Maxwell v. Stephens Petition for Writ of Certiorari to the US Court of Appeals for the Eighth Circuit

    £>tfpmn£ (tart of %  States
October Term, 1965 

No. t f j. l . .

WILLIAM L. MAXWELL,
Petitioner,

DAN D. STEPHENS, Superintendent of Arkansas 
State Penitentiary.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

GEORGE HOWARD, Jr, 
329% Main Street 
Pine Bluff, Arkansas

HAROLD B. ANDERSON 
205 Century Building 
Little Rock, Arkansas

JACK GREENBERG 
JAMES M. NABRIT, III 
MICHAEL MELTSNER 
LEROY D. CLARK 
FRANK H. HEFFRON 

10 Columbus Circle 
New York, New York 10019

ANTHONY G. AMSTERDAM 
3400 Chestnut Street 
Phi la delpli ia, Pennsylvania

Attorneys {or Petitioner



I N D E X

Opinions B elow .............................. -.................................... 1

Jurisdiction ..................... ...................................................  2

Questions Presented .........................................................  2

Constitutional and Statutory Provisions Involved ..... 4

Statement ......- ................................................ -...................  7

Search and Seizure......................................................  8

Capital Punishment for Rape .......................... .......  13

Selection of Jury Panels .................-........................  17

Jurisdiction of the District Court ..........................  18

Reasons for Granting the W r it .................... .................  18

I. Certiorari should be granted to determine the
legality of search of petitioner’s home without a 
warrant, in petitioner’s absence, under purported 
consent of his mother .............................................   18

A. The search and seizure issues are important,
requiring consideration by this Court on certi­
orari .................................. -.................................... 22

B. The decision below is wrong and sends peti­
tioner to death in violation of his Fourth- 
Fourteenth Amendment rights ............................. 29

II. Certiorari should be granted to determine 
whether Arkansas’ death penalty for rape is un­
constitutional because (A) an unrebutted prima

PAGE



facie showing has been made of its racial applica­
tion, in violation of the equal protection clause of 
the Fourteenth Amendment, or (B) its allowance 
to the jury of unfettered discretion to impose 
capital punishment for all offenses of rape, in 
the absence of aggravating circumstances, permits 
cruel and unusual punishment in violation of the 
Eighth and Fourteenth Amendments .....................  33

A. Petitioner’s Equal Protection contention, 
wrongly rejected below presents an impor­
tant question for consideration by this Court
on certiorari ..................... ........ .......... ................  33

B. The Court should grant certiorari to consider
petitioner’s contention that his sentence is un­
constitutional under the Eighth and Fourteenth 
Amendments ........ ......... ........... ............................  44

III. Certiorari should be granted to determine 
whether use of poll tax books containing racial 
designations, as required by statute, in the system 
of jury selection is constitutional ...................... . 46

Conclusion __ _____ ______ ______ _________________ _ 51

Table op Cases

Aaron v. Holman, U.S. Dist. Ct., M.D. Ala., C.A.
No. 2170-N ................ ..................... ............ ..... ........ ......  36

Abel v. United States, 362 U.S. 217 (1960) ..................  21
Alabama v. Billingsley, Cir. Ct. Etowah County,

No. 1159 . ............. .................... ...................... ...............  36
Allison v. State, 204 Ark. 609, 164 S.W.2d 442 (1942) 44
Amos v. United States, 255 U.S. 313 (1921) ...........25, 29, 31

11

PAGE



Ill

Anderson v. Martin, 375 U.S. 399 (1964) .....-............ 37,48
Arnold v. North Carolina, 376 U.S. 733 (1964) ........... 39
Avery v. Georgia, 345 U.S. 559 (1953) ..........................  48

PAGE

Bailey v. Henslee, 287 F.2d 936 (8th Cir. 1961), cert.
denied, 368 U.S. 877 ...................-..................................  39

Boyd v. United States, 116 U.S. 616 (1886) ................... 32
Brown v. Board of Education, 347 U.S. 483 (19o4) .... 31 
Burge v. United States, 332 F.2d 171 (8th Cir. 1964),

cert, denied, 379 U.S. 938 ....... ......... -........................ 24, 25
Burge v. United States, 342 F.2d 408 (9th Cir. 1965) 28
Bush v. Kentucky, 107 U.S. 110 (1882) ..................... —- 33

Calhoun v. United States, 172 F.2d 457 (5th Cir.
1949) ........ .................... -.......... -................................. .....27,28

Carroll v. United States, 267 U.S. 132 (1925) ........... 21, 28
Cassell v. Texas, 339 U.S. 282 (1950) ........................ ----- 46
Channel v. United States, 285 F.2d 217 (9th Cir. 1960) 24
Chapman v. United States, 365 U.S. 610 (1961) .......21, 29
Cline v. Frink Dairy Co., 274 U.S. 445 (1927) ............. 43
Cobb v. Balkcom, 339 F.2d 95 (5th Cir. 1964) ............... 50
Cofer v. United States, 37 F.2d 677 (5th Cir. 1930) .... 27 
Commonwealth v. Wright, 411 Pa. 81, 190 A.2d 0̂9

(1963) ________ ____ ___-................................................22> 26
Communist Party v. Subversive Activities Control

Board, 367 U.S. 1 (1961) .............................................. 39
Connally v. General Construction Co., 269 U.S. 385

(1926) ........................................-....... -.............................- 43
Cox v. Louisiana, 379 U.S. 536 (1965) .................-..........  43
Craig v. Florida, Sup. Ct. Fla., No. 34,101 ...........—....  3®
Cutting v. United States, 169 F.2d 951 (9th Cir. 1948) 28

Davis v. United States, 
1964) ____ ____________

327 F.2d 301 (9th Cir. 
................................. 23, 26, 28, 29



IV

Davis v. United States, 328 U.S. 582 (1946) ................... 26
Doxnbrowski v. Pfister, 380 U.S. 479 (1965) .............. ....  43
Driskill v. United States, 281 Fed. 146 (9th Cir. 1922) 28

Elmore v. Commonwealth, 282 Ky. 443, 138 S.W.2d 956
(1940) ............ ......... ......... ...... ........................................ 31

Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765) 32
Escobedo v. Illinois, 378 U.S. 478 (1964) .....................  32
Eubanks v. Louisiana, 356 U.S. 584 (1958) ............... 40

Fay v. Noia, 372 U.S. 391 (1963) ..................................  50
Fisher v. United States, 324 F.2d 775 (8th Cir. 1963),

cert, denied 377 U.S. 999 ________ _______ ____ ____ _ 28
Foster v. United States, 281 F.2d 310 (8th Cir. 1960) 27
Fowler v. Rhode Island, 345 U.S. 67 (1953) ..........   37
Frank v. Maryland, 359 U.S. 360 (1959) .......................  32
Fredricksen v. United States, 266 F.2d 463 (D.C. Cir.

1959) ......................... .......................................................  28
Freedman v. Maryland, 380 U.S. 51 (1965) ...................  43
Frye v. United States, 315 F.2d 491 (9th Cir. 1963), 

cert, denied, 375 U.S. 849 ..................... ........................  22

Gatlin v. United States, 326 F.2d 666 (D.C. Cir. 1963) 22
Gomillion v. Lightfoot, 364 U.S. 339 (1960) ................. 40
Gouled v. United States, 255 U.S. 298 (1921) ........... ....  25

Hamilton v. Alabama, 376 U.S. 650 (1964) ___ ____  37
Hamm v. Virginia State Board of Elections, 230 F. 

Supp. 156 (E.D. Va. 1964) aff’d sub nom. Taneil v.
Woolls, 379 U.S. 19 ...................... ................................46, 47

Hart v. United States, 316 F.2d 916 (5th Cir. 1963) .... 24 
Henslee v. Stewart, 311 F.2d 691 (8th Cir. 1963),

cert, denied, 373 U.S. 902 ............................................  39
Hernandez v. Texas, 347 U.S. 475 (1954) ...................38,40

PAGE



V

PAGE

Herndon v. Lowry, 301 U.S. 242 (1937) ....................... 42
Hester v. United States, 265 U.S. 57 (1924) ....... .......  21
Higgins v. United States, 209 F.2d 819 (D.C. Cir.

1954) .......... .......................................................................  24
Holt v. State, 17 Wis.2d 468, 117 N.W.2d 626 (1962) 22
Holzhey v. United States, 223 F,2d 823 (5th Cir. 1955) 28

Johnson v. United States, 333 U.S. 10 (1948)  —21, 25, 30
Johnson v. Zerbst, 304 U.S. 458 (1938) .................- 30, 50
Jones v. United States, 357 U.S. 493 (1958) ................... 21
Joseph Bnrstyn, Inc. v. Wilson, 343 U.S. 495 (1952) .... 43 
Judd v. United States, 190 F.2d 649 (D.C. Cir. 1951) .... 24

Lombard v. Louisiana, 373 U.S. 267 (1963) .................  42
Louisiana ex rel. Scott v. Hanchey, 20th Jud. Dist. Ct.,

Parish of West Feliciana ..............................................  36
Louisiana v. United States, 380 U.S. 145 (196o) ........... 43
Lustig v. United States, 338 U.S. 74 (1949) ............. 29

McDonald v. United States, 307 F.2d 272 (10th Cir.
1962) ........ . ..- ........ ..................... -.................................... 25

McDonald v. United States, 335 U.S. 451 (1948) ...........  27
McLaughlin v. Florida, 379 U.S. 184 (1964) .............  40
Mapp v. Ohio, 367 U.S. 643 (1961) ...........................  23,32
Martinez v. United States, 333 F.2d 405 (9th Cir.

1964) ............ ......... -............ - ............... ........ - .............. 23, 24
Mitchell v. Stephens, 232 F. Supp. 497 (E.D. Ark.

1964) ..............- ...........-----...........-.... - ......................... -  36
Moorer v. MacDougall, U.S. Dist. Ct., E.D.S.C., No.

AC-1583 ........................................... -....... ......... .............  36
Mosco v. United States, 301 F.2d 180 (9th Cir. 1962), 

cert, denied, 371 U.S. 842 ........................... -.............  22

N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958) 37



VI

N.A.A.C.P. V. Button, 371 U.S. 415 (1963) ................... 43
Neal v. Delaware, 103 U.S. 370 (1881) — ..... ...............  38
Niemotko v. Maryland, 340 U.S. 268 (1951) ..................  37
Norris v. Alabama, 294 U.S. 587 (1935) ......................  40

Oyama v. California, 332 U.S. 633 (1948) ..................  40

Pekar v. United States, 315 F.2d 319 (5th Cir. 1963) 24
Peterson v. City of Greenville, 373 U.S. 244 (1963) .. 42
Preston v. United States, 376 U.S. 364 (1964) .............. 21
Ralph v. Pepersack, 335 F.2d 141 (4th Cir. 1964)    44
Reece v. Georgia, 350 U.S. 85 (1955) ............................  40
Reed v. Rhay, 323 F.2d 498 (9th Cir. 1963), cert,

denied, 377 U.S. 917 ......................... ............... ............  24
Rees v. Peyton, 341 F.2d 859 (4th Cir. 1965) ........... 26, 28
Reszutek v. United States, 147 F.2d 142 (2d Cir. 1945) 28
Rios v. United Stales, 364 U.S. 253 (1960) ...............21, 23
Roberts v. United States, 332 F.2d 892 (8th Cir.

1964) ......................................................................... 27, 28, 29
Robinson v. Florida, 378 U.S. 153 (1964) ..................... 42
Robinson v. United States, 325 F.2d 880 (5th Cir. 1964) 22
Romero v. United States, 318 F.2d 530 (5th Cir. 1963),

cert, denied, 375 U.S. 946 ..............................................  28
Rorie v. State, 215 Ark. 282, 220 S.W. 2d 421 (1949) 44
Rudolph v. Alabama, 375 U.S. 889 (1963) ............. 13,44,45

Sartain v. United States, 303 F.2d 859 (9th Cir. 1962),
cert, denied, 371 U.S. 894 .......................................... 28

Shelley v. Kraemer, 334 U.S. 1 (1948) ..........................  37
Skinner v. Oklahoma, 316 U.S. 535 (1942) ..................  45
Smith v. Cahoon, 283 U.S. 553 (1931) .................... ..........  43
State v. Hanna, 150 Conn. 457, 191 A.2d 124 (1963) .... 22
State v. Scrotsky, 39 N.J. 410, 189 A.2d 23 (1963) ..... 22
Stein v. United States, 166 F.2d 851 (9th Cir. 1948) .... 29

PAGE



PAGE

Stoner v. California, 376 U.S. 483 (1964) ......... 21, 29, 32,
Swain v. Alabama, Ala. Sup. Ct., 7 Div. No. 699 .........

Tatum v. United States, 321 F.2d 219 (9th Cir. 1963) 
Teasley v. United States, 292 F.2d 460 (9th Cir. 1961)

United States ex rel. Goldsby v. Harpole, 263 F.2d 71
(5th Cir. 1959), cert, denied, 361 U.S. 838 ...............

United States ex rel. McKenna v. Myers, 232 F. Supp.
65 (E.D. Pa. 1964) .......................................... -.... 26,28,

United States ex rel. Puntari v. Maroney, 220 F. Supp.
801 (W.D. Pa. 1963) ............................... ......................

United States ex rel. Seals v. Wiman, 304 F.2d 53 (5th
Cir. 1962), cert, denied, 372 U.S. 924 ............ ............

United States ex rel. Stacey v. Pate, 324 F.2d 934 (7th
Cir. 1963), cert, denied, 377 U.S. 937 (1964) .............

United States v. Arrington, 215 F.2d 630 (7th Cir.
1954) .... ........................... ........... -.......... -.............. -.........

