Brief of Plaintiff-Appellant

    The Supreme Court 
of the United States

J i m  R ose, W a r d e n
versus
James i .  Mitchell, et al.

Petition and Briefs

Law Reprints
Criminal Law Series 
Volume 10, no. 13 
1978/1979 Term



IN TH E

SUPREME COURT OF THE UNITED STATES
OCTOBER TER M , 1977

No.

JIM  ROSE, WARDEN, 
Petitioner,

vs.
JAM ES E. M ITC H ELL and 

JAM ES NICHOLS, JR., 
Respondents.

PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals for the 

Sixth Circuit

Of Counsel:
BROOKS M cLEM ORE 

Attorney General 
State of Tennessee

ROBERT E. KENDRICK 
Deputy Attorney General

M ICHAEL E. TERRY 
Assistant Attorney General 

450 James Robertson Parkway 
Nashville, Tennessee 37219 

Phone: (615) 741-1376



SUBJECT INDEX

Table of authorities c ite d ............................ ..

Opinions below .................................................

Grounds on which jurisdiction is invoked 

Constitutional and statutory provisions involved

Questions presented ..............................................

Statement of the c a s e ................................

Reasons for granting the w r i t ..............................

Argument

I
State prisoners should not be granted federal habeas 

corpus relief on a claim questioning the selection 
of the non-voting foreman of their grand jury when 
their subsequent trial is free of reversible constitu­
tional error, when there has been no demonstration 
of actual prejudice and there is no rational basis 
to presume prejudice, and when the claim has been 
fully and fairly litigated in state c o u r t ...................  13

Page

ii

2

2

3

6

7

11

II
The Sixth Circuit’s decision does not comport with 

the clearly erroneous standard and is contrary to 
decisions of this court regarding the Equal Protec­
tion Clause .................................................  jg

III
Error, if any, was harmless beyond a reasonable doubt 22 

Conclusion .......................



Index to Appendix

Memorandum Opinion of the United States Court of Ap­
peals for the Sixth Circuit, Filed January 9, 1978 . . . .  A-l

Order Denying Motion for Hearing filed by United States 
District Court for the Western District of Tennessee, 
Western Division, March 23, 1977 .................................A-16

Memorandum and Order filed by the United States District 
Court for the Western District of Tennessee, Western 
Division, February 17, 1977 .......................................... A-18

Order for Further Response filed by the United States Dis­
trict Court for the Western District of Tennessee, West­
ern Division, February 17, 1976 ............................ .. . .A-20

Order Denying Petition for the Writ of Certiorari filed by 
the Supreme Court of Tennessee, at Jackson, March 10,
1975 .................................................................................. A-22

Opinion of the Tennessee Court of Criminal Appeals filed 
June 5, 1974 ..................................................................... A-23

TABLE OF AUTHORITIES CITED 

Cases

Akins v. Texas, 325 U.S. 398 (1 9 4 5 )............................19,20
Alexander v. Louisiana, 404 U.S. 625 (1972) ...........19, 20

Bruton v. United States, 398 U.S. 123 (1968 )...............  10, 22

Carter v. Jury Commission, 396 U.S. 320 (1970)...........18, 22
Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272 

(1977) ..........................................................16 ,17 ,19 ,20 ,22



Chapman v. California, 386 U.S. 18 (1967)........................ 23

Fay v. Noia, 372 U.S. 391 (1963) ................................  13, 14
Francis v. Henderson, 425 U.S. 536 (1976) ...................  17

Harrington v. California, 395 U.S. 250 (1 9 6 9 )...............  23
Hurtado v. California, 110 U.S. 516 (1884)........................ 19

Kaufman v. United States, 394 U.S. 217 (1969)...............  17

Preiser v. Rodriguez, 411 U.S. 475 (1973).......................... 13

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) . . . . 14, 17 
Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037

(1976)   13 ,15 ,16 ,17 ,18 ,20
Strauder v. West Virginia, 100 U.S. 303 (1880)...............  19

Tollett v. Henderson, 411 U.S. 258, 266 (1973) ........... 17
Turner v. Fouche, 396 U.S. 346 (1 9 7 0 )........... 18, 19, 20, 22

Village of Arlington Heights v. Metropolitan Housing De­
velopment Corp., 429 U.S. 252 (1977) ........................ 22

Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040
(1976) ............................................ . ........ .....................20,22

Whitus v. Georgia, 385 U.S. 545 (1967) ........................ 20

Other Authorities

18 U.S.C.: Section 243 ......................................................  18

28 U-S.C.: Section 1254(1)................... .............................  3

28 U.S.C.: Section 2241 ..........    3

28 U.S.C.: Section 2254 ......................................................3, 20

iii



Bator, Finality in Criminal Law and Federal Flabeas 
Corpus for State Prisoners, 76 Harv. L. Rev. 441, 463- 
507 (1963) .....................................................................13, 14

Developments in the Law—Federal Habeas Corpus, 83 
Harv. L. Rev. 1038, 1042-62, 1263-74 (1 9 7 0 )........... 13

Federal Rules of Civil Procedure, 52(a), 81(a)(2)...............  20

Oakes, Legal History in the High Court—Habeas Corpus,
64 Mich.L.Rev. 451-68 (1 9 6 6 )....................................13,23

Tennessee Code Annotated:

Section 22-223-243 ...................    19

Section 40-1501-1505 ......................................................  19

Section 40-1506, 40-1507 . ............................................ 19

Section 40-1706 .................   19

Section 40-3801 ..............................................................  18

United States Constitution, Amendment F ourteen ........... 3, 20

iv



IN TH E

SUPREME COURT OF THE UNITED STATES

OCTOBER TER M , 1977

No,

JIM  ROSE, W ARDEN, 
Petitioner,

vs.

JAM ES E. M ITC H E LL and 
JAM ES NICHOLS, JR „ 

Respondents.

PETITION FOR WRIT OF CERTIORARI
To the United States Court of Appeals for the 

Sixth Circuit

Petitioner, Jim Rose, Warden, respectfully prays that a Writ 
of Certiorari issue to review the judgment and opinion of the 
United States Court of Appeals for the Sixth Circuit rendered 
in this proceeding on January 9, 1978, wherein the Court of 
Appeals reversed the United States District Court and issued 
writs of habeas corpus for the respondents, two prisoners in­
carcerated by the State of Tennessee.

1



—  2 —

OPINIONS BELOW

The memorandum opinion of the United States Court of 
Appeals for the Sixth Circuit was rendered on January 9, 1978, 
is reported as Mitchell v. Rose, 570 F.2d 129 (6th Cir. 1978), 
and is attached hereto as Appendix A.

This case arose as separate petitions for federal habeas corpus 
relief in the United States District Court for the Western District 
of Tennessee, Western Division. In the district court these cases 
were originally styled: Mitchell v. Rose, Warden, Civil C-75- 
222, and Nichols v. Rose, Warden, Civil C-75-265. On Feb­
ruary 17, 1976, an order was entered by the district court, dis­
missing most issues raised in the petitions. A copy of this order 
is attached hereto as Appendix D. On February 17, 1977, 
another order was entered by the district court dismissing the 
remaining claims and entering judgment for the state. A copy 
of this memorandum and order is attached hereto as Appendix 
C. On March 23, 1977 a further order was entered by the dis­
trict court denying a motion for amendment and stating fur­
ther grounds for the court’s decision. A copy of this order is 
attached hereto as Appendix B. The memorandum decisions 
and orders of the district court are not reported.

The opinion of the Tennessee Court of Criminal Appeals, af­
firming the conviction of Mitchell and Nichols, was filed on 
June 5, 1974; and a copy is attached hereto as Appendix F. This 
opinion is not reported. The Supreme Court of Tennessee denied 
certiorari on March 10, 1975. A copy of that court’s order is 
attached hereto as Appendix E.

GROUNDS ON WHICH JURISDICTION IS INVOKED

The opinion and judgment of the Court of Appeals for the 
Sixth Circuit was entered on January 9, 1978. The state’s pe-

2



— 3 —

tition to rehear was denied by order of that Court filed on 
March 30, 1978. This petition is timely filed within ninety 
(90) days of that date. Jurisdiction is invoked pursuant to 28 
U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution of the United 
States provides in pertinent part:

No state shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; nor shall any state deprive any person of 
life, liberty, or property, without due process of law; nor 
deny to any person within its jurisdiction equal protection 
of the laws.

Habeas corpus is codified in Title 28, United States Code, 
which provides in pertinent part:

§ 2241. Power to grant writ:

(a) Writs of habeas corpus may be granted by the Supreme 
Court, any justice thereof, the district courts and any cir­
cuit judge within their respective jurisdiction . . .

(c) The writ of habeas corpus shall not extend to a prisoner 
unless—-

(3) He is in custody in violation of the Constitution or laws 
or treaties of the United States . . .”

§ 2254. State custody; remedies in Federal courts:

(d) In any proceeding instituted in a Federal court by 
an application for a writ of habeas corpus by a person in

3



4

custody pursuant to the judgment of a State court, a deter­
mination after a hearing on the merits of a factual issue, 
made by a State court of competent jurisdiction in a pro­
ceeding to which the applicant for the writ and the State 
or an officer or agent thereof were parties, evidenced by a 
written finding, written opinion, or other reliable and ade­
quate written indicia, shall be presumed to be correct, un­
less the applicant shall establish or it shall otherwise appear, 
or the respondent shall admit—

(1) that the merits of the factual dispute were not 
resolved in the State court hearing;

(2) that the factfinding procedure employed by the 
State court was not adequate to afford a full and fair 
hearing;

(3) that the material facts were not adequately de­
veloped at the State court hearing;

(4) that the State court lacked jurisdiction of the 
subject matter or over the person of the applicant in 
the State court proceeding;

(5) that the applicant was an indigent and the 
State court, in deprivation of his constitutional right, 
failed to appoint counsel to represent him in the State 
court proceeding;

(6) that the applicant did not receive a full, fair, 
and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due 
process of law in the State court proceeding;

(8) or unless that part of the record of the State 
court proceeding in which the determination of such 
factual issue was made, pertinent to a determination 
of the sufficiency of the evidence to support such 
factual determination, is produced as provided for

4



—  5 —

hereinafter, and the Federal court on a consideration 
of such part of the record as a whole concludes that 
such factual determination is not fairly supported by 
the record:

Tennessee Code Annotated provides in pertinent part as 
follows:

40-1506. Appointment and term of foreman or fore­
woman.—Judges having criminal jurisdiction in any 
county, are authorized, and required to appoint the fore­
men or forewomen of the grand juries in the counties of 
their respective jurisdictions; and said foremen or fore­
women shall hold office and exercise their powers for a 
term of two (2) years from appointment, unless for good 
cause, in the discretion of the presiding judge, he may be 
removed, relieved, or excused from office at any time. 
Said foreman or forewoman shall be the thirteenth mem­
ber of each grand jury organized during his term of office, 
having equal power and authority in all matters coming 
before the grand jury with the other members thereof. 
[Acts 1919, ch. 37, § 1; Shan. Supp., § 5832al; mod. 
Code 1932, § 10026; Acts 1976 (Adj. S.), ch. 383, § 1.]

Amendments. The 1976 amendment inserted the words “or 
forewomen” each place they appear and in the last sentence inserted 
“or forewoman.”

40-1507. Qualifications of foreman or forewoman.—
Every person appointed as a foreman or forewoman of 
the grand jury under § 40-1506 shall be at least twenty- 
five (25) years of age, and shall be a good and lawful man 
or woman, possessing all the qualifications of a juror. 
Provided that no justice of thd peace shall be eligible for 
appointment as foreman or forewoman of the grand jury, 
the provision of this section requiring that no justice of 
the peace shall be eligible for appointment as foreman or 
forewoman of the grand jury shall not apply in those

5



6 —

counties where arraignment in criminal cases is had ex­
clusively before general sessions court, [Acts 1919, ch. 
37, § 2; Shan. Supp., § 5832a2; Code 1932, § 10027; 
Acts 1957, ch. 252, §§1 ,2 ; 1976 (Adj. S.), ch. 383, § 2.]

40-1510. Duties of foremen or forewomen.— It shall 
be the duty of such foremen or forewomen of grand juries 
to assist and cooperate with the district attorney in ferret­
ing out crime, to the end that the laws may be faithfully 
enforced, and such foremen or forewomen are directed 
out of term to advise the district attorney with respect to 
law violations and furnish him names of witnesses, whom 
the district attorney may, if he deem proper, order sum­
moned to go before the grand jury at the next term. In 
term time, the foreman or forewoman may order the 
issuance of subpoenas for witnesses to go before the grand 
jury, unless otherwise ordered by the district attorney. 
[Acts 1919, ch. 37, § 4; Shan. Supp., § 5832a4; Code 
1932, § 10029; Acts 1976 (Adj. S.), ch. 383, § 5.]

40-1706. Concurrence in true bill.—An indictment can­
not be found without the concurrence of at least twelve 
(12) grand jurors, and, when so found, shall be indorsed 
“A true bill,” and the indorsement signed by the foreman. 
[Code 1858, § 5093; Shan., § 7055; Code 1932, § 11600.]

QUESTIONS PRESENTED

1. Whether Discrimination in the Selection of the Non-Vot­
ing Foreman of the Grand Jury Is a Basis Upon Which a State 
Prisoner May Be Granted Federal Habeas Corpus Relief When 
the Subsequent Trial Is Free of Reversible Constitutional Er­
ror, When There Has Been No Demonstration of Actual Preju­
dice and There Is No Rational Basis to Presume Prejudice, 
and When the State Has Provided an Opportunity for Full 
and Fair Litigation of the Claim?

6



— 7

2. Whether the Decision of the Court of Appeals Com­
ports With the Clearly Erroneous Standard and With This 
Court’s Decisions Interpreting the Equal Protection Clause?

3. Whether, Assuming Arguendo, Systematic Exclusion of 
Blacks From the Post of Grand Jury Foreman in Tipton 
County, the Doctrine of Harmless Error Can Be Applied, 
When There Has Been No Actual Prejudice and No Rational 
Basis Exists Upon Which to Presume Prejudice?

STATEMENT OF THE CASE1

On October 28, 1972 Claudie Greer and William Nabors 
were murdered by the respondents during an armed robbery 
of a cafe1 2 in Tipton County, Tennessee. The respondent Nich­
ols began the criminal episode by pistol-whipping a customer. 
Then Nichols, wielding two pistols, forced the proprietor to 
hand over about five or six hundred dollars. Nichols also took 
other money from the proprietor and customers in the cafe. 
Then, for no apparent reason, Nichols fired several shots into 
the back room of the cafe and fled. Eyewitnesses testified that 
Claudie Greer, standing in the back room, fell and subsequently 
died after the shots were fired from the front room. Proof 
later showed that Greer was killed by a shot from a .38 cali­
ber pistol.

1 Unless otherwise indicated, the references contained within this 
statement are to pages of the state court record. The state court rec­
ord was before both the federal courts below.

2 The race of the defendants, the victims, or the eye-witnesses was, 
of course, not an issue at trial. However, since the Court of Appeals 
has found racial discrimination and presumed prejudice, the race of 
these people is perhaps relevant here to demonstrate the total ab­
sence of prejudice and the lack of any evidence showing discrimina­
tory intent. The only evidence of race appears in Volume II, page 87 
of the trial where on redirect examination the cafe’s proprietor testi­
fied he is black and black customers comprised almost 100 per cent 
of his business. There is nothing in the record to support any con­
clusion except that the victims and witnesses were also black.

7



—  8

Simultaneously, the co-respondent James Mitchell, armed with 
a sawed-off shot gun, was in the process of robbing persons in 
the back room. William Nabors was among these people. When 
Nabors bent over to pick up some change from the floor, Mitchell 
shot him through the mouth with the sawed-off shot gun, ending 
his life. Mitchell then went into the front room, took more 
money from the proprietress and also fled.

The next day Mitchell and Nichols were arrested together in 
Memphis in the apartment of Nichols’ girlfriend. A .38 caliber 
pistol was recovered from Nichols at the time of his arrest, and 
a ring taken during the robbery was found at the scene of arrest. 
A sawed-off shot gun and blood splattered clothing were then 
found in the apartment of Mitchell’s girlfriend. After his arrest, 
Mitchell gave a confession to members of the Memphis Police 
Department.

Nichols and Mitchell were jointly indicted in two indictments 
on November 6, 1972. The grand jury was composed of twelve 
jurors, one of them was a black woman, and one acting fore­
man. The regular foreman of the grand jury was unavailable 
and the trial judge chose a former foreman as his substitute. 
The former foreman was chosen to serve by the trial judge be­
cause he had previously served as a regular foreman, had pre­
viously served as an acting foreman, had been willing to perform 
in the past, and according to the judge’s experience had always 
served well.3 Although some twenty (20) witnesses were sched­
uled to testify before the grand jury, the grand jurors unani­
mously voted to indict the respondents after hearing one police 
officer testify. The testimony of the officer primarily consisted 
of recounting Mitchell’s confession. This witness did not men­
tion the race of the respondents and this fact was not known to 
either the acting foreman or the other members of the grand

3 See Affidavits submitted by the state trial judge and the acting 
foreman. These affidavits formed part of the state’s response in the 
U.S. District Court and were also before the Court of Appeals.

8



—  9 —

jury.4 The acting foreman did not vote on the indictment be­
cause of the unanimity, but he did sign the indictment, as is 
required by Tennessee law. (T.C.A. § 40-1706).

Prior to trial, the petitioners filed a plea in abatement asking 
for dismissal of the indictment and alleging the grand jury and 
foreman were selected in a constitutionally offensive manner, 
(p. 21). On March 13, 1973 an evidentiary hearing was held 
in state court. At that hearing, three jury commissioners of 
Tipton County, three former foremen of the Tipton County 
Grand Jury, the entire grand jury which indicted the petitioners, 
and the circuit court clerk of Tipton County all testified. All 
witnesses were subject to full examination by counsel for the 
respondents. The proof elicited demonstrated the plea in abate­
ment was without merit. There was a total lack of countervailing 
evidence. The state court overruled the plea in abatement.

Trial was held on March 21 and March 22 of 1973 in the 
Circuit Court of Tipton County. The state introduced the testi­
mony of five eyewitnesses who identified Nichols and five eye­
witnesses who identified Mitchell as the murderers, (pp. 65, 70, 
90, 92, 98, 126, 131, 142, 143, 211, 242, 243, 244, 255, 266, 
282). In addition, a redacted version of Mitchell’s confession 
was introduced. Proof showed the recovery of the murder 
weapons from the respondents and showed that a ring stolen 
during the crime was recovered from the scene of arrest. The 
defense proof consisted almost wholly of a testimonial denial 
by Nichols of any participation. The jury found both respond­
ents guilty of first degree murder and sentenced them to sixty 
years incarceration on each count, (pp. 357-360).

The respondents appealed their convictions first to the Ten­
nessee Court of Criminal Appeals where they made some twelve 
assignments of error including assignments attacking the com­

4 See Affidavit of acting foreman and Volume 1 of the state record, 
which contains the testimony on the plea in abatement.

9



— 10

position of the grand jury and the selection process for grand 
jury foreman. In a unanimous opinion, the Court of Criminal 
Appeals affirmed the convictions and found, “the facts here do 
not demonstrate a systematic exclusion of Negroes upon racial 
grounds”. (See Appendix F) The Supreme Court of Tennessee 
denied certiorari. (See Appendix E).

The respondents’ resort to the federal court system began 
as separate applications for federal habeas corpus relief in the 
United States District Court for the Western District of Ten­
nessee, Western Division. The initial petitions for habeas cor­
pus relief each included some eleven grounds. In the district 
court, the cases were consolidated and twice referred to the 
magistrate for report. The state filed four separate responses, 
the entire state trial transcript, and affidavits from the state 
trial judge and the acting foreman of the indicting grand jury. 
After reviewing the first state response, the state trial court 
record, and the first report on reference, the district judge, on 
February 17, 1976, dismissed all claims except the selection 
issues and a Bruton issue. (See Appendix D). On these issues, 
the district court ordered further response and another refer­
ence to the magistrate. On February 17, 1977, by memoran­
dum and order, the district court found the Bruton violation 
to be harmless beyond a reasonable doubt and further found 
that the acting foreman was selected for other than racial rea­
sons. The petitions were dismissed. (See Appendix C). A 
final order denying a motion to amend judgment was entered 
by the district court on March 23, 1977. (See Appendix B).

The respondents appealed to the Court of Appeals for the 
Sixth Circuit which reversed the district court on January 9, 
1978. (See Appendix A). The Court of Appeals found dis­
crimination in the selection of the grand jury foreman in Tip- 
ton County, and set aside the convictions. The state is ordered 
to reindict the respondents in sixty (60) days or release them.

10



11 —

REASONS FOR GRANTING THE WRIT

The Sixth Circuit Court of Appeals for the Sixth Circuit has 
voided two state first degree murder convictions obtained more 
than five years ago. The Sixth Circuit’s decision is based on a 
finding that the non-voting acting foreman of the indicting 
grand jury was selected in a discriminatory manner. The Sixth 
Circuit has granted federal habeas corpus relief to the respond­
ents despite a record which demonstrates that:

1. The race of the respondents was unknown to either the 
acting foreman or other members of the grand jury;

2. the grand jury contained a black woman, who testified 
in state court and established the total absence of any racial 
consideration;

3. the regular foreman was unavailable and a former fore­
man was picked by the trial judge to replace him selely be­
cause the trial judge knew of his demonstrated ability, his will­
ingness to serve, and his availability;

4. the acting foreman did not vote on the indictment be­
cause of the grand jury’s unanimity;

5. although some twenty witnesses were scheduled, the grand 
jury unanimously voted for indictment after hearing one wit­
ness;

6. the selection of the grand jury itself is an issue previously 
resolved in favor of the state;

7. the subsequent trial was without reversible constitutional 
error and the petit jury was not an issue;

8. the evidence against respondents at trial included five eye­
witness identifications for each, a confession, recovery of the 
murder weapons from the respondents, and other physical evi­
dence; and

11



—  12

9. the issue of grand jury foreman selection was fully and 
fairly litigated in state court.

More simply stated, the Sixth Circuit has granted federal 
habeas corpus relief on the basis of perceived error occurring 
during the now moot accusatorial stage. The relief has been 
granted without a demonstration of prejudice and upon a 
record which can not support any reasonable presumption of 
prejudice. The relief was granted after three state courts had 
denied relief, and the district court had dismissed the petitions 
without an evidentiary hearing. The Sixth Circuit’s grant of 
federal habeas corpus relief is contrary to the recent decisions 
of this Court interpreting the substantive scope of the writ. 
The issuance of the writ of habeas corpus in this case is con­
trary to the historical and meaningful purposes of the writ. The 
record demonstrates with unmistakable clarity that there is no 
unconstitutional deprivation of liberty. Furthermore, any in­
cremental remedial benefit to the system is clearly outweighed 
by the cost to the system and society. Such benefit is available 
through other means, at much less cost. The criminal justice 
system suffers when the writ of habeas corpus issues solely as 
a remedial device when no real question of possible innocence 
exists.

The decision of the Sixth Circuit is a departure from the ac­
ceptable and usually applied clearly erroneous standard, which 
controls an appellate court’s review in habeas corpus.

The decision of the Sixth Circuit has cast grave doubt upon 
the continued viability of Tennessee’s system for selecting grand 
jury foremen or forewomen, a system essentially similar to 
those used in other states. The Sixth Circuit’s rejection of the 
pragmatic reasons for the selection of the acting foreman here 
imposes a standard which can only be met by a random selection 
system or a system of affirmative action. Key man systems must 
either remove all discretion or install a conscious affirmative 
action policy. The Sixth Circuit has, in effect, held that a prima

12



13

facie case, built on questionable statistics, can not be rebutted 
by a plausible, non-racially motivated explanation. This is con­
trary to the decisions of this Court interpreting the Equal Pro­
tection Clause.

The Writ of Certiorari should be granted to enable this Court 
to review the substantive scope of federal habeas corpus; to al­
low this Court to remedy the errors relating to the clearly er­
roneous standard and the Equal Protection Clause; and finally, 
so that this Court may decide whether the harmless error doc­
trine should apply.

ARGUMENT

I

State Prisoners Should Not Be Granted Federal Habeas Corpus 
Relief on a Claim Questioning the Selection of the Non-Voting 
Foreman of Their Grand Jury When Their Subsequent Trial Is 
Free of Reversible Constitutional Error, When There Has Been 
No Demonstration of Actual Prejudice and There Is No Ra­
tional Basis to Presume Prejudice, and When the Claim Has 
Been Fully and Fairly Litigated in State Court.

The Great Writ, habeas corpus ad subjiciendum, has de­
servedly enjoyed a prestigious place in the history of Anglo- 
American jurisprudence. Elaborate and scholarly discussions of 
the Great Writ and its evolvement can be found in the decisions 
of this Court and other legal writings. See Fay v. Noia, 372 
U.S. 391, 399-426, 449-463 (1963); Prieser v. Rodriguez, 411 
U.S. 475, 484-487 (1973); Stone v. Powell, 428 U.S. 465, 96 
S. Ct. 3037, 3042-3046 (1976); “Developments in the Law— 
Federal Habeas Corpus,” 83 Harv.L.Rev. 1038, 1042-62, 1263- 
74 (1970); Oakes, “Legal History in the High Court—Habeas 
Corpus,” 64 Mich.L.Rev. 451-68 (1966); Bator, “Finality in

13



— 1 4 -

Criminal Law and Federal Habeas Corpus for State Prisoners,” 
76 Harv.L.Rev. 441, 463-507 (1963). As Mr. Justice Powell 
wrote in Schneckloth v. Bustamonte, 412 U.S. 218, 255-56 
(1973):

Much, of course, has transpired since that first Habeas 
Corpus Act (citations omitted). The scope of federal 
habeas corpus for state prisoners has evolved from a quite 
limited inquiry into whether the committing state court had 
jurisdiction (citations omitted), to whether the applicant 
had been given an adequate opportunity in state court to 
raise his constitutional claims (citation omitted); and 
finally to actual redetermination in federal court of state 
court rulings on a wide variety of constitutional contentions 
(citation omitted).

The noble purpose of the Great Writ was and should remain 
to determine whether a violation of a personal constitutional 
right has resulted in the deprivation of liberty. See Fay v. Noia, 
372 U.S. at 423, 424. However, through the years this noble 
purpose has been joined by other purposes as the substantive 
scope of the writ was expanded. The expansion has resulted 
from the employment of the Great Writ to further society’s inter­
est in preserving the integrity of the judicial system and imple­
menting minimum constitutional standards within the nation’s 
criminal justice system. Society’s interests have been fostered 
by this expansion, but the issue of undeserved or unjust incar­
ceration has become almost secondary. In fact, since this Court’s 
decision in Fay v. Noia, federal habeas corpus relief has, in 
reality, been a continuation of the state appellate process. So­
ciety’s interests now demand a reconsideration of the applica­
bility of this form of relief to constitutional errors preceding the 
trial which have no real relationship to the deprivation of liberty. 
The issuance of the writ should again depend primarily on a 
relationship between constitutional error and deprivation of 
liberty. This case presents a classic situation for this Court to

14



—  15 —

consider whether moot pre-trial questions which do not affect 
the integrity of the trial are cognizable on federal habeas corpus.

