Sims v Dutton Supplemental Brief for Respondent Appellee

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

Nos. 24 ,271 , 24 ,272

IN TH E M ATTERS OF:
ISAAC SIMS, JR., AND RICHARD ABRAMS 

Appellants

A. L. D U TTO N ,
Warden of the Georgia State Prison 

Respondent-Appellee

Appeals from the United States District Court for the 
Southern District of Georgia

SUPPLEMENTAL BRIEF FOR 
RESPONDENT-APPELLEE



IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

Nos. 24 ,271 , 24 ,272

IN TH E M ATTERS OF:
ISAAC SIMS, JR., AND RICHARD ABRAMS 

Appellants

A. L. D U TTO N ,
Warden of the Georgia State Prison 

Respondent-Appellee

Appeals from the United States District Court for the 
Southern District of Georgia

SUPPLEMENTAL BRIEF FOR 
RESPONDENT-APPELLEE

QUESTIONS PRESENTED

1. Whether the hearing should have been held prior 
to the expiration of 20 days from the serving of the 
notice?

2. Whether the Appellants made a sufficient showing 
that the testimony to be preserved was material, rele­
vant and competent; and whether there would be a fail­
ure or delay of justice in denying the petition?

1



ARGUMENT AND CITATION OF AUTHORITY

1.

The hearing should have never been held until the 
expiration of 20  days from the serving of the notice.

The Appellants have urged that the 20-day time limit 
be shortened, and in support thereof cited a discussion 
regarding Rule 6 (d) :

“ In practice, courts have usually recognized some 
elasticity in observance of the strict time limits pre­
scribed. It is unnecessary to multiply citations for 
a principle so well recognized. Without adding to 
citation of authority, it may be said that where the 
course of justice would have been hindered through 
strict adherence to these limits, the widely mani­
fested disposition has been to relax them.” 4 Cyclo­
pedia of Federal Procedure, Time Elements and 
Considerations, §13.23, (3rd Ed. 1951, and 1966 
Supp.).

But the balance of that paragraph reads as follows:
“ That such a point of view is contemplated by these 
rules is clearly indicated by the provision of subdi­
vision ( d)  referring to an order of court for a dif­
ferent time and allowing application for such order 
to be made on ex parte application (citations omit­
ted) (Emphasis supplied.) 4 Cyclopedia of Fed­
eral Procedure, Ibid.

However lenient the time limit provisions of Rule 
6 (d) may be interpreted and changed by the order of 
a court, such leniency is neither permitted nor even 
contemplated in regard to Rule 27 (a) (2) ; and in this 
respect the leading authorities are in agreement.

2



“ The notice and petition must be served at least 20 
days before the date of hearing specified in the no­
tice.” (Emphasis supplied.) 4 Moore’s Federal Prac­
tice, Depositions and Discovery, §27.14.

“ This notice must be served at least 20 days before 
the date of the hearing.” (Emphasis supplied.) 2A 
Barron and Holtzoff, Federal Practice and Proced­
ure, Depositions and Discovery, §673.

Thus, the hearing should not have been held until 
after the expiration of 20 days from the date of the serv­
ing of the notice.

II.

The Appellants failed to make a sufficient showing 
that the testimony to be preserved was material, rele­
vant, and competent, and that there would be a failure 
or delay o f  justice to deny the petitions.

Appellants urge the view that the District Court gave 
no consideration to factors relevant in determining 
whether there would be a failure or delay of justice in 
denying the petitions to perpetuate testimony; and that 
the Court did not mention the factor of the admissibility 
of the testimony in a later proceeding (i.e., the question 
of whether the testimony is material or competent) .

A. The Testimony Is Not Shown to the Court to be 
Competent, Material or Relevant.

At this point, let us examine the alleged facts which 
the Appellants wish to establish:

1. The three proposed deponents were field research­
ers in the State of Georgia during the summer of 1965 
(R., 3).

3



That they were in Georgia in 1965, we do not doubt: 
that they were qualified and competent field researchers 
is another question. The petition alleges they were all 
college graduates with one or more years’ law school 
training, including particularly work appropriate to this 
project (R., 5). But what this work consisted of, we are 
never told. This work might be determinative of the de­
ponents’ qualifications to conduct a survey of the type 
conducted here.

Next we are informed that these three people ap­
proached the study with the spirit of objectivity required 
for social science research and the analysis of legal evi­
dence (R., 6) . Their spirit of objectivity is a conclusion 
not based on any facts shown in the petition. Their abil­
ity to analyze legal evidence is also doubtful because we 
are never informed as to whether they ever had a course 
in evidence.

