Davis v. Mississippi Petition for Writ of Certiorari to the Supreme Court of Mississippi

    IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1967 
NO. _________

JOHN DAVIS,
Petitioner,

v.

STATE OF MISSISSIPPI.

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 
COURT OF MISSISSIPPI

JACK GREENBERG 
MICHAEL MELTSNER 
MELVYN ZARR

10 Columbus Circle 
New York, New York 10019

ANTHONY G. AMSTERDAM 
3400 Chestnut Street 
Philadelphia, Pennsylvania 1910'

JACK YOUNG
115*5 North Farish Street 
Jackson, Mississippi 39201

REUBEN V. ANDERSON
538*5 North Farish Street 
Jackson, Mississippi 39202

Attorneys for Petitioner



PAGE

Opinion Below.........................................
Jurisdiction..........................................
Questions Presented...................................
Constitutional and Statutory Provisions Involved......
Statement of the Case.................................
How The Federal Questions Were Raised and Decided Below 
Reasons for Granting the Writ

I. The Decision Below That This Court's 
Exclusionary Rule Enforcing the Fourth 
And Fourteenth Amendments Does Not 
Require The Exclusion of Fingerprints 
Taken As A Result of an Illega?. Arrest 
Urgently Requires Correction By This Court...

II. The Question Whether Miss. Code Ann., §1762 
(1966 Supp.) Is Offensive to the Due Process 
and Equal Protection Clauses of the 
Fourteenth Amendment Because it Requires 
the Total Exclusion of Women from Grand and 
Petit Juries in Mississippi Is an Important
One Requiring Resolution by the Court............... 13

Conclusion....................................................
Appendix

Opinion of the Supreme Court of Mississippi.......... la-17a
Judgment of the Supreme Court of Mississippi............ 18a
Suggestion of Error Overruled.................... .......18a

TABLE OF CASES
Allen v. State, 137 S.E. 2d 711, 110 Ga. App. 56 (1964)...
Ballard v. United States, 329 U.S. 193 (1946)............
Bass v. State of Mississippi, 381 F.2d 692 (1967)........
Beck v. Ohio, 379 U.S. 89 (1964).........................
Bynum v. United States, 262 F.2d 465 (D.C. Cir. 1958)....
Hall v. State, ____ Miss. ___ 187 So. 2d 861 (1966) appeal

dismissed, 385 U.S. 98 (1966)............... ........

...15

...15

...14
10,11
. . . 1 1

13,14
Harper v. Virginia Board of Elections, 383 U.S. 663 (1966*..13,14 
Hoyt v. Florida, 368 U.S. 57 (1961)........................ 13,14



PAGE
Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966 en banc).......15
Linkletter v. Walker, 381 U.S. 618 (1965) ....................10
McLaughlin v. Florida, 379 U.S. 184 (1964)...............13,15
Mapp v. Ohio, 367 U.S. 643 (1961)........................... 10
Reed v. State, _____ Miss. 199 So. 2d 803 (Miss. 1967)...13
Shi nail v. State,_____Miss. ______ 199 So. 2d 2 51 (1967)

cert, denied, 389 U.S. 1014 (1967)..... .................13
Smith v. Texas, 311 U.S. 128 (1940)............ ..15
White v. Crook, 351 F. Supp. 401 (M.D. Ala. 1966)............14
Whitus v. Georgia, 385 U.S. 545, Note 1 (1967).............. 14
Wong Sun v. United States, 371 U.S. 471 (1963)....... ....10,11

Federal Statute
28 U.S.C. §1257 (3)........................................... 2

State Statute
Ala. Acts. Nos. 284, 285 (Special Session 1966)............. 13
Miss Code Ann. §1762.................................... 2,6,13
S. C. Code §38.11 (1967).................................... 13

I

ii



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1967 
NO. ___________

JOHN DAVIS,
Petitioner,

v.
STATE OF MISSISSIPPI.