In the landmark decision of Stone v. Powell, supra, (1976), 
this Court held “that where the state has provided an opportunity 
for full and fair litigation of a Fourth Amendment claim, the 
Constitution does not require that a state prisoner be granted 
federal habeas corpus relief on the ground that evidence ob­
tained in an unconstitutional search or seizure was introduced 
at his trial.”5 The proposition here put forth is that the rational 
of Stone should extend beyond cases involving Fourth Amend­
ment claims and should encompass a case such as the one sub 
judice, where a constitutional infirmity6 occurs during the ac­
cusatory stage of the criminal process and has been mooted by 
the subsequent trial and conviction. This very extension of the 
doctrine and philosophy of Stone was expressly recognized by 
the district court in the instant case. In the post-decision order 
of March 23, 1977, Chief Judge Brown stated:

Since this court made the determination that this conten­
tion be dismissed, our determination is further supported 
by the decision of the Supreme Court of the United States 
in Stone v. Powell, — U.S. — , 49 L. Ed. 2d 1067 (1976). 
As we read that decision, where the claim of constitu­
tional error does not go to the integrity of the fact finding 
process so far as the conviction is concerned, if the peti­
tioner received a full and fair hearing in state court as 
to his claim, the federal court will not review the determi­
nation by the state court. Thus, not only have we found 
the decision in the state court to be correct, but also it

5 Stone, 96 S. Ct. at 3045, 3046.

" This characterization is solely for the purpose of presenting this 
portion of the petition. No concession of error in the selection 
process is intended.

15



—  16

appears that, since the contention was fairly heard in state 
court petitioners are not entitled to another review here.

(See Appendix B-2).

In Castaneda v. Partida, 430 U.S. 482 (1977), Mr. Justice 
Powell, in dissent,7 specifically recognized “a strong case may 
be made that claims of grand jury discrimination are not cog­
nizable on federal habeas corpus after Stone v. Powell . . .” Mr. 
Justice Powell explained in Castaneda that the rationale of Stone 
is better applied to a case involving a tainted indictment than 
a case involving the admission of tainted evidence. As stated 
by Mr. Justice Powell:

Unlike the prisoner in Stone, who could complain that his 
conviction rested on evidence tainted by Fourth Amend­
ment violations and could ask for a new trial with that 
evidence excluded, the prisoner in this case challenges only 
the now moot determination by the grand jury that there 
was sufficient cause to proceed to trial. He points to no 
flaw in the trial itself. As in Stone, the incremental benefit 
of extending habeas corpus as a means of correcting un­
constitutional grand jury selection procedures might be 
viewed as outweighed by the acknowledged costs to other 
values vital to a rational system of criminal justice.

See Castaneda, at 1287, footnote 1.

The matter sub judice presents facts more appropriately suited 
for an application of the Stone rationale than the facts before 
this Court in Castaneda. In Castaneda the composition of the 
entire Grand Jury was in question. In this matter, only the

7 Mr. Justice Powell’s dissent was joined by the Chief Justice and 
Mr. Justice Rehnquist. Mr. Justice Stewart, separately dissenting, 
stated that he was in substantial agreement with the other dissenting 
opinions. Castaneda, at 1287. The issue of extending the rationale 
of Stone, was not before the Court in Castaneda. The issue had not 
been addressed in the lower courts and was not briefed or argued in 
this Court.

16



1 7 -

selection of the non-voting foreman is in question. Furthermore, 
in Castaneda the Mexican-American surname of the defendant 
is a fact upon which a presumption of prejudice could rest. In 
the instant matter the evidence demonstrates that the race of 
respondents was unknown to the grand jury when the indict­
ment was returned.

As indicated in Castaneda, there is no peculiar characteristic 
regarding claims of grand jury selection irregularities which 
would weigh against an extension of the Stone logic beyond the 
Fourth Amendment. This Court has previously stated federal 
habeas relief is not automatically available to a state prisoner 
who pled guilty and later attacked the grand jury selection 
process, Toilett v. Henderson, 411 U.S. 258, 266, 267 (1973). 
More recently this Court held a state prisoner was not entitled to 
habeas relief on grand jury selection grounds when he failed to 
conform with a state requirement that such objections be raised 
before trial, absent a showing of both cause and actual preju­
dice. Francis v. Henderson, 425 U.S. 536, 542 (1976). Both 
the result and rationale of Stone, Henderson, and Tollett are 
inconsistent with the decision of the Sixth Circuit in this case.

The Sixth Circuit has not determined that Tennessee is in­
carcerating two possibly innocent individuals. Any reasonable 
man viewing the overwhelming evidence admitted at trial must 
conclude that retrial will reach the same result if the state can 
resurrect evidence which is now more than fiveand one-half 
years old.' Therefore, if guilt is unquestioned, if the trial is *

s This condition is not a small consideration, and is a significant 
cost factor. Reconstruction of a trial is never a certainty, especially 
after five and a half years. The cost to society in terms of money is 
obvious. The cost in other terms is also quite clear. See, Stone, 96 
S.Ct. at 3050-52; Schneckloth, at 259 (Powell, J., concurring) and 
Kaufman v. United States, 394 U.S. 217, 231 (1969) (Black, J., dis­
senting). Perhaps, the biggest cost is the loss of public confidence in 
the system. The system has obviously failed when the cost over­
comes the benefit. The criminal justice system should not be a game 
of endurance where guilt or innocence is a secondary consideration.

17



18 —

without reversible flaw, and if there is no basis to reasonably 
presume any prejudice to respondents from the perceived error, 
then the rationale supporting the writ’s issuance must be re­
medial. The Sixth Circuit’s opinion supports this conclusion: 
“• • • there is injury to the jury system, to the law as an in­
stitution, to the community at large, and to the democratic 
ideal reflected in the processes of our courts.” (See Appendix 
A-7). The result is that a conviction, no matter how overwhelm­
ing, can not withstand a pre-trial procedural constitutional er­
ror unrelated to the fact finding process. This philosophy is 
remedial and similar to the rationale which formerly supported 
federal habeas relief to state prisoners asserting Fourth Amend­
ment claims. Under the mandate of Stone, the incremental 
benefits must be weighed against the substantial societal costs. 
In this case the costs clearly outweigh the benefit and alterna­
tive methods exist for obtaining the benefits at less cost.9

II

The Sixth Circuit’s Decision Does Not Comport With the 
Clearly Erroneous Standard and Is Contrary to Decisions of 
This Court Regarding the Equal Protection Clause.

Tennessee uses the key man system of jury selection. Three 
jury commissioners are appointed by the trial judge in each 
county. Following statutory guidelines, these commissioners 
compile a jury pool from which both grand and petit juries are

9 Turner v. Fouche, 396 U.S. 346 (1970) and Carter v. Jury 
Commission, 396 U.S. 320 (1970) were not habeas cases and dem­
onstrate the benefits can be achieved through class action litigation 
without much of the cost attendant to habeas corpus proceedings. 
Other alternatives also exist including criminal sanctions, 18 U.S.C. 
§ 243; and the state remedies which in Tennessee include two levels 
of appellate review and the state post-conviction law. Tenn. Code 
Ann. § 40-3801, et sequel. Finally, an individual is entitled to seek 
the direct review of this Court after a decision of the State Supreme 
Court.

18



—  19 —

randomly drawn. See Tenn. Code Ann. § 22-223-243 and 
Tenn. Code Ann. § 40-1501-1505. The grand jury foreman 
or forewoman.10 11 is selected in a different manner. The crim­
inal court judge appoints the foreman for a term of two years. 
The foreman may be chosen from the general population, must 
be twenty-five years old, and otherwise qualified to serve on 
the grand jury. See Tenn. Code Ann. §§ 40-1506, 1507. The 
foreman becomes the thirteenth grand juror and is required by 
law to sign all true bills. Tenn. Code Ann. § 40-1506, 1706.11

The United States Constitution does not guarantee to a state 
defendant the right to a grand jury. Hurtado v. California, 
110 U.S. 516 (1884). However, this Court has long held that 
a criminal defendant is denied equal protection of the law if, 
as a result of purposeful discrimination, members of his own 
race are excluded from grand jury service. Strauder v. West 
Virginia, 100 U.S. 303, 309 (1880). The early cases involved 
absolute exclusion but today the principle is established that 
substantial under-representation constitutes a constitutional vio­
lation, if the cause is purposeful discrimination. Castaneda, 
97 S.Ct. at 1279; Turner v. Fouche, 396 U.S. 346, 359 (1970).

A criminal defendant, in order to prove an equal protection 
violation in the context of grand jury selection, must first estab­
lish that the excluded group is a distinct class, singled out for 
different treatment under the laws. Next the defendant must 
prove the degree of under-representation. Finally the defendant 
must show that the selection procedure is susceptible to abuse. 
Castaneda, 97 S. Ct. at 1280; Alexander v. Louisiana, 404 
U.S. 625, 630, 632 (1972); Akins v. Texas, 325 U.S. 398, 403- 
404 (1945). If substantial under-representation is demon­

10 Hereinafter, only the masculine designation will be used. The 
statute uses both.

11 Tenn. Code Ann. § 40-1706 requires the concurrence of twelve 
grand jurors to return a true bill. Although the foreman must sign 
all true bills, his vote is not necessary to indict.

19



—  20 —

strated and the other requirements shown, then a prima facie 
case is made and the burden shifts to the state to rebut the case. 
Castaneda, 97 S. Ct. at 1279; Alexander, 405 U.S. at 632; See 
also, Whitus v. Georgia, 385 U.S. 545 (1967).

The method of proving an equal protection violation in the 
context of grand jury selection is sometimes called the “rule 
of exclusion.” This method of proof may give rise to a presump­
tion of unconstitutional action which will prevail if unrebutted. 
Washington v. Davis, 426 U.S. 229, 241 (1976). However, 
the essential element of inviduous discriminatory purpose is still 
required. “The central purpose of the Equal Protection Clause 
of the Fourteenth Amendment is the prevention of official con­
duct discriminating on the basis of race.” Washington, 426 U.S. 
at 239. A prima facie case fails when the presumption is dis­
pelled by plausible evidence demonstrating the official action 
was not racially motivated. Castaneda, 97 S. Ct. at 1282; Tur­
ner, 396 U.S. at 361.

There can be no doubt that a Court of Appeals may set aside 
a district court’s findings in a habeas action only if they are 
clearly erroneous. Fed. Rule Civ. Proc. 52(a), 81 (a)(2 ); 
Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 1286
(1977) (Stewart, J. dissenting). The district court below dis­
missed the foreman selection issue, finding “that the foreman 
was selected for other than racial reasons. . . . ” (Appendix 
C-2) and “that this issue had been adequately investigated by 
the state trial judge and his determination that there had been 
no racial discrimination was correct.” (Appendix B-2).12 These 
findings can not be said to be clearly erroneous.

Certainly, black people are a distinct class satisfying the 
first element of proof. Further, the Tennessee system, which

12 The district judge also based his decision on Stone v. Powell, 
428 U.S. 465 (1976), as is discussed above. Although not cited in 
his memoranda, the district judge’s decision is also a correct applica­
tion of 28 U.S.C. 2254(d).

20



—  21 —

allows the criminal judge to exercise his discretion in selecting 
a foreman, could be used to discriminate. Therefore, in order 
to make a prima facie case the respondents were required only 
to demonstrate substantial under-representation over a sig­
nificant period of time. The proof on this element is very ques­
tionable13 but was sufficient for the district judge to find a prima 
facie case. The state responded with two affidavits, from the 
acting foreman and the trial judge. These affidavits demon­
strate with frankness and clarity the solely pragmatic reasons 
why the foreman was selected. Simply stated, the regular fore­
man was unavailable so the judge chose a former foreman be­
cause of his availability, his willingness, his experience, and his 
demonstrated ability. The reasons for selection are very credible 
and demonstrate a responsible and natural course of human ac­
tion which is wholly void of racial consideration. The district 
court so found and this finding can not be said to be clearly 
erroneous.

The decision of the Sixth Circuit is contrary to a long, un­
broken line of decisions by this Court requiring proof of in­

18 The opinion of the Sixth Circuit is very misleading on a number 
of points relating to the evidence adduced by respondents, the rebut­
tal evidence, and the procedure below:

(a) First, there was no hearing of any kind in district court in 
this case. All references in the opinion to a “hearing” are to the 
hearing in state court on the plea in abatement. The transcript of this 
hearing was before the federal courts.

(b) Second, the opinion states “There has never been a black 
foreman or forewoman in Tipton County according to the recollec­
tions of the trial judge, three jury commissioners, and three former 
foremen”. (See Appendix A-5, A-6). In fact, the record shows that 
the three jury commissioners never testified on this issue whatsoever, 
and the trial judge’s affidavit does speak to his recollection but only 
to the present. (See, state record, Vol. I, pp. 55-71). Therefore, the 
total evidence of substantial underrepresentation is drawn from the 
testimony of three foremen. One had only served for two years in 
the early seventies. One served “5 or 6 years” in the early sixties. 
The third served “several years” in the fifties. Two of them had also 
substituted. These recollections form the whole proof of under­
representation. (See, state record, Vol. I, pp. 71-82).

21



22

tentional discrimination to sustain an equal protection claim. 
See Castaneda, 97 S. Ct. at 1279; Washington, 426 U.S. at 
239; Village of Arlington Heights v. Metropolitan Housing 
Development Corporation, 429 U.S. 252 (1977); Turner, 396 
U.S. at 361; and Carter v. Jury Commissioners, 396 U.S. at 
339. Analogous to the facts in Carter, the proof here only 
shows that the post of foreman has not been held by a black 
according to the recollection of three foremen. Unlike Carter, 
the facts here also show a plausible, credible, non-racially 
motivated reason for the selection in issue. This reason is dif­
ferent from the general, self-serving explanations rejected by 
this Court in Turner. The reason here is pragmatic and sup­
ported by facts admitted by both sides. The rejection of this 
reason establishes a standard which can only be met by ran­
dom selection or historical proportional representation. This 
is contrary to the decisions of this Court. See especially, Carter, 
396 U.S. at 339.

in
Error, if Any, Was Harmless Beyond a Reasonable Doubt

Assuming, without conceding, error in the selection of the 
acting foreman and that the issue is cognizable on federal 
habeas corpus, the error was harmless beyond a reasonable 
doubt. Harrington v. California, 395 U.S. 250 (1969); Chap­
man v. California, 386 U.S. 18 (1967).

The perceived error involves the selection of the acting fore­
man. The foreman did not vote for indictment, and his only 
involvement was to call one witness, swear in the witness, ask 
the grand jury if they were ready to vote, and sign the indict­
ment. If error, this is a now moot procedural error which had 
no effect on the integrity of the trial. Ironically, a Bruton14

14 Bruton v. United States, 391 U.S. 123 (1968).

22



—  23 —

type error in this case has been declared harmless by all re­
viewing courts. Bruton errors certainly have the potential of 
affecting the reliability of the fact finding process. The fore­
man selection error, if any, has no such potential.

CONCLUSION

“Our goals are truth and justice, and procedures are but 
means to these ends. Truth and justice are ultimate values, so 
understood by our people, and the law and the legal profession 
will not be worthy of public respect and loyalty if we allow 
our attention to be diverted from these goals.” Oaks, “Ethics, 
Morality, and Professional Responsibility,” 3 B.Y.U.L. Rev. 
591, 596 (1975). For these values, and for the other reasons 
explained in this petition we respectfully pray that a writ of 
certiorari issue.

BROOKS McLEMORE 
Attorney General

ROBERT E. KENDRICK 
Deputy Attorney General

MICHAEL E. TERRY 
Assistant Attorney General 

450 James Robertson Parkway 
Nashville, Tennessee 37219

Attorneys for Petitioner

23



Index to Appendix

Memorandum Opinion of the United States Court of Ap­
peals for the Sixth Circuit, Filed January 9, 1978 . . . .

Order Denying Motion for Hearing filed by United States 
District Court for the Western District of Tennessee, 
Western Division, March 23, 1977 ...............................

Memorandum and Order filed by the United States District 
Court for the Western District of Tennessee, Western 
Division, February 17, 1977 ..........................................

Order for Further Response filed by the United States Dis­
trict Court for the Western District of Tennessee, West­
ern Division, February 17, 1976 ...................................

Order Denying Petition for the Writ of Certiorari filed by 
the Supreme Court of Tennessee, at Jackson, March 10, 
1975 ...................................................................................

Opinion of the Tennessee Court of Criminal Appeals filed 
June 5, 1974 ..................................................................



IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TER M , 1977

No. 77-1701

JIM  ROSE, WARDEN, 
Petitioner,

vs.
JAM ES E. M ITC H ELL and 

JAM ES NICHOLS, JR., 
Respondents.

BRIEF FOR PETITIONER

M ICHAEL E. TERRY 
Assistant Attorney General 

450 Janies Robertson Parkway 
Nashville, Tennessee 37219 

Phone: (615) 741-2640
Of Counsel:

W ILLIAM  M. LEECH, JR.
Attorney General 

State of Tennessee

25





TABLE OF CONTENTS

Page

Opinions Below ..................... ............ ................................ 1

Grounds on Which Jurisdiction Is Invoked ........................  2

Constitutional and Statutory Provisions Involved...............  2

Questions Presented............................   8

Statement of the C a s e ..........................................................  9

Argument:
I. State Prisoners Should Not Be Granted Federal 

Habeas Corpus Relief on a Claim Questioning the 
Selection of the Non-Voting Foreman of Their 
Grand Jury When Their Subsequent Trial Is Free of 
Reversible Constitutional Error, When There Has 
Been No Demonstration of Actual Prejudice and 
There Is No Rational Basis to Presume Prejudice, 
and When the Claim Has Been Fully and Fairly 
Litigated in State Court .............................   13

II. The Sixth Circuit’s Decision Does Not Comport 
With the Clearly Erroneous Standard and Is Con­
trary to Decisions of This Court Regarding the 
Equal Protection Clause .............................   24

III. Trror, if Any, Was Harmless Beyond a Reasonable 
Doubt ...............     28

Conclusion.............................................................................. 29

Table of Authorities

Cases:

Akins v. Texas, 325 U.S. 398, 403-404 (1945 )........... 25
Alexander v. Louisiana, 404 U.S. 625, 630, 632 (1972) 25

27



u

Barrow v. State, 239 Ga. 162, 236 S.E.2d 257 (1977) 
Bonds v. State, 220 Tenn. 555, 421 S.W.2d 87 (1966) . .
Brown v. United States, 411 U.S. 223 (1975)...................

Carter v. Jury Commission, 396 U.S. 320 (1970).........17,
Case v. Nebraska, 381 U.S. 336, 339 (1965)................. .21,
Castaneda v. Partida, 430 U.S. 482 (1977) ...........19, 20,
Chapman v. California, 386 U.S. 18 (1 9 6 7 )...................

Fay v. Ioia, 372 U.S. 391, 399-426, 449-463 (1963) 14, 15, 
Francis v. Henderson, 425 U.S. 536 (1976) . ..................

Hale v. Henderson, 485 F.2d 266, 272 (6 th Cir. 1973) . .
Harrington v. California, 395 U.S. 250 (1 9 6 9 )...............
Henry v. Mississippi, 379 U.S. 443, 452-453 (1965) . . . .
Hernandez v. Texas, 347 U.S. 475 (1954 )...................
Hurtado v. California, 110 U.S. 516 (1 8 8 4 )...................

Kaufman v. United States, 394 U.S. 217, 231 (1969)___
Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132 (1946) 

cert, denied 333 U.S. 846 .................................. ..............

Miranda v. Arizona, 384 U.S. 436 (1966)........................

Neal v. Delaware, 103 U.S. 370, 397 (1881 )...... ............
Norris v. Alabama, 294 U.S. 587 (1935)............................

People v. Stephen J.B., 23 N.Y.2d 611, 246 N.E.2d 344,
298 N.Y.S.2d 489 (1969) .............................................

Prieser v. Rodriguez, 411 U.S. 475, 484-487 (1973)___ 14,

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

Schneckloth v. Bustamonte, 412 U.S. 218, 255-56
(1973)  ............ 14,16,

23
23
29

27
22
25
28

22
20

16
28
21
17
24

16

23

21

16
17

21

. 21

28

21

28



iii

State v. Jefferson, 529 S.W.2d 654, 680 (Term. 1975) . . 23
State v. Plenty Horse, 85 S.D. 401, 184 N.W.2d 654 (1971) 23
Stone v. Powell, 428 U.S. 465 (1976)........... 14, 16, 18, 19, 23
State v. Silva, 259 So. 2d 153 (Fla. 1 9 7 2 )........................ 23
Strauder v. West Virginia, 100 U.S. 303, 309 (1880) . . . .  25
Swain v. Pressley, 97 S.Ct. 1224 (1977 )............................  20

Tollett v. Henderson, 411 U.S. 258 (1 9 7 3 )................... 20,23
Turner v. Fouche, 396 U.S. 346 (1970 )................... 17, 25, 27

United States ex rel. Stephen J.B. v. Shelley, 430 F.2d 
215 (2d Cir. 1 9 7 0 )..........................................................  21

Village of Arlington Heights v. Metropolitan Housing De­
velopment Corporation, 429 U.S. 252 (1977)...............  27

Washington v. Davis, 426 U.S. 229, 241 (1976) ..........   25
Whitus v. Georgia, 385 U.S. 545 (1966)........................... 17
Whitus v. Georgia, 385 U.S. 545 (1967)...........................  25

Younger v. Harris, 401 U.S. 37 (1 9 7 1 )............................ 21

Statutes and Rules:

Tenn. Code Ann.§ 22-223-243 .............................. .. 24

Tenn. Code Ann. § 40-1501-1505 ................................... . 24

Tenn. Code Ann. §§ 40-1506, 1507 ................................  24

Tenn. Code Ann. §40-1706 ___ . . . ........ .......................  24

Fed. Rule Civ. Proc. 52(a), 81(a)(2)..................................... 26

28 U.S.C. 2254(d) ............................................................... 26

28 U.S.C. § 2241 ...................................................... 3

28 U.S.C. § 2254  .......................................3,18

29



IV

28 U.S.C. § 2255 .............................. ....................... .. 20

Tennessee Rules of Criminal Procedure, Rule 6 ............. . 4

Tennessee Code Annotated:
§ 40-1506 ...........................................    7
§ 40-1507 .....................................................................  7
§ 40-1510  .....................    7
§ 40-1706 .....................................    8,10

28 U.S.C. § 1254(1) ......................................     2

11 U.L.A. § 485 (1966) ..................................................- • 23

N.C. Gen. Stat. n. 8, § 15-217— 15-222 (1959)...............  23

Ga Code Ann. § 50-105—50-127 (1967) ........................ 23

Fourteenth Amendment to the Constitution of the United 
States ............. ...................................................................  2

Wis. Stats. § 974.06 (1969)........................................ .. • ■ • 23

18 U.S.C. § 243 .................................................................. 17

Tenn. Code Ann. § 40-3801 ............... ............................. 17, 23

Miscellaneous Cited:

Bator, “Finality in Criminal Law and Federal Habeas 
Corpus for State Prisoners”, 76 Harv. L. Rev. 441, 463- 
507 (1963) ............................................... .......................  14

Bator, Finality in Criminal Law and Federal Habeas 
Corpus for State Prisoners, 76 Harv. L. Rev. 441 (1963) 21

“Developments in the Law—Federal Habeas Corpus”, 83 
Harv. L. Rev. 1038, 1042-62, 1263-74 (1970) . . . . . .  14

Eades, Appellant and Post Conviction Relief in Tennessee,
5 Memp. State L. Rev. (1974).........................................  23

30



V

Eisenberg, Post-Conviction Remedies in the 1970’s, 56 
Marquette L. Rev. 69 (1 9 7 2 ).........................................  22

Friendly, Is Innocence Irrelevant? Collateral Attack on 
Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970) . . 21

Kirkland, the Federal Court Abstention Doctrine, 24 
F.R.D. 481 (1959) ..........................................................  21

Oakes, “Legal History in the High Court— Habeas Corpus”,
64 Mich. L. Rev. 451-68 (1966) ................................  14

Oaks, “Ethics, Morality, and Professional Responsibility,”
3 B.Y.U.L. Rev. 591, 596 (1975) ................................  29

Reits, Federal Habeas Corpus, 108 U.Pa.L.Rev. 461, 466 
(I960) ................................................................................ 22

Report of the Special Committee on Habeas Corpus to the 
Conference of Chief Justices, June 1953, printed in H.R.
Rep. No. 1293, 85th Cong. 2d Sess. 7 (1958)...............  22

Speech of Justice Paul C. Reardon, Address at the Annual 
Dinner of the Section of Judicial Administration, Ameri­
can Bar Association, San Francisco, Cal., August 14,
1972 (pp. 5, 9, 1 0 ) ..........................................................  21

State Post Conviction Remedies and Federal Habeas Cor­
pus, 12 W&M L.Rev. 149 (1 9 7 0 )................................  22

1978 Annual Report of the Director of the Administrative 
Office of the United States Court, 47, 76 ........................ 22

31



2

cases were originally styled: Mitchell v. Rose, Warden, Civil 
C-75-222, and Nichols v. Rose, Warden, Civil C-75-265. The 
memorandum decisions and orders of the district court are 
not reported, but are contained within the Appendix at pages 
98, 106, 121.

The opinion of the Tennessee Court of Criminal Appeals, 
affirming the convictions of Mitchell and Nichols, was filed on 
June 5, 1974; and a copy is contained in the Appendix at page 
36. This opinion is not reported. The Supreme Court of Ten­
nessee denied certiorari on March 10, 1975. A copy of that 
court’s order is contained in the Appendix at page 42.

GROUNDS ON WHIC H JURISDICTION IS INVOKED

The opinion and judgment of the Court of Appeals for the 
Sixth Circuit was entered on January 9, 1978. The state’s 
petition to rehear was denied by order of that Court filed on 
March 30, 1978. The petition for certiorari was timely filed 
within ninety (90) days of that date, and granted by this 
Court on October 2, 1978. Jurisdiction is invoked pursuant to 
28 U.S.C. § 1254(1).

CONSTITUTION AI AND STATUTORY 
PROVISIONS INVOLVED

The Fourteenth Amendment to the Constitution of the 
United States provides in pertinent part:

No state shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United 
States; nor shall any state deprive any person of life, 
liberty or property, without due process of law; nor deny 
to any person within its jurisdiction equal protection of 
the laws.

34



— 3 —

Habeas corpus is codified in Title 28, United States Code, 
which provides in pertinent part:

§ 2241. Power to grant writ:

(a) Writs of habeas corpus may be granted by the Su­
preme Court, any justice thereof, the district courts and 
any circuit judge within their respective jurisdiction . . .

(c) The writ of habeas corpus shall not extend to a prisoner 
unless—

(3) He is in custody in violation of the Constitution or 
laws or treaties of the United States . . . ”

§ 2254. State custody; remedies in Federal Courts;

(d) In any proceeding instituted in a Federal Court by an 
application for a writ of habeas corpus by a person in 
custody pursuant to the judgment of a State court, a 
determination after a hearing on the merits of a factual 
issue, made by a State court of competent jurisdiction 
in a proceeding to which the applicant for the writ and 
the State or an officer or agent thereof were parties, evi­
denced by a written finding, written opinion, or other 
reliable and adequate written indicia, shall be presumed 
to be correct, unless the applicant shall establish or it 
shall otherwise appear, or the respondent shall admit—

(1) that the merits of the factual dispute were not re­
solved in the State court hearing;

(2 ) that the factfinding procedure employed by the 
State court was not adequate to afford a full and fair 
hearing;

(3) that the material facts were not adequately de­
veloped at the State court hearing;

35



—  4

(4) that the State court lacked jurisdiction of the 
subject matter or over the person of the applicant in 
the State court proceeding;

(5) that the applicant was an indigent and the State 
court, in deprivation of his constitutional right, failed 
to appoint counsel to represent him in the State court 
proceeding;

(6 ) that the applicant did not receive a full, fair, and 
adequate hearing in the State court proceeding; or

(7 ) that the applicant was otherwise denied due proc­
ess of law in the State court proceeding;

(8 ) or unless that part of the record of the State court 
proceeding in which the determination of such factual 
issue was made, pertinent to a determination of the 
sufficiency of the evidence to support such factual de­
termination, is produced as provided for hereinafter, 
and the Federal court on a consideration of such part 
of the record as a whole concludes that such factual 
determination is not fairly supported by the record:

The Tennessee Rules of Criminal Procedure1 provide in per­
tinent part as follows:

Rule 6 . The Grand Jury.—(a) Formation erf the Grand 
Jury. 1

1 The Tennessee Rules of Criminal Procedure became effective 
on July 13, 1978. The Rules reflect the effort of the Supreme Court 
of Tennessee to provide uniform procedure in criminal matters. The 
Rules are to supplement the existing statutory procedural law, but 
the Committee comments to Rule 1 state: “It is intended that these 
rules be applied in every instance in which they address the procedure 
involved. If they do not expressly or by clear implication relate to 
the procedure in question, then existing law is to be applied. These 
rules take precedence over preexisting statutes and case law which 
are in conflict with them, but statutes passed subsequent to their 
adoption which conflict with these rules shall control”.

