Swain v. Alabama Brief and Argument in Opposition to Petition for Certiorari

    IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No. 600

ROBERT SWAIN,

PETITIONER,

V.

STATE OF ALABAMA, 

RESPONDENT.

BRIEF AND ARGUMENT IN OPPOSITION TO PETITION 

FOR WRIT OF CERTIORARI TO THE SUPREME COURT 

OF ALABAMA.

RICHMOND M. FLOWERS, 
Attorney General of Alabama,

LESLIE HALL,
Assistant Attorney General 

of Alabama,

Administrative Building, 
Montgomery, Alabama 36104,

Attorneys for Respondent.



INDEX

Page

STATEMENT ...................    2

QUESTIONS PRESENTED .................................................  2

ARGUMENT ...........................................................................  3

i



TABLE OF CASES

Baldwin V. Kansas, 129 U. S. 151, 32 L. Ed. 640, 52 S.
Ct. 57 ............................................................ ..................... 4

Dickey V. State, 21 Ala. App. 644, 111 So. 426.....................  7
Dixon v. State, 39 Ala. App. 575, 105 So. 2d 354  .............  7
Ex parte Spies, 123 U. S. 131, 31 L. Ed. 80, 131

S. Ct. 131 .........................................................................  4
Fay V. New York, 332 U. S. 289, 290 ............. ..................... . 8
Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106,

85 S. Ct.................... ............................... ........ ...,.______... 7
Herndon V. Georgia, 295 U. S. 441, 79 L. Ed. 1530, 55 

S. Ct. 794, Rehearing Denied, 296 U. S. 661, 80
L. Ed. 471, 56 S. Ct. 82 .................................................. 4

Hoyt V. Florida, 368 U. S. 57, 7 L. Ed. 2d 118, 82
S. Ct. 159 ....................................... ..................................  8

Johnson V. United States, 318 U. S. 189, 87 L. Ed.
704, 63 S. Ct. 549, Rehearing Denied 318 U. S.
801, 87 L. Ed. 1164, 63 S. Ct. 826 ................. ................  4

Littlefield V. State, 36 Ala. App. 507, 63 So. 2d 565,
Cert. Den. 258 Ala. 532, 63 So. 2d 573 ........................... 7

Morrison V. Watson, 154 U. S. 927, 38 L. Ed. 927, 111
S. Ct. 115 __ _____ ________________________________ 4

State V. Emery, 224 N. C. 481, 31 S. E. 2d 858, 157
A. L. R. 4 4 1 ______________________________________  8

Strauder v. West Virginia, 100 U. S. 303, 25 L. Ed. 664___ 8
Swain V. Alabama, 380 U. S. 202, 13 L. Ed. 2d 759,

85 S. Ct------------- , Rehearing Denied 381 U. S.
9 2 1 _______________________________________________3

Swain v. State, 275 Ala. 508, 156 So. 2d 36S......... ...........__ 7
Thompson V. State. 41 Ala. App. 353. 357-358. 132

So. 2d 386 _____________________ ______________ _ 7
United States v. Classic. 313 U. S. 299. 85 L. Ed.

1368, 61 S. Ct, 1031. Rehearing Denied. 314 
U. S. 707, 86 L. Ed. 565. 62 S. Ct. 51 _ _  _ 4

Welch v. State. 263 Ala. 57. 58. 81 So. 2d 901 7

ii



STATUTES

Page

8th Amendment to the Constitution of the
United States ...................................................................  5

14th Amendment to the Constitution of the
United States ............................................................ 5, 6, 8

Code of Alabama 1940, Title 15, Section 305, as
amended by Act No. 124, approved June 23, 1949,
Acts 1949, page 150.........................................................  6

Annotation, 68 A. L. R. 1127...............................-................. 8

in



IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1965

No. 600

ROBERT SWAIN,

PETITIONER,

v.

STATE OF ALABAMA, 

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI 

TO THE SUPREME COURT OF ALABAMA.

BRIEF AND ARGUMENT FOR

RESPONDENT IN OPPOSITION



QUESTIONS PRESENTED

I .

WHETHER A PETITIONER, WHOSE CASE HAS 
BEEN BEFORE THE SUPREME COURT ON A PRE­
VIOUS WRIT OF CERTIORARI AND WHOSE CONVIC­
TION HAS BEEN AFFIRMED, IS ENTITLED TO A NEW 
WRIT OF CERTIORARI ON GROUNDS NOT ASSERTED 
IN HIS ORIGINAL PETITION FOR CERTIORARI AND 
ON GROUNDS WHICH WERE NOT PROVED OR RAISED 
IN THE LOWER COURT.