PETITION FOR WRIT OF CERTIORARI TO THE SUPREME 
_____________COURT OF MISSISSIPPI_____________

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Mississippi entered in the 
above—entitled case on November 6, 1967, rehearing of which was 
denied December 11, 1967.

OPINION BELOW
The opinion of the Supreme Court of Mississippi is reported

at ___ Miss. ____, 204 So. 2d 270 (1967), and is set forth in the
Appendix, pp. la - 17a, infra. The judgment of the Supreme Court 
of Mississippi is set forth in the Appendix, p. 18a, infra.

JURISDICTION
The judgment of the Supreme Court of Mississippi affirming 

petitioner's conviction was entered November 6, 1967 (R. II 18? 
Appendix, p. 18a, infra) and petitioner's suggestion of error was 
overruled December 11, 1967 (R. II 19).

The certified copy of the opinion and judgment of the 
Supreme Court of Mississippi is designated herein as R. II. 
The remainder of the record is designated herein as R. I.

1/



Jurisdiction of this Court is invoked pursuant to 28 U.S.C. 
§1257(3), petitioner having asserted below and asserting here 
deprivation of rights, privileges and immunities secured by the 
Constitution of the United States.

QUESTIONS PRESENTED
1. Whether the introduction into evidence at petitioner's 

criminal trial of his fingerprints, taken as a result of 
petitioner's illegal arrest, violated petitioner's rights under 
the Fourth and Fourteenth Amendments?

2. Whether Miss. Code Ann., §1762 (1966 Supp.), which 
requires the total exclusion of women from grand and petit juries 
in Mississippi, is offensive to the due process and equal 
protection clauses of the Fourteenth Amendment?

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 
This case involves the Fourth Amendment and Section 1 of the 

Fourteenth Amendment to the Constitution of the United States.
This case also involves Mississippi Code Annotated, §1762 

(1966 Supp.) which provides:
§1762. Who are competent jurors.

Every male citizen not under the age of 
twenty-one (21) years, who is either a qualified elector, or a resident freeholder 
of the county for more than one year, and has 
not been convicted of an infamous crime, or the 
unlawful sale of intoxicating liquors within a 
period of five (5) years and who is not a common gambler or habitual drunkard is a com­
petent juror; but no person who is or has been 
within twelve (12) months the overseer of a 
public road or road contractor shall be 
competent to serve as a grand juror. But the 
lack of any such qualifications on the part 
of one or more jurors shall not vitiate an indictment or verdict. However, be it further 
provided that no talesman or tales juror shall 
be qualified who has served as such tales juror 
or talesman in the last preceding two (2) years; 
and no juror shall serve on any jury who has 
served as such for the last preceding two (2) 
years; and no juror shall serve who has a case 
of his own pending in that court, provided 
there are sufficient qualified jurors in the 
district, and for trial at that term.

2



STATEMENT OF THE CASE

Petitioner, a 14 year-old Negro boy, was convicted of rape 
of an 86 year-old white woman and is presently serving a sentence 
of life imprisonment. He seeks review of his conviction here.

On December 2, 1965, shortly after dark, an intruder 
entered the home of Mrs. E. B. Key, in Meridian, Mississippi, 
switched off the lights, raped her and left (R. I 285, 282, 293). 
Mrs. Key was unable to give a full description of her assailant to 
police, but she did identify him as being a Negro (R. II 8; App., 
p. 8a, infra).

The next day, petitioner, who was living with his parents in 
Meridian, was arrested without a warrant pursuant to a series of 
dragnet arrests of some sixty-five to seventy Negro^males by 
police officers in the City of Meridian (R. I 270). He was taken 
to police headquarters, interrogated, fingerprinted and released 
(R. I 276; R. II 8; App., p. 3a, infra). The detention of 
petitioner and other youths was used by the police to facilitate 
interrogation and to obtain fingerprints of petitioner and those 
of at least 23 other Negro youths (R. I 274, 275). There is nothing 
in the record to show the basis of petitioner's arrest of 
December 3rd (R. I 269, 270). The Meridian police explained the 
multiple arrests of petitioner and others as "attempts to get leads" 
on the crime (R. I 269).