36



— 5 —

(1) Formation at a Regular Term.—The judge of the 
court authorized by law to charge the grand jury and to 
receive the report of that body shall, on the first day of each 
term of court at which a grand jury is required to be im­
paneled, direct the names of all the qualified jurors in at­
tendance upon the criminal courts of the county to be 
written on separate slips of paper and placed in a box or 
other suitable receptacle and drawn out by the judge in 
open court. The twelve qualified jurors whose names are 
first drawn shall, with the foreman, be the grand jury for 
the term and shall attend the court until dismissed by the 
judge or until the next term.

(b) Vacancies on the Grand Jury.

(2) Vacancy as to Grand Jury Foreman.—If for any rea­
son the foreman of the grand jury is unable to serve or is 
relieved, the court shall appoint a new foreman according 
to Subdivision (g) until such time as the foreman is able to 
serve or until expiration of his term.

(g) Appointment, Qualifications, Term, Compensation, 
Vote, and Duties of Foreman.—The judge of the court 
authorized by law to charge the grand jury and to receive 
the report of that body shall appoint the foremen of the 
grand juries in the counties of their respective jurisdictions. 
If concurrent grand juries are impaneled, a foreman shall 
be appointed for each grand jury. Every person appointed 
as a foreman shall possess all the qualifications of a juror. 
The foreman shall hold office and exercise his powers for a 
term of two (2 ) years from appointment; however, in the 
discretion of the presiding judge, he may be removed, re­
lieved, or excused from office for good cause at any time. 
It shall be the duty of such foremen of grand juries to assist

37



6  —

and cooperate with the district attorney general in ferreting 
out crime, to the end that the laws may be faithfully en­
forced; and such foremen are directed out of term to ad­
vise the district attorney general with respect to law vio­
lations and furnish him names of witnesses, whom the dis­
trict attorney general may, if he deem proper, order sum­
moned to go before the grand jury at the next term. In 
term time, the foreman or the district attorney general may 
order the issuance of supoenas for witnesses to go before 
the grand jury. The foreman may vote with the grand 
jury and his vote shall count toward the twelve necessary 
for the return of an indictment. A foreman shall receive 
as compensation a sum to be determined by the county 
legislative body, to be paid out of the county treasury in 
the same manner as jurors are paid, and shall receive no 
other compensation for his services. Such compensation 
shall not be less than ten dollars ($1 0 .0 0 ) per day for each 
day the grand jury of which he is foreman is actually in 
session and such sum shall not be diminished during his 
term of appointment.

(j) Witnesses Before Grand Jury.

(4) Oath of Grand Jury Witnesses.—Witnesses thus sum­
moned may be sworn by the clerk, or by the foreman of 
the grand jury, who shall indorse the fact on the subpoena, 
and sign his name to such indorsement officially.

(5) Power of Grand Jury Foreman to Administer Oath.— 
The foreman of the grand jury shall have power to ad­
minister oaths to all witnesses brought before the grand jury 
to testify as to the violations of the criminal laws in all 
cases where the clerks of the criminal and circuit courts 
may administer said oath.

38



7 —

Tennessee Code Annotated provides in pertinent part as 
follows:

40-1506. Appointment and term of foreman or fore­
woman.—Judges having criminal jurisdiction in any 
county, are authorized, and required to appoint the fore­
men or forewomen of the grand juries in the counties of 
their respective jurisdictions; and said foremen or fore­
women shall hold office and exercise their powers for a 
term of two (2 ) years from appointment, unless for good 
cause, in the discretion of the presiding judge, he may be 
removed, relieved, or excused from office at any time. 
Said foreman or forewoman shall be the thirteenth mem­
ber of each grand jury organized during his term of office, 
having equal power and authority in all matters coming 
before the grand jury with the other members thereof. 
[Acts 1919, ch. 37, § 1; Shan. Supp., § 5832al; mod. 
Code 1932, § 10026, Acts 1976 (Adj. S.), ch. 383, § 1.]

40-1507. Qualifications of foreman or forewoman.— 
Every person appointed as a foreman or forewoman of the 
grand jury under § 40-1506 shall be at least twenty-five 
(25) years of age, and shall be a good and lawful man or 
woman, possessing all the qualifications of a juror. Pro­
vided that no justice of the peace shall be eligible for ap­
pointment as foreman or forewoman of the grand jury, 
the provisions of this section requiring that no justice of 
the peace shall be eligible for appointment as foreman or 
forewoman of the grand jury shall not apply in those coun­
ties where arraignment in criminal cases is had exclusively 
before general sessions court. [Acts 1919, ch. 37, § 2; 
Shan. Supp., § 5832a2; Code 1932, § 10027; Acts 1957, 
ch. 252, §§ 1 , 2; 1976 (Adj. S.), ch. 383, § 2.]

40-1510. Duties of foremen or forewomen.—It shall be 
the duty of such foremen or forewomen of grand juries 
to assist and cooperate with the district attorney in ferret­

39



8 —

ing out crime, to the end that the laws may be faithfully 
enforced, and such foremen or forewomen are directed out 
of term to advise the district attorney with respect to law 
violations and furnish him names of witnesses, whom the 
district attorney may, if he deem proper, order summoned 
to go before the grand jury at the next term. In term time, 
the foreman or forewoman may order the issuance of sub­
poenas for witnesses to go before the grand jury, unless 
otherwise ordered by the district attorney. [Acts 1919, 
ch. 37, § 4; Shan. Supp., § 5832a4; Code 1932, § 10029; 
Acts 1976 (Adj. S.), ch. 383, § 5.]

40-1706. Concurrence in true bill.—An indictment can­
not be found without the concurrence of at least twelve 
(1 2 ) grand jurors, and, when so found, shall be indorsed 
“A true bill,” and the indorsement signed by the foreman. 
[Code 1858, § 5093; Shan., § 7055; Code 1932, § 11600.]

QUESTIONS PRESENTED

1. Whether Discrimination in the Selection of the Non-Vot­
ing Foreman of the Grand Jury Is a Basis Upon Which a State 
Prisoner May Be Granted Federal Habeas Corpus Relief When 
the Subsequent Trial Is Free of Reversible Constitutional Error, 
When There Has Been No Demonstration of Actual Prejudice 
and There Is No Rational Basis to Presume Prejudice, and 
When the State Has Provided an Opportunity for Full and Fair 
Litigation of the Claim?

2. Whether the Decision of the Court of Appeals Comports 
With the Clearly Erroneous Standard and With This Court’s 
Decisions Interpreting the Equal Protection Clause? 3

3. Whether, Assuming Arguendo, Systematic Exclusion of 
Blacks From the Post of Grand Jury Foreman in Tipton County,

40



—  9 —

the Doctrine of Harmless Error Can Be Applied When There 
Has Been No Actual Prejudice and No Rational Basis Exists 
Upon Which to Presume Prejudice?

STATEMENT OF THE CASE2 3

On October 28, 1972 Claudie Greer and William Nabors 
were murdered by the respondents during an armed robbery of 
a cafe3 in Tipton County, Tennessee. The respondent Nichols 
began the criminal episode by pistol whipping a customer. Then 
Nichols, wielding two pistols, forced the proprietor to hand over 
about five or six hundred dollars. Nichols also took other money 
from the proprietor and customers in the cafe. Then, for no 
apparent reason, Nichols fired several shots into the back room 
of the cafe and fled. Eyewitnesses testified that Claudie Greer, 
standing in the back room, fell and subsequently died after the 
shots were fired from the front room. Proof later showed that 
Greer was killed by a shot from a .38 caliber pistol.

Simultaneously, the co-respondent James Mitchell, armed 
with a sawed-off shot gun, was in the process of robbing persons 
in the back room. William Nabors was among these people. 
When Nabors bent over to pick up some change from the floor, 
Mitchell shot him through the mouth with the sawed-off shot

2 Unless otherwise indicated, the references contained within this 
statement are to pages of the state court record. The state court 
record was before both the federal courts below.

3 The race of the defendants, the victims, or the eye-witnesses was, 
of course, not an issue at trial. However, since the Court of Appeals 
has found racial discrimination and presumed prejudice, the race of 
these people is perhaps relevant here to demonstrate the total absence 
of prejudice and the lack of any evidence showing discriminatory in­
tent. The only evidence of race appears in Volume II, page 87 of 
the trial where on redirect examination the cafe’s proprietor testified 
he is black and black customers comprised almost 100  percent of his 
business. There is nothing in the record to support any conclusion 
except that the victims and witnesses were also black.

41



—  10

gun, ending his life. Mitchell then went into the front room, 
took more money from the proprietress and also fled.

The next day Mitchell and Nichols were arrested together in 
the Memphis apartment of Nichols’ girlfriend. A .38 caliber 
pistol was recovered from Nichols at the time of his arrest, and 
a ring taken during the robbery was found at the scene of arrest. 
A sawed-off shot gun and blood splattered clothing were then 
found in the apartment of Mitchell’s girlfriend. After his arrest, 
Mitchell gave a confession to members of the Memphis Police 
Department.

Nichols and Mitchell were jointly indicted in two indictments 
on November 6 , 1972. The grand jury was composed of twelve 
jurors, one being a black woman, and one acting foreman. The 
regular foreman of the grand jury was unavailable and the trial 
judge chose a former foreman as his substitute. The former fore­
man was chosen to serve by the trial judge because he had previ­
ously served as a regular foreman, had previously served as an 
acting foreman, had been willing to perform in the past, and 
according to the judge’s experience had always served well.4 

Although some twenty (20) witnesses were scheduled to testify 
before the grand jury, the grand juors unanimously voted to 
indict the respondents after hearing one police officer testify. 
This witness did not mention the race of the respondents and 
this fact was not known to either the acting foreman or the 
other members of the grand jury.5 The acting foreman did not 
vote on the indictment because of the unanimity, but he did 
sign the indictment, as is required by Tennessee law. (T.C.A. 
§ 40-1706).

4 See Affidavits submitted by the state trial judge and the acting 
foreman. These affidavits formed part of the state’s response in the 
U. S. District Court and were also before the Court of Appeals. (App.
pp. 102-1 1 1 ).

5 See Affidavit of acting foreman, App. p. 102, and the testimony 
on the plea in abatement. App. p. 111.

42



— 11 —

Prior to trial, the petitioners filed a plea in abatement asking 
for dismissal of the indictment and alleging the grand jury and 
foreman were selected in a constitutionally offensive manner, 
(p. 21). On March 13, 1973 an evidentiary hearing was held in 
state court. At that hearing, three jury commissioners of Tipton 
County, three former foremen of the Tipton County Grand Jury, 
eleven of the grand jurors who indicted the respondents (one 
was out of town), and the circuit court clerk of Tipton County 
all testified. All witnesses were subject to full examination by 
rounsel for the respondents. The proof elicited demonstrated 
the plea in abatement was without merit. There was a total lack 
of countervailing evidence. The state court overruled the plea 
in abatement. (App. pp. 35, 36)

Trial was held on March 21 and March 22 of 1973 in the 
Circuit Court of Tipton County. The state introduced the testi­
mony of five eyewitnesses who identified Nichols and five eye­
witnesses who identified Mitchell as the murderers, (pp. 65, 70, 
90, 92, 98, 126, 131, 142, 143, 211, 242, 243, 244, 255, 266, 
282). In addition, a redacted version of Mitchell’s confession 
was introduced. Proof showed the recovery of the murder 
weapons from the respondents and showed that a ring stolen 
during the crime was recovered from the scene of arrest. The 
defense proof consisted almost wholly of a testimonial denial by 
Nichols of any participation. The jury found both respondents 
guilty of first degree murder and sentenced them to sixty years 
incarceration on each count, (pp. 357-360).

The respondents appealed their convictions first to the Ten­
nessee Court of Criminal Appeals where they made some twelve 
assignments of error including assignments attacking the com­
position of the grand jury and the selection process for grand 
jury foreman. In a unanimous opinion, the Court of Criminal 
Appeals affirmed the convictions and found, “the facts here do 
not demonstrate a systematic exclusion of Negroes upon racial

43



—  1 2 -

grounds”. (App. pp. 38, 39) The Supreme Court of Tennessee 
denied certiorari. (App. 42).

The respondents’ resort to the federal court system began as 
separate applications for federal habeas corpus relief in the 
United States District Court for the Western District of Ten­
nessee, Western Division. The initial petitions for habeas corpus 
relief each included some eleven grounds. In the district court, 
the cases were consolidated and twice referred to the magistrate 
for report. The state filed four separate responses, the entire 
state transcript, and affidavits from the state trial judge and the 
acting foreman of the indicting grand jury. After reviewing the 
first state response, the state trial court record, and the first re­
port on reference, the district judge, on February 17, 1976, dis­
missed all claims except the selection issues and a Bruton issue. 
(App. p. 98). On these issues, the district court ordered further 
response and another reference to the magistrate. On February 
17, 1977, by memorandum and order, the district court found 
the Bruton violation to be harmless beyond a reasonable doubt 
and further found that the acting foreman was selected for 
other than racial reasons. The petitions were dismissed. (App. 
p. 123). A final order denying a motion to amend judgment 
was entered by the district court on March 23, 1977. (App. p. 
124).

The respondents appealed to the Court of Appeals for the 
Sixth Circuit which reversed the district court on January 9, 
1978. (App. p. 127). The Court of Appeals found discrimina­
tion in the selection of the grand jury foreman in Tipton County, 
and set aside the convictions. The state sought the Writ of Cer­
tiorari from this Court which was granted on October 2, 1978.

44



—  13 —

ARGUMENT

I

State Prisoners Should Not Be Granted Federal Habeas Cor­
pus Relief 05i a Claim Questioning the Selection of the Non- 
Voting Foreman of Their Grand Jury When Their Subsequent 
Trial Is Free ©f Reversible Constitutional Error, When There 
Has Been No Demonstration of Actual Prejudice and There Is 
No Rational Basis to Presume Prejudice, and When the Claim 
Has Been Fully and Fairly Litigated in State Court

The Court of Appeals for the Sixth Circuit has voided two 
state first degree murder convictions obtained more than five 
years ago. The Sixth Circuit’s decision is based on a finding 
that the non-voting acting foreman of the indicting grand jury 
was selected in a discriminatory manner. The Sixth Circuit has 
granted habeas corpus relief on the basis of perceived error oc­
curring during the now moot accusatorial stage. The relief has 
been granted without a demonstration of prejudice and upon 
a record which can not support any reasonable presumption of 
prejudice. The Sixth Circuit decision comes after three state 
courts had denied relief, the district court had dismissed the 
petitions without an evidentiary hearing, and despite a record 
which demonstrates:

1. The race of the respondents was unknown to either the 
acting foreman or other members of the grand jury (App. pp. 
28, 29, 33);

2 . the grand jury contained a black woman, who testified in 
state court and established the total absence of any racial con­
sideration; (App. p. 32)

3. the regular foreman was unavailable and a former fore­
man was picked by the trial judge to replace him solely because 
the trial judge knew of his demonstrated ability, his willingness

45



14

to serve, and his availability; App. pp. 19-24, 105, 106, 112, 
113)

4. the acting foreman did not vote on the indictment because 
of the grand jury’s unanimity; (App. p. 105)

5. although some twenty witnesses were scheduled, the grand 
jury unanimously voted to indict after hearing one witness; 
(App. p 24)

6 . the selection of the grand jury itself is an issue previously 
resolved in favor of the state; (App. p. 122)

7 . the subsequent trial was without reversible constitutional 
error and the petit jury was not an issue;

8 . the evidence against respondents at trial included five eye­
witness identifications for each, a confession, recovery of the 
murder weapons from the respondents, and other physical evi­
dence; and (App. pp. 91, 116-121)

9 . the issue of grand jury foreman selection was fully and 
fairly litigated in state court. (App. pp. 3-36)

The Great Writ, habeas corpus ad subjiciendum, has de­
servedly enjoyed a prestigious place in the history of Anglo- 
American jurisprudence. Elaborate and scholarly discussions of 
the Great Writ and its evolution can be found in the decisions of 
of this Court and other legal writings. See Fay v. Noia, 372 
U.S. 391, 399-426, 449-463 (1963); Prieser v. Rodriguez, 
411 U.S. 475, 484-487 (1973); Stone v. Powell, 428 U.S. 465 
(1976); “Developments in the Law—Federal Habeas Corpus”, 
83 Harv. L. Rev. 1038, 1042-62, 1263-74 (1970); Oakes, 
“Legal History in the High Court—Habeas Corpus”, 64 Mich. 
L. Rev. 451-68 (1966); Bator, “Finality in Criminal Law and 
Federal Habeas Corpus for State Prisoners”, 76 Harv. L. Rev. 
441, 463-507 (1963). As Mr. Justice Powell wrote in Schneck- 
loth v. Bustamante, 412 U.S. 218, 255-56 (1973):

46



—  15 —-

Much, of course, has transpired since that first Habeas 
Corpus Act (citations omitted). The scope of federal habeas 
corpus for state prisoners has evolved from a quite limited 
inquiry into whether the committing state court had juris­
diction (citations omitted), to whether the applicant had 
been given an adequate opportunity in state court to raise 
his constitutional claims (citation omitted); and finally to 
actual redetermination in federal court of state court rulings 
on a wide variety of constitutional contentions (citation 
omitted).

The noble purpose of the Great Writ was and should remain 
to determine whether a violation of a personal constitutional 
right has resulted in the deprivation of liberty. See Fay v. Noia, 
372 U.S. at 423, 424. However, through the years this noble 
purpose has been joined by other purposes at the substantive 
scope of the writ was expanded. This expansion has resulted 
from the employment of the Great Writ to further society’s 
interest in preserving the integrity of the judicial system and 
'implementing minimum constitutional standards within the 
nation’s criminal justice system. Society’s interests have been 
fostered by this expansion, but the issue of undeserved or unjust 
incarceration has become almost secondary. In fact, since this 
Court’s decision in Fay v. Noia, federal habeas corpus relief 
has, in reality, been a continuation of the state appellate process. 
Society’s interests now demand a reconsideration of the ap­
plicability of this form of relief to pre-trial constitutional errors 
which have no real relationship to the deprivation of liberty. The 
issuance of the writ should again depend primarily on a rela­
tionship between constitutional error and deprivation of liberty.

The Sixth Circuit has not determined that Tennessee is incar­
cerating two possibly innocent individuals. Any reasonable per­
son viewing the overwhelming evidence admitted at trial must 
conclude that retrial will reach the same result if the state can 
resurrect evidence which is now more than five and one-half

47



- 1 6 -

years old.6 Therefore, if guilt is unquestioned, if the trial is 
without reversible flaw, and if there is no basis to reasonably 
presume any prejudice to respondents from the preceived error, 
then the rationale supporting the writ’s issuance must be remedial. 
The Sixth Circuit’s opinion supports this conclusion: . . there
is injury to the jury system, to the law as an institution, to the 
community at large, and to the democratic ideal reflected in 
the processes of our courts”. (See App. p. 140). The result is 
that a conviction, no matter how overwhelming, can not with­
stand a pre-trial procedural constitutional error unrelated to the 
fact finding process. This philosophy is remedial and similar to 
the rationale which formerly supported federal habeas relief 
to state prisoners asserting Fourth Amendment claims.

The decision of the Sixth Circuit, in reality, represents an 
expansion of the substantive scope of federal habeas corpus 
relief for remedial purposes. At least since Neal v. Delaware, 
103 U.S. 370, 397 (1881) this Court has sanctioned the extra­
ordinary relief of quashing the indictment when the grand jury 
itself was selected through a racially discriminatory system. How­
ever, not until this case has this extraordinary relief been applied 
to a situation when only the selection of a non-voting foreman 
is at issue. The extraordinary relief was allowed in Neal, to a 
great extent, because of a lack of existing alternative remedies, 
and because of the importance of the grand jury.7 As a result,

6 This condition is not a small consideration and is a significant 
cost factor. Reconstruction of a trial is never a certainty, especially 
after five and a half years. The cost to society in terms of money is 
obvious. The cost in other terms is also quite clear. See, Stone v. 
Powell, 96 S. Ct. at 3050-52; Schneckloth, at 259 (Powell, J., concur­
ring) and Kaufman v. United States, 394 U.S. 217, 231 (1969) 
(Black, J., dissenting). Perhaps, the biggest cost is the loss of public 
confidence in the system. The system has obviously failed when the 
cost overcomes the benefit. The criminal justice system should not 
be a game of endurance where guilt or innocence is a secondary con­
sideration.

7 See also Hale v. Henderson, 485 F.2d 266, 272 (6th Cir. 1973) 
(Lambros, J., concurring).

48



—  1 7 -

grand jury selection systems have been changed and society has 
been the benefactor.8 The cost has been justified. However, 
alternative remedies now exist. Turner v. Fouche, 396 U.S. 
346 (1970) and Carter v. Jury Commission, 396 U.S. 320 
(1970) were not habeas cases and demonstrate the benefits can 
be achieved through class action litigation without much of 
the cost attendant to habeas corpus proceedings. Other alterna­
tives also exist including criminal sanctions, 18 U.S.C. § 243; 
and the state remedies which in Tennessee include two levels 
of appellate review and the state post-conviction law. Tenn. 
Code Ann. § 40-3801, et sequel. Finally, an individual is en­
titled to seek the direct review of this Court after a decision of 
the State Supreme Court.

As a remedial device the Sixth Circuit’s decision is a failure 
and classically demonstrates the peculiar inappropriateness of 
habeas corpus for such purposes. The reindictment and retrial 
of the respondents does not change the system of foreman selec­
tion in Tennessee. The impact of the decision, besides the waste 
in resources, may only be to subject each trial judge to a sub­
jective scrutiny of his motivations for selection. Thereis no real 
benefit to society since a racially motivated judge would pre­
sumably disguise his true motivations. Assuming error, the 
cure is not attained, the cost outweighs the benefit, the system 
has failed.9

8 See Whitus v. Georgia, 385 U.S. 545 (1966) (coding by race 
eliminated); Hernandez v. Texas, 347 U.S. 475 (1954) (exclusion 
by ancestry barred); Norris v. Alabama, 294 U.S. 587 (1935) (rule 
of exclusion adopted).

9 Assuming the remedial goal is to assure that black citizens have 
equal access to the post of foreman, then the position of petitioner is 
that the present system works. It is fair to assume that the people erf 
Tennessee will today select as their trial judges people of integrity 
who realize their responsibility to allow and encourage all citizens 
to participate in the system. It is unfair to test this assumption by 
history, either in Tennessee or anywhere else. More importantly, if 
this system does not work then the change is best made through other 
procedures, including class action litigation (where the relief can be 
more than retrial affords); legislative action; and even the political 
process.

49



- 1 8 -

In Stone v. Powell, 428 U.S. 465 (1976), this court deter­
mined that, as the remedial purposes embodied in the Fourth 
Amendment exclusionary rule would no longer effectively be 
served through collateral federal habeas corpus relief, 10 11 the 
need for § 2254 adjudication of such claims (once the state has 
provided a full and fair opportunity to litigate the claim) was 
far outweighed by the judiciary’s interests in “ (i) the most 
effective utilization of limited judicial resources; (ii) the neces­
sity of finality in criminal trials; (iii) the minimization of fric­
tion between federal and state systems of justice, and (iv) the 
maintenance of the constitutional balance upon which the 
doctrine of federalism is founded”. Stone v. Powell, 428 U.S. 
465, 491 n.31 (1976).

The proposition here put forth is that the rational of Stone 
should extend beyond cases involving Fourth Amendment 
claims and should encompass a case such as the one sub judice, 
where a constitutional infirmity11 occurs during the accusatory 
stage of the criminal process and has been mooted by the sub­
sequent trial and conviction. 12 The nature of respondent’s

10 28 U.S.C. §2254.

11 This characterization is solely for the purpose of presenting this 
portion of the brief. No concession of error in the selection process 
is intended.

12 This very extension of the doctrine and philosophy of Stone 
was expressly recognized by the district court in the instant case. In 
the post-decision order of March 23, 1977, Chief Judge Brown 
stated: “Since this court made the determination that this contention 
be dismissed, our determination is further supported by the decision 
of the Supreme Court of the United States in Stone v. Powell, — 
U.S. —, 49 L. Ed. 2d 1067 (1976). As we read that decision, where 
the claim of constitutional error does not go to the integrity of the 
fact finding process so far as the conviction is concerned, if the peti­
tioner received a full and fair hearing in state court as to his claim, 
the federal court will not review the determination by the state court. 
Thus, not only have we found the decision in the state court to be 
correct, but also it appears that, since the contention was fairly heard 
in state court petitioners are not entitled to another review here”. See 
App. p. 124.

50



- 1 9 -

claim; its attenuated relation to the integrity of the fact finding 
process, fairness of the trial, or guilt or innocence of the accused; 
and the particular inappropriateness of federal habeas corpus 
as a means to adjudicate the interests of society, all weigh 
against the issuance of the writ in this case.

In Castaneda v. Partida, 430 U.S. 482 (1977), Mr. Justice 
Powell, in dissent, 13 specifically recognized “a strong case may 
be made that claims of grand jury discrimination are not cog­
nizable on federal habeas corpus after Stone v. Powell . . . ” 
Mr. Justice Powell explained in Castaneda that the rationale of 
Stone is better applied to a case involving a tainted indictment 
than a case involving the admission of tainted evidence. As 
stated by Mr. Justice Powell:

Unlike the prisoner in Stone, who could complain that his 
conviction rested on evidence tainted by Fourth Amend­
ment violations and could ask for a new trial with that 
evidence excluded, the prisoner in this case challenges only 
the now moot determination by the grand jury that there 
was sufficient cause to proceed to trial. He points to no 
flaw in the trial itself. As in Stone, the incremental bene­
fit of extending habeas corpus as a means of correcting 
unconstitutional grand jury selection procedures might be 
viewed as outweighed by the acknowledged costs to other 
values vital to a rational system of criminal justice.

Castaneda, at 1287, footnote 1 .

The matter sub judice presents facts more appropriately 
suited for an application of the Stone rationale than the facts

13 Mr. Justice Powell’s dissent was joined by the Chief Justice and 
Mr. Justice Rehnquist. Mr. Justice Stewart, separately dissenting, 
stated that he was in substantial agreement with the other dissenting 
opinions. Castaneda, at 1287. The issue of extending the rationale of 
Stone, was not before the Court in Castaneda. The issue had not 
been addressed in the lower courts and was not briefed or argued in 
this Court.