II.

WHETHER THE IMPOSITION OF SENTENCE BY 
THE TRIAL JURY IS CONTRARY TO THE 8TH AND 
14TH AMENDMENTS.

III.

WHETHER THE STATEMENT OF THE PROSECUTOR 
IN HIS FINAL ARGUMENT THAT NO WORD OF DE­
NIAL HAD COME FROM THE STAND WAS A COMMENT 
ON PETITIONER’S FAILURE TO TAKE THE STAND 
IN HIS OWN DEFENSE CONTRARY TO THE 14TH 
AMENDMENT.

IV.

WHETHER THE INELIGIBILITY OF WOMEN FOR 
JURY SERVICE IN ALABAMA IS A DENIAL OF PE­
TITIONER’S RIGHTS UNDER THE 14TH AMEND­
MENT.

STATEMENT
In his original Petition for Certiorari (October Term 1963, 

No. 1093, later changed to October Term, 1964, No. 64), 
and his brief on the merits in that case, the Petitioner coiv

2



tended that he was denied due process of law and the equal 
protection of the laws in violation of the 14th Amendment 
when indicted, convicted, and sentenced by Grand and Petit 
Juries in a county where (A),  the State always strikes a 
token number of Negroes on the trial venires, with the re­
sult that Negroes never serve on trial juries, and (B),  
Negroes have been summoned for jury duty in only token 
numbers and the State has offered no explanation for the 
small proportion called. These questions were decided 
against the Petitioner in Sivain V. Alabama, 380 U. S. 202,
13 L. Ed. 2d 759, 85 S. Ct. ........... , Rehearing Denied 381 U.
S. 921, on the grounds that Petitioner had failed to prove 
racial discrimination in compiling the jury roll or in se­
lection of the venires or trial jury panels in violation of the 
14th Amendment, and that Petitioner had failed to prove 
systematic use by the prosecutor of peremptory challenges 
against Negroes in violation of his Constitutional rights.

Nowhere in his original Petition for Certiorari, in his 
brief on the merits in that case, or in his counsel’s oral ar­
gument before this Court did he raise the questions now 
sought to be presented, nor were they raised in the lower 
court at the time of trial.

He now seeks to raise new questions as an afterthought.

ARGUMENT

I .

A PETITIONER, WHOSE CASE HAS BEEN BEFORE 
THE SUPREME COURT ON A PREVIOUS WRIT OF 
CERTIORARI AND WHOSE CONVICTION HAS BEEN 
AFFIRMED, IS NOT ENTITLED TO A NEW WRIT OF 
CERTIORARI ON GROUNDS NOT ASSERTED IN HIS 
ORIGINAL PETITION FOR CERTIORARI AND ON 
GROUNDS WHICH WERE NOT PROVED OR RAISED 
IN THE LOWER COURT.

3



Matters other than the question of Federal jurisdiction or 
evidence contained in the record will not be considered by 
the Court where they were not presented and decided in the 
lower court. United States V. Classic, 31B U. S. 299, 85 L. 
Ed. 1368, 61 S. Ct. 1031, Rehearing Denied, 314 U. S. 707, 
86 L. Ed. 565, 62 S. Ct. 51. The essential Federal question 
must have been set up in the Court at the proper time and 
in a proper manner. Herndon V. Georgia, 295 U. S. 441, 79 
L. Ed. 1530, 55 S. Ct. 794, Rehearing Denied, 296 U. S. 661, 
80 L. Ed. 471, 56 S. Ct. 82.

The Court will not permit an accused to elect to pursue 
one course at the trial and then, when that proves to be 
unprofitable, insist on review that the course which he re­
jected at the trial be reopened to him. Johnson V. United 
States, 318 U. S. 189, 87 L. Ed. 704, 63 S. Ct. 549, Rehearing 
Denied, 318 U. S. 801, 87 L. Ed. 1164, 63 S. Ct. 826. See, also, 
Ex parte Spies, 123 U. S. 131, 31 L. Ed. 80, 131 S. Ct. 131; 
Baldivin V. Kansas, 129 U. S. 151, 32 L. Ed. 640, 52 S. Ct. 
57; Morrison V. Watson, 154 U. S. 927, 38 L. Ed. 927, 111 S. 
Ct. 115.