Between December 3 and 7, 1965, petitioner was taken into 
custody "about four or five times" for questioning (R. I 269, 275). 
As the Mississippi Supreme Court correctly found: "In the interim
between the commission of the crime and December 12, officers 
questioned appellant several times, sometimes in his home, sometimes 
in a car and sometimes at city hall. Throughout this same period 
they also questioned many others." (R. II 8; App. p. 8a, infra).

2/ The court below correctly found (R. II 8; App.,
p. 8a, infra):

Beginning on December 3rd, the day 
following the crime, and continuing 
until appellant was arrested and charged, the Meridian police interrogated 
65 or 70 Negro youths, including appellant.

- 3 -



None of these four or five detentions was effected pursuant 
to a warrant (R. I 269), nor was petitioner afforded counsel or 
an opportunity to have his parents present (R. I 265, 266, 267, 268,
269) .

Several times while in custody, petitioner was taken to the 
hospital room of the prosecutrix, Mrs. Key, to be exhibited before 
her, for purposes of using him "for a gauge to go by on size and 
color" in order to get a description of the assailant (R. I 269,
270) . On none of these occasions was the prosecutrix able to 
identify the petitioner (R. I 355).

Petitioner was again arrested without a warrant on December 12, 
1965 (R. I 268, 271; R. II 3; App., p. 8a, infra). This time 
petitioner was taken to Jackson, Mississippi (R. I 265, 338) a 
distance of 90 miles, where he was incarcerated overnight in the 
Jackson City jail (R. I 265). The following day he was taken to 
the highway patrol headquarters where he was given a lie detector 
test (R. I 268, 271, 272).

There is nothing in the record to show what, if anything, 
the test revealed. Nor is there anything in the record to 
indicate what the continual detention and interrogation of 
petitioner by the police revealed to connect petitioner with the 
crime. The fingerprints taken from petitioner on December 3rd, 
had not been forwarded to the FBI for comparison (R. I 337).

On or about December 13, 1965 the police extracted a 
"confession" from petitioner (R. I 272). This "confession" was 
alluded to at the trial by the prosecutrix on two occasions,

-2. /although it was not introduced into evidence (R. I 301, 302).
On December 14, 1965, while still in the custody of police, 

petitioner was fingerprinted again (R. I 273, 274). These prints, 
together with those of at least 23 other Negro males, were 
forwarded to the FBI laboratory for comparison with latent prints

3/ Although the document signed by the petitioner was
not itself admitted into evidence, the confession came 
before the jury on two occasions when the prosecutrix 
said on cross-examination "he confessed it all." (R. I 
301, 302).

4



found at the prosecutrix's house (R. I, 322, 323, 336). During 
the course of the day, petitioner was taken to the house of the
prosecutrix in her absence and made to walk on the porch and

4/inside the house (R. I 333).
Petitioner was charged with rape on December 14, 1965, and 

has been in custody since. In May of 1966, petitioner was 
indicted for rape by the grand jury of Lauderdale County, 
Mississippi. This indictment was quashed by the Circuit Court of 
Lauderdale County on grounds of systematic exclusion of Negroes 
from the jury. On November 15, 1966, petitioner was reindicted 
and on November 16, 1966 he entered a plea of not guilty 
(R. I 6, 85, 92).

Petitioner was tried in the Circuit Court of Lauderdale 
County on November 21, 1966. Fingerprint exhibits showing the 
correspondence of petitioner's fingerprints to latent prints 
found at the prosecutrix’s house were introduced into evidence over 
timely objection that they were taken pursuant to an illegal 
arrest (R. I 260, 315). The only other evidence against petitioner 
was an uncertain identification of petitioner by the prosecutrix, 
who testified as follows on direct examination (R. I 291):

Q. If you will, Mrs. Key, turn and face 
the jury so they can hear you and tell 
us, you said he was pushing up your 
clothes, tell us what was said by either 
of you, if anything, and what happened 
at that time?