51



—  20

before this Court in Castaneda. In Castaneda the composition 
of the entire Grand Jury was in question. In this matter, only 
the selection of the non-voting foreman is in question. Fur­
thermore, in Castaneda the Mexican-American surname of the 
defendant is a fact upon which a presumption of prejudice 
could rest. In the instant matter the evidence demonstrates 
that the race of respondents was unknown to the grand jury 
when the indictment was returned. (App. pp. 28, 29, 33)

As indicated in Castaneda, there is no peculiar characteristic 
regarding claims of grand jury selection irregularities which 
would weigh against an extension of the Stone logic beyond 
the Fourth Amendment. This Court has previously stated fed­
eral habeas relief is not automatically available to a state 
prisoner who pled guilty and later attacked the grand jury se­
lection process, Tollett v. Henderson, 411 U.S. 258 (1973). 
More recently this Court held a state prisoner was not entitled 
to habeas relief on grand jury selection grounds when he failed 
to conform with a state requirement that such objections be 
raised before trial, absent a showing of both cause and actual 
prejudice. Francis v. Henderson, 425 U.S. 536 (1976). Both 
the result and rationale of Stone, Francis, and Tollett are in­
consistent with the decision of the Sixth Circuit in this case. 14

Stone, Francis, Tollett and Swain amply demonstrate the 
sensitivity which this Court has always applied to cases which 
require a consideration of the need to preserve and maintain 
rational state procedures even when they affect (and override) 
federal constitutional claims. The grant of federal collateral 
relief must be balanced against other values endemic to a 
rational system of criminal justice; including the need to pre­
serve the integrity of the state system, the need to avoid du­

14 See also Swain v. Pressley, 97 S.Ct. 1224 (1977) where the 
availability of an adequate local statutory remedy for the adjudica­
tion of federal rights in the District erf Columbia was seen as suf­
ficient to vitiate the need for 28 U.S.C. § 2255 relief.

52



21

plicative judicial effort, and the values of finality. 13 See Preiser 
v. Rodriguez, 411 U.S. 475, 492 (1973); Case v. Nebraska, 
381 U.S. 336, 340 (1965) (Clark, J., concurring); Henry v. 
Mississippi, 379 U.S. 443, 452-453 (1965); Younger v. Har­
ris, 401 U.S. 37 (1971), c.f. Kirkland, the Federal Court 
Abstention Doctrine, 24 F.R.D. 481 (1959).

The dual system of review resulting from the expansion of 
the scope of federal habeas corpus has come under increas­
ingly sharp attack by both federal and state judges and legal 
commentators as both an inappropriate use of scarce judicial 
resources and a needless federal imposition on state authority. 
See Friendly, Is Innocence Irrelevant? Collateral Attack on 
Criminal Judgments, 38 U. Chi. L. Rev. 142 (1970), Bator, 
Finality in Criminal Law and Federal Habeas Corpus for State 
Prisoners, 76 Harv. L. Rev. 441 (1963), Speech of Justice 
Paul C. Reardon, Address at the Annual Dinner of the Section 
of Judicial Administration, American Bar Association, San 
Francisco, Cal., August 14, 1972 ((pp. 5, 9, 10) (quoted in 
part in Schneckloth v. Bustamonte, 412 U.S. 218, 264 (n. 
21 (1972)).15 16 * 18

15 The value of finality is more than economic. Continual relitiga­
tion of alleged errors years after conviction and incarceration is costly
in terms of a rational system of corrections and rehabilitation. “ . . . 
we should at least tentatively inquire whether an endless reopening 
of convictions, with its continued underlying implication that perhaps 
the defendant can escape from corrective sanctions after all, can be 
consistent with the aim of rehabilitating offenders . . . The idea 
of just condemnation lies at the heart of criminal law, and we should 
not lightly create processes which implicitly belie its possibility”. 
Bator, supra at 452.

18 For an example, see United States ex rel. Stephen J.B. v. Shel­
ley, 430 F.2d 215 (2d Cir. 1970) where a district judge without hear­
ing any further evidence, annulled the unanimous holding of 13 New 
York appellate judges including a unanimous opinion of the Court 
of Appeals. People v. Stephen J.B., 23 N.Y.2d 611, 246 N.E.2d 
344, 298 N.Y.S.2d 489 (1969) on the admittedly close question of 
the application of Miranda v. Arizona, 384 U.S. 436 (1966). What 
made this ruling especially disturbing is that the defendant had al-

53



—  22 —

Such duplication of effort has not been without substantial 
cost to the federal judiciary. Petitions for federal habeas 
corpus filed by state prisoners have increased from 1 ,0 2 0  in 
1961 to 7,033 in 1978. Although after State v. Powell, the 
number of such petitions had decreased (down 12.3% be­
tween 1976 and 1977), it is apparent that such filings are on 
the increase again (up 2.4% to 7,033 between 1977 and 
1978). During the year 1978, state prisoner petitions (includ­
ing both civil rights and habeas corpus), represented 1 2 .2 % 
of all civil filings in the district courts. In the appellate courts 
state prisoner petitions accounted for 7.7% of the filings. Al­
though this marks a decrease of 1 1 .2 % over the last year, it 
is worthy to note that such petitions have taken up over 13% 
of the appellate work-load in three circuits, amounting to over 
27.2% of all filings in the Fourth Circuit. See 1978 Annual 
Report of the Director of the Administrative Office of the 
United States Court, 47, 76.

The determination in 1953 that state procedures for the 
remedy of federal constitutional claims were inadequate,* 17 

which, in part, prompted this court’s decision in Fay v. Noia, 
372 U.S. 391 (1963), is no longer true. The states have con­
tinuously sought to strengthen their own post-conviction pro­
cedures18 and have not hesitated to disqualify juries where a

ready been placed on probation, and because of his juvenile status, 
his conviction carried with it no civil consequences. See Shelly, 
supra, 430 F.2d 215, 219 (dissent). In the instant case the judgment 
of 10 judges (9 state and 1 district judge) has been overturned by 
the Court of Appeals.

17 See Report of the Special Committee on Habeas Corpus to the 
Conference of Chief Justices, June 1953, printed in H.R. Rep. No. 
1293, 85th Cong. 2d Sess. 7 (1958), Reits, Federal Habeas Corpus, 
108 U.Pa.L.Rev. 461, 466 (1960), Case v. Nebraska, 381 U.S. 336, 
339 (1965) (Clark, J. concurring).

18 See generally, State Post Conviction Remedies and Federal 
Habeas Corpus, 12 W&M L.Rev. 149 (1970), Eisenberg, Post-Con­
viction Remedies in the 1970’s, 56 Marquette L. Rev. 69 (1972).

54



23 —

prima facie case of discrimination in the choosing of the venire 
has been shown. 19 The Uniform Post Conviction Procedures 
Act20 has been approved in eleven (11) states, and many 
others have seen fit to pass their own comprehensive statutes 
in recent years.21 Justice Powell stated the current position of 
this Court best in Stone v. Powell, “ . . . we are unwilling to 
assume that there now exists a general lack of appropriate 
sensitivity to constitutional rights in the trial and appellate 
courts of the states.” Stone v. Powell, 428 U.S. at 493 (n. 35).

The Sixth Circuit’s grant of federal habeas corpus relief in 
this cause is contrary to recent decisions of this court inter­
preting the substantive scope of the writ. In fact, the Sixth 
Circuit’s decision represents an unnecessary extension of the 
writ’s substantive scope. The relief ordered in this cause is 
contrary to the historical and meaningful purpose of the Great 
Writ. The record demonstrates with unmistakable clarity that 
there is no unconstitutional deprivation of liberty. Any bene­
fit achieved is available through other means, at much less 
cost. Without any real remedial impact and without any real

19 See Barrow v. State, 239 Ga. 162, 236 S.E.2d 257 (1977); 
State v. Plenty Horse, 85 S.D. 401, 184 N.W.2d 654 (1971); State 
v. Silva, 259 So. 2d 153 (Fla. 1972).

20 11 U.L.A. § 485 (1966).

21 See Ga. Code Ann. § 50-105—50-127 (1967), N.C. Gen. 
Stat. n. 8 , § 15-217—15-222 (1959), Wis. Stats. § 974.06 (1969). 
Partially as a response to particular criticism of the protection of 
rights in state courts in the south, Tennessee has passed its own de­
tailed Post Conviction Review Act, Tenn. Code Ann. § 40-3801 
et seq. (1967), providing for review of any claim of incarceration 
contrary to the state or federal constitutions. See Eades, Appellant 
and Post Conviction Relief in Tennessee, 5 Memp. State L. Rev. 
(1974). The Tennessee courts have further not hesitated to strike 
down grand juries where a prima facie case of discrimination has 
been shown. See Bonds v. State, 220 Tenn. 555, 421 S.W.2d 87 
(1966); State v. Jefferson, 529 S.W.2d 654, 680 (Tenn. 1975); 
Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132 (1946) cert, de­
nied 333 U.S. 846 (expressly approved in Tollett v. Henderson, 411 
U.S. 258, 277 (Marshall, J. dissenting).

55



—  24 —

question of possible innocence, the issuance of the writ of 
habeas corpus in this case becomes a hollow victory with no 
celebrants. The Great Writ should not be employed when 
neither the personal nor societial benefits can be identified.

II

The Sixth Circuit’s Decision Does Not Comport With the 
Clearly Erroneous Standard and Is Contrary to Decisions of 
This Court Regarding the Equal Protection Clause.

Tennessee uses the key man system of jury selection. Three 
jury commissioners are appointed by the trial judge in each 
county. Following statutory guidelines, these commissioners 
compile a jury pool from which both grand and petit juries are 
randomly drawn. See Term. Code Ann. § 22-223-243 and 
Tenn. Code Ann. § 40-1501-1505. The grand jury foreman 
or forewoman22 is selected in a different manner. The crim­
inal court judge appoints the foreman for a term of two years. 
The foreman may be chosen from the general population and 
otherwise qualified to serve on the grand jury. See Tenn. Code 
Ann §§ 40-1506, 1507. The foreman becomes the thirteenth 
grand juror and is required by law to sign all true bills. Tenn. 
Code Ann. § 40-1506, 1706.23

The United States Constitution does not guarantee to a state 
defendant the right to a grand jury. Hurtado v. California, 
110 U.S. 516 (1884). However, this Court has long held that 
a criminal defendant is denied equal protection of the law if, 
as a result of purposeful discrimination, members of his own

22 Hereinafter, only the masculine designation will be used. The 
statute uses both.

23 Tenn. Code Ann. § 40-1706 requires the concurrence of twelve 
grand jurors to return a true bill. Although the foreman must sign 
all true bills, his vote is not necessary to indict

56



25 —

race are excluded from grand jury service. Strauder v. West 
Virginia, 100 U.S. 303, 309 (1880). The early cases involved 
absolute exclusion but today the principle is established that 
substantial under-representation constitutes a constitutional vio­
lation, if the cause is purposeful discrimination. Castaneda, 
97 S.Ct. at 1279; Turner v. Fouche, 396 U.S. 346, 359 (1970).

A criminal defendant, in order to prove an equal protection 
violation in the context of grand jury selection, must first estab­
lish that the excluded group is a distinct class, singled out for 
different treatment under the laws. Next the defendant must 
prove the degree of under-representation. Finally the defendant 
must show that the selection procedure is susceptible to abuse. 
Castaneda, 97 S.Ct. at 1280; Alexander v. Louisiana, 404 
U.S. 625, 630, 632 (1972); Akins v. Texas, 325 U.S. 398, 403- 
404 (1945). K substantial under-representation is demon­
strated and the other requirements shown, then a prima facie 
case is made and the burden shifts to the state to rebut the case. 
Castaneda, 97 S.Ct. at 1279; Alexander, 405 U.S. at 632; See 
also, Whitus v. Georgia, 385 U.S. 545 (1967).

The method of proving an equal protection violation in the 
context of grand jury selection is sometimes called the “rule 
of exclusion.” This method of proof may give rise to a presump­
tion of unconstitutional action which will prevail if unrebutted. 
Washington v. Davis, 426 U.S. 229, 241 (1976). However, 
the essential element of inviduous discriminatory purpose is still 
required. “The central purpose of the Equal Protection Clause 
of the Fourteenth Amendment is the prevention of official con­
duct discriminating on the basis of race.” Washington, 426 U.S. 
at 239. A prima facie case fails when the presumption is dis­
pelled by plausible evidence demonstrating the official action was 
not racially motivated. Castaneda, 97 S.Ct. at 1282; Turner, 
396 U.S. at 361.

There can be no doubt that a Court of Appeals may set aside 
a district court’s findings in a habeas action only if they are

57



26 —

clearly erroneous. Fed. Rule Civ. Proc. 52(a), 81 (a)(2 ); 
Castaneda v. Partida, 430 U.S. 482, 97 S. Ct. 1272, 1286 
(1977) (Stewart, J. dissenting). The district court below dis­
missed the foreman selection issue, finding “that the foreman 
was selected for other than racial reasons. . . .” and “that this 
issue had been adequately investigated by the state trial judge 
and his determination that there had been no racial discrimina­
tion was correct.” 24 These findings can not be said to be clearly 
erroneous.

Certainly, black people are a distinct class satisfying the 
first element of proof. Further, the Tennessee system, which 
allows the criminal judge to exercise his discretion in selecting 
a foreman, could be used to discriminate. Therefore, in order 
to make a prima facie case the respondents were required only 
to demonstrate substantial under-representation over a sig­
nificant period of time. The proof on this element is very ques­
tionable25 but was sufficient for the district judge to find a prima

24 The district judge also based his decision on Stone v. Powell, 
428 U.S. 465 (1976), as is discussed above. Although not cited in 
his memoranda, the district judge’s decision is also a correct applica­
tion of 28 U.S.C. 2254(d).

25 The opinion of the Sixth Circuit is very misleading on a number 
of points relating to the evidence adduced by respondents, the rebut­
tal evidence, and the procedure below:

(a) First, there was no hearing of any kind in district court in 
this case. All references in the opinion to a “hearing” are to the 
hearing in state court on the plea in abatement. The transcript of this 
hearing was before the federal courts.

(b) Second, the opinion states “There has never been a black 
foreman or forewoman in Tipton County according to the recollec­
tions of the trial judge, three jury commissioners, and three former 
foremen”. In fact, the record shows that the three jury commissioners 
never testified on this issue whatsoever, and the trial judge’s affidavit 
does speak to his recollection but only to the present. See, state rec­
ord, Vol. I, pp. 55-71). Therefore, the total evidence of substantial 
underrepresentation is drawn from the testimony of three foremen. 
One had only served for two years in the early seventies. One served

58



27

facie case. The state responded with two affidavits, from the 
acting foreman and the trial judge. These affidavits demon­
state with frankness and clarity the solely pragmatic reasons 
why the foreman was selected. Simply stated, the regular fore­
man was unavailable so the judge chose a former foreman be­
cause of his availability, his willingness, his experience, and his 
demonstrated ability. The reasons for selection are very credible 
and demonstrate a responsible and natural course of human ac­
tion which is wholly void of racial consideration. The district 
court so found and this finding can not be said to be clearly 
erroneous.

The decision of the Sixth Circuit is contrary to a long, un­
broken line of decisions by this Court requiring proof of in­
tentional discrimination to sustain an equal protection claim. 
See Castaneda, 97 S. Ct. at 1279; Washington, 426 U.S. at 
239; Village of Arlington Heights v. Metropolitan Housing De­
velopment Corporation, 429 U.S. 252 (1977); Turner, 396 
U.S. at 361; and Carter v. Jury Commissioners, 396 U.S. at 
339. Analogous to the facts in Carter, the proof here only 
shows that the post of foreman has not been held by a black 
according to the recollection of three foremen. Unlike Carter, 
the facts here also show a plausible, credible, non-racially 
motivated reason for the selection in issue. This reason is dif­
ferent from the general, self-serving explanations rejected by 
this Court in Turner. The reason here is pragmatic and sup­
ported by facts admitted by both sides. The rejection of this 
reason establishes a standard which can only be met by ran­
dom selection or historical proportional representation. This 
is contrary to the decisions of this Court. See especially, Carter, 
396 U.S. at 339. * I,

“5 or 6 years” in the early sixties. The third served “several years” 
in the fifties. Two of them had also substituted. These recollections 
form the whole proof of underrepresentation. {See, state record, Vol.
I, pp. 71-82).

59



28

The Sixth Circuit decision has in effect extrapolated from the 
doctrine that “a person intends the natural consequences of his 
acts”. See Rabinowitz v. United States, 366 F.2d 34 (5th Cir. 
1966). Such a rule may aptly be applied to a situation such as 
Rabinowitz or other cases where the validity of a system is at 
issue. There a drastic statistical disparity is only plausibly ex­
plained by either invalid procedure or intentional discrimina­
tion. Thus, historical statistics are valid criteria against which a 
system may be tested. However, history is not a valid criteria 
against which one man’s motivations may be tested. The system 
of selection for foremen in Tennessee is essentially—the discre­
tion of one man. When the system is such, then history is ir­
relevant. Only the individual’s motivation and maybe his per­
sonal history are valid in assessing his intent. Given these 
considerations, the prima facie case here built on historical 
statistics is virtually meaningless. However, the clear and con­
vincing pragmatic motivation set out in the affidavit of the 
trial judge is most meaningful. The district court accepted these 
motivations and refused to find discriminatory intent. The dis­
trict court’s finding is not clearly erroneous.

Ill

Error, if Any, Was Harmless Beyond a Reasonable Doubt.

Assuming, without conceding, error in the selection of the 
acting foreman and that the issue is cognizable on federal 
habeas corpus, the error was harmless beyond a reasonable 
doubt. Harrington v. California, 395 U.S. 250 (1969); Chap­
man v. California, 386 U.S. 18 (1967).

The perceived error involves the selection of the acting fore­
man. The foreman did not vote for indictment, and his only 
involvement was to call one witness, swear in the witness, ask 
the grand jury if they were ready to vote, and sign the indict-

60



29 —

ment. If error, this is a now moot procedural error which had 
no effect on the integrity of the trial. Ironically, a Bruton26 
type error in this case has been declared harmless by all re­
viewing courts. Bruton errors certainly have the potential of 
affecting the reliability of the fact finding process. The fore­
man selection error, if any, had no such potential. See also 
Brown v. United States, 411 U.S. 223 (1975).

CONCLUSION

“Our goals are truth and justice, and procedures are but 
means to these ends. Truth and justice are ultimate values, so 
understood by our people, and the law and the legal profession 
will not be worthy of public respect and loyalty if we allow 
our attention to be diverted from these goals.” Oaks, “Ethics, 
Morality, and Professional Responsibility,” 3 B.Y.U.L. Rev. 
591, 596 (1975). For these values, and for the other reasons 
explained in this brief we respectfully pray that the judgment 
of the Court of Appeals be reversed and that the petitions for 
the writ of habeas corpus be dismissed.

WILLIAM M. LEECH 
Attorney General

ROBERT E. KENDRICK 
Deputy Attorney General

MICHAEL E. TERRY 
Assistant Attorney General

450 James Robertson Parkway 
Nashville, Tennessee 37219

26 Bruton v. United States, 391 U.S. 123 (1968).
61





IN THE

(Tourt nf tire United States
OCTOBER TERM, 1978 

No. 77-1701

JIM  ROSE, WARDEN,
Petitioner

v.
JAM ES E. MITCHELL and 

JAM ES NICHOLS, JR.,
Respondents

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

BRIEF FOR RESPONDENTS

Walter Kurtz 
Legal Clinic 
University of Tennessee 

Law School

C/O Metropolitan Public 
Defender

303 Metropolitan Courthouse 
Nashville, Tennessee 37201 
Phone: (615) 259-6211

63





T A B L E  O F  C O N T E N T S

Page

Opinions Below................................................  l
Jurisdiction ....................................................  l
Questions Presented ....................................  2
Constitutional And Statutory Provisions 

Involved .................................................... 3
Statement Of The Ca s e ................................. 3
Summary Of Argum ent ................................. 13

ARGUMENT:
I. The Foreman of the Grand Jury That 

Indicted Respondents Was Selected in 
a Racially Discriminatory Manner
Violative of the Fourteenth Amend­
ment ............... .........................................  17

II. The Proper Remedy In This Case Is To
Set Aside the Convictions of the 
Respondents. ...................................... .. . 29

III. Federal Habeas Corpus Relief Is 
Available to the Respondents to 
Challenge the Validity of Their Convic­
tions When the Foreman of the Grand 
Jury That Indicted Them Was Chosen 
In a Manner Violative of the Four­
teenth A m endm ent...............................  35
A. Introduction ..........................................35
B. The “Great W rit’’ Is Available In

This C ase.......................................... 37
C. This Case Calls for Application of

the Traditional Scope of the 
W rit..................................................  42

65



II

Page

D. There Was No Full and Fair Hear­
ing In This Case and Therefore 
Stone v. Powell Does Not 
Apply................................................  44

E. Stone v. Powell Is Limited to
Fourth Amendment Claim s..........  47

F. The Several Rationales Used In 
Stone v. Powell Do Not Apply
In This Case..............    50

Conclusion........................................................ 56

66



T A B L E  O F  A U T H O R I T I E S

Page
CASES:
Akins v. Texas, 325 U.S. 559 (1945).......................  20
Alexander v. Louisiana, 405 U.S. 625 (1972). . . 27, 30 
Andrews v. Swartz, 156 U.S. 277 ( 1 8 9 5 ) . . . . . . . .  44
Ballard v. United States, 329 U.S. 187 (1946). . . .  34
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 

(1932)................................................................. 54
Bird v. State, 103 Tenn. 343, 52 S.W. 1076 

(1899)............................................................. 18,42
Brown v. Allen, 344 U.S. 433

(1953)...............................  16,35,37,38,39,40,53
Brown v. Transport Corp. v. Atcon, Inc., U.S.

, 47 U.S.L.W. 3387 (Dec. 5, 1978) No. 
77-1581)..............      40

Brown v. United States, 411 U.S. 223 (1973)........  53
Cassell v. Texas, 339 U.S. 282 (1950)............. 20, 42
Castaneda v.Partida, 430 U.S. 482

(1977)...................................... 14,25,27,30,31,41
Chapman v. California, 386 U.S. 18 (1967)........... 30
Duncantell v. Texas, U.S. , 47 U.S.L.W. 

3386 (Dec. 5,1978) (No. 77-1831).....................  40
Ex parte Wilson, 114 U.S. 417 (1885).....................  43
Fay v. Noia, 372 U.S. 391 (1963)............. 38, 45, 46 47
Francis v. Henderson, 425 U.S. 536 (1976) . . .  38 55
Greene v. Massey, 546 F.2d 51 (5th Cir. 1977) . . . .  49 
Gunkle v. State, 65 Tenn. 626 (1872)....................  42
Hale v. Henderson, 485 F.2d 266 (6th Cir. 

1973)......................................................... 17,22,23

67



I V

Page

Hale v. Henderson, 336 F.Supp. 512 (W.D. Tenn.
1972)......................................................... 14,21,25

Hale v. Henderson, 349 F.Supp. 567 (W.D. Tenn. 
1972)......................................................... 21,22,25

Helvering v. Hallock, 309 U.S. 106 (1940)............. 54
Hill v. Texas, 316 U.S. 400 (1942).....................  26, 34
In re Moran, 203 U.S. 96 (1906) ........... ..............  43, 44
In  re Wood, 140 U.S. 278 (1891)........ ....................  44
Kaufman v. United States, 394 U.S. 218 

(1969) . ..................................................... 38, 40, 53
Mapp v. Ohio, 367 U.S. 643 (1961).....................  50, 52
Mincey v. Arizonia, U.S. , 98 S.Ct. 2408

(1978)................................................................. 40
Mitchell v. Rose, 570 F.2d 129 (6th Cir.

1978)......................  12,23,25,29,33,51
Monore v. Pape, 365 U.S. 167, (1961).................... 54
O'Berry v. Wainwright, 546 F.2d 1204 (5th Cir. 

1976)................................ ... ...................... .. 48
Parker v. Gladden, 385 U.S. 363 (1966)................. 31
Peters v. Kiff, 407 U.S. 493

(1972)............. 15, 25, 30, 31, 33, 34, 35, 51, 53, 54
Pierre v. Louisiana, 306 U.S. 354 (1939) ...............  30
Rakas v. Illinois, U.S. . 47 U.S.L.W. 4025 

(Dec. 5, 1978) (No. 77-5781).............................  53
Robinson v. City o f Memphis, 197 Tenn. 598, 277

S.W.2d 341 (1955)............................. ..............  44
Rose v. Mitchell, U.S. , 99 S.Ct. 76 

(1978)....................... .. ......... ............................... 2

68



V

Schneckloth v. Bustamante, 412 U.S. 218 
(1973)............................................................  39, 40

State v. Collins, 65 Tenn. 151 (1875)................. 18, 19
State v. Duncan, 15 Tenn. 271 (1834)............... 32, 43
State v. Gouge, 80 Tenn. 132 (1883)................... 19
State v. Herron, 86 Tenn. 442 (1888)..................... 42
State v. Hughes, 212 Tenn. 644, 371 S.W.2d 445 

(1963)................................................................. 44
Stone v. Powell, 428 U.S. 465 (1976)

. . .  11, 12, 35, 36, 38, 40, 41, 44, 47, 48, 49, 50, 53
Strauder v. West Virginia, 100 U.S. 303

(1879) ...........................    30,31,52
Swain v. Pressley, 430 U.S. 372 (1977) .................  39
Taylor v. Louisiana, 419 U.S. 527 (1975)..........  34, 51
Toilette. Header son, 411 U.S. 258(1973)............. 38
Townsend v. Sain, 372 U.S. 293 (1963) . . . .  44, 45, 47
Turney v. Ohio, 273 U.S. 510 (1927).......................  47
Turner v . Louisiana, 379 U.S. 466 (1965)............... 31
United States v. Peltier, 422 U.S.l (1975)...........  25
Village o f Arlington Heights v. Metropolitan 

Housing Development Corp., 429 U.S. 252 
(1977)..........      27

Wainwright v. Sykes, 433 U.S. 72 (1977) . . 37, 38, 39 
Washington v. Davis, 426 U.S. 229 (1976)..........  27

Co n s t it u t io n a l  A n d  S t a t u t o r y  P r o v is io n s

U.S. Const., Art. 1 § 9, cl. 2 ............................. .. 37
U.S. Const., Amend. I V ............... 15, 35, 36, 48, 53

Page

69



VI

U.S. Const., Amend. X IV ............. 2, 12,16, 20, 34, 43
Art. 1, § 14, Tenn. Const.......................................  2,17
Fed. R. Crim. P. 6(c)................................................  19
18 U.S.C. § 243. .................  3, 16, 25, 29, 34, 35, 43, 53
28 U.S.C. § 2241(c)(3).................................... 35, 37, 39
28 U.S.C. § 2254(a)........................................ 35,37,39
28 U.S.C. § 2255 ......................................................  39
Ky. Rev. Stat. § 29A.250 ...................................... . 19
Miss. Code Ann. § 13-5-45..................... .. 19
Tenn. Code Ann. §§ 22-223 to 22-242.....................  18
Tenn. Code Ann. § 40-1501.. ..................................  18
Tenn. Code Ann. § 40-1506...........................  17,18, 23
Tenn. Code Ann. § 40-1507 ............................  19, 20
Tenn. Code Ann. § 40-1508. ................................ 19
Tenn. Code Ann. § 40-1509. ................................ 19
Tenn. Code Ann. § 40-1510............................. .. 19
Tenn. Code Ann. § 40-1706 ...............................  17, 18
Tenn. Code Ann. § 49-3701...........................   24
Tenn. Code Ann. § 65-1314...................................... 24
Tenn. Code Ann. § 65-1707...................................... 24
1905 Tenn. Pub. Acts, ch. 150, § 1 .........................  24
1901 Tenn. Pub. Acts, ch. 7, § 1. . .................  24
1891 Tenn. Pub. Acts, ch. 52, § 2 ...........................  24

BOOKS
Bass, Leadership, Psychology and Organized 

Behavior(1976)  ..........................................  32

Page

70



J. Cartwright, The Triumph of Jim Crow, Ten­
nessee Race Relations in the 1880’s 
(1976)................................................................. 24

R. Hamburger, Our Portion of Hell (1973)............. 24
History of the Sixth Circuit, A Bicentennial Pro­

ject (1977)........................................................... 33
Holdsworth, History of English Law, Vol. I 

(1956).................................................................  19
R. Kluger, Simple Justice (1975).............................  55
5A Moore’s Federal Practice § 52.03[1] (1977) . . .  29
Shaw, Group Dynamics, The Psychology of Small 

Group Behavior (1960)...................................... 32
Van Dyke, Grand Juries (Appendix B: Jury Selec­

tion Procedures) 263 (1977).................................
E. Warren, A Republic If You Can Keep It 

(1972).............................    24

A r t ic l e s

Annot., Jury Selection—Group Discrimination,
33 L.Ed.2d 783 (1973)...................................... 25

Daughtrey, Cross-Sectionalism in Jury Selection 
Procedures after Taylor v. Louisiana, 43 
Tenn. L.Rev. 1 (1973)........................................ 26

Developments in the Law-Federal Habeas Cor­
pus, 83 Harv. L.Rev. 1038 (1970)...................  37

Friendly, Is  Innocence Irrelevant? Collateral A t­
tacks on Criminal Judgments, 38 U. Chi. 
L.Rev. 142 (1970)..............................................  40

V l l

Page

71



Page

via

Gewin, Circuit Judge, A n Analysis o f Jury Selec­
tion Decisions, Appendix to Foster v. Sparks,
506 F.2d 805 (5th Cir. 1975).............................  26

Kuhn, Jury Discrimination: The N ext Phase, S.
Cal. L. Rev. 234(1968)......................................  26

LeClercq, The Tennessee Court System, 8 Mem.
St. L.Rev. 185 (1978)........................................  18

Reitz, Federal Habeas Corpus: Post Conviction 
Remedy for State Prisoners, 108 U. Pa. 
L.Rev. 461 (1960)........    40

Shuck, M itchell v. Rose: Constitutional
Guarantees Extended to Grand Jury  
Foreman Selection, 5 Judicial Newsletter, No.
3, at 10 (1978)..................................................... 51

Sperlich and Jaspovice, Grand Jurors and the 
Constitution, 1 Hastings Const. L.Q. 63
(1974).................................................................  26

Stolz, Federal Review of State Court Decisions of 
Federal Question: The Need for Additional 
Appellate Capacity, 64 Calif. L.Rev. 943 
(1976).................................    40

Wright and Sofaer, Federal Habeas Corpus for 
State Prisoners: The Allocation o f Fact- 
Finding Responsibility, 75 Yale L.J. 895 
(1966)...........................   40

Van Dyke, The Grand Jury: Representative o f 
Elite, 28 Hastings L.J. 37 (1976).....................  17

72



IN THE
(Enurt of the Mniteh States

OCTOBER TERM, 1978 

No. 77-1701

JIM  ROSE, WARDEN,
Petitioner

v.
JAMES E. MITCHELL and 

JAMES NICHOLS, JR.,
Respondents

BRIEF FOR RESPONDENTS

OPINIONS BELOW

The opinion of the Court of Appeals (A. 127-141) is 
reported at 570 F.2d 129. The opinion and orders of 
the District Court (A. 98-99, 106-107, 121-122, 124- 
126) are not reported.