We would like to again point out that the Petitioner has 
been represented throughout by counsel of his own choosing 
and that two of such counsel, namely, Orzell Billingsley, Jr., 
and Peter A. Hall, represented him on the trial, on the ap­
peal to the Supreme Court of Alabama, on the original 
Petition for Certiorari in this case, and represent him on the 
present Petition for Certiorari.

As this Court pointed out in its previous opinion in this 
case, “ . . . we cannot hold that the striking of Negroes in 
a particular case is a denial of equal protection of the laws 
and “ . . . a showing that Negroes have not served during a 
specified time does not, absent a sufficient showing of the 
prosecutor’s participation, give rise to the inference of sys­
tematic discrimination on the part of the State.”

4



The Petitioner did not show such participation at the time 
of trial or on his Motion for a New Trial. He should not be 
allowed to reopen the case at this late date to attempt to 
show what he had an opportunity to bring out at the proper 
time. If a defendant in a criminal case is allowed to pursue 
the procedure attempted here, there could never be an end 
to a criminal prosecution. This statement applies as well to 
the other questions presented by his new Petition for Certi­
orari, none of which was raised at the time of trial, on Motion 
for New Trial, on appeal to the Supreme Court of Alabama, 
or on the previous hearing of this case.

II.

THE IMPOSITION OF SENTENCE BY THE TRIAL 
JURY IS NOT CONTRARY TO THE 8TH AND 14TH 
AMENDMENTS.

While it is true that at common law the jury in criminal 
proceedings either return a special verdict, setting forth 
all the circumstances of the case and praying the judg­
ment of the Court, or a general verdict of guilty or not guilty, 
and the punishment is fixed by the Court, there is nothing 
in the Constitution which prevents a state from providing 
for the jury to fix the punishment to be imposed on the De­
fendant. We are not cited to anything to the contrary.

The Petitioner argues that because more Negroes than 
Whites have been executed for rape, this shows a discrim­
inatory application of a statute fair upon its face. It is dif­
ficult to understand the reasoning behind such an argument 
in view of the fact that in each of the cases cited, the pen­
alty was imposed by a separate jury or court and since it 
is axiomatic that no two cases have exactly the same factual 
basis. If we are to follow the argument of the Petitioner, 
then the jury system loses its meaning and effectiveness and 
this Court would be the final arbiter of the punishment to 
be meted out in each individaul case. This is not in accord

5



with our system of government where the trial courts de­
termine guilt or innocence and fix punishment within Con­
stitutional limits.

If the statistics cited by the Petitioner as to the racial 
identification of those executed for crimes of violence prove 
anything, they prove that Negroes are more prone to com­
mit such crimes than are Whites.

The argument that the majority of the states no longer re­
tain the death penalty in rape cases and that, therefore, the 
imposition of the death penalty in such cases constitutes 
cruel and unusual punishment in violation of the 14th 
Amendment is untenable. It must be borne in mind that 
seventeen states, plus the Federal Government and the Dis­
trict of Columbia, still retain the death penalty for rape. 
Whether such penalty should be retained or abolished is a 
matter for decision by the several legislative bodies and is 
not for the courts to determine. If this were not so, the whole 
structure of our system of government would fall and the 
legislative functions of the government would be taken over 
by the courts. Such an argument itself is contrary to the 
basic concepts of our Constitutional form of government.

III.
THE STATEMENT OF THE PROSECUTOR IN HIS 

FINAL ARGUMENT THAT NO WORD OF DENIAL HAD 
COME FROM THE STAND WAS NOT A COMMENT ON 
PETITIONER’S FAILURE TO TAKE THE STAND IN 
HIS OWN DEFENSE CONTRARY TO THE 14TH AMEND­
MENT.

Code of Alabama 1940, Title 15, Section 305, as amended 
by Act. No. 124, approved June 23, 1949, Acts 1949,, page 
150, provides as follows:

“ On the trial of all indictments, complaints, or other 
criminal proceedings, the person on trial shall, at his 
own request, but not otherwise, be a competent witness;

6



and his failure to make such a request shall not create 
any presumption against him, nor be the subject of 
comment by counsel. If the solicitor or other prosecuting 
attorney makes any comment concerning the defend­
ant’s failure to testify, a new trial must be granted 
on motion filed within thirty days from entry of the 
judgment.”

