Employment Discrimination Suit Against Warner Robins Air Logistics Center and Air Force Base

    IN THE

Supreme Court of the United States
OCTOBER TERM, 1971

NO. 71-5078

DEAN RENE PETERS,
Petitioner,

C. P. KIFF, WARDEN,
Respondent.

On Writ of Certiorari to the United States 
Court of Appeals for the Fifth Circuit

BRIEF OF RESPONDENT

P. O. ADDRESS:

132 State Judicial Bldg. 
40 Capitol Square, S.W. 
Atlanta, Georgia 30334

A rthur  K. B olton  
Attorney General
Harold N . H il l , Jr . 
Executive Assistant 
Attorney General
C our tn ey  W ilder  Stanto n  
Assistant Attorney General
D orothy T. B easley 
Assistant Attorney General
D avid  L. G . K in g , Jr . 
Assistant Attorney General 

Attorneys fo r  Respondent



1
TABLE OF CONTENTS

Page

STATEMENT OF THE QUESTION ..........  1
SUMMARY OF ARGUMENT ................  2
ARGUMENT:
I. The alleged exclusion of mem­

bers of the Negro race from 
the grand jury which indicted 
a member of the Caucasian race 
does not constitute a denial 
of equal protection of the laws 
to the white defendant without 
a showing of facts which might 
show discrimination against 
him............................. 4

A. A white man is not treated un­
equally when Negroes are exclu­
ded from his grand jury; there­
fore, the first prerequisite to 
establishing an unconstitution­
al denial of equal protection 
of the laws is absent in this
case 4



IX

TABLE OF CONTENTS-Cont.
Page

B. Unless a person belongs to 
the excluded class, he must 
establish that the absence 
of the particular class from 
his grand jury somehow effected 
the impartiality of the grand
jury determination............. 11

C. Decisions of this Court, con­
struing federal statutes and 
their application to federal 
juries, do not dispense with 
the requirement of class 
membership or prejudice when 
constitutional questions are 
raised as to state proceed­
ings............................ 18

II. The issue concerning retro­
activity is not properly be­
fore this Court for review. . . 23

CONCLUSION 25



TABLE OF CASES

Allen v. State, 110 Ga. App. 56
(1964). .................  8, 9, 13

Bailey v. Henslee, 287 F.2d 936
(8 th Cir. 1961)................. ]_5

Ballard v. United States, 329 U.S.
187 (1946)....................  18

Beck v. Washington, 359 U.S. 541
(1962)......................... 16

Billingsley v. Clayton, 320 F.2d 
13 (5th Cir. 1966), cert. 
denied, 385 U.S. 841 (1966) . . ]_5

Blauvelt v. Holman, 237 F. Supp
385 (M.D. Ala. 1954).............p7

Bokulich v. Jury Comm'n., 298 F.
Supp. 181 (N.D. Ala. 1968)
aff*d. 394 U.S. 97 (1969) . .12, 13

Brown v. New Jersey, 175 U.S. 172 
(1899) 15



IV

Carter v. Greene County, 396

TABLE OF CASES-Cont.

Page

U.S. 320 (1970)..............  5, 6
Cash v. Smith, 226 Ga. 318

(1970)...........................  21
Fay v. New York, 332 U.S. 261

(1946). . . 8, 9, 10, 12, 15, 19, 18
Fleming v. Kelly, 438 F.2d 1147 

(5th Cir. 1971), judgment 
reinstated 438 F.2d 1147 
(5th Cir. 1971)................ 17

George v. United States, 196
F .2d 445 (9th Cir. 1952) . . . .  17

Glasser v. United States, 315
U.S. 60 (1941)..................  18

Griffin v. State, 183 Ga. 775
(1937)........................... 21

Hernandez v, Texas, 347 U.S. 475
(1953)............................. 8

King v. Cook, 297 F. Supp. 99 
(N.D. Miss. 1969) . . . . . 17



V

McNabb v. United States, 318 
U.S. 332, 87 Led 819, 63 
SCt 608 (1942)................  20