United States v. Block, 202 F. Supp. 705 (S.D.N.Y.
1962) ........................ - ................................- ....................

United States v. Blok, 188 F.2d 1019 (D.C. Cir. 1951) 
United States v. Boston, 330 F.2d 937 (2d Cir. 1964),

cert, denied, 377 U.S. 1004 ............................................
United States v. Eldridge, 302 F.2d 463 (4th Cir. 1962) 
United States v. Evans, 194 F. Supp. 90 (D.D.C. 1961) 
United States v. Goodman, 190 F. Supp. 847 (N.D. 111.

1961) ............................................ -................ -..................
United States v. Haas, 106 F. Supp. 295, 109 F. Supp.

443 (W.D. Pa. 1952) ......................... ...................... -24,
United States v. Heine, 149 F.2d 485 (2d Cir. 1945) —  
United States v. Hilbrieh, 341 F.2d 555 (7th Cir. 1965) 
United States v. Horton, 328 F.2d 132 (3rd Cir. 1964),

cert, denied, 377 U.S. 970 ........ ....................................
United States v. Jeffers, 342 U.S. 48 (1951) ...........21,

33
36

24
28

50

29

27

50

26

23

26
32

28
28
24

26

25
25
22

22
29



V l l l

United States v. MacLeod, 207 F.2d 853 (7th Cir.
1953) ............................... ................................................24,25

United States v. Minor, 117 F. Supp. 697 (E.D. Okla.
1953) ................................. ............ ................................... 24

United States v. Mitchell, 322 U.S. 65 (1944) ................. 25
United States v. Page, 302 F.2d 81 (9th Cir. 1962) .......  23
United States v. Pugliese, 153 F.2d 497 (2d Cir. 1945) 27
United States v. Rabinowitz, 339 U.S. 56 (1950) .........  21
United States v. Rivera, 321 F.2d 704 (2d Cir. 1963) .... 25 
United States v. Roberts, 179 F. Supp. 478 (D. D.C.

1959) ...........................     24,25
United States v. Ruffner, 51 F.2d 579 (D. Md. 1931) 27
United States v. Rykowski, 267 Fed. 866 (S.D. Ohio

1920) ..................................................................................  27
United States v. Sergio, 21 F. Supp. 553 (E.D.N.Y.

1937) ...........................................................       27
United States v. Sferas, 210 F.2d 69 (7th Cir. 1954),

cert, denied, 347 U.S. 935 .......................... ................. 26, 27
United States v. Smith, 308 F.2d 657 (2d Cir. 1962-63),

cert, denied, 572 U.S. 906 ..............................................  22
United States v. Walker, 197 F.2d 287 (2d Cir. 1952),

cert, denied, 344 U.S. 877 ...................    27
United States v. Walker, 190 F.2d 481 (2d Cir. 1951),

cert, denied, 342 U.S. 868 ......................... ...... ....... . 27
United States v. Ziemer, 291 F.2d 100 (7th Cir. 1961),

cert, denied, 368 U.S. 877 ............................... ..............  24
United States v. Zimmerman, 326 F.2d 1 (7th Cir. 

1963) ............... ...... .................... ...................................... 28

Villano v. United States, 310 F.2d 680 (10th Cir. 1962) 22
Von Eichelberger v. United States, 252 F.2d 184 (9th 

Cir. 1958)

PAGE

28



Waldron v. United States, 219 F.2d 37 (D.C. Cir.
1955) ................... ...........................................................26,29

Watson v. City of Memphis, 373 U.S. 526 (1963) ......... 37
Whitus v. Balkcom, 333 F.2d 496 (5th Cir. 1964), cert.

denied, 379 U.S. 931 ..................................................-....  50
Williams v. United States, 263 F.2d 487 (D.C. Cir.

1959) ................... ................ -..... -----......... .......................  26
Winters v. New York, 333 U.S. 507 (1948) ................... 43
Wion v. United States, 325 F.2d 420 (10th Cir. 1963),

cert, denied, 377 U.S. 946 ................. ......... ....... -...... . 28
Woodard v. United States, 254 F.2d 312 (D.C. Cir. 

1958), cert, denied, 357 U.S. 930 ..................................  28

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ------------ ---- -  37

Zap v. United States, 328 U.S. 624 (1946) ....................  26

Statutes

10 U.S.C. §920 (1964) ............................... *...... -.................  34

18 U.S.C. §2031 (1964) ..................................... -......... -....  34

28 U.S.C. §1254(1) (1948) ............................................ -  2

28 U.S.C. §2241 (1958) ....................................................-  18

Rev. Stat. §1977 (1875), 42 U.S.C. §1981 (1964) ......... 37

Supreme Court Rule 19(1) (b) ....-.... -......................... -  22

Civil Rights Act of 1866, Ch. 31, §1, 14 Stat. 27 .........36, 38

Enforcement Act of May 31, 1870, ch. 114, §§16, 18,
16 Stat. 140, 144 ............................ -............................  36

Ala. Code §§14-395, 14-397, 14-398 (1958) ................... 33
Auk. Stat. A nn. §3-118 (1956) ......................................4,17

IX

PAGE



I

A rk. Stat. A nn . §3-227 (1956) ........................................ 4,17
A rk. Stat. A nn . §39-208 (1962) ........................................6,17
A rk. Stat. A nn . §§41-805 to 41-810 (1964) ............. 42
A rk. Stat. A nn . §41-3403 (1964) ........................ 7 ,8 ,13,33
A rk. Stat. A nn . §41-3405 (1964) .................................. 33
A rk. Stat. A nn . §41-3411 (1964) ....   33
A rk. Stat. A nn . §43-2153 (1964) .................. ..........7,13,33
A rk. Stat. A nn . §§46-144, 145 (1964) .....      42
A rk. Stat. A nn . §§55-104, 105 (1947) ........................   42
A rk. Stat. A nn . §73-1218 (1957) ......    42
A rk. Stat. A nn . §73-1614 (1957) ..................................  42
A rk. Stat. A nn . §73-1747 (1957) ............. .     42
A rk. Stat. A nn . §76-1119 (1957) .................   42
A rk. Stat. A nn. §80-509 (1960) ......................... ...............  42
A rk. Stat. A nn . §80-2401 (1960) ..................................  42
A rk. Stat. A nn . §84-2724 (1960) .......      42

D. C. Code A nn . §22-2801 (1961) .....................   34

F la. Stat. A nn . §794.01 (1964) ..........      33

G.v. Code A nn . §26-1302 (1963) ...............      33
Ga. Code A nn . §26-1304 (1963) ............      34

K y. R ev. Stat. A nn . §435.090 (1963) ............................  34

L a. R ev. Stat. A nn . §14:42 (1950) .............................. ...... 34

Md. A nn . Code, art. 27, § 1 2 ................................................. 34
Md. A nn . Code, art. 27, §§461, 462 (1957) ..... .......... 34
Miss. Code A nn . §2358 (1956) ........................................  34
V ernon’s Mo. Stat. A nn . §559.260 (1953) .................... 34

Nev. R ev. Stat. §200.360 (1963) ................................... . 33
Nev. R ev. Stat. §200.400 (1963) .......................... ..............  33
N.C. Gen. Stat. §14-21 (1953) .............................. .......... 34

PAGE



Okla. Stat. A nn ., tit. 21, §1111 (1958) ...............    34
Okla. Stat. A nn ., tit. 21, §§1114, 1115 (1958) ............  34

S.C. Code A nn . §16-72 (1962) .......... .............................  34
S.C. Code A nn. §16-80 (1962) .............................................  34

Tenn. Code A nn . §§39-3702, 39-3703, 39-3704, 39-3705 
(1955) ..................... ..............................................................  34

Tex. P en. Code A nn., art. 1183 (1961) ............................  34
Tex. P en. Code A nn ., art. 1189 (1961) ........      34

V a. Code A nn . §18.1-16 (1960) ........................................  34
V a. Code A nn . §18.1-44 (1960) ............................................. 34

Other A uthorities

W eihofen, T he Urge to Punish, 164-165 (1956) .......  42

Bullock, Significance of the Racial Factor in the Length 
of Prison Sentences, 52 J. Cbim. L., Grim. & P ol.
Sci. 411 (1961) ............... ........................... ......................  42

Fairman, Does the Fourteenth Amendment Incorporate 
the Bill of Rights, 2 Stan. L. R ev. 5 (1949) ...........  36

Hartung, Trends in the Use of Capital Punishment, 284 
A nnals 8 (1952) ................................ ..................... ....... 42

Lewis, The Sit-In Cases: Great Expectations, [1963] 
Supreme Court R eview 101 ............................................  43

Packer, Making the Punishment Fit the Crime, 77 
H arv. L. R ev. 1071 (1964) .......... .................................. 44

tenBroek, Thirteenth Amendment to the Constitution 
of the United States, 39 Calif L. R ev. 171 (1951) .... 36

Weinstein, Local Responsibility for Improvement of 
Search and Seizure Practices, 34 R ocky Mt. L. R ev.
150 (1962) .............. ........................................................ . 23

XI

PAGE



Wolfgang, Kelly & Nolde, Comparison of the Executed 
and the Commuted among Admissions to Death 
Row, 53 J. Crim. L., Grim. & P ol. Sci. 301 (1962) .... 42

Comment, 69 D ick. L. R ev. 69 (1964) ..... ......................  22

Note, 51 Calif. L. R ev. 1010 (1963) ................................. 22

Note, U. III. L. F orum (1964) .......... .............................  22

Note, 109 U. P a. L. R ev. 67 (1960)  ............................  35

Note, 113 U. Pa. L. R ev. 260 (1964) ............................... . 22

Note, Wis. L. R ev. 119 (1964) ..... ..................................  22

Annul., 31 A.L.R. 2d 1078 (1953) ......... ..........................  22

Cong. Globe, 39th Cong., 1st Sess. 475 (Jan. 29, 1866)
1759 (4/4/1866) ................................................................. 38

Cong. Globe, 39th Cong., 1st Sess. 1758 (April 4, 1866) 38

New York Times, July 24, 1965, p. 1, col. 5 ............. ....... 45

United States Department of J ustice, B ureau of 
P risons, National Prisoner Statistics, No. 32: 
Executions, 1962 (April 1963) ..................................... 43

xii

PAGE



I n the

Supreme (tort of the Intteii Btdits
October Term, 1965 

No..............

W illiam  L. M axw ell ,
Petitioner,

v.

D an  D. S teph en s , Superintendent of Arkansas 
State Penitentiary.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE EIGHTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for the 
Eighth Circuit entered in the above-entitled case on June 
30, 1965.

Opinions Below

The opinion of the United States Court of Appeals for the 
Eighth Circuit (C.A. I ) 1 and the dissenting opinion of Judge 
Ridge (C.A. 24) are as yet unreported. They are set forth in

1 The certified record, which is not printed, consists of six volumes.
Volume I contains the record of proceedings in the district court except 

for the transcript of the hearing. It is cited as D.C. ------ .
Volumes II and III, paginated consecutively, contain the complete 

record of proceedings in the Garland County Circuit Court and are cited 
as A rk .------ .

Volume IV is the transcript of the hearing in the district court and is 
cited as T r . ------ .

Volume V contains depositions and is not cited in this petition.
Volume VI contains the opinion and orders of the court of appeals and 

is cited as C.A. ------ .



2

the appendix,2 pp. 2a, 26a. The opinion of the United 
States District Court for the Eastern District of Arkansas 
(D.C. 39) is reported at 229 F. Supp. 205 and is set forth 
in the appendix, p. 30a. The opinion of the Supreme Court 
of Arkansas is reported at 236 Ark. 694, 370 S.W. 2d 113 
and is set forth in the appendix, p. 55a.

Jurisdiction

The judgment of the United States Court of Appeals 
for the Eighth Circuit was rendered on June 30, 1965 
(C.A. 28). The jurisdiction of this Court is invoked pur­
suant to 28 U.S.C. §1254(1).

Questions Presented

1. Petitioner, a Negro, was detained at the police station 
on suspicion of rape of a white woman. His requests to use 
a phone to call a lawyer or his family at home were denied. 
Two white policemen went to his home at 5 :00 a.m. to obtain 
evidence. They had no warrant. Only petitioner’s mother 
and two younger brothers were at home. The policemen 
were admitted by petitioner’s mother. They searched peti­
tioner’s room and obtained a coat belonging to him. The 
coat was used at his trial, which resulted in a sentence of 
death.

a) Where petitioner’s mother was visibly upset, did not 
know of her right to resist a warrantless search, and was 
not informed of that right, did her acquiescence in the 
search and seizure satisfy the requirements of voluntari­
ness and understanding requisite to waiver of Fourth- 
Fourteenth Amendment rights?

2 The appendix is separately bound.



3

b) If the answer to question (a) is yes, did acquiescence 
by petitioner’s mother waive petitioner’s Fourth-Four­
teenth Amendment rights as well as her own?

2. Where petitioner, a Negro sentenced to death for the 
rape of a white woman, has shown that nine times as many 
Negroes as whites have been executed for rape in Arkansas 
although in three representative counties (to which inquiry 
was limited) an equal number of Negroes and whites have 
been convicted of rape, may the State deny that racial dis­
crimination violating the equal protection clause of the 
Fourteenth Amendment produced such a result without 
submitting proof that impartial and non-arbitrary factors 
explain the grossly disproportionate number of Negro exe­
cutions ?

3. Does Arkansas’ granting to the jury of unfettered 
discretion to impose capital punishment for all offenses of 
rape, irrespective of the existence of aggravating circum­
stances, permit cruel and unusual punishment in violation 
of the Fourteenth Amendment? 4

4. Did the system of selecting petit jurors used in Gar­
land County satisfy the equal protection clause of the 
Fourteenth Amendment where the qualifications of all pro­
spective jurors wrere determined by reference to poll tax 
books which, pursuant to state statute, designated the race 
of each elector?