A. Well. Well, I will have to think a
minute. At one time I told him he was 
killing me, and then he started 
different. And after while, when he 
got up, he says, well, he asked me, 
there's a bed in there and did I want 
him to get on top. And after he had

4/ During the trial, one of the officers, Detective
Scarbrough, testified that "I am sure he might have touched 
something, but I didn't notice it" (R. I 33). These latent 
fingerprints were found on areas petitioner would likely 
have touched while doing yard and house work for the 
prosecutrix (R. I 327, 328, 329, 331, 332). Petitioner had 
done yard and house work for the prosecutrix on several 
occasions prior to December 2, 1965, the last time being 
about a week or two before that date (R. I 282, 291).

5



got up, he said, "Do you feel like 
an old lady now?" And I asked him 
did he want the money before he left.
I says "It's in another room," and he 
pulled that fascinator over the flash­
light he had, I suppose, because I 
could see his face, and I recognized 
him. 5/

Q. Now, who did you recognize, Mrs. Key?
A. I recognized it was Johnny, I thought 

it was, but I wasn’t perfectly sure 
right then, but then I knew nobody 
else had been in the house but him.I asked him to carry a table through 
the kitchen, where he threw the light, 
where the meter was."

Petitioner's sister and friend testified that petitioner 
was with them on the night the incident occurred (R. I 359, 368).

Petitioner was convicted and sentenced to life imprisonment 
(R. I 390).

The Supreme Court of Mississippi affirmed^ holding that 
the fingerprints had been taken from petitioner, not as a result 
of his arrest but "merely [as a result of being] escorted to 
headquarters for interrogation" (R. II 10, App. p. 10a, infra)? 
and declining, in addition, to accept a rule of law that would 
exclude fingerprints taken from an accused following his illegal 
arrest (R. II 14; App. p. 14a, infra).

HOW THE FEDERAL QUESTIONS WERE 
RAISED AND DECIDED BELOW

In the Circuit Court of Lauderdale County, petitioner 
challenged his indictment and trial by juries from which women had 
been excluded pursuant to Miss Code Ann., §1762 (1966 Supp.) as 
violative of the due process and equal protection clauses of the 
Fourteenth Amendment. These challenges were raised by Motion to 
Quash the Grand Jury Panel (R. I 10), Motion to Quash Jury 
Impanelled (R. I 260) and Motion to Quash Special Venire (R. I 
16-17). These Motions were denied by the Circuit Court (R. I 
19, 261, 315).

Petitioner also objected to the introduction into evidence of 
his fingerprints, taken as a result of his illegal arrest, as

5/ The prosecutrix defined a fascinator as "something you
tie over your head" (R. I 284).

6 -



violative of his rights under the Fourth and Fourteenth 
Amendments to the Constitution of the United States. These 
objections were raised by Motion to Suppress Evidence (R. I 20, 
260), Motion for a Directed Verdict (R. I 353) and a Motion for 
a New Trial (R. I 292, 293). These Motions were denied (R. I 
275, 309).

In the Supreme Court of Mississippi petitioner preserved each 
of the issues presented here in his Assignments of Error, as 
follows:

III
The Court below erred in denying 

appellant's Motion to Quash the Grand 
Jury's Indictment on grounds of (a) 
systematic exclusion of Negroes and 
women from the jury in violation of the 
Fourteenth Amendment to the United States 
Constitution. . .

V
The Court below erred in denying 

appellant1s Motion to Quash the Grand 
Jury Panel on the grounds of (a) 
systematic exclusion of Negroes and 
women in violation of the Fourteenth 
Amendment to the Constitution. • •

VI
The Court below erred in denying 

appellant's Motion to Quash the Special 
Venire and the Jury which tried appellant's 
case on the grounds of (a) systematic 
exclusion of Negroes and women in 
violation of the Fourteenth Amendment to 
the Constitution of the United States. . •

XI
The Court below erred in denying 

appellant's Motion to Suppress Evidence 
obtained incident to illegal arrests 
without a warrant or probable cause and 
while appellant was without counsel, in 
violation of the Mississippi law and the 
Fourth, Sixth and Fourteenth Amendments 
to the Constitution of the United States.