Mosely v. Smith, 404 F.2d 346
(5th Cir. 1968)..............  17

Murphy v. Holman, 242 F. Supp.
480 (M.D. Ala. 1965)..........  17

Namet v. United States, 373 U.S.
179, 190 (1963)..............  5

Rabinowitz v. United States, 366
F . 2d 34 (5thCir. 1966)............14

Reynolds v. Reynolds, 217 Ga. 234
(1961)........................... 21

Salisbury v. Grimes. 406 F.2d 50
(5th Cir. 1969) . . 11, 16, 17, 20

Simmons v. State, 226 Ga. 110
(1970)......................... 21

Smith v. Brough, 248 F. Supp. 435 
(D.C. Md. 1965), aff'd. 362 
F.2d 763 (4th Cir. 1966).13, 15, 17

State v. Madison, 213 A.2d 880 
(Md. 1965) .

TABLE OF CASES-Cont.

Page

13



vi
TABLE OF CASES-Cont.

Page
Strauder v. West Virginia, 100

U.S. 303 (1879).... 5, 6, 7, 12
Thiel v. Southern Pac. Co., 328

U.S. 217 (1945)............  18, 19
Truax v. Corrigan. 257 U.S. 312

(1921) ......................... 6
United States ex rel. Darcy v.

Handy, 351 U.S. 454 (1955) . . .  16
United States v. Valentine, 288

F. Supp. 957 (D.P.R. 1968) . 11, 17,
20

Woodruff v. Breazeale, 291 F.
Supp. 130 (N.D. Miss. 1967),
aff' d. 401 F . 2d 997 (1968) . H, 17

Whitus v. Georgia, 385 U.S. 545 
(1967) 24



V l l

STATUTORY PROVISIONS

Page
18 U.S.C. § 243 . . .   ............  12
Ga. Laws 1967, p. 251 [Ga. Code

Ann. § 59-106 (1971 Supp.)]. . . 21
United States Supreme Court Rules,

Rule 23(c)(1)..................  5



IN THE
SUPREME COURT OF THE UNITED STATES

1971 Term 
NO. 71-5078

DEAN RENE PETERS,
Petitioner,

v.
C. P. KIFF, WARDEN,

Respondent.

On Writ of Certiorari to the United 
States Court of Appeals 
For the Fifth Circuit

BRIEF FOR RESPONDENT

STATEMENT OF THE QUESTION
Is a member of the Caucasian race, who 

claims no identity with the Negro race and 
no discrimination resulting against him,



2
entitled in a habeas corpus proceeding to 
have an otherwise valid State conviction 
set aside on the basis that an alleged 
exclusion of members of the Negro race 
from the grand jury which indicted him, 
denied him equal protection of the laws?
[Neither part (b) of Petitioner's first 
question as presented in his Brief (page 4), 
nor his second question are involved in 
this review.]

SUMMARY OF ARGUMENT
When a black man is indicted by a 

jury from which members of the Negro race 
have been systematically excluded, he is 
placed in a position of inequality which 
is condemned by the equal protection 
clause of the Fourteenth Amendment. In 
such cases the law recognizes and pre­
sumes that race prejudice infects the 
determination of the grand jury and, 
therefore, finds that the defendant has 
not been afforded the impartial and fair 
consideration to which he is entitled.
But the same inequality does not exist 
as to a white man indicted by the same 
body; in addition, the presumption of 
bias or partiality cannot be recognized 
under these same circumstances. A white 
man, such as Dean Rene Peters, must 
identify himself with the excluded class 
in order to employ the evidentiary bene­
fits of the presumption of partiality.



3
Without this, he is not in an unequal 
position as to other defendants and is 
not denied equal protection of the law.

The question of retroactivity is 
not involved in this case. If a rule is 
framed in this case which would find a 
denial of equal protection to a white 
man when black men are excluded from 
grand jury service, then the present 
Petitioner would be given the benefit 
of the rule.