4

Constitutional and Statutory Provisions Involved

This case involves the Fourth, Fifth, Eighth, and Four­
teenth Amendments to the Constitution of the United States.

This case also involves the following Arkansas statutes:

A rkansas S tatutes A nnotated , §3-118 (1956) :

3-118. List of poll tax payers furnished county cleric 
and election commissioners.—Not later than the 15th day 
of October of each year the collector shall file with the 
county clerk a list containing the correct names, alpha­
betically arranged (according to the political or voting 
townships, and according to color) of all persons who have 
up to and including October 1st of that year paid the poll 
tax assessed against them respectively. The correctness of 
this list shall be authenticated by the affidavit of the col­
lector in person. The county clerk shall at once record the 
said list in a well bound book to be kept for that pur­
pose . . . .

A rkansas S tatutes A nnotated , §3-227 (1956):

3-227. Evidence of right to vote—Filing and return of 
documents—Additional list of voters—Poll tax receipts, 
requirements— Certified poll tax lists—Rejection of bal­
lots.—No person shall be allowed to vote at any primary 
election held under the laws of this State, who shall not 
exhibit a poll tax receipt, or other evidence that he has 
paid his poll tax within the time prescribed by law to en­
title him to vote at the succeeding general State election. 
Such other evidence shall be:

(a) A copy of such receipt duly certified by the clerk of 
the county court of the county where such tax was paid.



5

(b) Or, such person’s name shall appear upon the list 
required to be certified to the judges of election by section 
three of Act 320 of Acts of 1909 [§3-118].

Or, if any person offering to vote shall have attained the 
age of twenty-one [21] years since the time of assessing 
taxes next preceding such election, which period of assess­
ment is here declared to mean between the second Monday 
in May and the second Monday in September of each year, 
and possesses the other necessary qualifications, and shall 
submit evidence by written affidavit, satisfactory to the 
judges of election, establishing that fact, he shall be per­
mitted to vote.

All such original and certified copies of poll tax receipts 
and written affidavits shall be filed with the judges of elec­
tion and returned by them with their other returns of 
election, and the said judges of election shall, in addition 
to their regular list of voters, make an additional list upon 
their poll books of all such persons permitted by them to 
vote, whose names do not appear on the certified list of poll 
tax payers, and such poll books shall have a separate page 
for the purpose of recording names of such persons.

It shall be the duty of each elector, at the time of pay­
ment of his poll tax, to state, and it shall be the duty of the 
collector to record and certify in his receipt evidencing the 
payment of such poll tax, the color, residence, postoffice 
address (rural route, town or street address), voting pre­
cinct, and school district, of such person at the time of the 
payment of such tax, and all poll tax receipts not containing 
such requirements shall be void and shall not be recognized 
by the judges of election; provided, however, it shall not be 
necessary to state or have certified the street address of 
any such person in cities and towns where the numbering 
of houses is not required by the ordinances thereof.



6

The certified lists required by section 3 of Act 320 of 
1909 [§3-118] shall contain, in addition to the name of the 
person paying such poll tax, his color, residence, post- 
office address (rural route, town, or street address where by 
ordinance the numbering of houses is required), the school 
district and voting precinct, and such list shall be arranged 
in alphabetical order, according to the respective voting 
precincts. The county election commissioners shall supply 
the judges of primary elections with printed copies of such 
lists. . . .

A rkansas Statutes A nnotated §39-208 (1962) :

Preparation of lists of petit jurors and alternates—In­
dorsement of lists.-—The commissioners shall also select 
from the electors of said county, or from the area constitut­
ing a division thereof where a county has two [2] or more 
districts for the conduct of circuit courts, not less than 
twenty-four (24) nor more than thirty-six (36) qualified 
electors, as the court may direct, having the qualifications 
prescribed in Section 39-206 Arkansas Statutes 1947 Anno­
tated to serve as petit jurors at the next term of court; 
and when ordered by the court, shall select such other num­
ber as the court may direct, not to exceed twelve [12] 
electors, having the same qualifications, for alternate petit 
jurors, and make separate lists of same, specifying in the 
first list the names of petit jurors so selected, and certify 
the same as the list of petit jurors; and specifying in the 
other list the names of the alternate petit jurors so se­
lected, and certifying the same as such; and the two [2] 
lists so drawn and certified, shall be enclosed, sealed and 
indorsed “ lists of petit jurors” and delivered to the court 
as specified in Section 39-207, Arkansas Statutes 1947, 
Annotated for the list of grand jurors.



7

A rkansas S tatutes A nnotated §41-3403 (1962):

41-3403. Penalty for Rape.—Any person convicted of the 
crime of rape shall suffer the punishment of death [or life 
imprisonment], [Act Dec. 14, 1842, §1, p. 19; C. & M. Dig., 
§2719; Pope’s Dig., §3405.]

A rkansas S tatutes A nnotated §43-2153 (1962):

43-2153. Capital cases— Verdict of life imprisonment.— 
The jury shall have the right in all case where the punish­
ment is now death by law, to render a verdict of life im­
prisonment in the State penitentiary at hard labor.

Statement

Petitioner William L. Maxwell, a Negro, was charged by 
information for the crime of rape on November 7, 1961 
( Ark. 1). He was convicted in the Circuit Court of Garland 
County, Arkansas, and sentenced to death on April 5, 1962 
(Ark. 42). The conviction was affirmed by the Supreme 
Court of Arkansas, and rehearing was denied.

A petition for writ of habeas corpus was filed in the 
United States District Court for the Eastern District of 
Arkansas on January 20, 1964 (D.C. 1). It alleged, inter 
alia, that the number of Negroes on jury panels in Gar­
land County was systematically and intentionally limited 
through the use of poll tax books designating the race of 
qualified jurors (D.C. 2-3). On January 21, 1964, the dis­
trict court issued an order to show cause and a stay of exe­
cution (D.C. 6). On January 31, 1964, the court permitted 
an amendment to the habeas corpus petition alleging that 
clothing of petitioner was seized during an unlawful search 
and introduced at trial (D.C. 11-13). On February 12, 1964, 
petitioner filed a second amendment, alleging that Ark.



8

Stat. Ann. §41-3403 (1962 Repl. Vol.), providing for the 
death penalty upon conviction of rape, was applied with 
unequal severity against Negroes (D.C. 33). It was al­
leged that imposition of the death penalty in rape cases not 
involving loss of life was erratic and in conflict with the 
mores, principles and basic concepts of fairness of civil­
ized societies (D.C. 34). At the hearing on February 12, 
1964, the district court permitted the filing of the second 
amendment (Tr. 22).

Following the hearing held on February 12, 13, and 27, 
the district court dismissed the petition for writ of habeas 
corpus and vacated the stay of execution on May 6, 1964 
(D.C. 62). On May 19,1964, petitioner filed notice of appeal 
(D.C. 70). The district court granted a petition for cer­
tificate of probable cause for appeal and stayed execution 
pending appeal (D.C. 67).

The United States Court of Appeals for the Eighth Cir­
cuit affirmed on June 30, 1965 (C.A. 1, 28), Judge Ridge 
dissenting on the search and seizure issue (C.A. 24).

On July 13, 1965, the court of appeals granted a stay of 
the mandate for thirty days. If the clerk of the court of 
appeals receives within that time period a certificate from 
the clerk of this Court that a petition for writ of certiorari 
has been filed, the stay is to continue in effect until final 
disposition of the ease by this Court (C.A. 29).

Search and Seizure

In his amended petition for the writ of habeas corpus, 
petitioner contended that his Fourteenth Amendment rights 
against unreasonable search and seizure had been violated 
by the use made at his trial of a blue coat seized from his



9

bedroom closet by police officers acting without a warrant 
(D.C. 11). The court of appeals found that the

blue coat in question was obtained from that closet. 
It was eventually sent to the FBI laboratory. At the 
trial there was expert testimony that fibers in the coat 
matched others found on the victim’s pajamas and on 
part of a nylon stocking picked up near the scene of 
the crime, and that fibers in the pajamas matched those 
found on the coat (C.A. 17).

Accordingly, the court of appeals—as had the district court 
—entertained petitioner’s Fourth-Fourteenth Amendment 
contentions on the merits (C.A. 16; see D.C. 45). It rejected 
those contentions, finding that the warrantless seizure of 
the coat was validated by consent given the officers, in 
petitioner’s absence following his arrest, by petitioner’s 
mother (C.A. 23).

The facts surrounding the search and seizure may be 
concisely stated by adopting the findings of the court of 
appeals, with a few additions supported by the testimony 
of police officers or by the uncontradicted testimony of 
petitioner’s witnesses in the district court. In the para­
graphs which follow, the quoted portions are taken from 
the circuit court’s opinion (C.A. 16-18) ; bracketed inser­
tions with record references are from the transcript in the 
district court.

“ . The offense took place at approximately three 
o'clock in the morning of November 3, 1961. It was raining 
and wet. The victim was promptly taken by the police to 
a hospital. At the hospital she described her assailant to 
Captain Crain of the Hot Springs Police Department and 
to Officer O.D. Pettus, a Negro. She stated that the man 
had told her he was Willie C. Washington. Two persons 
with that name, senior and junior, were brought before her



10

but she identified neither. [A third Negro man was also 
brought in but not identified. (Tr. 256, 258, 262-263; testi­
mony of Captain Crain and of the victim.)] She described 
her attacker in greater detail. Pettus thereupon suggested 
that it might have been Maxwell. Officer Childress, who 
was on car patrol duty and in uniform at the time, was 
directed by radio to pick up Maxwell. He went to the 
Maxwell home. The defendant’s mother, then age 38, an­
swered his knock. [Maxwell’s father was then away from 
home at work. (Tr. 159; uncontradicted testimony of Max­
well’s father.)] He told her he wanted to talk to William. 
She let him enter, checked to see if her son was in, and 
led Childress to the bedroom occupied by Maxwell and two 
younger sons. [Childress awakened Maxwell by shining a 
flash in his face. (Tr. 135, 186-187; uncontradicted testi­
mony of Maxwell’s mother and Maxwell.)] Childress told 
Maxwell he wanted to talk to him down town and asked 
him to dress. Childress testified that Maxwell went to the 
closet for clothes that were hanging there in a wrapper, 
and that he asked him ‘to put on these other clothes here 
that he had on.’ The latter were wet. Maxwell testified 
that he was told to put on the clothes he had on that night, 
that he went to the closet to get these, that he was then 
told to put on the clothes folded on the chair, that he was 
going to take those clothes to the cleaners, and that they 
were not his. [It is uncontested that Maxwell objected to 
wearing the clothes on the chair, which he said were wet 
and not his, but that Childress told him to put them on 
anywrny. (Tr. 267; testimony of Officer Childress.)]

[Maxwell’s mother testified that she was upset at this 
time. (Tr. 135.) At the hearing below, Childress was asked 
whether he had advised Maxwell or his parents (sic) that 
they were entitled to consult with an attorney, and replied: 
“ No, I didn’t give them any advice at all because I didn’t



11

know whether he was being arrested or what. I just re­
ceived the call over the radio to go pick him up. I didn’t 
know what it was.” (Tr. 267.)]

“Maxwell was taken to the hospital and before the victim. 
She at first did not identify him as her attacker but wit­
nesses described her as visibly disturbed and shaking when 
he stood before her. She later said she recognized him but 
feared for her life if she identified him. Maxwell was 
taken from the hospital to the police station.

[The district court found “ that when petitioner was 
taken into custody and incarcerated in the City Jail he 
was not permitted to see his parents or a lawyer.” (D.C. 
49.) This finding was based on petitioner’s testimony that 
“I asked them could I use the telephone to call my—my 
mother, somebody to come up, a lawyer or something, and 
they told me I weren’t going to use the phone or nothing 
. . . ” (Tr. 189; see also Tr. 190.) The testimony is un­
contradicted; Captain Crain testified only that he did not 
advise petitioner of his right to consult an attorney (Tr. 
250), and that he made no attempt to bring petitioner 
before a magistrate because there was no magistrate’s court 
until 9:00 a.m., the magistrate had traffic court at that 
time, and “We still had not completed our investigation.” 
(Tr. 253.) Petitioner’s incommunicado detention continued 
for two or three days thereafter in the jail to which he 
had been removed to avoid mobbing. (Tr. 192-196; uncon­
tradicted testimony of petitioner.)]

“Both sides admit that the exact times and place of 
Maxwell’s arrest ‘is not entirely clear from the record’. 
It might have been at the home at about four a.m. or 
shortly thereafter at the hospital.

“ Captain Crain, with Officer Timms, went to the Maxwell 
home about five a.m. to get, as he testified at the habeas



12

corpus hearing, ‘some more clothes that we thought might 
help us in our investigation of this case’ or, as he testified 
at the trial, ‘I was looking for a particular object . . .  I 
wanted what he was wearing that night’. They had no 
search warrant. Mrs. Maxwell permitted them to enter. 
[She testified below: “I did not know nothing about ask­
ing the officer for a search warrant. I didn’t—I just didn’t 
know . . . ” (Tr. 146.) And, again, responsive to a question 
why she had not asked the officers for a warrant: “Be­
cause I didn’t know—know to just quite honestly I didn’t 
know—I was—well, I was half asleep and I just wasn’t— 
didn’t think to ask him. And I kept-—my children were 
all at home and I just didn’t think anything were wrong.” 
(Tr. 156.)] They were in uniform. The testimony is in 
conflict as to whether Mrs. Maxwell was then informed 
of any charge against her son; Crain said he so advised 
her but she stated, ‘He didn’t say nothing about no rape 
case’. (The district court found she had been so advised). 
She directed the officers to the clothes closet. . . . [Captain 
Crain testified that Officer Timms checked the closet while 
he, Crain, talked to petitioner’s mother. “Well, we—I felt 
sorry for her. She was in—well, she wasn’t feeling any 
too good being—having a thing like that happen and her 
son being accused.” (Tr. 243.)]