JURISDICTION

The judgment of the Court of Appeals was entered 
on January 9, 1978. Petition to rehear was filed by 
the State (A. 142-150) and was denied on March 30, 
1978. (A. 151). The petition for a writ of certiorari was 
timely filed within ninety (90) days of that date, and 
granted by this Court on October 2, 1978. Rose v.

73



2

Mitchell, U.S. , 99 S.Ct. 76 (1978). Jurisdiction 
of this Court rests on 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

The United States Court of Appeals for the Sixth 
Circuit has ordered issued a writ of habeas corpus 
because the State murder indictment of the two (2) 
respondents was void in that the foreman of the State 
Grand Jury that indicted them was chosen in a man­
ner violative of the Fourteenth Amendment.

The questions presented are:

1. Whether the foreman of the Grand Jury that 
indicted respondents was selected in a racially dis­
criminatory manner violative of the Fourteenth 
Amendment.

2. Whether the State conviction of the respondents 
must be set aside if the foreman of the Grand Jury 
that indicted the respondents was selected in a ra­
cially discriminatory manner violative of the Four­
teenth Amendment.

3. Whether federal habeas corpus relief is available 
to the respondents to challenge the validity of their 
conviction when they allege that the foreman of the 
Grand Jury that indicted them was chosen in a ra­
cially discriminatory manner violative of the Four­
teenth Amendment.

74



3

CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED

Article 1, Section 14 of the Tennessee Constitution 
provides:

Prerequisites to criminal charge.—That no per­
son shall be put to answer any criminal charge 
but by presentment, indictment or impeachment.

United States Code, Title 18, Section 243 states:

Exclusion of jurors on account of race or color. 
No citizen possessing all other qualifications 
which are or may be prescribed by law shall be 
disqualified for service as grand or petit juror in 
any court of the United States, or of any State 
on account of race, color, or previous condition of 
servitude; and whoever, being an officer or other 
person charged with any duty in the selection or 
summoning of jurors, excludes or fails to sum­
mon any citizen for such cause, shall be fined not 
more than $5,000.

STATEMENT OF THE CASE

The respondent Mitchell and Nichols and two (2) 
codefendants were indicted on November 6, 1972, for 
two (2) counts of first degree murder by the Tipton 
County, Tennessee, Grand Jury. On March 22, 1973, 
the respondents were found guilty after a jury trial of 
the murders and given two (2) sixty (60) year sen­
tences to run consecutively. (Order of Circuit Court of 
Tipton County, Tennessee, March 22,1973).

75



4

Prior to the trial, the respondents, on February 8, 
1973, filed a written pro se pretrail motion in the 
nature of a plea in abatement in which they asked the 
Court to dismiss the indictment for, in part:

The array of the grand jury of Tipton County, 
was not selected, drawn or summoned in accord­
ance with the law and is not representative of the 
community from which it was impanelled be­
cause of systematic exclusion of Negroes, other 
minorities and people of lower income, especially 
in regards to the position of the foreman, of said 
grand jury.

(A. 1-2). The respondents are both black men.

On March 13, 1973, an evidentiary hearing was held 
in order to dispose of the pretrial motions including 
the motion raising the constitutionality of the selec­
tion of the grand jury and its foreman. The respond­
ents at this hearing were represented by their court- 
appointed attorneys who had not made or drafted the 
plea in abatement. It is not clear on the record why 
the respondents had to file their own pro se pretrail 
motion and plea in abatement, but from a reading of 
the transcript on the plea of abatement hearing, it is 
clear that the record made by the respondents’ court- 
appointed attorneys could have dealt more extensive­
ly with the issue of discrimination in the selection of 
the grand jury. For instance, there is no indication in 
the record of the total number of persons on the mas­
ter jury list, nor is there any indication of the racial 
percentage breakdown of the master jury list. The

76



5

State Court hearing does, however, provide a great 
deal of relevant information, especially as to the se­
lection of the grand jury foreman.

As related to the grand jury and grand jury fore­
man issue, a number of witnesses were called. (A. 3- 
36). The first witness was Mr. William Simonton, Jr., 
who was one of the jury commissioners. Mr. Simonton 
testified that the master jury list from which the 
grand jury was selected was chosen by the three (3) 
jury commissioners from a telephone directory sup­
plied by the telephone company.1 He testified that 
they had used this method for the first time two (2) 
years ago (1970), and that the jury list in use in No­
vember, 1972, was still the same one that had first 
been selected from the phone book two (2) years prior. 
(A. 8).

Mr. Simonton next explained the selection process 
for the master jury list.

A. Well, we take the telephone book and we go 
down the list and we see the name of someone 
that we know, either in person or their repu­
tation, to be of good character and we take 
that name and put it on the card.

Q. And how do you go about establishing this 
good reputation? *

' Respondent is providing the Court with some facts from the 
record regarding the selection of the grand jury itself so that the 
Court will better understand the total circumstances of this case.

77



6

A. By reputation. Our commissioners are from 
three distinct areas of the county and, among 
the three of us, we’re pretty well suppose to 
know, either personally or by reputation peo­
ple throughout the county.

Q. In merely asking you this, Mr. Simonton: 
How do you insure that you will have a proper 
proportionate or a proper ratio of black mem­
bers on this jury panel? That’s really my 
question.

A. Well, we seek out the names of black citizens 
whom we know.

Q. Black citizens that you what?

A. Whom we know, either personally or by rep­
utation.

Q. And you don’t  make any effort to pick any 
black members that you don’t  know or white 
members that you don’t know?

A. Black or white, either; no sir.

Q. So you depend on knowing these people, then; 
your knowledge of these people?

A. Either personally, or by reputation; yes, sir. 
If i t ’s just a name to us, we have to pass it 
up because we don’t  know them.

78

(A. 9-10). Mr. Simonton further testified that he be­
lieved that Tipton County had a population of 30 
percent black. (A. 11). The other two (2) jury commis­



7

sioners, Mr. William Bibb and Mr. W.F. Davis, were 
called but their testimony was cumulative to that of 
Mr. Simonton. (A. 12-17). Mr. Bibb did state that the 
Jury Commissioners are selected by the Trial Judge 
for a period of four (4) years. (A-12).

The next witnesses who were called were three (3) 
former foreman of the Tipton County Grand Jury. 
They all agreed that they had never known there to 
be a black grand jury foreman. Mr. Frank McBride 
stated that he had been grand jury foreman several 
times over the last twelve (12) years and he was then 
asked if he had “ever known of any foreman that was 
a black man.” He stated that he had never known of 
a black being foreman. (A. 17-18). Mr. Peyton Smith 
testified that he had been foreman on several occa­
sions going back “in the early ‘50’s” and he was ob­
viously acquainted with the workings of the Court. 
He had never known there to be a black grand jury 
foreman. (A. 20). See also testimony of former foreman 
Naifeh. (A. 25).

Mr. Peyton J. Smith also testified that he was the 
foreman for the November, 1972, grand jury that in­
dicted the respondents. He testified that he was per­
sonally selected by the Trial Judge to serve for the 
November Term of Court. (A. 21). He recalled that 
one (1) black served on the November, 1972, Grand 
Jury. (A. 21). All the former foremen recalled there 
being one (1) or more blacks on prior grand juries, but 
never more than three (3).

79



8

Several other grand jurors were called to testify as 
to how many blacks were on the November, 1972, 
Grand Jury, and it was concluded that only one (1) 
grand juror had been black. (A. 30). The members of 
the Grand Jury, including the black member, testified 
that the race of the respondents was not mentioned 
in their deliberations and played no part in their de­
cision. (A. 26-35).

After hearing the evidence on the selection of the 
Grand Jury and the foreman, the Trial Judge stated 
his ruling: “plea in abatement will be denied.” (A. 35). 
The Trial Judge made no written or oral findings of 
fact or law, and did not state his reason or reasons 
for his ruling. He was later to enter a written order 
dated March 13, 1973. That order stated in full: “plea 
in abatement is overruled.” (A. 36).

On appeal to the Court of Criminal Appeals of Ten­
nessee, by decision dated June 5, 1974, the conviction 
of the respondents was upheld. As stated by the Court 
of Criminal Appeals:

The third assignment states that it was error not 
to sustain the plea in abatement to the indict­
ment because the proof showed that no negro 
had ever served as foreman on the grand jury, 
and that the eligible grand jurors were selected 
from the telephone directory.

This assignment was overruled by the Court of Crim­
inal Appeals on the grounds that racial discrimination 
had not been proved in either the selection of the

80



9

grand jury or the foreman. (A. 38-39). Certiorari was 
denied as to all assignments of error by order of the 
Tennessee Supreme Court dated March 10, 1975. (A. 
42). The respondents have exhausted their state rem­
edies.

On May 16, 1975, respondent Mitchell filed a pro 
se petition for writ of habeas corpus in the United 
States District Court for the Western District of Ten­
nessee (case No. 75-222). (A. 43-52). On June 11, 1975, 
respondent Nichols also filed a pro se petition (case 
No. 75-265). (A. 62-73). Although somewhat inarticu­
lately stated, both respondents set out the issue of 
the improper selection of the grand jury and its fore­
man. (A. 47, 49, 67, and 70).

On August 6, 1975, the District Court referred this 
case to the United States Magistrate for his recom­
mendations. (A. 83). On January 28, 1976, the Mag­
istrate filed a sixteen (16) page report on Reference. 
(A. 84-97). He concluded that most of the claims made 
by the respondents were either without merit or could 
not be raised by federal habeas corpus. After a review 
of the facts, he did, however, conclude that the claims 
as to the selection of the grand jury, trial jury, and 
grand jury foreman did have merit, and that an evi­
dentiary hearing should be held. (A. 90-91). The Dis­
trict Court, however, never held an evidentiary hear­
ing.

On February 17, 1976, the District Court entered 
an order which agreed with the M agistrate’s recom­

81



10

mendations as to the respondents’ claims, except that 
the Court disagreed that an evidentiary hearing was 
necessary on the grand jury selection issue and deter­
mined that the State Courts had correctly decided the 
issue. The District Court did state that there was a 
prima facie case of discrimination shown with respect 
to the selection of the grand jury foreman and allowed 
the State additional time to file additional evidence. 
(A. 98-99). After receiving a response from the State, 
the District Court entered another order on April 6, 
1976, in which it noted that the State had filed an 
affidavit of the grand jury foreman which stated that 
the foreman did not vote on the indictment of the 
respondents, but the Court indicated that it was still 
waiting to determine if the selected grand jury fore­
man were part of the regular jury venire when he was 
appointed foreman. (A. 106-107).

On April 14, 1976, the State filed with the Court 
an affidavit of the State Trial Judge. (A. 112-113). The 
State Trial Judge indicated that the foreman of the 
Tipton County November, 1972, Grand Jury, Mr. Pey­
ton Smith, was personally selected by the Trial Judge 
as the prior foreman was going to be out of the county 
during the November, 1972, Term. Mr. Smith had 
served as foreman on prior occasions, and Mr. Smith 
was not a member of the regular jury panel or venire. 
As to racial discrimination, the Trial Judge stated:

In my five counties, I do not have a black grand 
jury foreman, although I have a black member of 
my Jury Commission in one county. Most all of

82



11

my Grand Juries and Petit Juries have sizeable 
numbers of blacks on them, both men and wom­
en. I don’t appoint Grand Jury Foreman very 
often because when their two year term expires, 
I usually reappoint them, thus they serve a long 
time and the problem doesn’t  come up very often. 
I don’t  think that I have really given any thought 
to appointing a black foreman but I have no feel­
ing against doing so.

(A. 113).

On February 17, 1977, the District Court disposed 
of the question of both the selection of the grand jury 
and the foreman by concluding that no racial discrim­
ination in the composition of the grand jury had been 
shown and that the grand jury foreman was selected 
for other than racial reasons and that the foreman did 
not vote on the indictment of the respondents. (A. 
121-122). The case was dismissed. (A. 123-124).

After the order of dismissal, the respondents, 
through counsel,2 filed a motion to reconsider and for 
an evidentiary hearing. By order dated March 23, 
1977, the Court denied this motion and cited as a 
further reason for its prior dismissal the application 
of Stone v. Powell, 428 U.S. 465 (1976), in that Stone 
precluded collateral attacks on State Court convic­
tions. (A. 124).

2 Up to that point in the proceeding before the District Court, 
the respondents had not been represented by counsel. Thereafter, 
respondents were represented by a legal aid attorney.

83



12

Believing that the District Court erred in several 
respects, the respondents sought review in the Court 
of Appeals and the District Court granted the certif­
icate of probable cause. (A. 126).

On January 9, 1978, the Court of Appeals ruled in 
favor of the respondents and set aside their convic­
tions for murder. The Court determined that the 
grand jury foreman of the grand jury that indicted 
the respondents had been chosen in a manner violative 
of the Fourteenth Amendment and that since the Con­
stitution prohibited the way in which the indictment 
was obtained, their convictions could not stand.

During the habeas corpus proceeding in the District 
Court and on appeal to the United States Court of 
Appeals for the Sixth Circuit, there was an issue of 
whether or not constitutional standards had been vi­
olated in the selection of the grand jury itself. The 
Court of Appeals, because of its decision as to the 
foreman, found it unnecessary to reach this issue, but 
indicated that if it had addressed this issue, the case 
would probably have to be remanded for a further 
evidentiary hearing in the District Court. Mitchell v. 
Rose, 570 F.2d 129. 132-134 (6th Cir. 1978).

On January 25, 1978, the State filed a petition to 
rehear and seriously asserted for the first time that 
Stone v. Powell, 428 U.S. 465 (1976), should be applied 
to this case so as to preclude federal habeas corpus 
jurisdiction. This petition was summarily denied by 
order of the Court of Appeals on March 30, 1978. (A.

84



13

151). The Court of Appeals subsequently stayed its 
mandate until completion of the proceeding in this 
Court. The respondents are now in the custody of the 
state of Tennessee at Brushy Mountain Penitentiary 
in Petros, Tennessee.

SUMMARY OF ARGUMENT

The case involves the constitutionality of the pro­
cess by which the foreman of the Tipton County, Ten­
nessee, Grand Jury was selected. Simply stated, it is 
the position of the respondents, as it was the position 
of the United States Court of Appeals for the Sixth 
Circuit, that the respondents made a prima facie case 
of discrimination in the selection of the foreman, and 
the State was not able to rebut that prima facie case. 
Therefore, the respondents were granted the relief to 
which they were entitled. Respondents ask this Court 
to affirm the decision of the Court of Appeals for the 
Sixth Circuit.

The State makes much of the fact that the respond­
ents were guilty of a violent crime and it couches 
some of its argument in emotional terms, interwoven 
with the facts of the crime. The facts of the crime, 
however, are not relevant. Whether the crime be bur­
glary or murder, this Court has continually held that 
discriminatory selection of grand juries will not be 
tolerated. The unconstitutional selection of the grand 
jury foreman taints the entire proceeding because a 
grand jury that is part unconstitutional cannot return

85



14

a proper indictment. Stated another way, a grand jury 
that is “twelve-thirteenths constitutional” still can­
not render valid indictments. Hale v. Henderson, 336
F.Supp. 512, 516 (W.D. Tenn. 1972).

The facts relevant to this case are those surround­
ing the selection of the grand jury foreman, and the 
focus of this case should remain on those facts. The 
decision in the Court of Appeals was mandated be­
cause there had never been a black grand jury fore­
man within the memory of persons who testified in 
the State proceeding; and the State, in its attem pt to 
rebut the prima facie case, produced nothing except 
the affidavit of the State Trial Judge that he did not 
have anything against appointing a black, but he had 
just never thought of it. The case for relief is clear 
when the facts are judged in light of the prior deci­
sions of this Court. See Castaneda v. Partida, 430 
U.S. 482(1977).

The State contends that the fact that the foreman 
did not vote on the indictment means that there could 
be no actual prejudice to respondents so that no relief 
should be granted even if the foreman were improp­
erly selected. This contention, however, is not sup­
ported by the law. The decision of the Court of Ap­
peals is supported by the rationales of presumed prej­
udice and judicial integrity. The powerful leadership 
position of the grand jury foreman makes necessary 
the application of the longstanding doctrine of pre­
sumed prejudice, which has always been applied in 
jury discrimination cases. As an integral part of the

86



15

grand jury, the foreman is in a position to guide and 
control, whether properly or improperly, the decision­
making process of the grand jury. In addition to pre­
sumed prejudice, the decision of the Court of Appeals 
is also supported by the doctrine of judicial integrity. 
When the Constitution prohibits the procedure by 
which the indictment was obtained, the courts must 
void the indictment. Peters v. Kiff, 407 U.S. 493,498 
(1972).

The State also contends that Stone v. Powell, 428 
U.S. 465 (1976), precludes federal habeas jurisdiction 
of a case raising discrimination in the selection of the 
grand jury. This argument is conceptually unsound 
and legally invalid for a number of reasons. Stone 
involved only the Fourth Amendment and the exclu­
sionary rule and was expressly limited to Fourth 
Amendment claims. This case, however, involves the 
Fourteenth Amendment. Stone also applies only to 
cases in which there has been a full and fair hearing 
in State Court. There was no full and fair hearing 
here: the State Court judge made no findings of fact 
or conclusions of law; and the State Court judge who 
presided at the hearing was the same person who had 
chosen the grand jury foreman and whose conduct 
was at issue.

Furthermore, the rationales used in Fourth Amend­
ment exclusionary rule cases are inapplicable in grand 
jury discrimination cases. The remedy of voiding in­
dictments in grand jury discrimination cases is based 
upon presumed prejudice, judicial integrity, and, per­

87



16

haps, deterrence. In contrast, presumed prejudice, 
and judicial integrity do not support the exclusionary 
rule in Fourth Amendment cases.

The considerations of federalism in Fourth Amend­
ment exclusionary rule cases are also different from 
those in Fourteenth Amendment jury discrimination 
cases. Whereas in exclusionary rule cases, this Court 
enforces a rule not imposed on the reluctant States 
until less than twenty (20) years ago, in grand jury 
discrimination cases, this Court enforces the congres­
sional command of 18 U.S.C. § 243, and the intent of 
the States themselves, as expressed in the Fourteenth 
Amendment. The federal courts have long been the 
protectors of the rights of black citizens in this coun­
try, and it would reverse one hundred ten (110) years 
of history if this Court were to decide that the jury 
discrimination claims of black citizens could not be 
raised in a federal court. See R. Kluger, Simple Justice
(1975).

This Court in Brown v. Allen, 344 U.S. 443 (1953), 
found claims of state prisoners alleging discrimination 
in the selection of grand juries to be cognizable in 
federal habeas corpus cases. Nothing in this case re­
quires deviation from the mandate of Brown v. Allen.

88



17

ARGUMENT

i. t h e  fo r e m a n  o f  t h e  g r a n d  ju r y
THAT INDICTED RESPONDENTS WAS SE­
LECTED IN A RACIALLY DISCRIMINA­
TORY MANNER VIOLATIVE OF THE 
FOURTEENTH AMENDMENT.

The position of foreman or forewomen of the Grand 
Jury is one of great importance in the Tennessee 
Grand Jury system.3 In Hale v. Henderson, 485 F.2d 
266 (6th Cir. 1973), the United States Court Appeals 
for the Sixth Circuit stated that:

Petitioner also points out that the grand jury 
foreman has important statutory duties in Ten­
nessee, T.C.A. 40-1510, 40-1622 (1955), and ex­
ercises a leadership role, as well as casting a vote 
in the grand jury.

Id. at 270.

As noted by the Federal Magistrate in his first 
Report on Reference in this case, the grand jury fore­
man or forewomen in Tennessee, under the provisions 
of T.C.A. § 40-1506, “sits as the thirteenth member of 
the grand jury.” Since T.C.A. § 40-1706 provides that

3 Tennessee is one of the States that still requires a grand jury 
indictment to initiate felony charges. Tenn. Const, art. 1, § 14. 
It appears that twenty-five (25) States and the federal govern­
ment have the constitutional requirement of grand juries for the 
initiation of some or most serious criminal charges. Van Dyke, 
Jury Selection Procedures (Appendix B: Grand Juries) 263-70 
(1970); Van Dyke, The Grand Jury: Representative or Elite, 28 
Hastings L.J. 37, 63-71 (1976).

89



18

“at least twelve grand jurors” must concur before an 
indictment can be returned, the foreman’s or forewom­
an’s vote can be the twelfth in returning the indict­
ment. (A. 87). More important, even though the fore­
man or forewoman may not always vote, he or she 
must sign the indictment. T.C.A. § 40-1706. The in­
dictment is void if not signed by the foreman or fore­
woman. Bird v. State, 103 Tenn. 343, 52 S.W. 1076 
(1899). In Tennessee there must always be a foreman 
or forewoman in the finding of an indictment. State v. 
Collins, 65 Tenn. 151, 153 (1875). While the State may 
argue that the foreman in this case did not vote, the 
fact remains that the indictment is not valid under 
Tennessee law unless the foreman or forewoman signs 
the indictment.

The grand jurors themselves are selected by ran­
dom draw from the preselected jury panel or venire.
T.C.A. § 40-1501. The jury list itself is chosen by the 
jury commissioners every two (2) years. See T.C.A. 
§ 22-223 to 22-242.4 The grand jury foreman or fore­
woman is chosen in a completely different manner. In 
essence, the grand jury foreman or forewoman is hand 
picked by the criminal court judge. T.C.A. § 40-1506. 
In addition, as in the instant case, the grand jury

4 For a good general discussion of Tennessee jury selection 
procedures for the grand jury, petit jury, and grand jury foreman 
or forewoman, see LeClercq, The Tennessee Court System, 8 
Mem. St. L.Rev. 185, 489-99 (1978).

90



19

foreman or forewoman need not be a member of the 
jury panel or of the grand jury. T.C.A. § 40-1507.5

T.C.A. § 40-1510 sets out the statutory duties of 
the grand jury foreman or forewoman. He or she must 
assist the District Attorney in ferreting out crime. 
Out of term he or she must advise the District A ttor­
ney with respect to law violations and provide him 
names of witnesses who may be summoned before the 
next term of the grand jury. In term, the foreman or 
forewoman may order the issuance of subpoenas for 
witnesses to go before the grand jury, unless directed 
otherwise by the District Attorney. Thus, it can read­
ily be seen that the foreman or forewoman in Tennes­
see has important statutory duties as to the day-to- 
day operation of the grand jury as well as to the 
validity of the indictments returned. The grand jury 
speaks through its foreman or forewoman. See Holds- 
worth, History of English Law, Vol. I, at 314 (1956). 
The grand jury foreman or forewoman is the “presid­
ing officer” of the grand jury. State v. Collins, supra 
at 153. See State v. Gouge, 80 Tenn. 132, 135 (1883).6

*'5 This procedure of choosing the grand jury foreman or fore­
woman from the population a t large is atypical. Most jurisdic­
tions require the foreman to be selected from the grand jury 
itself. See, e.g., Fed. R. Crim. P. 6(c); Miss. Code Ann. § 13-5-45. 
Other states provide for the election of the foreman or forewoman 
by the grand jury itself from among its members. See, e.g., Ky. 
Rev. Stat. § 29A.250.

6 The foreman’s oath, found at T.C.A. § 40-1508, is much more 
extensive than the simple oath of the grand jurors at T.C.A. § 40- 
1509.

91



20

Since the circuit judge chooses the grand jury fore­
man or forewoman from the population at large with 
no standards other than the minimum qualifications 
set out in T.C.A. § 40-1507,7 the potential for discrim­
ination is great. The judge is likely to choose as fore­
man or forewoman someone whom he knows person- 
nally or by reputation and thus avoid the time-con­
suming process of seeking qualified individuals and 
interviewing them or otherwise screening them. Of 
course, when the judge, as here, admits that “I don’t 
think that I have really given any thought to appoint­
ing a black foreman,” (A. 113), then one segment of 
the population is automatically removed from consid­
eration.8

There is no doubt that the selection of the grand 
jury foreman or forewoman, just as the selection of 
the members of the grand jury, is subject to the re­
quirements of the Fourteenth Amendment. If a black 
man is subject to indictment by the grand jury, then 
blacks cannot be systematically excluded in the selec­
tion process by which the foreman or forewoman is

7 T.C.A. § 40-1507 requires the foreman or forewoman to be at 
least twenty-five (25) years old and to possess all the qualifica­
tions of other jurors.