4
ARGUMENT

I.
THE ALLEGED EXCLUSION OF MEM­
BERS OF THE NEGRO RACE FROM 
THE GRAND JURY WHICH INDICTED 
A MEMBER OF THE CAUCASIAN RACE 
DOES NOT CONSTITUTE A DENIAL 
OF EQUAL PROTECTION OF THE LAWS 
TO THE WHITE DEFENDANT WITHOUT 
A SHOWING OF FACTS WHICH MIGHT 
OTHERWISE IDENTIFY HIM WITH THE 
EXCLUDED CLASS OR WHICH MIGHT 
SHOW DISCRIMINATION AGAINST HIM.

A. A white man is not treated un­
equally when Negroes are excluded 
from his grand iurv; therefore, 
the first prerequisite to estab­
lishing an unconstitutional 
denial of equal protection of the 
laws is absent in this case.
Dean Rene Peters has appealed to this 

Court seeking a correction of the Fifth 
Circuit's determination that he, as a mem­
ber of the Caucasian race and as an indi­
vidual with no identifiable ties with the 
Negro community or to persons of the 
Negro race, was not denied equal protec­
tion of the laws as guaranteed under the 
Fourteenth Amendment to the United States 
Constitution when he was indicted by a 
jury from which Negroes had allegedly been 
intentionally excluded. (A. 20-21).



5
The court below ruled that equal pro­

tection was not denied. Due process con­
siderations were not discussed in the 
court's opinion nor ruled on. Petitioner 
here makes no complaint about the decision 
of the court below in this regard and, 
therefore, cannot now newly inject due 
process arguments. The case on certiorari 
is limited to a review of the equal pro­
tection claim. Further, it is limited 
to a review only as it applies to the 
grand jury, which is the extent of the 
question as framed by Petitioner in his 
petition to this Court. Namet v. United 
States, 373 U.S. 179, 190 (1963); Rules 
of the Supreme Court, Rule 23(1)(c).

This Court has consistently, since 
the adoption of the Fourteenth Amendment, 
condemned the practice of intentional 
exclusion, on the basis of race, of any 
person otherwise qualified to serve as a 
juror, from such participation. Compare 
Strauder v. West Virginia, 100 U.S. 303 
(1879), with Carter v. Greene County,
396 U.S. 320 (1970). In the administra­
tion of otherwise constitutional statutes 
controlling the selection of jurors, all 
citizens within the jurisdiction of a 
particular state are entitled to equal 
consideration and treatment in the actual 
application of those statutes. When this 
Court has considered equal protection 
challenges on the administration of a



6
state's jury selection system, the tradi­
tional proceeding in which the issue has 
arisen has been an individual defendant's 
challenge on a state criminal conviction.
See Carter v. Greene County, supra at 329. 
There is, then, a wealth of precedent from 
which to examine and determine the neces­
sary prerequisites in establishing that a 
given criminal conviction is constitutional­
ly defective on the basis that the indi­
vidual involved has been denied equal pro­
tection of the laws.

Concisely, when the Fourteenth Amend­
ment prohibits any state from depriving 
any person within its jurisdiction of the 
equal protection of the laws, it commands 
that all persons, similarly situated, 
shall be treated in a like manner. Truax 
v. Corrigan, 257 U.S. 312, 328 (1921).
The general purpose of this protection is 
to prevent "undue favor and individual or 
class privilege, on the one hand, and a 
hostile discrimination or the oppression 
of inequality, on the other." Truax v. 
Corrigan, supra, at 332-3. In the context 
of the particular type of unequal treat­
ment alleged to have existed in Peters' 
original criminal proceeding, the equal 
protection clause is adapted to ensure 
that a black man not be indicted or tried 
by juries from which the latter's race 
has been intentionally excluded. Strauder 
v. West Virginia, 100 U.S. 303, 307 (1879).