The Supreme Court of Mississippi explicitly rejected 
petitioner's claim that the admission into evidence of his 
fingerprints violated his federal rights (R. II 7-15; App. 
p. 7-15a, infra). The Supreme Court of Mississippi, without 
discussion, overruled petitioner's properly preserved claim of 
exclusion of women from the juries which indicted and convicted 
him.

7



REASONS FOR GRANTING THE WRIT
I

The Decision Below That This Court's 
Exclusionary Rule Enforcing The Fourth 
And Fourteenth Amendments Does Not 
Require The Exclusion Of Fingerprints 
Taken As A Result Of An Illegal Arrest 
Urgently Requires Correction By This Court

Petitioner was first fingerprinted when he was taken into 
custody by the Meridian police on December 3, 1965 (R. I 276;
R. II 8; 204 So.2d at 274; App. p. 8a, infra).

In the interim between December 3rd and December 12th, 
petitioner was detained and questioned by the Meridian police 
"several times, sometimes at his home, sometimes in a car, and 
sometimes at City Hall" (R. I 270, R, II 8; 204 So.2d at 274,
App. p. 8a, infra).

On December 12, 1965, petitioner was again taken into custody, 
brought 90 miles to Jackson, Mississippi for a lie detector test, 
returned to Meridian and again fingerprinted (R. I 268, 273;
R II 8-9; 204 So.2d at 274; App. pp.8a-9a, infra).

The court below assumed that the fingerprints introduced into 
evidence at petitioner's trial were taken following oetitioner's 
detention cf December 3rd (R. II 8, 10; 204 So.2d 274; App. pp. 8a- 
10a, infra). Acting on this assumption, the Court rejected 
petitioner's claim that the fingerprints should have been excluded 
because they were the result of petitioner's illegal arrest, on 
the ground in part that petitioner had not been arrested, but 
"merely escorted to headquarters for interrogation" (R. II 10;
204 So.2d at 275, App. p. 10a infra).

The trouble with this aspect of the court's reasoning is 
twofold. First, it is based on an erroneous factual assumption.
The fingerprints taken from petitioner on December 3rd were never 
analyzed (R. I 337). As the record plainly shows, the fingerprints 
introduced into evidence at petitioner's trial were taken from him

8



following his detention of December 12th (R. I 316, 317); and 
on this latter occasion, the court below conceded petitioner 
was not "merely escorted to headquarters for interrogation," 
but was "actually . . . arrested" (R. II 8; 204 So.2d at 274;
App. p. 8a, infra). But, second, even if the fingerorints intro­
duced at trial had been the product of petitioner's December 3rd 
detention, it could not be doubted that they were the product of 
an illegal arrest. See Statement, pp. 4-6, supra.

None of petitioner's arrests were made under warrant (R. I 268*
271). There is nothing in the record to suggest what cause, if 
any, led the Meridian police originally or repeatedly to arrest 
petitioner. There was certainly no reason why they could not have 
obtained a warrant for his arrest, had they possessed information 
constituting probable cause. All that the record reveals is that 
petitioner was apprehended in the course of an indiscriminate 
police dragnet: he was one of "65 or 70 Negro youths . . .
escorted to headquarters for interrogation" (R. II 8, 10; 204 
So.2d at 274, 275; App. p. 8a infra). The indiscriminate character 
of the police investigative method used here— its palpable want of 
probable cause — also appears from the fact that after petitioner's 
arrest on December 12th, his fingerprints "together with the 
fingerprints of twenty-three others, whose prints had also been 
taken during the investigations . . . were forwarded to the Federal 
Bureau of Investigation in Washington for study and comparison"
(R. II 9; 204 So.2d at 275; App. p. 9a, infra) (emphasis added). 
Petitioner was exhibited to the prosecutrix on several occasions, 
but she never made a positive identification of him (R. I 355).
In fact, her identification of petitioner at trial was uncertain 
(R. I 291, 302), and was probably influenced by his "confession"
(R. I 301, 302). In sum, there is no showing that the police had

6/ This fact was urged to the court below in petitioner's 
suggestion of error (1 III): "The Court . . . does not take notice
of the fact that the fingerprints forwarded to the FBI and intro­
duced at trial were those of appellant taken on the 14th of December at which time he was in the Lauderdale County Jail. . . ."