Then we are told “ the field researchers were given 
adequate orientation in the nature and methods of social 
science survey research . . . .” The adequacy of this orien­
tation is open to doubt since we are not informed as to 
the nature and method of this orientation or its duration.

The list of these shortcomings could be greatly length­
ened, but the items mentioned show that the Appellants 
failed to show the competence of the researchers. A  com­
petent witness is one who is legally qualified to be heard 
to testify in a cause. Black’s Laiv Dictionary, 4th Ed., 
1957.

B. There Would Be No Failure or Delay o f  Justice 
to Deny the Petitions.

The next “ fact” stated in Appellants’ petition was: 
“ That the field researchers accurately transferred to

4



certain Capital Punishment Survey Schedules or 
Questionnaires the facts taken from trial transcripts 
and other sources regarding specified prosecutions 
for rape in the State of Georgia for the period 1945 
to 1965.”

We are never informed what these other sources con­
sist of so we don’t really know whether the testimony 
relating to them is competent, relevant and material. All 
we really know is that the field researchers took some 
information from trial transcripts.

This raises a very interesting question itself. In their 
brief, Appellants talk about the admissibility of public 
opinion polls, but by no stretch of the imagination can 
a search of trial transcripts be classified as a public opin­
ion poll. Indeed, these transcripts would be the highest 
and best evidence of what they contain. We are con­
cerned, not with the “ Hearsay Rule” but with the “ Best 
Evidence Rule.”

This type of evidence bears directly on the question 
of whether the evidence will be lost through the pas­
sage of time — a failure or delay of justice.

It is indisputable that this type of evidence will not 
be lost through a passage of time. That one of the field 
researchers is about to depart for Peru and may not re­
turn will not destroy the evidence; the evidence will con­
tinue to exist in the court records, available to anyone 
who wishes to read them. The only evidence that might 
be lost is the evidence relating to Mr. Farnsworth’s par­
ticular qualifications and how he conducted his portion 
of the “ survey,” and this evidence is neither relevant 
nor material to the main question of whether the State of 
Georgia has sentenced Negroes to death for the rape of



white women in a racially discriminatory manner. In­
deed, even if Mr. Farnsworth were to fail to return, it 
would be a relatively easy matter for Appellants to have 
a qualified researcher read the trial transcripts which Mr. 
Farnsworth read and extract the same information.

The type of information which should be perpetuated 
under a motion made pursuant to Rule 27 is information 
within the exclusive knowledge of the deponent, or in­
formation which the deponent knew, saw, heard, felt, or 
observed directly, not information which the deponent 
learned by reading an official public court record. Infor­
mation within the exclusive knowledge of the deponent, 
or information which the deponent knewy saw, heard, 
felt or observed directly might be subject to loss if the 
deponent is unavailable at the trial; but information a 
deponent learned by a source, other than his own knowl­
edge, particularly where that information is contained 
in an official public court record, is not subject to such 
loss.

G



CONCLUSION

The Court did not err in denying the petitions to per­
petuate testimony because the hearing should not have 
been conducted until the expiration of the 20-day time 
limit, and the evidence contained in certain trial tran­
scripts will not be lost because a “ witness” who read 
such transcripts might not be available to testify as to 
what he read in them.

Original pen signed Thy

A r t h u r  K . B o lto n  
Attorney General

Original pen signed by
G. Ern est  T id w e l l

Executive Assistant Attorney General

Original pen signed trj
J oel  M. Fe l d m a n

Deputy Assistant Attorney General
Address:

132 State Judicial Building 

Atlanta, Georgia 30334

7



CERTIFICATE OF SERVICE

This is to certify that service of the foregoing Brief 
for Appellee-Respondent has been made upon Jack 
Greenberg, Esq., James M. Nabritt, III, Esq., Norman 
G. Amaker, Esq., Michael Meltsner, Esq., Conrad K. 
Harper, Esq., 10 Columbus Circle, New York, New 
York 10019, and Howard Moore, Jr., Esq., 859y2 Hunter 
Street, N.W., Atlanta, Georgia 30314, by mailing two 
copies to each counsel by United States Mail, air mail 
postage prepaid, addressed as indicated above.

This^A.i5-4:--.'tiay of. , 1967.

Original pen signed b?
J o el  M. Fe l d m a n

Attorney for Appellee-Respondent



Si