7
To place a man on trial before and under 
a system from which members of his race 
have been intentionally excluded places 
him in an initial position of inequality 
which is condemned under the relevant con­
stitutional protection:

"It is well known that preju­
dices often exist against par­
ticular classes in a community, 
which sway the judgment of jurors, 
and which, therefore, operate in 
some cases to deny to persons of 
those classes the full enjoyment 
of that protection which others 
enjoy." Strauder v. West Virginia, 
100 U.S. 303, 309 (1879) [emphasis 
added]

Charging a black man with the same 
crime as a white man is charged with, and 
subjecting him to the same penalty, takes 
on a fatal denial of equal protection of 
the laws when members of the black man's 
own race are intentionally excluded from 
the charging and trying juries. Similarly 
situated white persons are simply treated 
more favorably in such situations,and it 
is this prejudicial disparity in treatment 
that cannot allow a black man's conviction 
to stand under the Constitution.

It does not follow, however, that a 
white man is denied equal protection of the



8
laws when members of the black race are 
allegedly excluded from the jury which 
determines the possible existence of proba­
ble cause to bring a man to trial. In this 
context, class membership is not a consti­
tutional requirement which defeats an 
otherwise valid claim under the Fourteenth 
Amendment, see Fay v. New York, 332 U.S.
261, 287 (1946), but rather it is a require­
ment which keeps the equal protection claim 
from ever being established in the first 
place. If and when a particular exclusion 
of a given class from the jury system is 
determined to be impermissible under the 
Fourteenth Amendment, equal protection 
deprivations are established, but only as 
to the person against whom such intentional 
or unintentional discriminations are direc­
ted. See Hernandez v. Texas, 347 U.S. 475, 
478 (1953).

The position taken by Petitioner Peters 
that he as well as any defendant indicted 
by juries from which Negroes have been in­
tentionally excluded is entitled to have 
his conviction set aside is founded to a 
large degree on language extracted from 
the opinion of the Georgia Court of Appeals 
in Allen v. State, 110 Ga. App. 56, 62 
(1964). In turn, the Allen opinion relies 
on language quoted from the dissenting 
opinion in Fay v. New York, 332 U.S. 261,
298 (1946):



9
"The equal protection clause 
of the Fourteenth Amendment pro­
hibits a state from convicting 
any person by use of a jury 
which is not impartially drawn 
frcm a cross-section of the com­
munity . "

What the Allen court failed to either recog­
nize or distinguish, is that the equal pro­
tection claim that the dissenting opinion 
in Fay v. New York, supra, argued had been 
established, was founded on the fact that 
Fay had been tried by a special jury while 
the majority of defendants in New York had 
been tried by general juries. In other 
words, Fay had a basis upon which to base 
a denial of equal protection because there 
existed, by operation of the laws in his 
state, two distinct classes of defendants; 
as the court pointed out;

"But we are dealing here with 
a very subtle and sophisticated 
form of discrimination which 
does not lend itself to easy 
or precise proof. The proof 
here is adequate enough to 
demonstrate that this panel, 
like every discriminatorily 
selected 'blue ribbon' panel, 
suffers from a constitutional 
infirmity. That infirmity is 
the denial of equal protection



10
to those who are tried by a 
jury drawn from a 'blue ribbon' 
panel. Such a panel is nar­
rower and different from that 
used in forming other juries 
to try the vast majority of 
other accused persons. To 
the extent of that difference, 
therefore, the persons tried 
by 'blue ribbon' juries receive 
unequal protection." Fay v.
New York, 332 U.S. 261, 299 
(1946).

When claiming a denial of equal protection 
of the laws, the necessity of establishing 
a dual system in which the complaining 
party is a member of the class of indivi­
duals against whom the unlawful discrimina­
tion operates is very much an element of 
the claim.