9



probable cause to arrest petitioner prior to the time the 24 
sets of fingerprints were analyzed. Cf. Beck v. Ohio, 379 U.S.
89 (1964).

Because petitioner was illegally arrested, his fingerprints, 
taken as a result of his illegal arrest, should have been excluded 
from evidence at trial. The purpose of the exclusionary rule 
fashioned by this Court is to deter illegal arrests— especially 
the type of dragnet arrests shown by this record— by removing 
the incentive to police to make them, Mapp v. Ohio, 367 U.S. 643, 
656 (1961). The exclusionary rule has been applied to everything 
taken by police from persons illegally arrested— from gambling 
slips, see Beck v. Ohio, 379 U.S. 89 (1964), to verbal statements, 
see Wong Sun v. United States. 371 U.S. 471 (1963). There is no 
basis in principle or practice for excepting fingerprints from 
the operation of the rule.

The Mississippi Supreme Court apparently held that the ex­
clusionary rule did not apply to fingerprints— and that Wong Sun 
could be distinguisher3»>«on the ground that "fingerprints fall 
into an entirely different category from testimonial communica­
tions obtained under interrogation" (R. II 11; 204 So.2d at 275; 
App. p. 11a, infra). The court held (R. II 14; 204 So.2d at 277; 
App. P* 14a, infra)t

In the case here, nothing the police did or 
could ever do would alter in the slightest de­
gree the configuration of appellant's finger­
prints, nor cause them to be other than peculiar to himself, and different from those of all 
others. The act of taking fingerprints is 
quite different in its essential nature from 
the obtaining of a confession, the authenticity 
of which becomes suspect by reason of coercion, real or supposed, to which the suspect may be 
subjected while under the constraint of an 
illegal arrest. We think the evidence of 
appellant's prints was properly admitted.

But the quoted holding reflects a serious misunderstanding 
of the Fourth Amendment exclusionary rule and its underlying 
policy. The authenticity of the fruits of an illegal arrest has 
little to do with the policy or operation of the rule. Linkletter 
v. Walker, 381 U.S. 618, 636, 637 (1965). Fruits of an illegal

10



arrest are excluded from evidence not because they are unauthen- 
tic but because exclusion is necessary to remove the incentive 
to obtain them by dragnets and other types of illegal arrests.
No doubt the gambling slips in Beck v. Ohio, supra, were "authen­
tic," but they were nonetheless ruled inadmissible.

Bynum v. United States, 262 F.2d 465 (D.C. Cir. 1958), cited 
with approval in Wong Sun, supra, 371 U.S. at 486, note 12, is 
squarely in point. The Court of Appeals there held that the 
exclusionary rule required the exclusion from evidence of finger­
prints taken as a result of an illegal arrest, because fingerprints 
are "something of evidentiary value which the public authorities 
have caused an arrested person to yield to them during illegal 
detention," and because exclusion is the only effective sanction
to implement the Fourth Amendment guarantee against this sort of

7/illegal arrest and detention (262 F.2d at 467-69). The present 
record— portraying the systematic police use of an unconstitutional 
arrest dragnet, with two dozen Negro boys indiscriminately appre­
hended and fingerprinted in "attempts to get leads" (R. I 269)—  
is a stark example of police illegality, and of the importance of 
withdrawing the lure of admissible fingerprint evidence as an en­
couragement to such illegal police short-cuts.