“ Mrs. Maxwell was understandably upset at the times 
the officers called at her home. In the margin we quote 
her testimony as to both the first call12 and the second call.13

12 “  . . .  it was late and I was asleep and someone knocked on 
the door and I woke op and I asked who was it and he said the 
policeman and I went to the door to let him in. He asked me did 
I have a son here by the name of William and I told him yes and 
he jost come on in, he didn’t have a search warrant or anything 
and I let him. I didn’t know any better myself but I—I didn’t 
know that he— you know, everything was all right, my children 
were at home and all and I just let him in.”

13 “ I opened the door and I was afraid not to let them in because 
—you know— when they said they were police officers—well, you



13

just—I ’ve just always— I just let the police officers in because I 
just feel like he is for peace and all, and I just— I don’t know, I 
didn’t know anything—I never been in anything like this and 
I just let them in and I still didn’t think anything, didn’t any of 
those officer (sic) have any search warrant or anything, didn’t 
show me anything like that.”

Maxwell’s father worked at night and was not home when 
the officers called.”

[Asked at the hearing below whether he had told Mrs. 
Maxwell that she did not have to relinquish the items of 
clothing to him, Captain Crain replied that he did not 
recall. (Tr. 248.) He testified flatly that he did not men­
tion to Mrs. Maxwell that things taken could he used in 
evidence against her son. (Tr. 249.)]

Capital Punishment for Rape

Petitioner’s second amended petition in the district court 
challenged the constitutionality in their application to him 
of the Arkansas statutes allowing capital punishment for 
rape in the discretion of the jury. Ark. S t a t . A xn . §§41- 
3403, 43-2153 (1964 Repl. Vols.), p. 7, supra. He con­
tended that prosecutors and juries applied the statutes 
racially, in that Negroes convicted of rape upon white 
women were usually sentenced to death, while other classes 
of rape convicts usually received lesser sentences (D.C. 
33); that the death sentence in his case “where life has 
not been forfeited is so erratic so as to deny due process 
of law” and equal protection of the laws (D.C. 34); and 
that in such a case the death sentence constituted cruel 
and unusual punishment (D.C. 34).8 In support of the 3

3 The language of part (2), para. 3, of the second amendment to the 
petition paraphrases the language of the opinions dissenting from denial 
o f certiorari in Rudolph v. Alabama, 375 U.S. 889 (1963) (D.C. 34), and 
was understood by the district court to raise an Eighth-Fourteenth Amend­
ment issue (Tr. 10-13).



14

claim of racial discrimination, petitioner’s counsel sought 
leave to take testimony of certain state officials, and to 
submit to the prosecutors or clerks of court of the 72 
Arkansas counties not to be covered by oral testimony 
interrogatories or questionnaires inquiring with respect 
to all rape prosecutions after January 1, 1954 the name 
and race of the defendant, the race of the prosecutrix, the 
extent to which deadly force was attempted or employed 
in the course of the offense, and the disposition including 
sentence.4 Counsel for the State expressed doubt that such 
information could be supplied by the prosecutors or county 
clerks (Tr. 312-313), and the district court thereupon 
declined “ to go into an expedition of trying to submit it 
to the 72—72-—75 clerks when I am convinced that they 
cannot furnish most of it.” (Tr. 313.) However, over the 
strenuous objection of State’s counsel (Tr. 314-317), and 
notwithstanding the court’s disposition to believe “that 
the information that the petitioner is trying to obtain 
can’t be obtained” (Tr. 317), the court did agree, as a 
“ trial run” (Tr. 317) to hear testimony of state officials 
for three counties, in order to “ see how fruitful it might 
be on a smaller basis” (Tr. 318; see Tr. 317-321). Ac­
cordingly, petitioner presented the testimony of the cir­
cuit clerk, sheriff and prosecuting attorney of Garland 
County (Tr. 327-356), the circuit clerk and prosecuting 
attorney of Pulaski County (Tr. 357-385), and the circuit

4 The request to take depositions and to submit interrogatories and 
questionnaires was first made in the second amendment to the petition 
(D.C. 34). It was pressed at the hearing (Tr. 6-10, 14-26) and, following 
an initially inconclusive disposition (Tr. 25-26), renewed (Tr. 227). The 
district eourt asked counsel for the petitioner to prepare for the court’s 
consideration the sort of interrogatories he wished to submit (Tr. 228-229) ; 
this was done (Tr. 311-312); and petitioner’s request for leave to submit 
the interrogatories renewed again (Tr. 310-311). After the district court 
determined to permit testimony limited to three counties as a “ trial run” 
(see text infra), petitioner’s counsel put the draft questionnaire into the 
record to preserve his point (Tr. 321).



15

clerk, sheriff and prosecuting attorney of Jefferson County 
(Tr. 386-421). The evidence given by these officials is 
summarized in the margin, substantially in the words of 
the court of appeals.5 It demonstrated, first, that the in­
formation sought by the petitioner was, for the most part, 
available: of 59 defendants charged in three counties over 
ten years, the race of all but four defendants was known; 
the race of 47 of their 63 victims was known; and dispo­

5 The quoted passage which follows is from the opinion of the court of 
appeals (C.A. 7-8). Bracketed insertions supply omitted information, 
derived from the testimony of the state officials at Tr. 327-421.

“As to Garland County, for the decade beginning January 1, 1954, 
Maxwell’s evidence was to the effect that seven whites were charged 
with rape (two of white women and the race of the other victims not 
disclosed), with four whites not prosecuted and three sentenced on 
reduced charges; that three Negroes were charged with rape, with one 
of a Negro woman not prosecuted and another of a Negro receiving 
a reduced sentence, and the third, the present defendant, receiving 
the death penalty. With respect to Pulaski County for the same 
decade, there were 11 whites (two twice) and 10 Negroes charged, 
with the race of the victim of two whites and one Negro not dis­
closed. Three whites received a life sentence. [Two of these had white 
victims; the third, a victim of undisclosed race.] One white was ac­
quitted of rape of a Negro woman. One received a sentence on a 
reduced charge [victim, white], two were dismissed [victims, white], 
two cases remained pending [victims, white], one was not prosecuted 
[victim of undisclosed race], and the last was executed on a convic­
tion for murder [victims, white; two rape charges were nol prossed]. 
Of the Negroes, three with white victims and two with Negro victims 
received life. One case was dismissed [victim of undisclosed race], 
one was not arrested [victim, white], two with Negro victims were 
sentenced on reduced charges, and one, Bailey, with a white victim, 
was sentenced to death. In Jefferson County eight Negroes were 
charged, with the cases against five dismissed [victims, one white, one 
Negro, three of undisclosed race], another dismissed when convicted 
on a murder charge [victim of undisclosed race], and two receiving 
sentences on reduced charges [victims, Negro], Sixteen whites were 
charged. One was charged three times with respect to Negro victims 
and as to two of these charges received five years suspended on a 
guilty plea. [The remainder had white victims, except in the single 
case indicated infra.] Two others received three year sentences. One 
is pending, one was executed, and the rest were dismissed [one of 
these latter having a victim of undisclosed race.] The race of four 
defendants was not disclosed; three of these cases were dismissed and 
one is pending.”



16

sitions of all prosecutions, including sentence, were known. 
Second, the evidence showed that for the counties and 
period covered, Negroes were charged with rape consider­
ably less frequently than whites (by a ratio of 2:3) and 
were convicted o f rape no more frequently than whites. 
Specifically, the figures a re :

Garland Pulaski Jefferson Total
Number of White 7 11 (two twice) 16 (one thrice) 34 (two twice)
defendants (one thrice)
charged Negro 3 10 8 21

Total 10 21 28 (four un- 59
known race)

Number of 
defendants White 0 3 4 (one twice) 7 (one twiee)
convicted Negro 1 6 0 7
of rape Total 1 9 4 14
Number of 
defendants White 0 0 1 1
sentenced Negro 1 1 0 2
to death Total 1 1 1 3

On the basis of evidence in the state court transcript, it 
further appears, as found by the court of appeals, “ that, 
in the 50 years since 1913, 21 men have been executed for 
the crime of rape [in Arkansas]; that 19 of these were 
Negroes and two were white; that the victims of the 19 
convicted Negroes were white females; and that the vic­
tims of the two convicted whites were also white females.” 
(C.A. 7.) The court of appeals held, as did the district 
court, that this was an insufficient showing of racially 
discriminatory application of the death penalty for rape 
(C.A. 8; see D.C. 60), and both courts refused to give 
consideration to petitioner’s contention that capital pun­
ishment for rape was cruel and unusual punishment, the 
circuit court saying that a declaration of the unconstitu­
tionality of the death penalty on this ground “must be 
for the Supreme Court in the first instance and not for



17

us.” (C.A. 11-12; and see the district court’s similar dis­
position at D.C. 61).

Selection of Jury Panels

In Garland County, Arkansas, petit jury lists were se­
lected by a jury commission consisting of three commis­
sioners, who met periodically to draw up a list of names 
(Tr. 47, 64). They relied primarily on their knowledge 
of persons in the community (Tr. 61), but also used a 
telephone book (Tr. 60, 77) and a list of persons who had 
previously served (Tr. 55, 77).

At the time of petitioner’s trial, only qualified electors 
who had paid the poll tax were eligible to be jurors. Ark. 
Stat. Ann. §3-227 (1956); §39-208 (1962). The jury com­
missioners checked the poll tax books to determine 
whether the persons they had selected were qualified 
(Tr. 70, 80). An Arkansas statute required that poll tax 
books designate the race of all qualified electors. Ark. 
Stat. Ann. §3-118. The poll tax book for September 1961, 
introduced in evidence as Exhibit I, showed a small “ c” 
after the names of Negro electors (Tr. 57, 59).

After the jury commission completed the jury list, the 
commission transmitted the list to the circuit clerk (Tr. 
99-101). The circuit clerk for Garland County between 
1955 and 1963 testified that the lists had “c’s” after the 
names of Negroes when he received them (Tr. 48-50). 
The clerk also testified that he copied the lists, placing the 
names and racial markings into a jury book (Tr. 42).

The issue of discriminatory selection of jury panels was 
not raised in the state courts. Following petitioner’s ap­
prehension on November 3, 1961, two attorneys were ap­
pointed to defend him on November 28, 1961 (Ark. 2). 
They were discharged at their request on February 5,



18

1962 (Ark. 15). On January 31, 1962, Attorney Christopher
C. Mercer was hired to defend petitioner (Ark. 13). Mercer 
discussed many aspects of the case with petitioner, in­
cluding the jury panel, but he did not discuss with peti­
tioner whether to raise the issue of racial discrimination 
in the jury selection process (Tr. 298, 305-306).

Jurisdiction of the District Court

Jurisdiction of the United States District Court for the 
Eastern District of Arkansas was based on 28 U.S.C. §2241.

REASONS FOR GRANTING THE WRIT

I.

Certiorari should be granted to determine the legal­
ity of search of petitioner’s home without a warrant, 
in petitioner’s absence, under purported consent of 
his mother.

Two issues arising out of the search of petitioner’s home 
and seizure of his clothing without a warrant call for the 
exercise of this Court’s certiorari jurisdiction. The State 
of Arkansas seeks to support the search and seizure under 
consent given by petitioner’s mother in his absence fol­
lowing his arrest. Petitioner contends, first that his 
mother’s acquiescence in the search and seizure was not 
voluntary and understanding; second, that her acquiescence 
could in no event effect a waiver of petitioner’s Fourth- 
Fourteenth Amendment rights. The district court rejected 
petitioner’s contentions on one theory and the court of 
appeals on another, Judge Ridge dissenting. On this foun­
dation, relief against the death penalty has been denied.



19

The facts surrounding the search and seizure issues have 
been set forth at pp. 8-13, supra. Except in a minor point, 
they are uncontested. A white police officer went to the 
home of petitioner’s Negro family in Hot Springs, Arkan­
sas, shortly before 4 :00 a.m. Petitioner’s father was away 
at work; petitioner’s 38 year old mother, petitioner, and 
two brothers were at home asleep. The officer woke peti­
tioner’s mother by knocking at the door. She asked who 
was there; he said it was a policeman; she let him in. 
“He asked me did I have a son here by the name of 
William and I told him yes and he just come on in, he 
didn’t have a search warrant or anything and I let him 
in. I didn’t know any better myself, but I—I didn’t know 
that he—you know, everything was all right, my children 
were at home and all and I just let him in.” P. 12, supra. 
Once inside, the officer awakened petitioner by shining 
a flashlight in his face and told him to get dressed. He 
refused to permit petitioner to put on the clothing chosen 
by petitioner, ordered him to put on other clothing. Peti­
tioner was told that he was being taken to the police 
station, that the police wanted to talk to him. He was not 
told why. Petitioner’s mother was not told that she could 
call an attorney; she was not told the charges against 
petitioner; the officer “ didn’t give them any advice at all 
because I didn’t know whether he was being arrested or 
what.” Pp. 10-11, supra.