11
B. Unless a person belongs to

the excluded class, he must
establish that the absence
of the particular class from
his grand jury somehow ef-
fected the impartiality of
the grand jury determination.
The identity aspect of the consti­

tutional denial asserted in this pro­
ceeding is one that is viable and neces 
sary. Unlawful discriminations created 
by statutes or acts of state officials 
do not operate to injure those in whose 
favor those discriminations are made. 
See generally Salisbury v. Grimes, 406 
F.2d 50, 51 (5th Cir. 1969) (holding 
that a showing of bias or prejudice is 
necessary to raise a question of consti 
tutional dimensions, and stating speci­
fically that there can be no racial 
prejudice between members of the same); 
Woodruff v. Breazeale, 291 F.Supp. 130, 
132 (N.D. Miss. 1967), aff'd. 401 F.2d 
997 (1968); United States v. Valentine, 
288 F.Supp. 957 (D.P.R. 1968). In the 
traditional jury discrimination case 
brought and initiated by an individual 
who is a member of the unlawfully ex­
cluded class, the element of personal 
prejudice or harm in the equal protec­
tion cause of action is a requirement. 
However, in such a case the element is



12

simply presumed to exist as a matter of 
law. Strauder v. Virginia, 100 U.S. 303 
309 (1879). This same presumption 
exists in the reasoning behind the pro­
visions of 18 U.S.C. § 243, which de­
clares it a crime for any persons to 
discriminate in the selection of jurors 
on the basis of race. But that same 
presumption simply does not exist when 
an individual not otherwise identified 
with the excluded class seeks to show a 
denial, as to him, of the equal protec­
tion of the laws. In his case, the 
judicially cognizable facts which support 
presumption are simply absent. A white 
man, asserting that the exclusion of 
black men on his grand jury denied him 
equal protection of the law must "comply 
with the exacting requirements of prov­
ing clearly that in his own case the 
procedure has gone so far afield that 
its results are a denial of equal pro­
tection or due process." Fay v . New 
York, supra at 284.

Compliance with this requirement is 
evidenced in the recent case of Bokulich 
v. Jury Commission of Green County, 298 
F.Supp. 181 (N.D. Ala. 1968), aff'd.
394 U.S. 97 (1969).

Claiming that trial by a jury from 
which Negroes have been systematically 
excluded would prejudice him in his de-



13

fense and otherwise deny him equal pro­
tection of law, Bokulich established his 
identity with the excluded class by 
showing that although he was white, he 
was also a civil rights worker associated 
with the Southern Christian Leadership 
Conference. The Court properly noted 
that while the case in which the com­
plaining party is of the same racial 
group as that alleged to be excluded is 
a clear instance of potential violation 
of equal protection, such a situation 
does not set the outer limits of the 
guarantee or the right to complain of the 
violation. Bokulich v. Jury Comm'n, 
supra, at 185 n. 2. This, of course, was 
the situation in Allen v. State, 110 Ga. 
App. 56, 62 (1964~i 17 See also

1/ There appears to be only one de­
cision favoring a party claiming 
constitutional deprivations on the 
basis of a class exclusion from the 
jury selection process who was not 
actually identified with the group. 
State v. Madison, 213 A.2d 880 
(Md. 1965). Upon review of the 
identical question by a federal 
court, the reasoning of the State 
court on the federal question was 
rejected. Smith v. Brough 
248 F.Supp. 435, 440-2 (D.C. Md. 
1965), aff'd. 362 F.2d 763 (4th 
Cir. 1966).



14
Rabinowitz v. United States, 366 F.2d 
34, 37 (5th Cir. 1966) ("standing" was 
not raised as an issue, however, since 
the official shortcoming found in the 
case was based specifically on the fail­
ure to properly implement federal sta­
tutes —  "We do not legislate for 
Congress; we do effectuate that policy 
which Congress through its legislation 
has directed us to implement.")

