed to be innocent until
and unless the state intro­
duces evidence beyond a legal 
doubt and toward a moral 
certainly of his guilt.
Powell presided here in 

February, 1360, when an all- 
white jury which induced ;i*e 
women deliberated about o5 
minutes before finding Beech­
er guilty of murder.Beecher was first tried in 
September, 1334, in Jackson 
County for the murder of Mrs. 
Chisenhali and given the 
death penalty. After the U. S. 
Supreme Court reversed that 
conviction, Beecher’s attor­
neys gained a change oi 
venue for the second trial.