Petitioner was taken to a hospital for identification by 
a white rape victim, then to the police station where he 
was held incommunicado and refused permission to phone 
a lawyer or his parents. One hour later, two white police 
officers returned to petitioner’s home. Petitioner was then 
incarcerated; it was about 5:00 a.m.; and although the 
officers went for the specific purpose of obtaining clothing 
which would incriminate petitioner, they sought no search 
warrant. Petitioner’s father was still not home. They



20

asked petitioner’s mother if they could come in take some 
of petitioner’s clothing. She let them in and directed them 
to the closet. “ I opened the door and I was afraid not to 
let them in because— you know—when they said they were 
police officers—well, you just—I ’ve just always— I just 
let the police officers in because I feel like he is for peace 
and all, and I just—I don’t know, I didn’t know anything— 
I never been in anything like this and I just let them in 
and I still didn’t think anything, didn’t any of those officer 
have a search warrant or anything, didn’t show me any­
thing like that.” P. 12, supra. “ I did not know nothing 
about asking the officer for a search warrant.” P. 12, supra. 
Petitioner’s mother testified below that the officers had not 
told her the charges against her son. Crain contradicted 
this, said that he told her the charges and—as might be 
expected of a Negro mother whose son is charged with 
rape of a white woman in Arkansas—“well, she wasn’t 
feeling any too good being—having a thing like that hap­
pen and her son being accused.” P. 12, supra. In any 
event, the mother’s testimony that she did not know the 
officers needed a warrant to make the search was uncon­
tested. Captain Crain said he did not recall that he told 
Mrs. Maxwell she need not relinquish the clothing, and 
testified flatly that he did not advise her the clothing 
could be used against her son. While he was talking to 
her, his companion officer took the coat which provided a 
damaging link in the evidence later used to support peti­
tioner’s conviction and sentence of death.

On this record, the district court found that it was the 
mother’s “ free and voluntary choice to permit the police 
to enter and search the closet.” (D.C. 49.) “However, the 
propriety of the search and seizure need not rest solely 
upon the consent given by petitioner’s mother. The law­
fulness of this search and seizure is based upon a eonsi-



2 1

deration of all the facts and circumstances. . . . [TJhere 
was nothing unfair, unreasonable or oppressive in the 
conduct of the police in the performance of the search 
and seizure. . . .” (D.C. 49.) Apparently recognizing the 
untenability of this latter ground,6 the court of appeals

6 Although language in some of this Court’s eases has suggested that the 
test of validity of a search and seizure under the Fourth Amendment is 
general reasonableness, e.g., United States v. Rabinowitz, 339 U.S. 56 
(1950), the Court has never sustained the warrantless search of a dwelling 
not incident to arrest unless validated by consent. And, at least since 1950, 
the Court’s decisions have made clear that a warrantless search is eo ipso 
unreasonable and unconstitutional, e.g., United States v. Jeffers, 342 U.S. 
48 (1951) ; Chapman v. United States, 365 U.S. 610 (196.1), unless “  ‘ .
brought . . . within one of the exceptions to the rule that a search must 
rest upon a search warrant.’ ” Stoner v. California, 376 U.S. 483, 486 
(1964), quoting Rios v. United Slates, 364 U.S. 253, 261 (1960). See also 
Jones v. United States, 357 U.S. 493 (1958). Those exceptions are 
specific. There are special rules relating to search o f moving vehicles, 
stemming from Carroll v. United States, 267 U.S. 132 (1925), not in­
volved here. There is the doctrine allowing search incident to a valid ar­
rest, United States v. Rabinowitz, supra, which cannot validate the present 
search. Preston v. United States, 376 U.S. 364 (1964). Cases involving 
“ abandoned property,”  see Abel v. United States, 362 U.S. 217 (1960), 
fall outside the scope of “ persons, houses, papers, and effects” in which 
the Fourth Amendment guarantees the citizen against unreasonable search 
and seizure. See Hester v. United States, 265 U.S. 57 (1924). But peti­
tioner’s home and clothing are clearly within the protection of the Amend­
ment and, inside that sphere, the Court’s decisions allow only the excep­
tions enumerated above to the warrant requirement. Dictum in a few 
cases also suggests that a warrant may be foregone if compelling neces­
sity to seize easily transported or destroyed contraband or instruments of 
crime makes resort to a magistrate impossible. Johnson v. United States, 
333 U.S. 10 (1948) ; Chapman v. United States, supra. But no such 
necessity has been found by any of the courts below; nor could it have 
been on this record. Hence, absent consent, the search and seizure here 
were unconstitutional.

However, even were the question under the Fourth Amendment one— 
as the district court believed—of general reasonableness, fairness and un­
oppressiveness, it would be difficult to imagine a more unreasonable, unfair 
and oppressive search. Having petitioner in their custody and seeking 
items of his clothing to incriminate him, the police did not ask his per­
mission to seize them. Instead, they detained him incommunicado, re­
fused him leave to phone a lawyer or the persons at his home. Then, 
without a warrant, at 5 :00 a.m., they went to petitioner’s dwelling and 
intruded on his mother for the second time that night. Uniformed, and 
without explaining that she had a right to refuse them entry, they asked 
permission to come in, which she—unknowing—granted.



rested the validity of the search solely upon its finding 
of consent. (C.A. 19, 23.)

A . The search and seizure issues are important, 
requiring consideration by this Court on 
certiorari.

The two issues thus presented—the requisites for valid 
waiver of the requirement of a search warrant, and the 
effect of waiver by one cotenant upon the Fourth-Four­
teenth Amendment rights of another—clearly present “an 
important question of federal law which has not been, but 
should be, settled by this court.” Supreme Court Rule 
19(1) (b). The circuit courts are in conflict on both issues.

(1) No issue under the Fourth Amendment is more fre­
quently litigated than the validity of consent to a war­
rantless search.7 Nor is any issue more critical to the 
Amendment’s effective protection, for where consent is 
found all of the scrupulous safeguards preserved by this 
Court’s decisions as limitations upon official intrusion are 
nullified. Not only is no warrant required, but—the pro­
tection of the Amendment being deemed waived—searches

7 In addition to the cases collected in the following pages, see, e.g., these 
recent federal circuit court decisions: Mosco v. United States, 301 F.2d 
180 (9th Cir. 1962); United States v. Smith, 308 F.2d 657 (2d Cir. 1962) 
Villano v. United States, 310 F.2d 680 (10th Cir. 1962); Frye v. United 
States, 315 F.2d 491 (9th Cir. 1963) ; Robinson v. United States, 325 F.2d 
880 (5th Cir. 1964) ; Gatlin v. United States, 326 F.2d 666 (D.C. Cir. 
1963) ; United States v. Horton, 328 F.2d 132 (3d Cir. 1964) ; United 
States v. Hilbrich, 341 F.2d 555 (7th Cir. 1965). Litigation of the issue 
in the State courts is not less frequent, see e.g., the California cases col­
lected in Note, 51 Calif. L. R ev. 1010 (1963); State v. Hanna, 150 Conn. 
457, 191 A.2d 124 (1963) ; State v. Scrotsky, 39 N.J. 410, 189 A.2d 23 
(1963) ; Commonwealth v. Wright, 411 Pa. 81, 190 A.2d 709 (1963) ; Holt 
v. State, 17 Wis.2d 468, 117 N.W.2d 626 (1962), and the importance of 
the question has made it the subject of much recent law review comment, 
e.g., Comment, 69 D ick . L. R ev. 69 (1964) ; Comment, [1964] U. III. L. 
F orum 653; Note, 113 U. Pa . L. R ev. 260 (1964); Note, [1964] W is. L. 
R ev. 119. For earlier state cases, see Annot., 31 A.L,R.2d 1078 (1953).



23

and seizures may proceed without probable cause8 and 
unfettered of any other constraint of reasonableness.9 
Little wonder that “consent” is the policeman’s preferred 
authority to search; that in 1954 a federal circuit court 
remarked upon “this increasing practice of federal officers 
searching a home without a warrant on the theory of 
consent . . .” ;10 that the response of more than one state 
police official following Mapp v. Ohio, 367 U.S. 643 (1961), 
was, in substance: “We are going to get consent to search 
forms similar to the ones used by the F.B.I.” 11

(2) Noth withstanding frequent litigation, the decisions 
of the lower courts are in irresolvable conflict and con­
fusion. All courts agree, of course, that consent must be 
“voluntary” to be effective. But, as the Ninth Circuit has 
recently said, “ In other contexts the word voluntary might 
connote anything from enthusiastic action taken on one’s 
own initiative, at one extreme, to grudging action just 
short of being compelled by what the law would regard 
as duress, at the other.” Martinez v. United States, 333 F.2d 
405, 407 (9th Cir. 1964). Far from giving meaning to the 
concept of voluntariness as respects consent to a warrant­
less search, the circuit courts of appeals have more or 
less explicitly declared the concept not susceptible of 
reasoned analysis. “ Each case necessarily depends upon 
its own facts. The mere fact that a particular panel of 
this court may feel that another panel, in a prior decision, 
was mistaken in holding that a finding was ‘clearly erro­
neous’ is not a basis for convening the court in bank and 
overruling the prior decision.” United States v. Page, 302

8 See Rios v. United States, 364 U.S. 263 (1960).
9 See, e.g., Davis v. United States, 327 F.2d 301 (9th Cir. 1964).
10 United States v. Arrington, 215 F.2d 630, 637 (7th Cir. 1954).
11 See the Appendix to Weinstein, Local Responsibility for Improve­

ment of Search and Seizure Practices, 34 R ocky Mt . L. R ev. 150, 176, 177 
(1962). For similar responses, see id. at 178-179.



24

F.2d 81, 86 (9th Cir. 1962), distinguishing Channel v. United 
States, 285 F.2d 217 (9th Cir, 1960). See also Hart v. 
United States, 316 F.2d 916, 920 (5th Cir. 1963); United 
States v. Ziemer, 291 F.2d 100, 103 (7th Cir. 1961); Burge 
v. United States, 332 F.2d 171, 173 (8th Cir. 1964); Tatum 
y. United States, 321 F.2d 219, 220 (9th Cir. 1963). Ex- 
pectably, the result of thus calling consent a “question of 
fact,” without attempting to formulate any general prin­
ciples of law which tell the trier what facts he is to in­
quire about and what he is to do if he finds one set of 
facts rather than another, has been serious inter-circuit 
conflict.12 In United States v. Roberts, 179 F. Supp. 478 
(D.D.C. 1959), Judge Youngdahl found a mother’s con­
sent involuntary on facts virtually indentieal with those of 
the present case. This sort of fortuitous result may be 
blinked away, under the prevailing lore of the circuit courts, 
by saying that two district judges took different views 
on the same question of fact. But when the cases are closely 
compared, it becomes apparent that what controlled the 
differing results were differing views on an unarticulated 
question of law: whether one who does not know and is 
not told that officers cannot make a search without a war­
rant should be held to waive the warrant requirement by 
agreeing to a request for leave to search. Judge Young-

12 Compare Pekar v. United States, 315 F.2d 319 (5th Cir. 1963), with 
United States v. Ziemer, 291 F.2d 100 (7th Cir. 1961). Compare Jliggins 
v. United States, 209 F.2d 819 (D.C. Cir. 1954), with United States v. 
MacLeod, 207 F.2d 853 (7th Cir. 1953). Compare Heed v. Rhay, 323 F.2d 
498 (9th Cir. 1963), with United States v. Evans, 194 F. Supp. 90 (D.D.C. 
1961). Compare United States v. Haas, 106 F. Supp. 295, 109 F. Supp. 
433 (W.D. Pa. 1952), with United States v. Minor, 117 F. Supp. 697 
(E.D. Okia. 1953). Underlying these inconsistent results are large in­
consistencies of attitude. Compare the inhospitality toward a finding of 
consent by the Court of Appeals for the District of Columbia Circuit, 
e.g., Judd v. United States, 190 F.2d 649, 651-652 (D.C. Cir. 1951), with 
the hospitality toward such a finding by the Court of Appeals for the 
Ninth Circuit, e.g., Martinez v. United States, 333 F.2d 405, 407 (9th 
Cir. 1964).



25

dahl assumed that the answer to this question was nega­
tive;18 District Judge Young below assumed that it was 
positive; the Court of Appeals below affirmed without dis­
cussing the question; and, indeed, the question has not 
been explicitly framed in any circuit court decision.13 14 Surely 
this question is one which permits and rationally demands 
an answer in law; but until this Court grants review to 
frame and decide such subordinate questions underlying 
the issue of consent, circuit court decisions in cases involv­
ing life or death will continue to be made lawlessly.

This Court has not decided a case involving the volun­
tariness of consent to search and seizure in almost twenty 
years. The few decisions prior to that time do not squarely 
address the questions arising in case after case today.15 16

13 In Roberts, defendant’s mother had been told by the searching officers 
that they were not permitted to search without a warrant unless she con­
sented. But Judge Youngdahl found: “ It is difficult to believe that this 
particular woman understood the significance of what the officers told her; 
it is quite implausible to believe she was aware a search warrant was a 
prerequisite to a valid search.”  179 F. Supp. at 479. Therefore, Judge 
Youngdahl found her consent ineffective. In the present case, Judge 
Young found consent by petitioner’s mother effective on a record which 
makes clear that she did not know and was not told that a search warrant 
was a prerequisite to a valid search.

14 In a number of cases where effective consent has been found, it ap­
pears the person consenting' was told that, unless he consented, a search 
could not be made without a warrant. United States v. Heine, 149 F.2d 
485 (2d Cir. 1945) ; United States v. Rivera, 321 F.2d 704 (2d Cir. 1963) ;
United States v. MacLeod, 207 F.2d 853 (7th Cir. 1953) ; Burge v. United 
States, 332 F.2d 171 (8th Cir. 1964); United States v. Haas, 106 F. Supp. 
295, 109 F. Supp. 443 (W.D. Pa. 1952). But consent has also been found 
where no such warning was given, e.g., McDonald v. United States, 307 
F.2d 272 (10th Cir. 1962) (alternative ground), and petitioner has found 
no circuit decisions squarely facing the question.