The requirement of prejudice or 
class identity to establish the equal 
protection claim should be maintained 
as an integral part of any person's 
case, particularly in a post-conviction 
proceeding where the issue was not raised 
at the original trial and the state did 
not have the opportunity to cure the 
error, if any:

"The question whether there 
was a violation of a defen­
dant 1s rights under the Four­
teenth Amendment should turn 
on whether the facts and cir­
cumstances show some preju­
dice or likelihood of preju­
dice as a result of the 
exclusion. If the facts and 
circumstances show merely a 
bare possibility of prejudice, 
or no prejudice at all, it is 
doubtful whether a deprivation



15

of due process or equal pro­
tection of the laws has been 
shown." Smith v, Brough,
248 F.Supp. 435, 442 (D.C.
Md. 1965), aff'd. 362 F.2d 
763 (4th Cir. 1966).
Even when the constitutional claim 

raised in an individual case concerns the 
due process clause of the Fourteenth 
Amendment, the requirement of harm in the 
individual case has been maintained.
See Fay v. New York, supra, at 287.
(The court invoked the identity or 
prejudice requirement at the point in 
the opinion where the question of whether 
or not Fay had been denied due process 
of law was being considered; the conclu­
sion had already been reached that the 
dual jury system in New York did not 
deny individuals equal protection of the 
laws.)

The fundamental right involved in 
this proceeding is Peters' right to a 
just and fair determination by an un­
biased, unprejudiced and impartial grand 
jury. See Brown v. New Jersey, 175 U.S. 
172, 175 (1899); Billingsley v, Clayton, 
320 F.2d 13, 15, cert, den. 385 U.S. 841 
(1966); Bailey v. Henslee, 287 F.2d 936, 
941 (8th Cir. 1961). Without more, it 
is difficult to see how a white man such 
as Peters could have been denied an im­



16
partial judgment, per se, as a result of 
the exclusion of members not of his own 
race. In order to claim that this im­
partiality was somehow effected, identi­
fiable prejudice should be shown, and is 
in fact required if a claim of constitu­
tional dimensions is to be raised:

"Bereft of the racial argu­
ment, the appellant has neither 
alleged nor shown any bias 
or prejudice in the grand 
jury which indicted him.
He has thus failed to raise 
a question of constitutional 
dimensions." Salisbury v.
Grimes, 406 F.2d 50, 51 (5th 
Cir. 1969).

Peters claims that his trial was 
essentially unfair, but he does not raise 
one fact which would indicate that the grand 
jurors who considered his guilt were 
somehow partial or biased. This he is 
required to do, not as a matter of specu­
lation but as a matter of demonstrable 
reality. See United States ex rel,
Darcy v. Handy, 351 U.S. 454, 462 (1955); 
Beck v. Washington, 359 U.S. 541, 558 
(1962).

The requirement of prejudice, 
then, is an integral and necessary 
portion of Peters' case, if he is to



17

succeed. That he is white does not 
itself defeat his case, but he is re­
quired to make some showing that would 
indicate that the exclusion of blacks 
in his case adversely affected the im­
partial consideration of the grand jury. 
Without more, a white man is not denied 
equal protection of the laws by the 
exclusion alleged to exist in this partic 
ular case. Fleming- v. Kelly. 438 F.2d 
1147 (5th Cir. 1971), judgment reinstated 
438 F.2d 1147 (5th Cir. 1971); Salisbury 
v. Grimes, 406 F.2d 50, 51 (5th Cir. 
1969); Mosely v. Smith, 404 F.2d 346,
347 (5th Cir. 1968); King v. Cook, 297 
F.Supp. 99, 103 (N.D. Miss. 1969);
Murphy v. Holman, 242 F.Supp. 4P^ 482
(M.D. Ala. 1965); Blauvelt v. He...man,
237 F.Supp. 385 (M.D. Ala. 1954);
Woodruff v. Breazeale, 291 F.Supp 130 
(N.D. Miss. 1967), aff'd. 401 F.2d 997 
(1968); see also Smith v. Brough, 248 
F.Supp. 435, 440-2 (D. Md. 1965), aff'd. 
362 F.2d 763 (1966); George v. United 
States, 196 F.2d 445, 452 (9th Cir.
1952); United States v. Valentine, 288 
F.Supp. 957, 969-70 (D.P.R. 1968).



