Sims v Dutton Supplemental Brief for Respondent Appellee
Public Court Documents
May 22, 1967

10 pages
Cite this item
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Brief Collection, LDF Court Filings. Sims v Dutton Supplemental Brief for Respondent Appellee, 1967. ccece978-c49a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7efe2179-aa6c-4af9-ba7b-ffe2d4705511/sims-v-dutton-supplemental-brief-for-respondent-appellee. Accessed April 19, 2025.
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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