8 As to the duty to become familiar with persons eligible for 
jury service, see Cassell v. Texas, 339 U.S. 282, 287-90 (1950). 
As to the duty to refrain from following a course of conduct that 
naturally tends to exclude a certain group, see Akins  v. Texas, 
325 U.S. 559, 403-04 (1945).

92



21

selected. As was stated by the District Court for the 
Western District of Tennessee:

If the [State] Court means to say that, if the 
twelve members of the grand jury other than the 
foreman were selected without systematic exclu­
sion of Negroes, it would be constitutionally im­
material if Negroes were systematically excluded 
from the position of foreman, we cannot agree. 
We cannot agree because Whitus v. Georgia, su­
pra [385 U.S. 545 (1967)] does not indicate that 
a grand jury that is twelve-thirteenths constitu­
tional can render valid indictments (emphasis 
added).

Hale v. Henderson, 336 F. Supp. 512, 516 (W.D. Tenn. 
1972).

Hale v. Henderson involved a challenge to the se­
lection process of the grand jury foreman in Shelby 
County, Tennessee, in that it was alleged that racial 
discrimination was present in the selection process. 
When the Hale case finally came to be heard on the 
question of the selective discrimination of the grand 
jury foreman, Judge Mac Swinford was sitting by 
special designation in the Western District of Tennes­
see. Judge Swinford indicated that if the petitioner 
therein had shown that the grand jury foreman had 
been chosen from outside the body of the jury venire, 
his claim would have been “well taken’’ as there had 
been a long history of complete exclusion of blacks 
from the position of grand jury foreman. In the case 
then before the District Court, the foreman was a

93



2 2

foreman pro tempore who had been chosen from 
among the members of that grand jury. The petition­
ers had not challenged the legality of the selection of 
the jury venire or the grand jury itself, so the Court 
said that it must reach the conclusion “that the venire 
was selected in a manner that did not systematically 
exclude blacks.” Hale v. Henderson, 349 F.Supp. 567, 
568 (W.D. Tenn. 1972). Simply stated, Judge Swinford 
would have granted relief if the grand jury foreman 
in that case had been chosen from a source other than 
the grand jury. In this case, under facts almost iden­
tical to Hale v. Henderson, the grand jury foreman 
was chosen from a source other than the grand jury. 
The opinion of Judge Swinford leads the strongest 
possible support to the resondents’ position.

Judge Swinford’s opinion in Hale v. Henderson was 
affirmed by the Court of Appeals for the Sixth Circuit 
at 485 F.2d 266 (1973). In that Court, while concurring 
with Judge Edwards and Judge Miller in denying 
relief on the facts in the case, Judge Lambros indi­
cated that he believed a prima facie case of discrimi­
nation had been made, regardless of whether the fore­
man pro tempore was selected from the jury venire or 
from the public at large, inasmuch as none of the past 
one hundred fifty (150) foremen or foreman pro tem­
pore in Shelby County had been black. Judge Lam­
bros noted that the criminal trial judge who appointed

94



23

the foremen and foremen pro tempore knew only a 
few blacks. He also stated that:

I t is difficult to imagine what more the majority 
would require to warrent a prima facie finding of 
discrimination except a confession on the part of 
the state judges that they were prejudiced 
against blacks and had intentionally avoided ap­
pointing them. . . .

Hale v. Henderson, 487 F.2d 266, 271 (1973).9

The case now before the Court is different from 
Hale; most importantly, the foreman selected by the 
Trial Judge was not a member of the grand jury or 
the venire. The foreman appointed by the Trial Judge 
was selected from the public at large under the pro­
visions of T.C.A. § 40-1506.

Prior to the respondents’ trial in the State Court, 
a hearing was held on the question of the systematic 
exclusion of blacks from the position of grand jury 
foreman. That testimony has been set forth in The 
Statement of The Case and, based on that testimony, 
the Court of Appeals concluded that “there had never 
been a black foreman or forewoman of a grand jury in 
Tipton County.” Mitchell v. Rose, supra at 135.10

9 At least the State Trial Judge in Hale v. Henderson had 
considered the appointment of blacks to the position of foreman. 
485 F.2d at 269-70. The State Trial Judge in this case had not.

10 Beyond the proof in the record, it would stretch credibility 
to even suggest tha t a black person in West Tennessee would 
have been appointed foreman of a grand jury in this century 
prior to the advent of the “civil rights” movement. History

95



24

The Trial Judge and the person selecting the grand 
jury foreman under T.C.A. § 40-1506 stated as follows 
in his affidavit filed in this case: “/  don't think that 
I  have really given any thought to appointing a black 
foreman but I have no feeling against doing so.” (Em­
phasis added). (A. 113). This statement shows a neg­
ligent and callous exclusion of blacks by the person 
designated by statute to appoint the grand jury fore­
man or forewoman. It is obvious that if the Trial 
Judge has never even “thought” of appointing a black 
foreman, then blacks have been excluded perempto­
rily by having never been considered for the position. 
This admission by the Trial Judge, standing alone, 
comes very close to being the kind of confession that 
Judge Lambros discussed in his concurring opinion 
(noted supra) in Hale v. Henderson, 485 F.2d 266, 271 
(1973).

Considering the two (2) District Court opinions in 
Hale v. Henderson, the State of Tennessee can hardly 
argue that it has been “ambushed” by a “new” con­
stitutional standard set forth by the Court of Appeals

teaches us otherwise. J. Cartwright, The Triumph of Jim  Crow: 
Tennessee Race Relations in the 1880’s (1976); R. Hamburger, 
Our Portion of Hell (1973) (a personal history of the civil rights 
movement in Fayette County, Tennessee; Fayette County bor­
ders on Tipton County); 1891 Tenn. Pub. Acts, ch. 52, § 2 (blacks 
must sit separately in railroad passenger cars); 1901 Tenn. Pub. 
Acts, ch. 7, § 1 (interracial schools prohibited); 1905 Tenn. Pub. 
Acts, ch. 150, § 1 (blacks must sit separately on street cars). 
These acts are codified in T.C.A. § 49-3701, T.C.A. § 65-1314, 
and T.C.A. § 65-1707. See generally E. Warren, A Republic If 
You Can Keep It, 46-48 (1972).

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25

in Mitchell v. Rose. Well before the State Court trial 
in this case in March, 1973, the Federal District Court 
in Memphis (thirty-five miles from Tipton County) 
had made it abundantly clear that this Court’s deci­
sions regarding discrimination in jury and grand jury 
selection applied with full force to the selection of 
grand jury foremen or forewomen. Hale v. Henderson, 
336 F.Supp. 512 (decided January 27,1972). Hale v. 
Henderson, 349 F.Supp. 567 (decided October 4, 
1972). The State, thus, cannot legitimately contend 
that the Judge did not know that he had a duty to 
select the foreman in a manner consistent with this 
Court’s prior grand jury discrimination decisions. 
This is certainly an important consideration when 
considering the proper remedy. See United States v. 
Peltier, 422 U.S. 531, 538 (1975).

The kind of selection and appointment of a person 
as important as the grand jury foreman or forewoman 
in Tennessee placed in the hands of a person who has 
never given a “thought” to appointing blacks is the 
kind of selection process repeatedly condemned by 
this Court as violative of the Fourteenth Amend­
ment.11 See, e.g., Castaneda v. Partida, 430 U.S.482 
(1977); Annot., Jury Selection - Group Discrimination, 11

11 It is also violative of 18 U.S.C. § 243. See Mr. Justice 
White’s concurring opinion in Peters v. Kiff, 407 U.S. 493, 505- 
07(1973).

97



26

33 L.Ed.2d 783 (1973).12 To exclude blacks from con­
sideration by never giving them a “thought” is clearly 
to always deny to anyone of the black race the posi­
tion of grand jury foreman or forewoman.

The State’s position in reference to the Judge’s 
duty in selection of the foreman or forewoman ignores 
the affirmative duty that is placed on the selecting 
official. The Judge had an affirmative duty “not to 
pursue a course of conduct in the administration of 
[his] office which would operate to discriminate in the 
selection of jurors on racial grounds.” Hill v. Texas, 
316 U.S. 400, 404(1942).

A showing that the percentage of blacks selected 
as foremen over a period of time (in this case 0 percent 
for as long as people could remember) varied signifi­
cantly with the percentage of blacks living in Tipton 
County (32.4 percent according to the 1970 census)13 
and that the selection process is amenable to discrim­

12 See generally Gewin, Circuit Judge, A n  Analysis o f Jury 
Selection Decisions, Appendix to Foster v. Sparks, 506 F.2d 805, 
813-37 (5th Cir. 1975); Kuhn, Jury Discrimination: The Next 
Phase, 41 S.Cal. L.Rev. 234 (1968); Sperlich and Jaspovice, 
Grand Juries, Grand Jurors and the Constitution, 1 Hastings, 
Const. L.Q. 63 (1974). A good article that treats at length the 
Tennessee jury selection system as it relates to prior decisions 
of this Court is Daughtrey, Cross-Sectionalism In ju r y  Selection 
Procedures after Tayor v. Louisiana, 43 Tenn. L.Rev. 1 (1975). 
The author is a Judge on the Tennessee Court of Criminal Ap­
peals. The author believes that Tennessee should no longer retain 
its “Key man’’ system of jury and grand jury selection.

13 1970 Census figures for Tipton County are attached in the 
appendix to this brief at pages 1-10.

98



27

inatory action (the statement of the State Trial Judge, 
A. 112-113) is thus sufficient to warrant a prima facie 
finding of discrimination. Castaneda v. Partida, supra; 
Alexander v. Louisiana, 405 U.S. 625 (1972).14 In Alex­
ander the Court in a unanimous opinion held that 
when there was proof of opportunity for discrimina­
tion coupled with a disproportionately low number of 
negroes throughout the selection process, discrimi­
nation is in fact proved, if the State cannot carry its 
burden of proof. See Castaneda v. Partida, supra at 
512-13 (Powell, J., dissenting).

The respondents have made out a prima facie case 
of discrimination in the selection of the grand jury 
foreman that cannot be overcome merely by the self- 
serving statement of the Trial Judge that he had “no 
feeling against’’ appointing a black foreman. (A. 113). 
Castaneda v. Partida, supra at 499 n.19; Aledxander 
v. Louisiana, supra at 632 (1972). The State in this 
case has failed to overcome the respondents’ prima

14 The S tate’s citation to Washington v. Davis, 426 U.S. 229 
(1976), and Village o f Arlington Heights v. Metropolitan Housing 
Development Corporation, 429 U.S. 252 (1977), as authority for 
the contention that discrimination must be proved by positive 
proof of intent is inapposite. This Court made clear in Washing­
ton v. Davis that statistical disparity and the shifting of the 
burden of proof after the showing of prima facie case was still 
the clear law in the area of grand jury selection. Washington v. 
Davis, supra a t 239, 241. Again in Arlington Heights, this Court 
made clear its adherence to the traditional rules for jury selection 
cases. Arlington Heights v. Metropolitan Housing Development 
Corp., supra a t 266 n.13. See Castaneda v. Partida, supra a t 493- 
94.

99



28

facie case of discrimination in the selection of the 
grand jury foreman. The State has offered no proof 
that the Judge considered all segments of the popu­
lation in Tipton County, no proof that the Judge used 
any rational critieria in selecting the grand jury fore­
man, no proof that the Judge interviewed prospective 
grand jury foremen or forewomen with a view to se- 
leting a qualified person without regard to race, and 
no proof that there had ever been a black foreman or 
forewoman in Tipton County or that one had ever 
been considered. It has certainly not been suggested 
that there were no blacks in Tipton County qualified 
to serve. What the State did produce was the senti­
ment of the Judge who selected the foreman that 
while he had “no feeling against” appointing a black 
person, he had just never”really given any thought to 
appointing a black foreman.” (A. 113).

As stated by the Court of Appeals:

Thus a judge who “never really gave any thought 
to appointing a black is discriminating just as 
surely as were the jury commissioners who never 
selected blacks because their names were “never 
discussed, “Norris v. Alabama, 294 U.S. 587, 55 
S.Ct. 679, 79 L.Ed. 1074 (1935), or because they 
didn’t  know any blacks, Turner v. Fouche, 396
U.S. 346, 90 S. Ct. 532, 24 L.Ed.2d 567 (1970). 
Officials who select grand jurors have a duty to 
learn who is qualified to fill the position of grand 
juror, and to consider qualified individuals from 
all segments of society. Failure to perform that 
duty, resulting in the exclusion of a qualified

100



29

segment of society, is unconstitutional discrimi­
nation. Turner, supra 396 U.S. 345, 90 S.Ct. 532, 
24 L.Ed.2d 567.

Mitchell v. Rose, supra at 135.15

Based on the reasoning above, it should be conclud­
ed that the respondents’ rights under the Fourteenth 
Amendment have been violated by the discriminatory 
manner in which the grand jury foreman in Tipton 
County, Tennessee, was chosen. Since discrimination 
has been proven, it is necessary to determine the ap­
propriate relief to remedy this discrimination.

II. THE PROPER REMEDY IN THIS CASE IS 
TO SET ASIDE THE CONVICTIONS OF THE 
RESPONDENTS.

Since 1879, this Court, in protecting the Fourteenth 
Amendment rights of both black and white citizens of 
this country and in enforcing the strong congressional 
statement in 18 U.S.C. § 243, has set aside convictions

15 The State contends that the Court of Appeals somehow vi­
olated the clearly erroneous rule by reversing the District Court. 
It should be remembered that the District Court did not conduct 
an evidentiary hearing but based its findings on the State Court 
transcript and certain affidavits filed in the District Court. 
Therefore, the “clearly erroneous” rule would not apply. 5A 
Moore’s Federal Practice § 52.03(1] at 2624 (1977). Furthermore, 
the Court of Appeals did not disagree with the District Court’s 
findings of facts, but rather with the District Court’s application 
of the facts to the law. Of course, the Court of Appeals is not 
bound by the District Court’s conclusions of law or findings that 
combine both fact and law, when there is an error as to the law. 
5A Moore’s Federal Practice § 52.03(3], a t 2662-64 (1977).

101



30

when it has found a grand jury16 to have been discri- 
minatorily chosen. See, e.g., Castaneda v. Partida, su­
pra; Peters v. Kif f  supra; Strauder v. West Virginia, 
100 U.S. 303 (1879). Since Strauder, this remedy has 
been considered proper, as the law will not allow a 
conviction to stand when the method by which it was 
obtained violated fundamental rights. The reason for 
voiding indictments, however, goes beyond the pro­
tection of the integrity of the judicial system and 
encompasses the proposition that the exclusion of a 
racial group from a grand jury will likely cause prej­
udice to a member of the excluded group.17 Early on 
this Court stated:

It is well known that prejudices often exist 
against particular classes in the community, 
which sway the judgment of jurors, and which, 
therefore operate in some cases to deny to per­
sons of those classes the full enjoyment of that 
protection which others enjoy.

16 The same constitutional principles apply to grand jury se­
lection and petit jury selection. “Principles which forbid discrim­
ination in the Selection of Petit Juries also govern the Selection 
of Grand Juries.’’ Pierre v. Louisiana, 306 U.S. 354, 362 (1939). 
See Alexander v. Louisiana, 405 U.S 625, 626 n. 3 (1972).

17 The S tate’s argument that the harmless error rule of Chap­
man v. California, 386 U.S. 18 (1967), should be applied in this 
case is without foundation. In none of this Court’s jury discrim­
ination cases has the harmless error rule ever been “suggested,” 
must less applied. See Chapman v. California, supra a t 44 (Stuart, 
J., concurring). Certainly, every grand jury case decided since 
1967, by implication, rejected the application of Chapman to 
grand jury discrimination cases. See, e.g., Castaneda v. Partida, 
supra; Peters v. Kiff, supra.

1 0 2



31

And how can it be maintained that compelling 
a colored man to submit to a trial for his life by 
a jury drawn from a panel from which the state 
has expressly excluded every man of his race, 
because of color alone, however, well qualified in 
other respects, is not a denial to him of equal 
legal protection.

Strauder v. West Virginia, 100 U.S. 303, 309 (1879). 
This Court’s adherence to the rationale of persumed 
prejudice has extended until the present. Peters v. 
Kiff  supra at 509 (Burger, C.J., dissenting). See Cas­
taneda v. Partida, supra.

Because of the difficulty in proving actual preju­
dices in certain situations that are inherently suscep­
tible to prejudice, this Court has always been willing 
to accept a rule of presumed prejudice. See, e.g., Par­
ker v. Gladden, 385 U.S. 363, 365 (1966); Turner v. 
Louisiana, 379 U.S. 466, 473 (1965). Overt discrimi­
nation is often difficult to prove and, in the situation 
of a grand jury proceeding where subtle discrimina­
tion can easily be exercised, it is asking too much to 
expect the grand jurors or foremen or forewomen to 
confess their prejudice in open court. Human experi­
ence teaches us not to expect otherwise, and, as stated 
in Turner v. Louisiana, it would be “blinking reality” 
not to recognize the potential for prejudice.

In this case, even though the grand jury foreman 
did not vote on the indictment, the likelihood of sub­

103



32

stantial prejudice still inhered in the proceedings. The 
foreman or forewoman is part of the thirteen (13) per­
son grand jury; he or she is the spokesperson for the 
grand jury; there is no indictment without the signa­
ture of the foreman or forewoman; and the foreman 
or forewoman is the leader, handpicked by the Trial 
Judge.18 Like every other leader of a group, the fore­
man or forewoman is in a position to guide, whether 
properly or improperly, the decisionmaking process of 
the body.19

The Court of Appeals in this case summed up the 
rationale as follows:

It seems clear that the potential for prejudice, 
given the position of authority and influence the 
foreman or forewoman holds, is considerable, and 
in such cases where the fact of prejudice may be 
impossible to prove, yet its effect could be so 
insidious and far-reaching, the courts have re­

18 The Tennessee Courts have recognized that a person present 
in the Grand Jury Room not even in a leadership position might 
have great influence over the grand jury. In discussing the pres­
ence of an unqualified and nonvoting person present in the grand 
jury room, the Tennessee Supreme Court stated “he could also 
have much influence upon the others by reasoning and arguing 
the m atter of inquiry with the others.” State  v. Duncan, 15 Tenn. 
271 (1834).

19 See generally Bass, Leadership, Psychology and Organiza­
tional Behavior (1960); Shaw, Group Dynamics: The Psychology 
of Small Group Behavior 262-83 (1976).

104



33

fused to require proof of prejudice before grant­
ing relief.

Mitchell v. Rose, supra at 136.20

In determining the potential prejudice in this case, 
it should also be kept in mind that the respondents 
have made a substantial showing that the grand jury 
itself was chosen in an impermissible manner. See 
Mitchell v. Rose, supra at 132-34. This increases the 
chances of prejudice and the opportunity for the fore­
man and forewoman to exercise improper influence on 
a grand jury which is itself suspect.

It is not the potential for prejudice alone that man­
dates the correctness of the opinion below. In fact, 
relief has been granted by this Court to a white de­
fendant who was indicted by a grand jury from which 
blacks had been improperly excluded. Peters v. Kiff, 
supra. This relief is mandated as a vindication for the 
rights of those improperly excluded and because “il­
legal and unconstitutional jury selection procedures 
cast doubt on the integrity of the whole judicial pro­
cess” and thus deprive a criminal defendant due pro­

20 While Judge John Peck wrote the decision of the Court of 
Appeals, the other two members of the panel were Chief Judge 
Harry Phillips and Senior District Judge Frank Gray sitting by 
designation (Judge Gray is now deceased). Judge Phillips is and 
Judge Gray was life-long residents of Tennessee, practiced law- 
in Tennessee, and were both, deeply involved in government and 
judicial service in Tennessee. See History of the Sixth Circuit, A 
Bicentennial Project 138-39, 180-81 (1977).

105



34

cess of law. Peters v. Kiff, supra at 498. As this Court 
has said:

reversible error does not depend on a showing of 
prejudice in an individual case. The evil lies in 
the admitted exclusion of an eligible class or 
group in the community in disregard of the pre­
scribed standards of jury selection.

Ballard v. United States, 329 U.S. 187,195 (1946).

where, as in this case, timely objection has laid 
bare a discrimination in the selection of grand 
jurors. The conviction cannot stand, because the 
Constitution prohibits the procedure by which it 
was obtained. Equal protection of the laws is 
something more than an abstract right. It is a 
command which the State must respect. The ben­
efits of which every person may demand.

Hill v. Texas, 316 U.S. 400, 406 (1946); accord, Taylor 
v. Louisiana, 419 U.S. 527 (1975). Relief is also man­
dated by the strong statutory command of 18 U.S.C. 
§ 243, which states:

No citizen possessing all other qualifications 
which are or may be prescribed by law shall be 
disqualified for service as grand or petit juror in 
any court of the United States, or of any state 
on account of race, color, or previous condition of 
servitude . . . .

This statute has been read by three (3) members of 
this Court to give “concreteness” to the generalities 
of the Fourteenth Amendment and to state with cer­

1 0 6



35

tainly that Congress intended the courts to deal with 
special severity when persons are excluded from serv­
ing on grand juries on account of their race. A proven 
violation of 18 U.S.C. § 243 voids the indictment. Pe­
ters v. Kif f  supra at 505-507 (White, J., concurring).21

III. FEDERAL HABEAS CORPUS RELIEF IS 
AVAILABLE TO THE RESPONDENTS TO 
CHALLENGE THE VALIDITY OF THEIR 
CONVICTIONS WHEN THE FOREMAN OF 
THE GRAND JURY THAT INDICTED 
THEM WAS CHOSEN IN A MANNER VIO- 
LATIVE OF THE FOURTHEENTH  
AMENDMENT.

A. Introduction

The State of Tennessee herein seems to be making 
an attack on Brown v. Allen, 344 U.S. 443 (1953), and 
its progeny and wishes this Court to overrule Brown 
v. Allen, ignore the clear reading of 28 U.S.C. 
§ 2241(c)(1) and § 2254(a), and extend the holding in 
Stone v. Powell, 428 U.S. 465 (1976), beyond Fourth 
Amendment claims. Before reaching the merits of 
such a contention, respondent would assert that this 
is not the case for this Court to even consider such an 
expansion of Stone v. Powell.

21 Mr. Justice White was joined in this opinion by Mr. Justice 
Brennan and Mr. Justice Powell.

107



36

The State of Tennessee thought so little of the 
Stone v. Powell argument that in its brief to the Court 
of Appeals, the state stated in total:

The state respectfully submits that the district 
judge’s citation to Stone v. Powell came at a time 
when the case was already decided on other 
grounds. The citation is surplusage and not rel­
evant or determinative of the issues before this 
Court.

(R, Reply Brief for the State of Tennessee in the Court 
of Appeals at 24).

The decision of the Court of Appeals does not even 
mention Stone v. Powell, and it was only after the 
decision was rendered by the Court of Appeals on 
January 9, 1978, that the State raised the issue of 
Stone v. Powell in a Petition to Rehear. (A. 142-150). 
On March 30, 1978, the Court of Appeals refused to 
reconsider its decision of January 9, 1978, and in 
doing so, simply stated that “the court concludes that 
the issues raised therein [the Stone v. Powell issue] 
were fully considered upon the original submission 
and decision of this case.” (A. 151).

The respondent is convinced that the State’s view 
of Stone v. Powell is incorrect. However, should this 
Court want to consider a drastic expansion of the 
doctrine of Stone v. Powell beyond Fourth Amend­
ment claims, it should not come in a case in which 
this Court does not even have the benefit of a rea­
soned decision by the Court of Appeals on the issue.

108



37

While respondents adhere to the view expressed 
above, they, of course, must address the merits of the 
issue.

B. The “Great Writ” Is .4vailable In This 
Case.

The writ of habeas corpus ad subjiciendum is given 
constitutional recognition in Article I, Section 9, 
clause 2 of the United States Constitution. The con­
stitutional recognition, however, does not define the 
precise scope of the writ, and the first judiciary act 
authorized federal courts to issue the writ only on 
behalf of prisoners “in custody under the authority of 
the United States.” In 1867 the writ was made appli­
cable to any person “in custody in violation of the 
Constitution or laws . . . .  of the United States,” in­
cluding state prisoners.22 28 U.S.C. § 2241(c)(3). See 
also 28 U.S.C. § 2254(a). So while the Constitution 
protects the “Great W rit,” it is Congress that sets it 
exact parameters by statute. Brown v. Allen, 344 U.S. 
443, 498-500 (1953) (Frankfurter, J., concurring).

In so far as this jurisdiction enables federal dis­
trict courts to entertain claims that State Su­
preme Courts have denied rights guaranteed by 
the United States Constitution, it is not a case 
of a lower court sitting in judgment or a higher

22 The history of the writ as applied to state prisoners is traced 
in Developments in the Law - Federal Habeas Corpus, 83 Harv. 
L. Rev. 1038, 1048-62 (1970). See Wainwright v. Sykes, 433 U.S. 
72, 74-81 (1977).

109



38

court. I t is merely one aspect of respecting the 
Supremacy Clause of the Constitution whereby 
federal law is higher than state law. It is for the 
Congress to designate the member in the hier­
archy of the federal judiciary to express the high­
er law. The fact that Congress has authorized 
district courts to be the organ of the higher law 
rather than a Court of Appeals, or exclusively 
this Court, does not mean that it allows a lower 
Court to overrule a higher Court. I t merely ex­
presses the choice of Congress how the superior 
authority of federal law should be asserted.

Brown v. Allen, supra at 510 (Frankfurter, J., concur­
ring).

In recent years the writ has undergone some change 
and much of the change in the scope of the writ has 
been a reaction to judicial hostility to the exclusionary 
rule and to more favorable acceptance by this Court 
of the policy of adhering to the State procedural rules. 
Recent cases23 by this Court have sharply curtailed 
the impact of Fay v. Noia, 372 U.S. 391 (1963), and in 
Stone v. Powell, 428 U.S. 465 (1976), this Court held 
that Fourth Amendment claims were not cognizable 
in a “ federal habeas corpus proceeding if there had 
been a full and fair hearing in state court on the 
Fourth Amendment issue.” Stone v. Powell certainly 
reversed by implication Kaufman v. United States, 
394 U.S. 218(1969).

23 See Wainwright v. Sykes, 433 U.S. 72 (1977); Francis v. 
Henderson, 425 U.S. 536 (1976); Tollett v. Henderson, 411 U.S. 
258(1973).

1 1 0



39

Several recent decisions by this Court, however, 
indicate that the recent changes in the scope of the 
writ may be at an end. In Swain v. Pressley, 430 U.S. 
372 (1977), this Court recognized that Congress had 
great control over the scope of the writ in making 
changes in the availability of review under 28 U.S.C. 
§ 2255 in the District of Columbia. It would appear 
that Swain again recognized the validity of Congres­
sional control over the writ and that further restric­
tion on claims congnizable under 28 U.S.C. § 2241(c)(3) 
and 28 U.S.C. § 2254(a) should be considered very 
carefully.