18

C . Decisions of this Court, con­
struing federal statutes and 
their application to federal 
juries, do not dispense with 
the requirement of class 
membership or prejudice when 
constitutional Questions are 
raised as to state proceed­
ings .
Petitioner Peters asserts that cases 

decided by this Court have effectively 
rejected the rule that either class identi­
ty or, in its broader context, prejudice 
are required when a particular jury system 
is challenged on constitutional grounds. 
Ballard v. United States, 329 U.S. 187 
(1946), Thiel v. Southern Pac. Co., 328 
U.S. 217 (1945), and Glasser v. United 
States, 315 U.S. 60 (1941) do not have 
this effect. In the first place, each 
case was considered in Fay v. New York, 332 
U.S. 261, 287-8 (1946), and the court there 
refused to accept the position being pressed 
by Peters here. The Fay court recognized 
the identity requirement, but, in the 
alternative, determined that the particular 
type of exclusions involved did not affect 
to any identifiable degree the impartiality 
of the jurors which tried the case. Fay v. 
New York, supra, at 287 and 292-3. This 
was required, for unlike the situation in 
Ballard, Thiel and Glasser, the court in 
Fay was considering questions of constitu­
tional dimensions and not the application



19

and obligation imposed by Congressional 
statutes on federal criminal procedure.
That some identifiable effect on the impar­
tiality of jurors is required in order to 
raise a constitutional question is evidenced 
by the following:

"No significant difference in 
viewpoint between those alleged­
ly excluded and those permitted 
to serve has been proved and 
nothing in our experience per­
mits us to assume it. It would 
require large assumptions to say 
that one's present economic sta­
tus, in a society as fluid as 
ours, determines his outlook in 
the trial of cases in general or 
of this one in particular. * * *
But we are not ready to assume 
that these differences of func­
tion degenerate into a hostility 
such that one cannot expect jus­
tice at the hands of occupations 
and groups other than his own."
Fay v. New York, supra, at 292.

As for the class requirement or the require­
ment of prejudice when questions of consti­
tutional dimensions are considered, Thiel 
v. Southern Pac. Co., supra, at 225, speci­
fically infers that they are mandatory 
prerequisites in such cases:



20

"The trial court should have 
granted petitioner's motion to 
strike the panel. That conclu­
sion requires us to reverse the 
judgment below in the exercise 
of our power of supervision over 
the administration of justice in 
the Federal Courts. See McNabb 
v. United States, 318 US 332, 340,
87 L ed 819, 823, 63 S Ct 608.
On that basis it becomes unneces­
sary to determine whether the 
petitioner was in any way preju­
diced by the wrongful exclusion 
or whether he was one of the 
excluded class." [emphasis added]

While it is clear then that such legal chal­
lenges to the proper administration of sta­
tutes by government officials do not require 
identity or showing of prejudice, constitu­
tional challenges do. See Salisbury v . 
Grimes, 406 F.2d 50, 51-2 (5th Cir. 1969); 
United States v. Valentine, 288 FJSupp. 957, 
969-70 (D.P.R. 1968)(stating that a liti­
gant raising a constitutional challenge 
must establish his right to such has been 
prejudiced by the exclusion of which he 
complains, but a litigant invoking the 
supervisory jurisdiction must establish 
only a departure from the scheme of jury



21

selection, which Congress adopted.— =/ 
Dean Rene Peters, not being a member of 
the excluded class, must make some show­
ing which would enable a court to presume 
that race prejudice infected the minds 
of the grand jurors in his case. Without