16 Gouled v. United States, 255 U.S. 298 (1921), where consent was 
procured by misrepresentation, and Johnson v. United States, 333 U.S. 10 
(1948), where entry “was granted in submission to authority,” id. at 13, 
have been viewed as extreme cases. United States v. Mitchell, 322 U.S. 65 
(1944), considers only the effect of the McNabb rule on consent to search. 
McDonald v. United States, 335 U.S. 451 (1948), does not distinctly ad­
dress the question of voluntariness of consent. The Amos ease is discussed 
at p. 31, infra.



26

Worse still, the Court’s most extended discussion of the 
consent principle came in the “public documents” cases, 
Davis v. United States, 328 U.S. 582 (1946), and Zap v. 
United States, 328 U.S. 624 (1946); and notwithstanding 
the admonition that “Where officers seek to inspect public 
documents at the place of business where they are required 
to be kept, permissible limits of persuasion are not so 
narrow as where private papers are sought,” 16 the courts 
of appeals have relied on Davis and Zap in sustaining 
searches for entirely private items.16 17 The circuit court 
below thus erroneously relied on Davis. (C.A. 20.) Peti­
tioner respectfully submits the question is ripe for renewed 
consideration by the Court.

(3) Similarly, the question under what circumstances, 
if any, consent to search given by one cotenant can affect 
the Fourth Amendment rights of another, urgently de­
mands the attention of the Court. Frequently arising in 
cases where, as here, the voluntariness of the consent is 
also in issue,18 the point is one upon which the “federal 
court decisions . . . are not in accord.” Commonwealth v. 
Wright, 411 Pa. 81, 85, 190 A.2d 709, 711 (1963).19 The 
Eighth Circuit itself, in an opinion upon which the de­
cision below relies, has admitted that “ Without the benefit 
of a Supreme Court clarification of the issue, those federal

16 Davis v. United States, supra, 328 U.S. at 593.
17 See, e.g., Rees v. Peyton, 341 F.2d 859 (4th Cir. 1965), relying on 

Zap.
18 See, e.g., United States v. Sferas, 210 F.2d 69 (7th Cir. 1954) ; 

Waldron v. United States, 219 F.2d 37 (D.C. Cir. 1955) ; Williams v. 
United States, 263 F.2d 487 (D.C. Cir. 1959); Davis v. United States, 
327 F.2d 301 (9th Cir. 1964); United States v. Goodman, 190 F. Supp. 
847 (N.D. 111. 1961) ; United States v. Block, 202 F. Supp. 705 (S.D.N.Y. 
1962) ; United States ex rel. McKenna v. Myers, 232 F. 65 (E.D. Pa. 
1964).

19 Wright itself is not in accord with United States ex rel. Stacey v. 
Pate, 324 F.2d 934 (7th Cir. 1963), decided six months later.



27

courts which have considered the question have taken 
divergent positions.” Roberts v. United States, 332 F.2d 
892, 895 (8th Cir. 1964).20 Early decisions held that the 
cotenant’s consent could not validate a warrantless search 
against complaint by a person having a possessory in­
terest in the premises searched.21 Most of the subsequent 
cases appearing to give effect to such consent can be ex­
plained on various narrow grounds. Where the consenting 
and complaining parties were co-conspirators as well as 
cotenants and consent was given for the purpose of be­
guiling the searching officers, the result rested simply on 
the ordinary concepts of agency applicable among con­
spirators.22 In a number of cases, the complaining party 
had no possessory interest whatever in the place searched; 
if given standing to complain at all,23 it was as a means for 
vindicating by the exclusionary sanction the rights of the 
possessor;24 and a finding of consent by the possessor 
ended the complaining party’s grievance, which had never 
been bottomed on infringement of his own protected in­

20 The Eighth Circuit had earlier reserved the question. Foster v. United 
States, 281 F.2d 310 (8th Cir. 1960).

21 Cofer v. United States, 37 F,2d 677 (5th Cir. 1930) (alternative 
ground); United States v. Rykowski, 267 Fed. 866 (S.D. Ohio 1920) 
(alternative ground) ; United States v. Ruffner, 51 F.2d 579 (D. Md. 
1931).

22 See United States v, Pugliese, 153 F.2d 491 (2d Cir. 1945) (alter­
native ground); United States v. Sferas, 210 F.2d 69 (7th Cir. 19o4); 
United States v. Sergio, 21 F. Supp. 553 (E.D.N.Y. 1937).

23 In some of the eases in which the courts advert to consent by a party 
other than the one complaining of a search, the opinions make relatively 
clear that they are doing so for the purpose of stressing that the consent­
ing party, but not the complaining party, had the sort of interest in the 
searched premises which the Fourth Amendment protects. See United 
States v. Walker, 190 F.2d 481 (2d Cir. 1951), 197 F.2d 287 (2d Cir. 
1952); Calhoun v. United States, 172 F.2d 457 (5th Cir. 1949); United 
States ex rel. Puntari v. Maroney, 220 F. Supp. 801 (A/V .D. Pa. 1963).

24 See McDonald v. United States, 335 U.S. 451 (1948).



2 8

terests.25 Cases involving searches and seizures of mov­
ables upon consent of the person to whom their owner 
had entrusted them stand on different principles: warrant­
less searches of movables being lawful if based upon prob­
able cause,36 consent in such cases is pertinent only be­
cause the information conveyed in the consenting party’s 
communication to the police gives the police reasonable 
ground to believe items subject to seizure are concealed 
within the movable.26 27 Yet in a few recent decisions, among 
which petitioner’s is the most extreme, courts have thought 
to find within these earlier cases a general principle which 
the cases will not support, that one cotenant in a dwelling 
may effectively waive another’s constitutional immunity 
against warrantless search.28

26 Woodard v. United States, 254 F.2d 312 (D.C. Cir. 1958) (complain­
ing party is transient guest in consenting party’s dwelling) ; Fredricksen 
v. United States, 266 F.2d 463 (D.C. Cir. 1959) (same) ; Bees v. Peyton, 
341 F.2d 859 (4th Cir. 1965) (sam e); Calhoun v. United States, 172 F.2d 
457 (5th Cir. 1949) (same) ; Burge v. United States, 342 F.2d 408 (9th 
Cir. 1965) (same). See also Cutting v. United States, 169 F.2d 951 (9th 
Cir. 1948); Von Eichelberger v. United States, 252 F.2d 184 (9th Cir. 
1958); Wion v. United Slates, 325 F.2d 420 (10th Cir. 1963). The prin­
ciple is apparent in cases sustaining against an absentee landlord’s com­
plaint searches consented to by his tenant in possession. See Driskill v. 
United States, 281 Fed. 146 (9th Cir. 1922) ; Reszutek v. United States, 
147 F.2d 142 (2d Cir. 1945); Fisher v. United States, 324 F.2d 775 (8th 
Cir. 1963).

26 Carroll v. United States, 267 U.S. 132 (1925) ; United States v. 
Boston, 330 F.2d 937 (2d Cir. 1964) (alternative ground); Romero v. 
United States, 318 F.2d 530 (5th Cir. 1963) (alternative ground) ; United 
States v. Zimmerman, 326 F.2d 1 (7th Cir. 1963).

27 Compare Sartain v. United States, 303 F.2d 859 (9th Cir. 1962), with 
Holzhey v. United States, 223 F.2d 823 (5th Cir. 1955), where the 
movable was within a dwelling and consent of a cotenant was held in­
effective. See also United States v. Eldridge, 302 F.2d 463 (4th Cir. 1962). 
Cases involving entry into a dwelling, upon consent of one cotenant, to 
arrest another, have been thought to involve the same principle, since 
arrest may be made on probable cause without a warrant. See Teasley v. 
United States, 292 F.2d 460 (9th Cir. 1961).

28 Roberts v. United States, 332 F.2d 892 (8th Cir. 1964) ; Davis v. 
United States, 327 F.2d 301 (9th Cir. 1964) ; United States ex rel. Mc­
Kenna v. Myers, 232 F. Supp. 65 (E.D. Pa. 1964). These cases, like the



29

No such broad doctrine is sanctioned by this Court’s 
decisions. But neither has the Court condemned unequiv­
ocally a finding that one cotenant’s Fourth Amendment 
rights may be waived by another. The question was re­
served in Amos v. United States, 255 U.S. 313 (1921), and 
has not since been considered by the Court. Cases holding 
that a landlord may not effectively consent to search of his 
tenant’s premises, see Lustig v. United States, 338 U.S. 
74 (1949); United States v. Jeffers, 342 U.S. 48 (1951); 
Chapman v. United States, 365 U.S. 610 (1961), were 
thought distinguishable by the courts below, which read 
the Court’s recent statement in Stoner v. California, 376 
U.S. 483, 488 (1964), that “ the rights protected by the 
Fourth Amendment are not to be eroded by strained ap­
plications of the law of agency or by unrealistic doctrines 
of ‘apparent authority,’ ” as limited to such cases. The 
issue is squarely presented in the present case, and de­
mands decision by this Court.

B. The decision below is wrong and sends petitioner 
to death in violation of his Fourth-Fourteenth 
Amendment rights.

(1) Judged by appropriate standards, the consent to 
search given by petitioner’s mother was not voluntary 
and understanding. While this Court has never had occa­
sion to confront the question squarely, its opinion in John­

decision below (see C.A. 20) purport to rest upon the cases cited in notes 
17-22 supra. The Roberts holding, however, did not involve a seizure of 
the complaining party’s personal effects, and in Davis the trial court 
found that the purpose of the officers making entry was to talk to the 
occupant, not to search. McKenna is Quite similar to the instant case.

In Stein v. United States, 166 F.2d 851 (9th Cir. 1948), it was indeed 
held that a commonlaw wife could validate by her consent the search of 
the dwelling which she shared with her husband. TValdron v. United 
States, 219 F.2d 37 (D.C. Cir. 1955) (alternative ground), is to the con­
trary, unless the eases are reconcilable on the ground that the husband 
in Stein had closed up the house and moved out prior to the search.



30

son v. United States, 333 U.S. 10, 13 (1948), plainly takes 
the view that in order to be effective a consent to search 
or seizure must be “ an understanding and intentional 
waiver of a constitutional right.” This is the concept of 
waiver ordinarily applicable to fundamental guarantees. 
See Johnson v. Zerhst, 304 U.S. 458, 464 (1938). It is not 
enough that the individual acquiesces in a method of 
procedure against which the Constitution gives protec­
tion; he or she must know of the protection which the 
Constitution gives and intentionally abandon or relinquish 
it. On the present record it is uncontested that petitioner’s 
mother neither knew nor was told that the officers needed 
a warrant to conduct a lawful search. For this reason 
alone, her consent was ineffective. The point is the 
stronger because, one hour before she allowed the incrim­
inating search, she had seen a police officer who arrested 
her son without a warrant compel him to put on clothes 
which he did not choose to wear. Nothing in the subse­
quent conduct of the officers dispelled the implication that 
their power to seize items of clothing without a warrant 
was limitless.

Other considerations too compel the conclusion that this 
consent failed to meet constitutional standards for waiver. 
The test of voluntariness of a consent to search and seizure 
should be more stringent than that for voluntariness of a 
confession, for while it is plain that some questioning is 
essential to police investigation, only the convenience of 
police officers requires procurement of consent to search 
in lieu of a warrant. There is legal process consistent with 
the Fourth Amendment for attaining the officer’s end, but 
he chooses not to use it. Here, it was more convenient 
to the Hot Springs police to disturb a Negro woman at 
5:00 a.m. than to disturb a magistrate. Following one 
hour after arrest of her son in their home—a circumstance



31

calculated to distract her, and which Captain Crain ob­
served had in fact distracted her—two white, uniformed 
officers asked admittance for the purpose of a warrant­
less search and it was granted. These conditions consti­
tute the sort of “ implied coercion” found in Amos v. United 
States, 255 U.S. 313, 317 (1921),29—coercion to be con­
demned becaused of its almost inevitable tendency to 
produce an undeliberated and cowed consent. See Elmore 
v. Commonwealth, 282 Ky. 443, 138 S.W.2d 956 (1940), 
relied on by Judge Ridge in his dissent below. Where such 
conditions are found, judicial speculation that petitioner’s 
mother did not succumb to their overbearing force is al­
together impermissible.

(2) Even assuming the mother’s consent voluntary and 
understanding, it could not effectively waive petitioner’s 
constitutional rights. The officers went to petitioner’s home 
for the specific purpose of seizing items of clothing which 
would incriminate him. He was available to them; they 
had him in custody at the time. Rut no effort was made, 
after due warning of his constitutional rights, to ask his 
permission for the search. Whatever may be the case 
when the individual at whom a search is aimed cannot be 
found by the police, only callous disregard for the Fourth 
Amendment can justify allowing the police to bypass a 
man whom they hold confined and seek a waiver of his 
rights at the hands of another. “ It is important to bear

29 The facts in Amos upon which this Court found consent ineffective 
were as follows: “ Coleman and Rector . . .  as deputy collectors of Internal 
Revenue . . . went to defendant’s home and, not finding him there, but 
finding a woman who said she was his wife, told her they were revenue 
officers and had come to search the premises Tor violations of the revenue 
law’ ; . . . thereupon the woman opened the store and the [officers] . . . 
entered, and in a barrel of peas found a bottle containing not quite a 
half-pint of illicitly distilled whiskey . . .; and . . . they then went into 
the home of the defendant and on searching found two bottles under the 
quilt on the bed, one of which contained a full quart, and the other a little 
over a quart of illicitly distilled whiskey.”  255 U.S. at 315.



32

in mind that it was the petitioner’s constitutional right 
which was at stake here . . . ” Stoner v. California, 376 
U.S. 483, 487 (1964). And it would be callousness com­
pounded to allow such bypassing where, as here, the police 
are detaining their prisoner incommunicado, preventing 
him, in flagrant violation of Escobedo v. Illinois, 378 U.S. 
478 (1964), from calling upon a lawyer for his protection 
or from phoning the very persons at home whose consent 
to search the police are then actively seeking.