As interpreted by the Supreme Court and Court of Appeals 
of Alabama, the statute does not prohibit a prosecutor from 
drawing reasonable inferences from the evidence presented 
in a case, and statements to the effect that the evidence is 
uncontradicted or undenied are not prohibited by the stat­
ute. See Welch v. State, 263 Ala. 57, 58, 81 So. 2d 901; Thomp- 
son V State, 41 Ala. App. 353, 357-358, 132 So. 2d 386; Dixon 
V. State, 39 Ala. App. 575, 105 So. 2d 354; Littlefield V. State, 
36 Ala. App. 507, 63 So. 2d 565, Cer. Den. 258 Ala. 532, 63 
So. 2d 573; Dickey V. State, 21 Ala. App. 644, 111 So. 426.

In Welch V. State, supra, the following was approved as 
a correct statement of the law:

“ It is generally held that a statement by the prosecuting 
attorney to the effect that the evidence for the State 
is uncontradicted or undenied is not a comment on the 
defendant’s failure to testify.”

In Sivain v. State, 275 Ala. 508, 156 So. 2d 368, the Supreme 
Court of Alabama specifically held that the prosecutor’s 
argument in the instant case was not violative of Section 305, 
Title 15, as amended, supra.

This case is not analogous to Griffin v. California, 380 U.
S. 609, 14 L. Ed. 2d 106, 85 S. Ct.................. . because that
case was based on a provision of the California Constitution 
which permitted the Court and counsel to comment on the 
failure of the Defendant to explain or deny any evidence or

7



facts in the case and permit such matters to be considered 
by the Court or the jury.

See, also, Annotation in 68 A. L. R. 1127.

IV.

THE INELIGIBILITY OF WOMEN FOR JURY SER­
VICE IN ALABAMA IS NOT A DENIAL OF PETITION­
ER’S RIGHTS UNDER THE 14TH AMENDMENT.

While at common law women were not eligible to serve 
as jurors, there is no doubt that the states have the power 
to make them eligible. The 14th Amendment to the Con­
stitution of the United States does not, in effect, prohibit 
the states from denying to women the right to serve on jur­
ies and does not render void a statute providing for the se­
lection of males alone as jurors. Strauder V. West Virginia, 
100 U. S. 303, 25 L. Ed. 664; State V. Emery, 224 N. C. 481, 
31 S. E. 2d 858, 157 A. L. R. 441.

As this Court said in Hoyt V. Florida, 368 U. S. 57, 7 L. 
Ed. 2d 118, 82 S. Ct. 159:

“We need not, however, accept appellant’s invitation to 
canvass in this case the continuing validity of this 
Court’s dictum in Strauder V. West Virginia, 100 U. S. 
303, 310, 25 L. Ed. 664, 666, to the effect that a state 
may constitutionally ‘confine’ jury duty ‘to males.’ This 
constitutional proposition has gone unquestioned for 
more than eighty years in the decisions of the court. 
See Fay V. Neiv York, supra (332 U. S. at 289, 290), and 
had been reflected, until 1957, in congressional policy 
respecting jury service in the Federal courts themselves.”

Whether women should or should not be allowed to serve 
on juries in a particular state is a matter for determination 
by the Legislature of that state and not for the courts to de­
cide.

8



The statement made in the last paragraph of the Petitioner 
to the effect that females certainly possess attitudes with re­
spect to the crime of rape not possessed by men is pure 
speculation.

CONCLUSION

For the foregoing reasons, it is respectfully submitted that 
the Petition for Writ of Certiorari should be denied.

LESLIE HALL,
Assistan Attorney General 

of Alabama,
Administrative Building, 
Montgomery, Alabama 36104,

Attorneys for Respondent.

9



CERTIFICATE OF SERVICE

I, Leslie Hall, one of the Attorneys for Respondent, and 
a member of the Bar of the Supreme Courts .Of the United

^ — 7
States, hereby certify that on the —-day of October,
1965, I served the requisite number of copies of the fore­
going Brief and Argument in Opposition to Petition for 
Certiorari upon Jack Greenberg, James M. Nabrit, III, 
Michael Meltsner, Frank Heffron and Melvyn Zarr, Suite 
2030, 10 Columbus Circle, New York, New York 10019, Or- 
zell Billingsley, Jr., and Peter A. Hall, 1630 4th Avenue, 
North, Birmingham, Alabama, and Anthony G. Amsterdam, 
3400 Chestnut Street, Philadelphia, Pennsylvania, Attorneys 
for Petitioner, by depositing the same iB''fKe United States 
mail, first class postage prepaid, amPproperly^addressed to 
them at the addresses given. /  __

^  LESLIE HALL,
Assistant Attorney General of 

Alabama,
Administrative Building, 
Montgomery, Alabama 36104,

10