In Wainwright v. Sykes, 433 U.S. 72 (1977), this 
Court held that a defendant who failed to comply with 
a S tate’s contemporaneous objection rule was not en­
titled to federal habeas corpus review of his Miranda 
claim. In reaching its decision in Wainwright, this 
Court reviewed the history of federal habeas corpus 
jurisdiction, canvassed the types of federal claims 
that may be properly considered on habeas corpus, 
and indicated that the scope of the writ as set forth 
in Brown v. Allen, supra, was still good law. Wain­
wright v. Sykes, supra at 79, 87. Certainly no member 
of this Court has expressed a belief that the clock 
should be completely turned back on the scope of the 
“Great W rit.” See Schneckloth v. Bushamonte, 412 
U.S. 218, 255-56 (1973) (Powell, J„ concurring).

Mr. Justice Jackson was a sometime critic of the 
expansion of the writ, but he recognized its need for 
the protection of federal rights, and he simply stated

1 1 1



40

what is as timely today as it was twenty-five (25) 
years ago:

Society has no interest in maintaining an uncon­
stitutional conviction and every interest in pre­
serving the writ of habeas corpus to nullify them 
when they occur.

Brown v. Allen, supra at 548 (Jackson, J., concurring).

The arguments pro and con as to the scope of the 
writ have been made all too often to this Court and 
are well chronicled in the decisions of this Court and 
legal literature.24 They do not bear repeating. The cit­

24 See, e.g., Stone v. Powell, supra (majority and dissenting 
decisions); Schneckloth v. Bustamante, supra (Powell, J., concur­
ring); Kaufman v. United States, supra Irrelevant? Collateral 
A ttacks on Criminal Judgments, 38 U. Chi. L.Rev. 142 (1970); 
Reitz, Federal Habeas Corpus: Post Conviction Remedy for State 
Prisoners, 108 U. Pa. L.Rev. 461 (1960); Wright and Sofaer, 
Federal Habeas Corpus for State Prisoners: The Allocation of 
Fact-Finding Responsibility, lb  Yale L.J. 895 (1966). Several 
members of this Court have commented on the impact of the 
heavy caseload now facing this Court. This is somewhat related 
to the impact of Stone v. Powell, as the necessity for the Court 
to review decisions of State Courts on petition for certiorari 
becomes greater if habeas corpus jurisdiction is removed from 
the Federal District Courts. See generally Duncantell v. Texas, 

U.S. , 47 U.S.L.W. 3386 (Dec. 5, 1978) (No. 77-1831) (Bren­
nan, J., dissenting); Brown Transport Corp. v. Atcon, Inc., 
U.S. , 47 U.S.L.W. 3387 (Dec. 5, 1978) (No. 77-1581) (White, 
J., dissenting) (Burger, C.J.; Brennan, J., comments); Mincey v. 
Arizona, U.S. , 98 S.Ct. 2408 (Marshall, J., concurring); 
Stolz, Federal Review of State Court Decisions o f Federal Ques­
tions: The Need for Additional Appellate Capacity, 64 Calif. 
L.Rev. 943, 960-62 (1976) (habeas corpus as a device for circum­
venting lack of appellate capacity).

1 1 2



41

izens of this country who most need the protection of 
the law look to the federal courts for the protection of 
federal constitutional rights and the duty to protect 
these rights should not be abrogated to the states. 
Congress did not intend that the duty be abrogated, 
and society certainly has no legitimate interest in 
imprisoning persons in violation of the Constitution.

While respondents adhere strongly to the view that 
decisions of this Court recognize that claims of grand 
jury discrimination in State Court proceedings are 
cognizable in federal habeas corpus proceedings,25 the 
respondents recognize that several members of this 
Court have suggested that Stone v. Powell makes a 
“strong case” that claims of grand jury discrimina­
tion are not cognizable on federal habeas corpus. Cas­
taneda v. Partida, 430 U.S. 482, 508 n.l (Powell, J., 
dissenting, joined by the Chief Justice and Mr. Jus­
tice Rhenquist).26 While at first blush it may seem 
that a case could be made for the extension of Stone 
v. Powell to grand jury discrimination cases, an anal­
ysis of the issues involved should lead to an opposite 
conclusion.

25 See, e.g., Castaneda v. Partida, 430 U.S. 482 (1977); Brown 
v. Allen, 344 U.S. 443 (1953).

26 Mr. Justice Stewart dissented separately and stated that he 
was in “ substantial agreement” with Mr. Justice Powell’s dis­
sent.

113



42

C. This Case Calls For Application Of The 
Traditional Scope Of The Writ,

Unwritten in the criticism of the use of the writ of 
habeas corpus in the last forty (40) years is the con­
cept that the expansion of the writ may have out- 
served its usefulness. While respondents disagree 
with this assessment, an analysis of early decisions of 
this Court supports the idea that the scope of the writ 
as it existed prior to 1953 would warrant the granting 
of relief in this case.

In grand jury discrimination cases, this Court ad­
heres to the idea that a grand jury that is selected in 
violation of the Fourteenth Amendment cannot return 
valid indictments and therefore subsequent proceed­
ings are invalid. Cassell v. Texas, 339 U.S. 282 (1950).

It is the law in Tennessee that unless the signature 
of the grand jury foreman is affixed to the indictment, 
the indictment is “fatally defective.” Bird v. State, 
103 Tenn. 343, 344, 52 S.W. 1076 (1889). If the in­
dictment is defective, “the defendant should not [be] 
held to answer it.” Gunkle v. State, 65 Tenn. 626, 627 
(1872). Given the legal requirement of a grand jury 
foreman, the absence of a legally selected foreman 
would deprive the trial court of jurisdiction of the 
case because without a foreman or forewoman, there 
is no valid indictment, and “the so-called indictment 
has no legal efficiency whatever,” and “the defendant 
could not be held to answer it.” State v. Herron, 86 
Tenn. 442, 448 (1888). Under Tennessee law, if an

114



43

improperly selected or unqualified person participates 
in the grand jury proceeding, the indictment is of no 
effect. See, e.g., State v. Duncan, 15 Tenn. 271, 275 
(1834).

This case calls then for nothing more than the ap­
plication of the traditional principle that if the com­
mitting court did not have jurisdiction because of a 
violation of federal law, relief should be granted on 
application to a federal court for habeas corpus relief. 
See E x parte Wilson, 114 U.S. 417 (1885) (this Court 
ordered the release of a federal prisoner who was con­
victed without a grand jury indictment).

In In  re Moran, 203 U.S. 96 (1906), one of the chal­
lenges made to the jurisdiction of the Oklahoma court 
was that the grand jury was not constituted as pro­
vided by territorial law, thus depriving the territorial 
court of jurisdiction. Justice Holmes, writing for the 
court, rejected this claim because a violation of terri­
torial law was not considered a violation of “The Con­
stitution or any law or Treaty of the United States” 
under the federal habeas corpus statute. Justice 
Holmes’ decision certainly is to be read as meaning 
that if the grand jury in Oklahoma had been selected 
in a manner violative of the Constitution or of the law 
of the United States, he would have granted relief. In 
this case, where there is a clear violation of the Four­
teenth Amendment and 18 U.S.C. § 243, under the

115



44

reasoning of the Court in Moran, relief should be 
granted. In re Moran, supra at 103-10427

Under Tennessee law if the indictment is “void,” 
the State Court is deprived of jurisdiction28 and if the 
indictment is void because of a violation of federal 
law, then In  re Moran should apply.

D. There Was No Full And Fair Hearing 
In This Case And Therefore Stone V. 
Powell Does Not Apply.

Further, Stone v. Powell does not apply in this case 
because the respondents did not receive a “full and 
fair” hearing in State Court within the meaning of the 
Stone decision. In determining whether or not a full 
and fair hearing was held, this Court in Stone referred 
to the standards of Townsend v. Sain, 372 U.S. 293 
(1963). Stone v. Powell, supra at 494 n.36. Of course, 
Stone only precludes habeas review when the petition­
er had “an opportunity for full and fair litigation of 
[his]. . . claim.”

Townsend was a habeas corpus action brought by 
a state prisoner as a collateral review of what he

27 This interpretation of In re Moran is inconsistent with this 
Court’s decisions in Andrews v. Swartz, 156 U.S. 277 (1895) and 
In  re Wood, 140 U.S. 278 (1891). Neither Andrews or In  re Wood 
are mentioned by Justice Holmes in the Moran decision.

28 If the indictment is illegal in Tennessee, it confers no subject 
m atter jurisdiction on the court. State  v. Hughes, 212 Term. 644, 
648, 371 S.W.2d 445 (1963); Robinson v. City of Memphis, 197 
Tenn. 598, 277 S.W.2d 341 (1955).

116



45

claimed was the denial of his federal constitutional 
rights during a state criminal proceedings. Specifical­
ly, he alleged that a coerced confession had been ad­
mitted in evidence when it should have been sup­
pressed. A hearing had been held by the State Court 
Judge on a suppression motion, but it had been den­
ied, with the State Judge stating “Gentlemen, the 
Court will deny the motion to suppress and admit the 
statement into evidence.” Townsend, supra at 302 
n.l. The Court below had denied the application for 
the writ without an evidentiary hearing, stating that 
the State Court record was sufficient for a determi­
nation that there was no violation of the petitioner’s 
constitutional rights. This Court reversed and in so 
doing set out six (6) situations in which a District 
Court must hold an evidentiary hearing. Two (2) of 
the six (6) situations are relevant here: 1

(1) Where the State Court has not made adquate 
factual or legal finding to support its conclusions. 
Townsend, supra at 313-16.

(2) Where “evidence crucial to the adequate consid­
eration of the constitutional claim was not developed 
at the State hearing,” unless there was “inexcusable” 
default under Fay v. Noia, 372 U.S. 391 (1963). Town­
send, supra at 317.

The citation in Stone to Townsend must suggest 
that this Court considers the two (2) situations above 
to be among the ones in which “an opportunity for 
full and fair litigation” of a claim is absent.

117



46

The first situation involves the State Court’s not 
making findings of fact and leaving the legal grounds 
for its conclusion uncertain. At the end of the State 
Court hearing, the State Judge merely stated that the 
pro se plea in abatement was denied. (A. 35, 36).

Returning to Townsend, this Court stated:

The State Trial Judge rendered niether an opin­
ion, conclusions of law, nor findings of f ac t . . . .  
In short, there are no indicia which would indi­
cate whether the trial judge applied the proper 
standard of federal law in ruling upon the admis­
sibility or the confession.

Townsend, supra at 320. This, of course, relates to 
need for findings of fact and law in the State Court 
as stated in Townsend, supra at 313-16. In this case, 
the State Trial Judge made no findings of fact and no 
findings of law. It is impossible to tell if he applied 
the “correct constitutional standards” and to what 
facts he applied them. Townsend places some obliga­
tion on State Courts to articulate reasons for their 
decisions on federal constitutional questions. In the 
absence of such reasons, a habeas petitioner cannot 
be said to have received “even . . . the semblance of a 
full and fair hearing.” Townsend, supra at 313.

The second Townsend category is one in which, “for 
any reason not attributable to the inexcusable neglect 
of petitioner, see Fay v. Noia, 372 U.S. [391], 438, 
evidence crucial to the adequate consideration of the 
constitutional claim was not developed at the State

118



47

hearing.” Townsend, supra at 317. The evidence cru­
cial to the respondents’ claim is the testimony of the 
State Trial Judge as to how and why he selected the 
grand jury foreman. It was certainly an awkward sit­
uation in which the State Judge whose very actions 
were being brought into question was presiding a t the 
evidentiary hearing. I t is easy to see why he was not 
called to the stand and questioned as to his role, and 
yet the information that he could provide was critical 
to the issue. The failure of respondents’ court-appoint­
ed lawyers to bring out these relevant facts under the 
circumstances in this case cannot be regarded as the 
respondents’ inexcusable default under the standards 
set out in Fay v. Noia, , 372 U.S. 391, 438, adopted 
by Towsend, supra at 317.

It would also seem unimaginable that the vindica­
tion of constitutional claims should depend upon find­
ings of fact by and a hearing conducted before the 
very party whose conduct was called into constitu­
tional question.29 The same judge whose conduct was 
at issue sat as the judge at the evidentiary hearing in 
which the claim of discrimination was litigated.

E. Stone  v. Powell Is Limited To Fourth 
Amendment Claims.

The District Court below, in its order denying the 
respondents’ motion to reconsider cited Stone v.

29 Cf. Turney v. Ohio, 273 U.S. 510 (1927) (defendant has a 
right to a judge who has no interest in the proceeding).

119



48

Powell, 428 U.S. 465 (1976), as additional authority 
as to why the case should be dismissed. (A. 124-26). 
The District Court argued that Stone v. Powell pre­
cluded federal review by habeas corpus of the respond­
ents’ claims if they had “received a full and fair hear­
ing in state court as to his claim.” The District Court 
also cited O'Berry v. Wainwright, 546 F.2d 1204 (5th 
Cir. 1976), as authority for this proposition. The Court 
of Appeals rightfully rejected this reasoning as Stone 
v. Powell only applies to Fourth Amendment ques­
tions.

Stone v. Powell has no application to non Fourth 
Amendment claims. The rationale of Stone v. Powell 
is that the exclusionary rule will not be applied on 
collateral review of Fourth Amendment claims be­
cause of the ineffectiveness of the rule. In response to 
the dissenters’ claim that Stone would bring about a 
“drastic withdrawal of federal habeas corpus jurisdic­
tion,” the majority responded:

With all respect the hyperbole o f the dissenting 
opinion is misdirected. Our decision today is not 
concerned with the scope of the habeas corpus 
statute as authority for litigating constitutional 
claims generally. We do reaffirm that the exclu­
sionary rule is a judicially created remedy rather 
than a personal constitutional right . . . and we 
emphasize the minimal utility of the rule when 
sought to be applied to Fourth Amendment 
claims in a habeas corpus proceeding . . .  In sum, 
we hold only that a federal court need not apply 
the exclusionary rule on habeas review of a

1 2 0



49

Fourth Amendment claim absent a showing that 
the state prisoner was denied an opportunity for 
a full and fair litigation of that claim at trial and 
on direct review. Our decision does not mean that 
the federal court lacks jurisdiction over such a 
claim, but only that the application of the rule is 
limited to cases in which there has been both 
such a showing and a Fourth Amendment viola­
tion (emphasis added).

Stone v. Powell, 428 U.S. 465, 494 n.37.

The rejection of Stone for other than Fourth 
Amendment violations was applied, for'example, by 
the Court of Appeals for the Fifth Circuit in Greene 
v. Massey, 546 F.2d 51 (5th Cir. 1977). In Greene a 
federal habeas corpus petition had been filed by a 
state prisoner alleging that his rights under the pro­
hibition against double jeopardy had been violated. 
The Fifth Circuit rejected the contention of the State 
of Florida that Stone v. Powell should be applied and 
cited the above quotation. Greene v. Massey, 546 F.2d 
51, 53 (5th Cir. 1977).

The District Court’s citation to O'Berry v. Wain- 
wright, 546 F.2d 1204 (5th Cir. 1977), as authority for 
the application of Stone v. Powell is misdirected. 
O Berry was a Fourth Amendment case, thus calling 
for the direct application of Stone v. Powell. Further, 
it was Chief Judge John R. Brown who authored both 
the Greene case (decided January 26, 1977) and the 
O'Berry case (decided February 11, 1977), and he ob­
viously had well in mind the principles of Stone v.

1 2 1



50

Powell in both cases. There is absolutely no authority 
in the O'Berry case to indicate that Stone v. Powell 
applies to other than Fourth Amendent-exclusionary 
rule cases.

F. The Several Rationales Used In Stone  
v. Powell Do Not Apply In This Case.

In deciding Stone v. Powell, this Court considered 
the rationale of the exclusionary rule and other factors 
that weighed against federal habeas corpus review of 
the Fourth Amendment claim. These factors as ap­
plied to the facts in this case will be discussed in turn.

In looking at the exclusionary rule as applied to the 
states in Mapp v. Ohio, 367 U.S. 643 (1961), this Court 
critically examined the doctrine of “judicial integrity” 
and “deterrence,” rejected “judicial integrity” as a 
rationale for the exclusionary rule and further found 
the “deterrent” effect of the rule to be so attenuated 
by the time it was used in collateral proceedings as to 
be of no practical effect. There are several critical 
differences in grand jury discrimination cases. While 
this Court may have rejected the rationale of “judicial 
integrity” in exclusionary rule cases,30 this Court has

30 Stone v. Powell, supra a t 435. The exclusionary rule nor­
mally involves constitutional violations by police officers while 
this case involves a constitutional violation committed by a state 
judge. A violation of constitutional protections by a judicial 
officer is a more direct assault upon judicial integrity than is the 
admission of evidence seized by police in violation of the Consti­
tution.

1 2 2



51

not rejected such a rule in grand jury discrimination 
cases. In fact, this Court strongly adheres to such a 
rationale. See Taylor v. Louisiana, 419 U.S. 522 
(1975); Peters v. Kif f  407 U.S. 493, 498-99 (1972).

While this Court has never applied the rationale of 
deterrence to jury discrimination cases, an argument 
could be made that “deterrence” does support the 
relief granted below by the Court of Appeals. To the 
extent that deterrence is at issue in this case, this 
consideration, when dealing with a constitutional rule 
that effects state judges, is different than applying 
exclusionary rules to cases involving policemen. Pre­
dictably, state judges will be much more attentive to 
the remedial effects of federal decisions on federal law 
than are policemen.

The ruling by the Court of Appeals in this case has 
had an effect in Tennessee. Subsequent to the decision 
of the Court of Appeals, the September, 1978, Judicial 
Newsletter of the Tennessee Public Law Institute car­
ried a lengthy article on Mitchell v. Rose, which was 
forwarded to every judge in the state. After a review 
of the law, the article concluded with several para­
graphs on the “Implied Duties of the Tennessee Ju ­
diciary after Mitchell.”31 While such suggestions to 
the state judiciary do not guarantee obedience to con­
stitutional rulings, it certainly appears that the Court 
of Appeals decision will have some remedial effect in 
Tennessee.

31 Article is attached as appendix to this brief, at 11-17.

123



52

Beyond the concept of “judicial integrity” and the 
possible remedial aspects of “deterrence” lies the ra­
tionale of presumed prejudice in jury discrimination 
cases. This rationale has been discussed and explained 
earlier, and it is a concept consistently adhered to by 
this Court since 1879. Strauder v. West Virginia, su­
pra. Presumed prejudice is based on rational human 
experience and the realization that bringing discrim­
ination to light is an extremely difficult evidentiary 
proposition. In considering presumed prejudice, then, 
it should be recognized that the remedy in grand jury 
discrimination cases, unlike the Fourth Amendment 
exclusionary rule, has never been based solely on pro­
phylactic considerations.

One other consideration is the concept of cross-sec­
tionalism. Implicit in this Court’s systematic exclu­
sion decisions is the recognition that there is also a 
very real, albeit unquantifiable, harm to the individual 
interests of a criminal defendant whose case is proc­
essed through a system of decisionmaking from which 
the views of substantial minority groups have been 
excluded.

The rule of the enforcement of the Fourteenth 
Amendment through the voiding of convictions, when 
discrimination in the selection of the grand jury is 
shown, is no late comer to the judicial decisionmaking. 
This Court has applied such a remedy to the states 
since Strauder v. West Virginia, 100 U.S. 303 (1879), 
while the exclusionary rule was not applied to the 
states until Mapp v. Ohio, 367 U.S. 643, in 1961. It

124



5 3

was not until 1969 in Kaufman v. United States, 394 
U.S. 217, 226 (1969), that this Court indicated in dicta 
that Fourth Amendment claims of state prioners were 
reviewable on federal habeas corpus, while habeas re­
view of grand jury discrimination claims by state pris­
oners was established in 1953 in Brown v. Allen, 344 
U.S. 443(1953).

To the extent that systematic-exclusion claims are 
based upon “prophylactic” principles, Peters v. Kiff, 
407 U.S. 493 (1972), establishes that those principles 
call for broader, not narrower, opportunity to litigate 
claims. In Fourth Amendment cases, standing to com­
plain of illegal searches and seizures is limited to those 
criminal defendants whose substantive interests have 
been adversely affected by the search (see, e.g., Rakas 
v. Illinois, U.S. , 47 U.S.L.W. 4025 (Dec. 5, 
1978) (No. 77-5781); Brown v. United States, 411 U.S. 
223 (1973) ), whereas the precise holding in Peters is 
that white defendants may complain about the sys­
tematic exclusion of blacks. So while Fourth Amend­
ment law has moved away from allowing opportunity 
to litigate the claims, this Court’s jury discrimination 
cases have broadened the opportunity of defendants 
to raise constitutional claims.

To the extent that Stone v. Powell was based on 
considerations of federalism, the instant case does not 
present the same federalism, considerations. This case 
involves the enforcement of the Fourteenth Amend­
ment and 18 U.S.C. § 243, which have always been 
applied to the states by federal courts to protect the

125



54

rights of black citizens. I t does not involve the en­
forcement of the first ten Amendments, which have 
only been applied to the sometimes reluctant states 
by judicial opinion over the last fifty (50) years. In 
this area, we can discern the clear intent of Congress 
that the Fourteenth Amendment and the Post Civil 
War “civil rights” acts be enforced by the federal 
courts. See Peters v. Kiff, 407 U.S. 493, 505-07 (White, 
J., concurring); cf. Monroe v. Pape, 365 U.S. 167 
(1961).

I t is especially important in a case of this nature 
that the federal courts be open to claims of discrimi­
nation in the selection of the grand jury foreman or 
forewoman because the challenged state procedure is 
a procedure that directly involves the judiciary of 
Tennessee since it is the judge who chooses the grand 
jury foreman or forewoman. While it is always impor­
tan t to have an independent federal factfinder for the 
enforcement of federal claims, it is of vital importance 
in this case where the federal claim asserts that the 
state trial judge has followed unconstitutional proce­
dures and the state judge presided over the challenge 
to his own conduct.

In constitutional decisionmaking by this Court, the 
doctrine of stare decisis has never been given strong 
adherence, but it is a consideration that should not be 
ignored. Helvering v. Hallock, 309 U.S. 106, 119 
(1940); Burnet v. Coronado Oil and Gas Co., 285 U.S. 
393, 406 (1932) (Brandeis, J., dissenting). Prior to 
Stone v. Powell, many criminal defendants and all

126



55

lower federal courts relied on the scope of federal ha­
beas corpus jurisdiction as expressed in Brown v. A l­
len, and while Stone v. Powell is now the law of the 
land, its further expansion at the price of stare decisis 
should only be undertaken if the benefits involved far 
outweigh the cost.

For the reasons stated in this section of the brief, 
the respondents contend that the decision of Stone v. 
Powell should not be expanded to deny the respond­
ents in this case a federal forum, as the costs of ex­
panding Stone in this case would far outweigh the 
benefits and would do violence to previous decisions 
of this Court, to congressional statutes, and to the 
concept of equal justice for black citizens to which 
this Court has long been the vindicator. See R. Kluger, 
Simple Justice (1975).

This Court should continue to adhere to Brown v. 
Allen when claims of racial discrimination in the se­
lection of a grand jury or grand jury foreman are 
raised32

32 Habeas corpus petitioners raising this type of claim must, 
of course, comply with this Court’s decision in Francis v. Hen­
derson, 425 U.S. 536 (1976).

127



56

CONCLUSION

The judgment of the Court of Appeals should be 
affirmed.

Respectfully submitted,

WALTER C. KURTZ 
I si Walter C. Kurtz 

303 Metropolitan 
Courthouse 

Nashville, Tennessee 
37201

APPENDIX

U.S. Department of Commerce 
1970 Census of Housing, Tennessee.

128



No. 77-1701

In %  ( to r t  ot tin* I n M  £>tat?0
October Term, 1978

J im Rose, Warden, petitioner

v.

J ames E. Mitchell and J ames N ichols, J r.

ON WRIT OF CERTIORARI TO THE UNITED STATES  
COURT OF APPEALS FOR THE SIXTH  CIRCUIT

MEMORANDUM FOR THE UNITED STATES 
AS AMICUS CURIAE

Wade H. McCree, J r .
Solicitor General

Drew  S. Days, III  
Assistant Attorney General

Walter W. Barnett 
Mildred M. Matesich

Attorneys
Department of Justice 
Washington, D.C. 20530

129





I N D E X
Page

Question presented ..............................................  1
Interest of the United S ta te s .............................  1
Statement ...............................................................  3
Summary of argument ........................................ 9
Argument:

I. Federal habeas corpus relief is appro­
priate where a state prisoner has made 
out an unrebutted prima facie case of
racial discrimination in grand jury  se­
lection procedures and state courts have 
not remedied the Fourteenth Amend­
ment violation .......................................... 10
A. Habeas corpus has traditionally 

been available to remedy denials 
of equal protection in the selection 
of state grand and petit juries...... 10

B. Values underlying the Fourteenth 
Amendment’s equal protection 
guarantee militate against exten­
sion of the rationale of Stone v.
Powell to preclude granting federal 
habeas relief in jury  discrimina­
tion cases - .....................................__ 12

II. A state prisoner’s entitlement to fed­
eral habeas corpus where he has made 
an unrebutted prima facie showing of 
discriminatory jury  selection proce­
dures is not contingent on a demonstra­
tion of actual prejudice ............. .......... . 17

Conclusion ............................................................... 20

131



II

CITATIONS
Cases Page

Alexander v. Louisiana, 405 U.S. 625 ...... 11
Avery  v. Georgia, 345 U.S. 559 ................  18
Ballard v. United States, 329 U.S. 187.—9,15,19
Brown v. Allen, 344 U.S. 443 ________  11,15
Carter v. Jury Commission, 396 U.S. 320- 13
Castaneda v. Partida, 430 U.S. 482 ..........  2
Chapman v. California, 386 U.S. 18 ........ 19
Davis v. United States, 411 U.S. 233 ...... 17
Eubanks v. Louisiana, 356 U.S. 584 ........ 18
Ford v. Hollowell, 385 F. Supp. 1392 ........ 2
Francis v. Henderson, 425 U.S. 536 ........ 12,17
Fuller v. Cox, 356 F. Supp. 1185_______ 2
Hairston v. Cox, 500 F.2d 584 ..................  2
Hale v. Henderson, 485 F.2d 266 ............  16
Hill v. Texas, 316 U.S. 400 ......................  17
Labat v. Bennett, 365 F.2d 698, cert, de­

nied, 386 U.S. 991 (1967) ....................  2
Patton v. Mississippi, 332 U.S. 463 .......... 18
Peters v. Kijf, 407 U.S. 493 ....................... 2
Pierre v. Louisiana, 306 U.S. 354 ............  11
Sm ith  v. Texas, 311 U.S. 128 ..................  15
Sm ith  v. Yeager, 465 F.2d 272, cert, de­

nied, 409 U.S. 1076 .................................  2
Stone v. Powell, 428 U.S. 465 — 3,12 ,13 ,14 ,16  
Strauder v. West Virginia, 100 U.S. 303.. 11,15
Taylor v. Louisiana, 419 U.S. 522 ............  15
Tollett v. Henderson, 411 U.S. 258 .......... 12
Turner v. Fouche, 396 U.S. 346 ........... . 11,13
Turner v. Spencer, 261 F. Supp. 542 ........ 2
Witcher v. Peyton, 405 F.2d 725 ..............  2
Woods v. Beto, 348 F. Supp. 573 ......... 2

132



Ill

Constitution, statutes and rules: Page
United States Constitution:

Fourth Amendment .............. ....... .......  12,14
Fourteenth Am endm ent........9,10, 12,14,17

Civil Rights Act of 1964, Title IX, 42
U.S.C. 2000h-2 .......................................... 2

18 U.S.C. 243 ................................................  2,13
Tenn. Code Ann. (1975):

§ 40-1506 
§ 40-1507 
§ 40-1510 
§ 40-1706

Fed. R. Grim. P. 12(b) ...............................  17

Miscellaneous:
Bureau of the Census, 1970 Census of 

Population, Part 14: Tennessee, Table 
35 ...............................................................  7

133

O
i 

O
i 

C
n 

cn





3tt tlyr ^upratt? (Eourt of %  Imfpfc States
October Term, 1978

No. 77-1701

J im Rose, Warden, petitioner

v.