Moreover, any rule which would permit one cotenant, 
without actual authority from another, to waive the lat­
ter’s Fourth Amendment rights ignores the intimate re­
lationship between the Fourth and Fifth Amendments 
which this Court has long remarked. Boyd v. United States, 
116 U.S. 616, 633-635 (1886); see Mapp v. Ohio, 367 U.S. 
643, 657 (1961). Whatever its modern extensions, the 
Fourth Amendment has at its core a prohibition of war­
rantless official entries designed to secure incriminating 
evidence against a criminal suspect. Entick v. Carring­
ton, 19 How. St. Tr. 1029 (C.P. 1765); Frank v. Maryland, 
359 U.S. 360, 365 (1959). Entries of this sort are dis­
similar to other entries, both by reason of their practical 
consequences and because the historical experience em­
bodied in the Fourth Amendment has singled them out 
as a source of especial concern. See United States v. Blok, 
188 F.2d 1019 (D.C. Cir. 1951). And so it does not follow 
that, because petitioner’s mother might have admitted a 
friend, relative or the exterminator to petitioner’s bed­
room closet, she could consistently with the Fourth Amend­
ment admit a policeman in quest for evidence of petition­
er’s guilt. Of actual authority to permit this incriminating 
search, petitioner’s mother had none. Petitioner believes 
this Court spoke generally, and not with reference only 
to the landlord-tenant relationship, when it said in Stoner



33

v. California, supra-. “ Our decisions make clear that the 
rights protected by the Fourth Amendment are not to be 
eroded by strained applications of the law of agency or 
by unrealistic doctrines of ‘apparent authority.’ ” 376 U.S. 
at 488. Nothing more than an unrealistic finding of ap­
parent authority supports the death sentence on this record.

II.

Certiorari should be granted to determine whether 
Arkansas’ death penalty for rape is unconstitutional 
because (A ) an unrebutted prima facie showing has 
been made of its racial application, in violation of the 
equal protection clause of the Fourteenth Amendment, 
or (B ) its allowance to the jury of unfettered discre­
tion to impose capital punishment for all offenses of 
rape, in the absence of aggravating circumstances, 
permits cruel and unusual punishment in violation of 
the Eighth and Fourteenth Amendments.

Petitioner’s Equal Protection contention, wrongly 
rejected below presents an important question for

^.consideration by this Court on certiorari.
*

“’American States retain capital punishment 
for rape. Nevada permits imposition of the penalty only 
if the offense is committed with extreme viol<mce£m'id great 
bodily injury to the victim ;30 the remainingtetsteea. juris­
dictions—which allow their juries absolute discretion to 
punish any rape with death—are all southern or border 
states.31 The federal jurisdiction and the District of Colum-

30 Nev. Rev. Stat. §200.360 (1963). See also §200.400 (aggravated as­
sault with intent to rape).

31 The following sections punish rape or carnal knowledge unless other­
wise specified. Ala. Code §§14-395, 14-397, 14-398 (Recomp. Vol. 1958) ; 
Ark. Stat. Ann. §§41-3403, 43-2153 (1964 Repl. V ols.); see also §41-3405 
(administering potion with intent to rape); §41-3411 (forcing marriage); 
Fla. Stat. Ann. §794.01 (1964 Cum. Supp.) ; da. Code Ann. §§26-1302,



34

bia, with its own strong southern traditions, also allow 
the death penalty for rape.32

Between 1930 and 1962, the year in which petitioner was 
sentenced to die, 446 persons were executed for rape in 
the United States. Of these, 399 were Negroes, 45 were 
whites, and 2 were Indians. All were executed in Southern 
or border States or the District. The percentages—89.5% 
Negro, 10.1% white—are revealing when compared to simi­
lar racial percentages of persons executed during the 
same years for murder and other capital offenses. Of the 
total number of persons executed in the United States, 
1930-1962, for murder, 49.1% were Negro; 49.7% were 
white. For other capital offenses, 45.6% were Negro; 
54.4% were white. Louisiana, Mississippi, Oklahoma, Vir­
ginia, West Virginia and the District of Columbia never 
executed a white man for rape during these years. To­
gether they executed 66 Negroes. Arkansas, Delaware, 
Florida, Kentucky and Missouri each executed one white 
man for rape between 1930 and 1962. Together they exe­
cuted 71 Negroes. Putting aside Texas (which executed 
13 whites and 66 Negroes), sixteen Southern and border 
Statesland the District of Columbia between 1930 and 
1962 executed 30 whites and 333 Negroes for rape: a ratio

26-1304 (1963 Cum. Supp.); Ky. Rev. Stat. Arm. §435.090 (1963) ; La. 
Rev. Stat. Ann. §14:42 (1950) (called aggravated rape but slight force 
is sufficient to constitute offense; also includes carnal knowledge); A+rr-:

--intent-to wpff)-; Miss. Code Ann. §2358 (Recomp. Vol. 1956) ; Vernon’s 
Mo. Stat. Ann. §559.260 (1953); NIC. Gen. Stat. §14-21 (Recomp. Vol. 
1953); Okla. Stat. Ann., tit. 21, §§1111, 1114, 1115 (1958); S.C. Code 
Ann. §§16-72, 16-80 (1962) (includes assault with attempt to rape as well 
as rape and carnal knowledge) ; Tenn. Code Ann. §§39-3702, 39-3703, 
39-3704, 39-3705 (1955); Tex. Pen. Code Ann., arts. 1183, 1189 (1961) ; 
Va. Code Ann. §18.1-44 (Repl. Vol. 1960); see also §18.1-16 (attempted 
rape).

3218 U.S.C. §2031 (1964); 10 U.S.C. §920 (1964); D.C. Code Ann. 
§22-2801 (1961).



ATJ>
/

$fcr‘"H -

fV
of better than one to eleven.^Clearly, unless the incidence’'

'o f
capmil ’punishlnent tor rape
tnry principally as an instrument of racial re p re ss io n ^ '

33 The figures in this paragrapn|are taken from United States Depart­
ment of J ustice, Bureau op P risons, National P eisoneb Statistics,_ 
No. 32; Executions, 1962 (April 1963)/"”TabIe 1 thereof shows tkTToT 
lowing executions under civil authority'in the United States between 
1930 and 1962:

MURDER
Total White Negro Other

Number 3298 1640 1619 39
Per Cent 100.0 49.7 49.1 1.2

RAPE
Total White Negro Other

Number 446 45 399 2
Per Cent 100.0 10.1 89.5 .04

OTHER OFFENSES
Total White Negro Other

Number 68 37 31 0
Per Cent 100.0 54.4 45.6 0.0

Table 2 thereof shows the following executions under civil authority in the
United States between 1930 and 1962, for the offense of rape,

White Negro Other
Federal 2 0 0
Alabama 2 20 0
Arkansas 1 17 0
Delaware 1 3 0
District of Columbia 0 2 0
Florida 1 35 0
Georgia 3 58 0
Kentucky 1 9 0
Louisiana 0 17 0
Maryland 6 18 0
Mississippi 0 21 0
Missouri 1 7 0
North Carolina 4 41 2
Oklahoma 0 4 0
South Carolina 5 37 0
Tennessee 5 22 0
Texas 13 66 0
Virginia 0 21 0
West Virginia 0 1 0



36

If this be so—if the racially unequal results in these 
States derive from any cause which takes account of race 
as a factor in meting out punishment—a Negro punished 
by death is denied, in the most radical sense, the equal 
protection of the laws.34 One of the cardinal purposes of 
the Fourteenth Amendment was the elimination of racially 
discriminatory criminal sentencing. The First Civil Rights 
Act of April 9, 1866, ch. 31, §1, 14 Stat. 27, declared the 
Negroes citizens of the United States and guaranteed that 
“ such citizens, of every race and color, . . . shall be sub­
ject to like punishment, pains, and penalties [as white 
citizens], and to none other, any law, statute, ordinance, 
regulation, or custom, to the contrary notwithstanding.” 
The Fourteenth Amendment was designed to elevate the 
Civil Rights Act of 1866 to constitutional stature. See, 
e.g., tenBroek, Thirteenth Amendment to the Constitution 
of the United States, 39 Calif. L. R ev. 171 (1951); Fair- 
man, Does the Fourteenth Amendment Incorporate the 
Bill of Rights, 2 Stan. L. R ev. 5 (1949). The Enforce­
ment Act of May 31, 1870, ch. 114, §§16, 18, 16 Stat. 140, 
144, implemented the Amendment by reenacting the 1866 
act and extending its protection to all persons. This ex­
plicit statutory prohibition of racially discriminatory sen­

34 The contention that racially discriminatory application of the death 
penalty in rape cases denies equal protection has been raised in a number 
of cases now pending in state and federal courts. See, e.g., Mitchell v. 
Stephens, 232 F. Supp. 497, 507 (E.D. Ark. 1964), appeal pending; 
Moorer v. MacDougall, U.S. Dist. Ct., E.D.S.C., No. AC-1583, petition 
for writ o f habeas corpus pending; Aaron v. Holman, U.S. Dist. Ct., 
M.D. Ala., C.A. No. 2170-N, proceedings on petition for writ o f habeas 
corpus stayed pending exhaustion of state remedies July 2, 1965; Swain 
v. Alabama, Ala. Sup. Ct., 7 Div. No. 699, petition for leave to file peti­
tion for writ of error coram nobis denied June 25, 1965; Alabama v. 
Billingsley, Cir. Ct. Etowah County, No. 1159, motion for new trial and 
motion for reduction of sentence pending; Craig v. Florida, Sup. Ct. Fla., 
No. 34,101, appeal from denial of motion for reduction of sentence pend­
ing; Louisiana ex rel. Scott v. Ilanchey, 20th Jud. Dist. Ct., Parish of 
West Feliciana, petition for habeas corpus pending.



37

tencing survives today as R ev. S tat . §1977 (1875), 42 
U.S.C. §1981 (1964).

For purposes of the prohibition, it is of course imma­
terial whether a State writes on the face of its statute 
books: “Rape shall be punishable by imprisonment . . ., 
except that rape by a Negro of a white woman, or any 
other aggravated and atrocious rape, shall be punishable 
by death by electrocution,” or whether the State’s juries 
read a facially color-blind statute to draw the same racial 
line. Discriminatory application of a statute fair upon 
its face is more difficult to prove, but no less violates the 
State’s obligation to afford all persons within its juris­
diction the equal protection of the laws. E.g., Yick Wo v. 
Hopkins, 118 U.S. 356 (1886) ; Niemotko v. Maryland, 340 
IT.S. 268 (1951) (alternative ground); Fowler v. Rhode 
Island, 345 TJ.S. 67 (1953); Hamilton v. Alabama, 376 TJ.S. 
650 (1964) (per curiam).* 36 And it does not matter that 
the discrimination is worked by a number of separate 
juries functioning independently of each other, rather 
than by a single state official. However it may divide re­
sponsibility internally, the State is federally obligated to 
assure the equal application of its laws.36 This Court has 
long sustained claims of discriminatory jury exclusion

86 It is also immaterial whether a State imposes different penalties for 
classes of eases defined in terms of race, or whether it imposes a penalty 
of death in all cases of a given crime, subject to the option of the jury 
in some racially defined sub-class of the cases. The Fourteenth Amend­
ment’s obligation of equality extends not only to those “ rights” which a 
State is federally compelled to give its citizens, but also to any benefits 
the State may choose to give any class of them, however gratuitously. 
Brown v. Board of Education, 347 U.S. 483 (1954) ; Watson v. City of 
Memphis, 373 U.S. 526 (1963).

36 Execution by the State of the death sentence which it has given juries 
discretion to impose clearly provides that “ interplay of governmental and 
private action,”  N.A.A.C.P. v. Alabama, 357 U.S. 449, 463 (1958), quoted 
in Anderson v. Martin, 375 U.S. 399, 403 (1964), which makes the State 
responsible for the discrimination. Shelley v. Kraemer, 334 U.S. 1 (1948).



38

upon a showing of exclusion continuing during an extended 
period of years, without inquiry whether the same jury 
commissioners served throughout the period. E.g., Neal 
v. Delaware, 103 U.S. 370 (1881); Bush v. Kentucky, 107 
U.S. 110 (1882) ; Hernandez v. Texas, 347 U.S. 475 (1954). 
Congress, when it enacted the 1866 Civil Rights Act know­
ing that “In some communities in the South a custom pre­
vails by which different punishment is inflicted upon the 
blacks from that meted out to whites for the same of­
fense,” 37 intended precisely by the Act, and subsequently 
by the Fourteenth Amendment, to disallow such “ custom” 
as it operated through the sentences imposed by particular 
judges and juries.38

So the question on this record is one of p roof: whether 
petitioner has made a sufficient showing of racially dis­
criminatory capital sentencing under Arkansas’ rape stat­
utes. The court of appeals below held that he had not, 
and in so holding rested its decision upon two principles 
of sufficient generality and importance to merit this Court’s 
review on certiorari. First, the court of appeals rejected 
without discussion petitioner’s attempt to apply the “prima 
facie” evidence principle of the jury-exclusion cases to 
proof of sentencing discrimination. Stating that “ the bur­
den is on the one asserting discrimination” (C.A. 6), it 
declined to find that burden carried because: “ The cir­
cumstances of each rape case have particular pertinency. 
We are given no information as to how many Negroes and 
how many whites, after investigation, were not charged” 
(C.A. 9). Second, it rejected petitioner’s attempt to draw

37 Cong. Globe, 39th Cong., 1st Sess. 1758 (4/4/1866) (remarks of 
Senator Trumbull, who introduced, reported and managed the bill which 
became the act).