The police may, of course, accost and question any person for

1/  The distinction of Byn.um by the court below falls with its 
erroneous assumption ohat the fingerprints introduced at trial 
were not the product of an arrest. The court held (R. II 10; 204 So.2d at 275; App. p. 10a, infra)s

It is argued that Bynum v. United States, 262 
F.2d 465 (D.C. Cir. 1958), is directly in point. 
But in Bynum, the fingerprints were taken during 
an interrogation at police headquarters after 
Bynum had been illegally arrested and booked for 
the crime with which he was charged. The evi­
dence condemned in Bynum was that 'which the 
public authorities have caused an arrested per­
son to yield to them during illegal detention.'

Here appellant was not illegally detained.

11



the purpose of criminal investigation. But they may not, as they 
did in this case, detain him without probable cause, restrain or 
repeatedly "arrest" his liberty of movement under the guise of 
"merely escort[ing] to headquarters for interrogation" (R. II 10; 
App. p. 10a, infra). They may not, as an incident of dozens of 
similar dragnet detentions without probable cause, fingerprint 
their detainees, and use the prints to convict these men of crime. 
Petitioner's fingerprints introduced into evidonce over his ob­
jection at trial were taken from him following his illegal arrest 
on December 12th. The decision of the court below holding that 
such fingerprints were nonetheless admissible seriously abridges 
the citizen's Fourth-Fourteenth Amendment right to be free from 
illegal arrest, and urgently requires this Court’s correction.

12



The Question Whether Miss. Code 
Ann., §1762 (1966 Supp.) Is 
Offensive to the Due Process and 
Equal Protection Clauses of the 
Fourteenth Amendment Because it 
Requires the Total Exclusion of 
Women from Grand and Petit Juries 
in Mississippi is an Important 
One Requiring Resolution by the 
Court.

The grand jury that indicted petitioner and the trial jury
that convicted him were chosen pursuant to Miss. Code, §1762 (1966

8/Supp.), which confines jury service to males. Of all the States 
in the Nation, only Mississippi continues to this day a 
statutory policy of total exclusion of women fvom jury service.
This policy has been challenged, without success, on numerous

10/occasions. Whether the policy ca:.* continue to stand consistent 
with the Fourteenth Amendment, see, McLaughlin v. Florida, 379 U.S 
184 (1964); Harper v. Virginia Board of Elections, 383 U.S. 663 
(1966), is a substantial question this Court should decide.

In Hovt v. Florida, 368 U.S. 57 (1961), this Court affirmed 
the conviction of a woman for second degree murder, rejecting her 
claim that Florida violated the Fourteenth Amendment by granting 
women an automatic exemption from jury service, although 
permitting voluntary service. The Court expressly reserved 
decision of the question whether a state may confine jury service 
to males consistent with the Fourteenth Amendment (id. at 60—61). 
The Chief Justice, Mr. Justice Black, and Mr. Justice Douglas

II

8/ See p. _2____, supra.
9/ In 1961, only three States excluded women from jury

service. See Sjyt v. Florida# 368 U#S« 57# 62# Note 5 (1961) 
South Carolina-repealed its statute in 1967, S.C. Code §§38.11, and Alabama repealed its statute in 1966, Ala. Acts. 
Nos. 284, 285 (Special Session 1966).

10/ See, Shinall v. State, ___ Miss. ___, 199 So. 2d 251
(1967), cert, denied, 389 U.S. 1014 (1967); Hall v. State,Miss. _____, 187 So. 2d 861 (1966), appeal dismissed,
385 U.S. 98 (1966); Reed v. £tate, ___ Miss. ____, 199 So.
2d 803, 806 (Miss. 1967).

13



concurred on the basis that there was no reason to doubt Florida's 
"good faith effort to have women perform jury duty without 
discrimination on the basis of sex." (Id. at 69).

Recently, in White v. Crook. 351 F. Supp. 401 (M.D. Ala.
1966), a three-judge district court, relying in part upon Hoyt, 
declared Alabama's statute excluding women from jury service 
unconstitutional:

The time must come when a State's complete 
exclusion of women from jury service is recognized 
as so arbitrary and unreasonable as to be 
unconstitutional (Id. at 409).