.Tames E. Mitchell and J ames N ichols, J r.

ON WRIT OF CERTIORARI TO THE UNITED STATES  
COURT OF APPEALS FOR THE SIXTH  CIRCUIT

MEMORANDUM FOR THE UNITED STATES 
AS AMICUS CURIAE

QUESTION PRESENTED

Whether federal habeas corpus should be available 
to remedy a denial of equal protection in the selection 
of a grand jury  foreman where the issue has been 
litigated in the state courts and the state has failed 
to rebut the prisoners’ prima facie showing of racial 
discrimination.

( 1 )

135



2

INTEREST OF THE UNITED STATES

Title IX of the Civil Rights Act of 1964, 42 U.S.C. 
2000h-2, provides, inter alia, tha t the Attorney Gen­
eral may intervene in any action in federal court 
that alleges a denial of equal protection of the laws 
on account of race or color, and tha t the Attorney 
General certifies is of general public importance. The 
United States has intervened in actions alleging dis­
crimination in jury  selection,1 and has also partici­
pated as amicus curiae in this Court in litigation 
challenging state jury  selection practices.1 2 In addi­
tion, the United States may prosecute persons who 
exclude citizens from service on state grand juries 
or petit juries on account of race or color. 18 U.S.C. 
243.

This Court’s decision last term in Castaneda v. 
Partida, 430 U.S. 482 (1977), is the most recent of 
many cases in which state prisoners have utilized 
federal habeas corpus to vindicate their right to equal 
protection in the selection of grand and petit jurors.3

1 See, e.g., Turner V. Spencer, 261 F. Supp. 542 (S.D. Ala. 
1966).

2 See Memorandum for the United States as Amicus Curiae, 
Duren V. Missouri, No. 77-6067, October Term, 1978, filed 
July 21, 1978.

3 See, e.g., Peters V. Kiff, 407 U.S. 493 (1972); Hairston V. 
Cox, 500 F.2d 584 (4th Cir. 1974) (en banc) ; Smith  v. Yeager, 
465 F.2d 272 (3d Cir.), cert, denied, 409 U.S. 1076 (1972) ; 
Witcher v. Peyton, 405 F.2d 725 (4th Cir. 1969) ; Labat V. 
Bennett, 365 F.2d 698 (5th Cir. 1966), cert, denied, 386 U.S. 
991 (1967) ; Ford V. Hollowell, 385 F. Supp. 1392 (N.D. Miss. 
1974) ; Fuller V. Cox, 356 F. Supp. 1185 (W.D. Va. 1973) ; 
Woods V. Beto, 348 F. Supp. 573 (N.D. Tex. 1972).

136



3

While the appropriateness of federal collateral relief 
to remedy this particular type of constitutional error 
was not a t issue in Castaneda, that question is pre­
sented in the instant case; petitioner relies on Stone 
v. Powell, 428 U.S. 465 (1976), to argue that fed­
eral habeas relief should not be available where the 
state prisoners have not challenged the composition 
of the petit jury, there is substantial evidence of 
guilt, and the grand jury  issue has been fully and 
fairly litigated in the state courts. The interest of 
the United States in this case is premised on the 
need to maintain the integrity of the jury  system and 
prevent the exclusion of persons from jury  service on 
racial grounds, and on the importance of the avail­
ability of federal habeas corpus as a means of ac­
complishing that goal.

STATEMENT

1. On November 6, 1972, respondents James 
Mitchell and James Nichols, Jr., were indicted on 
two counts of m urder in the first degree in Tipton 
County, Tennessee. Prior to trial respondents sought, 
by pleas in abatement, to dismiss the indictment on 
the grounds that the grand jury and the grand jury 
foreman had been selected in a racially discrimina­
tory fashion (App. 1-2). The pleas were denied by 
the trial court a fter hearing testimony from the 
three Tipton County jury  commissioners, three for­
mer grand jury  foremen—including the foreman of 
the grand jury that had indicted respondents—eleven 
of the twelve other members of that grand jury, and

137



4

the circuit court clerk (App. 3-36). Respondents 
were tried, convicted, and sentenced to sixty years’ 
imprisonment. The Tennessee Court of Criminal 
Appeals affirmed the convictions (App. 37-42), and 
the Supreme Court of Tennessee denied certiorari 
(App. 42).

The respondents then filed separate petitions for 
federal habeas corpus in the district court (App. 
43-52, 62-73). These petitions were consolidated; 
the district court declined to conduct an evidentiary 
hearing, and found that there had been no impro­
priety in the selection of the grand jury. However, 
in the selection of the grand jury  foreman, the 
district court held that respondents had made out a 
prim a facie case of racial discrimination, and ordered 
the state to make further response (App. 98-99). 
The state submitted two affidavits: one from the 
foreman himself, indicating that he had not voted on 
respondents’ indictments, and one from the judge 
who appointed the foreman, disavowing any racial 
motive in the appointment (App. 105-106, 112-113). 
On the basis of these affidavits the district court dis­
missed the petitions (App. 121-122, 124-126).4 Re-

4 The district court entered its order dismissing the peti­
tions on February 18, 1977 (App. 123-124). On March 23, 
1977, the district court denied respondents’ motion for a hear­
ing and for reconsideration. At that time it stated it found 
further support for its dismissal of the petitions in Stone V. 
Powell, and concluded that “since the contention [as to dis­
crimination in the selection of the grand jury foreman] was 
fairly heard in state court, petitioners are not entitled to 
another review here” (App. 125-126).

138



5

spondents appealed and the court of appeals reversed 
as to the selection of the foreman (App. 127-141; 
570 F.2d 129).

2. Under Tennessee’s “key man” system of grand 
jury  selection, the jurors are chosen by three jury 
commissioners who are, in turn, appointed by a 
judge. However, the foreman of the grand jury  is 
selected directly by the judge from the eligible popu­
lation for a two-year appointment. Tenn. Code Ann. 
§ 40-1506 (1975). The foremen are subject to the 
same statutory qualifications as the grand jurors, ex­
cept that they must be a t least twenty-five years old. 
Tenn. Code Ann. § 40-1507 (1975). Included among 
the duties of the foreman are assisting and advising 
the district attorney in investigating crime, supply­
ing the names of witnesses, issuing subpoenas, ad­
ministering oaths to witnesses, and indorsing and 
signing indictments. Tenn. Code Ann. §§ 40-1510, 
40-1706 (1975). The foreman serves as the thirteenth 
member of the grand jury  “having equal power and 
authority in all matters coming before the grand jury 
with the other members thereof.” Tenn. Code Ann. 
§ 40-1506 (1975).

In the instant case the foreman of respondents’ 
grand jury had been asked by the circuit judge to 
substitute for the regular foreman who was unavail­
able. The substitute, Peyton Smith, had served pre­
viously as a foreman, and according to the circuit 
judge’s affidavit was chosen because of his experience 
and ability. App. 112-113. Testifying a t the hear-

139



6

ing on the pleas in abatement, Smith related (App. 
23) that he

usually questions the witnesses first to get basic 
information to the attention of the members 
of the Grand Jury  and then I ask, after each 
witness has been examined, if there’s anyone in 
the room that wants to ask any fu rther ques­
tions of that witness.

In respondents’ case only one witness, the deputy 
sheriff who had investigated the murders (App. 118), 
was questioned (App. 24). The grand jury  mem­
bers were then polled to see if they wanted to hear 
any more testimony before voting, and they did not 
(ibid.). Since the other grand jury  members voted 
unanimously to return  the indictment, Smith did not 
vote (App. 105).®

None of the grand jury foremen who testified at 
the hearing on respondents’ pleas in abatement could 
recall tha t there had ever been a black grand jury 
foreman in Tipton County. App. 17-25.® In the a f­
fidavit of the circuit judge submitted by petitioner 
in the federal habeas proceedings, the judge stated 
that there was no black foreman in the five counties 
in which he appointed foremen, and added that he 6

6 In his affidavit, Smith stated that during all his service 
as grand jury foreman he had voted on only one indictment; 
in all other cases, true bills were returned based solely on 
the unanimous vote of the other 12 members (App. 105).

6 Their experience covered the period from “the early ’50’s” 
(App. 20) to the date of the hearing in 1973 (App. 17, 24- 
25).

140



7

had not “really given any thought to appointing a 
black foreman but I have no feeling against doing 
so.” He also stated tha t he does not appoint new 
foremen very often because he usually reappoints 
them when their two-year term expires and “thus 
they serve a long time.” App. 113.7

3. The court of appeals concurred in the district 
court’s conclusion that respondents had proved a 
prima facie case of racial discrimination in the selec­
tion of the grand jury  foreman, but disagreed with 
the court’s determination that the state’s evidence 
was sufficient to rebut that case (App. 137). First, 
the court of appeals pointed out tha t the circuit 
judge’s affidavit asserting that he acted in good faith 
and without racial motivation in choosing the fore­
man is not adequate to rebut a prima facie show-

7 Respondents’ motions to quash their indictments were 
heard by the same judge whose foreman appointment prac­
tices they challenged—Herman L. Reviere, circuit judge for 
the Sixteenth Judicial Circuit of Tennessee. That circuit also 
includes Fayette, Hardeman, Lauderdale, and McNairy Coun­
ties. At the hearing on respondents’ motions, Judge Reviere 
pointed out that he had been on the bench since 1966 (App. 
5). Thus, in the at least fifteen opportunities he had from 
1966 until respondents’ trial in 1973 to appoint grand jury 
foremen in the five counties, he had evidently never appointed 
a black. Census figures for 1970 show the following percent­
ages of black persons twenty-five years of age or over in the 
five counties: Fayette County—52 % ; Hardeman County—- 
30% ; Lauderdale County—28% ; McNairy County—5% ; Tip- 
ton County—28%. Bureau of the Census, 1970 Census of Popu­
lation, Characteristics of the Population, Part UU: Tennessee, 
Table 35, pp. 109, 112, 116, 117, 124.

141



8

ing of systematic exclusion in the selection of grand 
jurors (App. 137). Second, the court of appeals 
rejected the district court’s conclusion that respond­
ents had not suffered a deprivation of equal pro­
tection because the foreman had not voted on their 
indictments. The court pointed out that the foreman 
plays a vital role in the functioning of a Tennessee 
grand jury  (App. 138-139; citations om itted):

He or she is expected to assist the district a t­
torney in investigating crime, may administer 
oaths to all witnesses, conduct the questioning 
of witnesses, must indorse and sign all indict­
ments, and like every other chairperson is in a 
position to guide, whether properly or improp­
erly, the decision making process of the body. 
Additionally, the indorsement and signature of 
the foreman or forewoman is indispensible to 
an indictment in Tennessee, and their absence 
voids the bill.

Moreover, by statute the foreman is a full member 
of the grand jury, and the court of appeals observed 
that a grand jury “which is only twelve-thirteenths 
constitutional cannot render constitutionally valid 
indictments” (App. 139).

Finally, the court of appeals, while recognizing 
the possibility of “insidious and far-reaching” preju­
dice to respondents, rejected the contention that they 
were required to demonstrate actual prejudice in 
order to prevail. App. 140-141. The court pointed 
out that no such showing of actual harm had ever 
been required in the context of an equal protection

142



9

challenge to the composition of a jury, and went on 
to state that such a requirement would be inappro­
priate since the injury sought to be redressed is not 
merely an injury to the defendants themselves, but 
to “the jury  system, to the law as an institution, 
to the community a t large, and to the democratic 
ideal reflected in the processes of our courts” (App. 
140 (quoting from Ballard v. United States, 329 U.S. 
187, 195 (1946)).

The court remanded the case with directions to 
release them on the w rit unless they were properly 
reindicted within sixty days (App. 141).

SUMMARY OF ARGUMENT

Federal habeas corpus has long been available to 
redress denials of equal protection through racial 
discrimination in state grand jury selection proce­
dures, to safeguard the significant individual and 
societal values underlying the Fourteenth Amend­
ment. I t would be inappropriate for this Court to 
extend its holding in Stone v. Powell to preclude con­
sideration by federal courts of Fourteenth Amend­
ment claims of the type presented here because, un­
like the exclusionary rule a t issue in Stone, the rem­
edy sought by the respondents is the prim ary in­
strument for correcting the harm done to themselves, 
to the community, and to the integrity of the jury 
system by the state’s denial of equal protection. In 
weighing the constitutional interest here against 
the cost to society of allowing grand jury challenges 
to be aired by state prisoners on federal collateral

143



10

attack, the balance should be struck in favor of per­
mitting such challenges.

Nor should this Court depart from the principle— 
firmly rooted in close to a century of case law— 
that a criminal defendant is not required to demon­
strate actual prejudice or direct impact on guilt or 
innocence in order to prevail on a jury  discrimina­
tion claim. The court of appeals correctly rejected 
the state’s “harmless error” argument on the grounds 
tha t application of that doctrine leaves unvindicated 
the interest of the community a t large in m aintain­
ing the integrity of the jury  system.

ARGUMENT

I.

FEDERAL HABEAS CORPUS RELIEF IS APPRO­
PRIATE WHERE A STATE PRISONER HAS MADE 
OUT AN UNREBUTTED PRIMA FACIE CASE OF 
RACIAL DISCRIMINATION IN GRAND JURY SE­
LECTION PROCEDURES AND THE STATE COURTS 
HAVE NOT REMEDIED THE FOURTEENTH 
AMENDMENT VIOLATION

A. Habeas Corpus Has Traditionally Been Available To 
Remedy Denials Of Equal Protection In The Selection 
Of State Grand And Petit Juries

Where, as here, state prisoners have presented 
prima facie evidence of the denial of equal protection 
in jury  selection procedures and the state has not re­
butted that evidence,® federal habeas corpus relief 8

8 The d istric t court and the court of appeals w ere correct 
in th e ir  finding th a t respondents had m ade out a prim a facie

144



11

has long been afforded in cases in which the state 
courts have failed to redress the wrong.9

In Brown v. Allen, 344 U.S. 443, 470 (1953), 
this Court reiterated:

[discrim inations against a race by barring 
or limiting citizens of that race from participa­
tion in jury  service are odious to our thought 
and our Constitution.

For that reason, jury  discrimination claim s19 have 
been considered on federal collateral attack whether 
they are based on total exclusion or substantial un­

case of racial discrimination in the selection of grand jury 
foremen in Tipton County. The foremen who testified could 
not recall a black person ever serving in that position (App. 
17-25), and the trial judge who made the appointments can­
didly admitted that he had not “really given any thought to 
appointing a black foreman.” App. 113. The state does not 
contest the prima facie showing, but argues instead that the 
evidence of discrimination was rebutted by the judge’s affi­
davit stating non-racial reasons for the appointment of the 
particular foreman in respondents’ case (Pet. Br. 26-27). 
That evidence was properly rejected by the court of appeals 
as insufficient (App. 137). See Alexander V. Louisiana, 405 
U.S. 625 (1972) ; Turner v. Fouche, 396 U.S. 346, 361 (1970) 
and cases there cited.

9 See cases cited at note 3, supra.
10 Since Strauder V. West Virginia, 100 U.S. 303 (1879), 

claims of discriminatory selection of grand and petit jurors 
have been treated as requiring the same analysis and, if 
demonstrated, justifying the same relief. Accordingly, peti­
tioner’s suggestion (Pet. Br. 18) that any defect in the con­
stitution of the grand jury is mooted by the subsequent trial 
and conviction is contrary to this Court’s consistent treatment 
of grand jury discrimination claims. See infra, point II. See 
also Pierre V. Louisiana, 306 U.S. 354, 356-358 (1939).

145



12

derrepresentation (see Castaneda v. Partida, supra), 
and regardless of the race of the state prisoner 
claiming the denial of equal protection (see Peters v. 
Kiff, supra).11 Federal habeas corpus has been held 
unavailable in cases of this type only where the 
grand jury  discrimination claim has been foreclosed 
by a plea of guilty, Tollett v. Henderson, 411 U.S. 
258 (1973), or the state prisoner has failed to com­
ply with the state’s procedural rules requiring chal­
lenges to the composition of the grand jury  to be 
made prior to trial. Francis v. Henderson, 425 U.S. 
536 (1976). Neither of those limitations applies in 
the instant case.

B. Values Underlying The Fourteenth Amendment’s 
Equal Protection Guarantee Militate Against Exten­
sion of The Rationale Of Stone v. Powell to Preclude 
Granting Federal Habeas Relief In Jury Discrimina­
tion Cases

The State’s argument that this Court’s holding in 
Stone v. Powell should be extended to grand jury 
challenges raised in federal habeas corpus petitions 
fails to take account of the basic difference between 
the Fourteenth Amendment values implicated here 
and the evidentiary rule a t issue in Stone. The s ta r t­
ing point for the Court’s analysis in Stone was its 
determination that the Fourth Amendment exclu­
sionary rule is a judicially-created remedy designed 
to deter unconstitutional searches and seizures (428

11 The fac t th a t the grand  ju ro rs  here were unaw are of 
e ither respondents’ or th e  victim s’ race (App. 31, 33) is 
therefore irrelevant.

146



13

U.S. a t 482), rather than to correct a particular 
constitutional deprivation (id. a t 486-487). The 
Court in Stone then weighed that deterrent purpose 
against the cost to society of reconsidering search- 
and-seizure claims of state prisoners on collateral 
review, where those claims have already been fully 
and fairly litigated in the state courts. 428 U.S. a t 
493-495.

In contrast to an unconstitutional invasion of pri­
vacy which cannot subsequently be corrected by the 
exclusion of the evidence thereby obtained (428 U.S. 
a t 486), the constitutional violation here can be cured 
by dismissing the indictment returned by the tainted 
grand jury. The practice of invalidating convictions 
based on indictments returned by improperly consti­
tuted grand juries has for close to a century been 
the prim ary and almost exclusive mechanism for re­
dressing the wrong not only to a given defendant, 
but also to the jury  system and to the community 
a t large where equal protection is denied in the se­
lection of members of the grand jury. While the 
Fourteenth Amendment’s equal protection guarantee 
can be secured to some extent by class actions such as 
those in Carter v. Jury Commission, 396 U.S. 320 
(1970), and Turner v. Fouche, 396 U.S. 346 (1970), 
and by criminal prosecutions brought under 18 
U.S.C. 243, the principal vehicle for eliminating 
discrimination in grand jury  selection procedures re­
mains the motion to quash or dismiss an indictment 
by a defendant who has been charged by that grand 
jury.

147



14

The Court in Stone expressly disavowed any in­
tent to redefine the scope of federal habeas “for liti­
gating constitutional claims generally” (428 U.S. a t 
495, n.37). If, despite this disavowal, this Court now 
concludes that an analysis similar to that utilized in 
Stone is appropriate here, the societal costs of cor­
recting the constitutional deprivation suffered by 
these respondents do not, in our view, outweigh the 
values that are thereby vindicated.

While the state may be correct in describing the 
costs to it of having to reindict and retry  respond­
ents,12 on the other side of the scale is a constitu­
tional interest substantially more compelling than the 
questionable incremental deterrent effect of collateral 
application of the exclusionary rule a t issue in Stone 
v. Powell. This Court has repeatedly recognized that 
more is a t stake than a particular defendant’s en­
titlement to equal protection where there is a show­
ing of discrimination in the method by which grand 
jurors are chosen. A fundamental societal value em­
bodied in the Fourteenth Amendment is impaired by 
such discrimination:

12 In at least one significant respect the “cost” to the state 
in having to reindict and retry respondents is less than it 
would be in the Fourth Amendment context. In the latter 
situation, the state would have to exclude evidence that might 
be highly probative on the issue of guilt because it was ob­
tained in violation of the Fourth Amendment. The state 
suffers no such deprivation in the instant case, however. It 
is free to use again any and all evidence produced at respond­
ents’ first trial. It can even read the prior grand jury testi­
mony to a new, properly constituted grand jury if its evi­
dentiary rules permit.

148



15

The very fact that colored people are singled 
out and expressly denied * * * all right to par­
ticipate in the administration of the law, as 
jurors, because of their color, though they are 
citizens, and may be in other respects fully quali­
fied, is practically a brand upon them, affixed by 
the law, an assertion of their inferiority, and a 
stimulant to that race prejudice which is an 
impediment to securing to individuals of the race 
that equal justice which the law aims to secure 
to all others.

Strauder v. West Virginia, 100 U.S. 303, 308 (1879). 
See also Sm ith  v. Texas, 311 U.S, 128, 130 (1940). 
In addition, as this Court observed in Taylor v. Lou­
isiana, 419 U.S. 522, 530 (1975), the exclusion of 
significant groups from jury  service diminishes con­
fidence in the administration of justice. In keeping 
with the importance of the values implicated in the 
Fourteenth Amendment’s equal protection guarantee, 
this Court has described racial discrimination in jury 
selection procedures as being “a t w ar with our basic 
concepts of a democratic society and a representative 
government,” Sm ith  v. Texas, supra, 311 U.S. a t 130, 
“odious to our thought and our Constitution,” Brown 
v. Allen, supra, 344 U.S. a t 470, and injurious “to 
the jury  system, to the law as an institution, to the 
community a t large, and to the democratic ideal re­
flected in the processes of our courts.” Ballard v. 
United States, 329 U.S. 187, 195 (1946). Where 
constitutional considerations of this magnitude are 
subjected to the weighing process applied in Stone v. 
Powell, the balance tips heavily in favor of continu-

149



16

ing to allow state prisoners to raise jury discrimina­
tion claims in petitions for federal habeas corpus.113

13 There may also be significant differences between this 
case and Stone in the extent to which it is appropriate to rely 
on the state courts to vindicate the rights involved (428 U.S. 
at 493, n.35). The record here suggests that federal court 
review of this particular type of constitutional claim is not 
mere duplication of judicial effort. Respondents’ challenges 
to the foreman selection procedures were initially heard and 
decided by the very judge whose appointments they contended 
were racially discriminatory (see supra, note 7) ; a ruling in 
respondents’ favor would have amounted to an admission by 
the judge that his own method for choosing the grand jury 
foreman violated the Constitution.

Respondents fared little better on direct appeal. In 1973 
in Hale v. Henderson, 485 F. 2d 266 (6th Cir.), the court 
of appeals addressed itself to the issue of racial dis­
crimination in the appointment of grand jury foremen in 
Shelby County, Tennessee, where no black had ever been 
appointed by the circuit judge in 150 opportunities. While 
the court decided Hale on other grounds, it expressed sub­
stantial concern about appointment methods that resulted in 
150 successive instances of white foremen being selected. 485 
F. 2d at 269-270. Despite the discussion of this issue in Hale, 
the Tennessee Court of Criminal Appeals, considering re­
spondents’ grand jury claims just six months after Hale was 
decided, made no mention of the specific contention raised 
by respondents concerning selection of the foreman in briefly 
disposing of their grand jury claims (App. 38-39).

150



17

II.

A STATE PRISONER’S ENTITLEMENT TO FEDER­
AL HABEAS CORPUS WHERE HE HAS MADE AN 
UNREBUTTED PRIMA FACIE SHOWING OF DIS­
CRIMINATORY JURY SELECTION PROCEDURES 
IS NOT CONTINGENT ON A DEMONSTRATION OF 
ACTUAL PREJUDICE

Since its decision in Strauder v. West Virginia, 
supra, holding tha t the Equal Protection Clause of 
the Fourteenth Amendment is violated by the sys­
tematic exclusion of persons from service on state 
grand juries or petit juries on racial grounds, this 
Court has never required a showing of actual preju­
dice by one asserting such a claim, whether on direct 
review or collateral attack, except in one situation.14 
The rationale for this policy is explained in Hill v. 
Texas, 316 U.S. 400, 406 (1942) (citation om itted):

[N]o State is a t liberty to impose upon one 
charged with crime a discrimination in its trial 
procedure which the Constitution, and an Act 
of Congress passed pursuant to the Constitution, 
alike forbid. Nor is this Court a t liberty to

14 A state prisoner seeking federal habeas corpus on grounds 
of alleged discrimination in the selection of the grand jury 
who has failed to comply with the state’s procedural rule 
requiring such a claim to be made prior to trial must show 
cause for his failure to assert his rights in a timely fashion 
in the state proceedings, and he must also show actual preju­
dice. Francis v. Henderson, 425 U.S. 536 (1976). The same 
rule applies to federal prisoners who raise the claim on col­
lateral attack after failing to comply with the requirements 
of Rule 12(b) of the Federal Rules of Criminal Procedure. 
Davis v. United States, 411 U.S. 233 (1973).

151



18

grant or withhold the benefits of equal protec­
tion, which the Constitution commands for all, 
merely as we may deem the defendant innocent 
or guilty. I t is the State’s function, not ours, 
to assess the evidence against a defendant. But 
it is our duty as well as the State’s to see to it 
that throughout the procedure for bringing him 
to justice he shall enjoy the protection which the 
Constitution guarantees. Where, as in this case, 
timely objection has laid bare a discrimination 
in the selection of grand jurors, the conviction 
cannot stand, because the Constitution prohibits 
the procedure by which it was obtained. Equal 
protection of the laws is something more than 
an abstract right. I t  is a command which the 
State must respect, the benefits of which every 
person may demand. Not the least merit of our 
constitutional system is that its safeguards ex­
tend to all—the least deserving as well as the 
most virtuous.

Accord, Eubanks v. Louisiana, 356 U.S. 584 (1958); 
Avery  v. Georgia, 345 U.S. 559 (1953); Patton v. 
Mississippi, 332 U.S. 463 (1947).

This Court’s refusal to concern itself with ques­
tions of guilt or innocence in cases of this type re­
flects its recognition of the multiple interests served 
by the Equal Protection Clause—interests which are 
no less harmed by racial discrimination in the selec­
tion of a grand jury  that indicts a guilty defendant 
than by such discrimination in the selection of a 
grand jury  that indicts an innocent defendant.

These same considerations militate against appli­
cation of the “harmless error” doctrine in grand jury

152



19

discrimination cases, a contention also advanced by 
the state (Pet. Br. 28-29). Where the composition of 
federal grand and petit juries was challenged in 
Ballard v. United States, supra, this Court stated 
tha t “reversible error does not depend on a showing 
of prejudice in an individual case.” 329 U.S. a t 195A 
In this context, guarding against the conviction of 
the innocent through the use of improper jury  selec­
tion methods is only one function of federal habeas 
corpus; application of the “harmless error” doctrine 
would leave unvindicated the other important Four­
teenth Amendment values protected by the writ. Ac­
cordingly, a state prisoner’s right to seek federal 
habeas corpus in a jury  discrimination case should 
not depend on a showing of actual prejudice.

15 The inapplicability of the  harm less e rro r doctrine in this 
context is also noted by Mr. Justice S tew art, concurring in 
Chapman v. California, 386 U.S. 18, 44 (1967) :

In a long line of cases leading up to' and including 
W hitus  V. Georgia, 385 U.S. 545, i t  has never been sug­
gested th a t reversal of convictions because of purposeful 
discrim ination in the  selection of grand  and petit ju ro rs 
tu rn s  on any showing of prejudice to  the  defendant.

153



20

CONCLUSION

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted.

December 1978

Wade H. McCree, J r . 
Solicitor General

Drew  S. Days, I II  
A ssistan t A tto rney  General

Walter W. Barnett 
Mildred M. Matesich 

A ttorneys

154



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