2/ Ga. Laws 1967, p. 251 [Ga. Code Ann. 
§ 59-106 (1971 Supp.)] now requires 
that jury ccmmissioners select a 
fairly representative cross-section 
of the intelligent and upright citi­
zens of the county from the official 
registered•voters' list which was 
used in the last preceding general 
election. There is no apparent 
reason why a timely challenge by 
any party litigant to the array of 
grand or traverse jurors on the 
basis that the commissioners had 
not fulfilled their legal duty 
under this section could not be 
made. See Simmons v. State, 226 Ga. 
100, 112 (1970); cf. Reynolds v. 
Reynolds, 217 Ga. 234, 263 (1961); 
Griffin v. State, 183 Ga. 775, 777 
(1937). When a constitutional 
challenge is made, however, the 
requirement of identity or prejudice 
is maintained. Cash v. Smith, 226 
Ga. 318 (1970).



22

this, the alleged exclusionary practice 
would not deny him equal protection of the 
laws as guaranteed by the Fourteenth Amend­
ment.



23
II.

THE ISSUE CONCERNING RETRO­
ACTIVITY IS NOT PROPERLY BE­
FORE THIS COURT FOR REVIEW.
As with the first question pre­

sented to this Court in Petitioner's 
brief, the second one raises some dif­
ficulty in relation to the proceedings 
below, the petition for certiorari, and 
case in general. First, there has never 
been any issue as to whether or not, 
if a court recognized correctness of 
the claim raised, Peters could receive 
the benefit of that decision in his case. 
The Respondent has never argued that 
even if Petitioner were correct, some 
rule of retroactivity would yet pre­
vent his being granted relief. Also, 
the original petition for certiorari 
merely listed the question as to 
possible retroactive application of a 
rule this Court might establish in 
this case (Petition, p. 3), but the 
point was not argued or briefed in the 
application. Without the point being 
raised in the proceedings below and 
without the point being pursued in the 
petition for certiorari in this Court, 
it is simply not a proper question for 
consideration.



24

If Petitioner Peters seeks the bene­
fit of a rule establishing the right of 
any person, regardless of his identity, 
to challenge his conviction on the basis 
that Negroes were intentionally excluded 
from the indicting grand jury, then it 
is quite unclear how a question of retro­
activity concerns Peters, or what rule he 
believes should be "retrospectively" ap­
plied to his 1966 indictment. Reference 
is made in Petitioner's brief to Whitus 
v. Georgia, 385 U.S. 545 (1967), but the 
issue in that case has no bearing on the 
question now being considered.

On the other hand, if this case 
establishes a new rule, there would be 
little doubt that the benefit of the 
rule would be applied to Peters; if 
this were not so, there would be no case 
or controversy in the first place. A 
question of retrospective or prospective 
application of the "Peters rule", what­
ever it might be, is not appropriately 
pursued by him because the outcome would 
not affect him. It does not, at least, 
constitute one of the issues on the 
merits, as he has sought to make it.



25
CONCLUSION

For the foregoing reasons, the 
judgment of the Court of Appeals for 
the Fifth Circuit should be affirmed.

Respectfully submitted,
ARTHUR K. BOLTON 
Attorney General
HAROLD N. HILL, JR. 
Executive Assistant 
Attorney General
COURTNEY WILDER STANTON 
Assistant Attorney General

DOROTHY T. BEASLEY 
Assistant Attorney General
DAVID L. G. KING, JR. 
Assistant Attorney General

ATTORNEYS FOR RESPONDENT



CERTIFICATE OF SERVICE
I, Dorothy T. Beasley, Attorney of 

Record for the Respondent herein, and a 
member of the Bar of the Supreme Court of 
the United States, hereby certify that in 
accordance with the Rules of the Supreme 
Court of the United States, I served the 
foregoing Brief for Respondent on the Peti­
tioner by depositing copies of the same in 
a United States mailbox, with first class 
postage prepaid, addressed to counsel of 
record at their post office addresses:

EDWARD T. M. GARLAND 
Garland & Garland 
229 Candler Building 
Atlanta, Georgia 30303
JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
10 Columbus Circle 
New York, New York 10019

This 11th day of February, 1972.

DOROTHY T. BEASLEY