The court answered the argument that "the Fourteenth Amendment 
was not historically intended to require the State to make women 
eligible for jury service" by saying that it "r<:fleccs a 
misconception of the function of the Constitution and this Court's 
obligation in interpreting it" (White v. Crook, supra at 408). 
"Notions of what constitutes equal treatment for purposes of the 
equal protection clause do change" (Harper v. Virginia Board of 
Elections. 383 U.S. 663, 669 (1966)) (emphasis in original).

Petitioner respectfully urges that the decision in White v. 
Crook. supra. represents a correct view of the Fourteenth

WAmendment. The total, unqualified, involuntary exclusion of 
women from juries is entirely arbitrary. There is no apparent 
reason why Mississippi, alone among the States, should so exclude 
them. It may be, of course, as this Court recognized in Eoyt; that 
women are more likely than men to have family responsibilities 
which make jury service a hardship; but it does not follow that 
women may therefore be totally excluded from jury service. The 
common practice of granting a voluntary exemption to women, see, 
e.g., Hoyt v. Florida, supra? Whitus v. Georgia, 385 U.S. 545, 550

11/ See dissenting opinion of Chief Justice Ethridge in Hall
v. State. Note 10, supra, 187 So. 2d at 871: "In short, I
think that a state's complete exclusion of women from jury 
service is so arbitrary and unreasonable as to be an 
unconstitutional deprivation of due process and equal 
protection of the laws." See also, Bass v. State of 
Mississippi. 381 F. 2d 692, 696-97 (1967).

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Note 1 (1967); and Ala. Acts. Nos. 284, 285 (Special Session 1966), 
presents an appropriate means of meeting this concern,without a 
sweeping ban against female jury service. Cf. McLaughlin v.
Florida, supra, 379 U.S. at 195-96.

Petitioner has standing to challenge the total exclusion of 
women from jury service in Mississippi, for he is entitled to be 
indicted and tried by a jury drawn impartially from the community 
as a whole. Such a jury is constitutionally required in order to 
safeguard the integrity of the criminal process; and a jury system 
which excludes all women distorts that process, thereby making 
insufficiently reliable for constitutional acceptance the product of 
the jurors' determinations, often based on imponderables. Smith v. 
Texas, 311 U.S. 128 (1940); Labat v. Bennett, 365 F.2d 698 (5th Cir. 
1966 en banc). See also Allen v. State, 137 S.E. 2d 711, 110 Ga.
App. 56 (1964) (white may complain of Negro exclusion from jury).
As this Court said in Ballard v. United States, 329 U.S. 193-94 
(1946) :

The truth is that the two sexes are 
not fungible; a community made up 
exclusively of one is different from 
a community composed of both; the 
subtle interplay of influence one or 
the other is among the imponderables.
To insulate the courtroom from either 
may not in a given case make an iota 
of difference. Yet a flavor, a 
distinct quality is lost if either 
sex is excluded. The exclusion of 
one may indeed make the jury less 
representative of the community than 
would be true if an economic or racial 
group were excluded.

A jury system which excludes women, who constitute over half of 
the adult population of Mississippi (see U.S. Census of Population, 
Miss. Tables, pp. 94-96), does not represent the attitudes and points 
of view of the community as a whole. A system which allows women to 
be judges but not jurors lacks rationality. Petitioner is entitled 
to juries chosen without such "arbitrary and unreasonable" exclusion 
in violation of the Fourteenth Amendment.

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CONCLUSION

WHEREFORE, for the foregoing reasons, petitioner prays that 
the Petition for Writ of Certiorari be granted.

Respectfully submitted,

JACK GREENBERG 
MICHAEL MELTSNER 
MELVYN ZARR10 Columbus Circle

New York, New York 10019
ANTHONY G. AMSTERDAM 

3400 Chestnut Street Philadelphia, Pennsylvania 19104
JACK YOUNG11 >% North Farish Street 

Jackson, Mississippi 39201
REUBEN V. ANDERSON538% North Farish Street 

Jackson, Mississippi 39202
Attorneys for petitioner

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