38 See the text of the act supra;  see also, e.g., Cong. Globe, 39th Cong., 
1st Sess. 475 (1/29/1866), 1759 (4/4/1866) (remarks of Senator Trum­
bull).



39

evidentiary support from the fifty-year history of admin­
istration of capital punishment for rape in Arkansas, on 
the ground that “ The defense argument goes too far and 
would, if taken literally, make prosecution of a Negro im­
possible in Arkansas today because of the existence in 
the past of standards which are now questionable.” (C.A. 
9.) Together, these grounds make proof of discrimination 
in the application of the death penalty nigh impossible.

Petitioner does not seek to tangle the State of Arkansas 
in past sins. He seeks only a fair opportunity to demon­
strate the obvious: that his present incarceration under 
sentence of death is the product of a long-continued and 
continuing system of discriminatory administration of 
justice, operating in every gap of discretion left by the 
State’s written law, to deny him equal treatment and 
subject him to extreme punishment which in practice is 
virtually never applied to the white man, but is reserved 
as the ultimate weapon of terror to hold the Negro in his 
place. To show this, he relies on the past, and necessarily 
so. “Institutions, like other organisms, are predominantly 
what their past has made them. History provides the 
illuminating context within which the implications of pres­
ent conduct may be known.” Communist Party v. Sub­
versive Activities Control Board, 367 U.S. 1, 69 (1961). It 
is unreasonable to seek to understand petitioner’s death 
sentence in isolation from history—most pertinently, Ar­
kansas’ long-time practice of systematic jury exclusion, 
see, e.g., Bailey v. Henslee, 287 F.2d 936 (8th Cir. 1961); 
Ilenslee v. Stewart, 311 F.2d 691 (8th Cir. 1963), and 
Arkansas’ fifty-year experience in the exercise of jury dis­
cretion to impose the death sentence for rape. This Court 
has looked far into the past in jury-exclusion cases, e.g., 
Arnold v. North Carolina, 376 U.S. 773 (1964), and by the 
nature of things proof of capital sentencing discrimina­



40

tion requires a still more extended canvass. For the death 
sentence is rarely imposed; it is a random scourge—albeit 
applied better than nine times to one against a Negro.

Petitioner asks this Court to consider whether he has 
not made a prima facie showing of discrimination, suffi­
cient to throw some burden of explanation on the State. 
Because of the Fourteenth Amendment’s overriding pur­
pose to secure racial equality, “ racial classifications [are] 
‘constitutionally suspect,’ . . . and subject to the ‘most 
rigid scrutiny.’ . . . ” McLaughlin v. Florida, 379 IJ.S. 184, 
192 (1964). This principle has as its corollary that a suffi­
cient initial showing of unequal treatment of the races is 
made, calling State procedures in question, whenever it 
appears that the races are substantially disproportion­
ately represented in groups of persons differently dis­
posed of under those procedures: such a showing compels 
the inference that a State is drawing the racial line unless 
the State offers some justification in non-racial factors for 
the disproportion. E.g., Norris v. Alabama, 294 U.S. 587 
(1935); Hernandez v. Texas, 347 IJ.S. 475 (1954); Reece 
v. Georgia, 350 U.S. 85 (1955); Eubanks v. Louisiana, 356 
U.S. 584 (1958) ; Gomillion v. Light-foot, 364 U.S. 339 
(1960); cf. Oyama v. California, 332 U.S. 633 (1948). Here 
the disproportion is extreme: more than nine executed 
Negroes to one executed white over fifty years. The dis­
trict court impermissibly circumscribed petitioner’s proof 
by limiting to three counties his inquiry into the causes of 
the disproportion, but the evidence taken in the counties— 
treated by the district court as a “ trial run” and appar­
ently thought by the court of appeals not unrepresentative 
of the State (C.A. 18)—clearly negatived the possibility 
that the nine-and-a-half to one ratio was accounted for by 
differing numbers of rape convictions for the races. Three 
whites to two Negroes were charged, and an equal num­
ber of whites and Negroes convicted of rape.



41

This alone should suffice to make an initial showing of 
racial discrimination and throw the burden of explanation 
to the State. Of course it is true, as the court of appeals 
said, that the circumstances of each particular rape case 
are significant for sentencing. To determine with scien­
tific precision the influence of the racial factor in capital 
sentencing, it would be desirable to gather data concern­
ing, and to hold constant, other potential factors: the 
number of assailants and victims in a rape episode, the 
ages of the defendant and the prosecutrix, the character 
of each, the degree of force which the sentencing jury 
could find that the defendant employed, and the degree 
of resistance with which he was met, the extent of injury 
if any to the prosecutrix—in all, an innumerable host of 
details about the parties, the offense and the trial. Many 
of these matters cannot be shown with respect to past 
rape prosecutions. Many can, and with far more ease by 
the State than by the .petitioner. Whatever the State can 
show in explanation should be permitted to be shown and 
then evaluated. The issue on the present record is ’whether 
the State has any obligation to show anything, or whether 
it may rest silent in the teeth of evidence that more than 
nine times the number of Negroes than whites convicted 
of rape are sentenced to death.

This Court should hold that the State may not rest on 
such a record. Several considerations support the holding.

First, the hypothesis of racial discrimination is particu- "  
> larly likely in view of the coincidence between the Arkansas 

figures and those of the other jurisdictions—all southern—
\ which have executed persons for rape during the past
1 thirty years. For all jurisdictions, the Negro-white ratio
I is nine to one—although for other crimes than rape it is 

about one to one. Studies and observations by students of 
the criminal process tend to support the hypothesis of



42

1 discrimination. E.g., Bulloch, Significance of the Racial 
Factor in the Length of Prison Sentences, 52 J. Gr im . L., 

| Gr im . & P ol. S ci. 411 (1961) ; Wolfgang, Kelly & Nolde, 
! Comparison of the Executed and the Commuted among 
| Admissions to Death Row, 53 J. Gr im . L., Gr im . & P ol. S ci. 

301 (1962); Hartung, Trends in the Use of Capital Pun­
ishment, 284 A nnals  8, 14-17 (1952) ; W eih o fen , T h e  U rge 

j to P u n ish  164-165 (1956).

I Second, the broader picture of Arkansas life and law 
' cannot be ignored. The State’s resistance to the rights of 

Negro school children and to the law of the land at Little 
Rock, its pattern of excluding Negroes from its criminal 
juries, have a place in the estimate of probabilities. Ar­
kansas still by statute forbids the intermarriage of whites 
with Negroes, A r k . S tat . A n n . §§55-104, 55-105 (1947), 
and punishes interracial cohabitation (called concubinage) 
as a felony, although intraracial cohabitation is a misde­
meanor, A r k . S tat . A n n . §§41-805 to 41-810 (1964). The 
lesson it thus officially teaches its citizens respecting the 
abhorrence in which even voluntary interracial sexual re­
lations should be held cannot help but have an impact on 
the views which a criminal jury will hold of an interracial 
rape. Cf. Peterson v. City of Greenville, 373 U.S. 244 
(1963); Lombard v. Louisiana, 373 U.S. 267 (1963); Rob­
inson v. Florida, 378 U.S. 153 (1964).39

Third, the absolute discretion which Arkansas law gives 
jurors to decide between life and death, undirected by any 
rational standards for making that decision, see part

39 On the statute books of Arkansas still stand requirements of segre­
gation in railroads (including waiting rooms), Ark. Stat. Ann. §73-1218 
(1957), street cars, Ark. Stat. Ann. §73-1614 (1957), buses, Ark. Stat. 
Ann. §73-1747 (1957), schools, Ark. Stat. Ann. §80-509 (1960), penal 
institutions, Ark. Stat. Ann. §§46-144, 46-145 (1964), deaf and blind in­
stitutes for children, Ark. Stat. Ann. §80-2401 (I960), chain gangs, Ark. 
Stat. Ann. §76-1119 (1957), and any “ establishment where gaming is 
legal,” Ark. Stat. Ann. §84-2724 (1960).



43

III(B ), infra, invites the influence of arbitrary and dis­
criminatory considerations. This Court has long been 
concerned with a vagueness of criminal statutes which 
“ licenses the jury to create its own standard in each 
case.” Herndon v. Lowry, 301 U.S. 242, 263 (1937). See, 
e.g., Smith v. Cahoon, 283 U.S. 553 (1931); Cline v. Frink 
Dairy Co., 274 U.S. 445 (1927) ; Connally v. General Con­
struction Co., 269 U.S. 385 (1926); Winters v. New York, 
333 U.S. 507 (1948). The vice of such statutes is not 
alone their failure to give fair warning of prohibited con­
duct, but the breadth of room they leave for jury caprice 
and suasion by impermissible considerations, N.A.A.C.P. 
v. Button, 371 U.S. 415, 432-433 (1963); Freedman v. Mary­
land, 380 U.S. 51, 56 (1965); Lewis, The Sit-In Cases: 
Great Expectations, [1963] S upreme C ourt R eview  101, 
110; Note, 109 U. P a . L. R ev. 67, 90 (1960), including racial 
considerations, see Louisiana v. United States, 380 U.S. 
145 (1965); Dombrowski v. Pfister, 380 U.S. 479 (1965) ; 
Cox v. Louisiana, 379 U.S. 536 (1965). Unlimited sentenc­
ing discretion in a capital jury presents this vice in the 
extreme. To paraphrase Joseph Burstyn, Inc. v. Wilson, 
343 U.S. 495, 505 (1952) : “Under such a standard the most 
careful and tolerant [lay juror] . . . would find it virtually 
impossible to avoid favoring one [race] . . . over another.”

Petitioner requests the Court to grant certiorari, that it 
may review and reverse the judgment of the court of ap­
peals, which cast an unwarranted and impossible burden 
upon petitioner in demonstrating that he had been denied 
equal treatment in the most grievous penalty known to law.



44

B . The Court should grant certiorari to consider 
petitioner’s contention that his sentence is un­
constitutional under the Eighth and Fourteenth 
Amendments.

The issue which three Justices of the Court thought 
deserving of certiorari in Rudolph v. Alabama, 375 U.S. 
889 (1963), was deemed by the court of appeals below one 
which “must be for the Supreme Court in the first in­
stance.” P. 16, supra. The Fourth Circuit has taken the 
same view. Ralph v. Pepersack, 335 F.2d 141 (4th Cir. 
1964). Petitioner respectfully requests the judgment of 
the Court on the issue.

The question is not, in this aspect, whether on any 
rational view which one might take of the purpose of 
criminal punishment, the defendant’s conduct as the jury 
might have found it at its worst on this record could sup­
port a death sentence consistent with civilized standards 
for the administration of criminal law. As the issue of 
penalty was submitted to the jury in their unlimited dis­
cretion under Arkansas procedure,40 their attention was 
directed to none of the purposes of criminal punishment, 
nor to any aspect or aspects of the defendant’s conduct. 
They were not invited to consider the extent of physical 
harm to the prosecutrix, the moral heinousness of the 
defendants’ acts, his susceptibility or lack of susceptibility 
to reformation, the extent of the deterrent effect of killing 
the defendant “ pour decourager les autres.”  Cf. Packer, 
Making the Punishment Fit the Crime, 77 H arv. L. R ev . 
1071 (1964). They were permitted to choose between life 
and death upon conviction for any reason, rational or 
irrational, or for no reason at all: at a whim, a vague 
caprice, or because of the color of petitioner’s skin if that

40 Allison v. State, 204 Ark. 609, 164 S.W.2d 442 (1942) ; liorie v. State, 
215 Ark. 282, 220 S.W.2d 421 (1949).



45

did not please them. In making the determination to 
impose the death sentence, they acted wilfully and un- 
reviewably, without standards and without direction. 
Nothing assured that there would be the slightest thread 
of connection between the sentence they exacted and any 
reasonable justification for exacting it. Cf. Skinner v. 
Oklahoma, 316 U.S. 535 (1942). A judgment so uncon­
fined, so essentially erratic, is per se cruel and unusual 
because it is purposeless, lacking in any relationship by 
which its fitness to the offense, or to the offender or to 
any legitimate social purpose may be tested. It is cruel 
not only because it is extreme but because it is wanton; 
and unusual not only because it is rare, but because the 
decision to remove the defendant from the ordinary 
penological regime is arbitrary. To concede the complex­
ity and interrelation of sentencing goals, see Packer, supra, 
is no reason to sustain a statute which ignores them all. 
It is futile to put forward justifications for a death so 
inflicted; there is no assurance that the infliction responds 
to the justification or will conform to it in operation. 
Inevitably under such a sentencing regime, capital punish­
ment in those few, arbitrarily selected cases where it is 
applied both is “ ‘disproportioned to the offenses charged’ ” 
and constitutes “ ‘ unnecessary cruelty.’ ” Rudolph v. Ala­
bama, supra, 375 U.S. at 891.41

41 The United States Department of Justice has taken the following 
position on continued imposition of the death penalty: “We favor the 
abolition of the death penalty. Modern penology with its correctional and 
rehabilitation skills affords greater protection to society than the death 
penalty which is inconsistent with its goals. This Nation is too great in 
its resources and too good in its purposes to engage in the light of present 
understanding in the deliberate taking of human life as either a punish­
ment or a deterrent to domestic crime.”  Letter of Deputy Attorney Gen­
eral Ramsey Clark to the Honorable John L. McMillan, Chairman, Dis­
trict of Columbia Committee, House of Representatives, July 23, 1965, 
reported in New York Times, July 24, 1965, p. 1, col. 5.



46

III.

Certiorari should be granted to determine whether 
use of poll tax books containing racial designations, 
as required by statute, in the system of jury selection 
is constitutional.

This Court has long made clear that “Jurymen should 
be selected as individuals, on the basis of individual quali­
fications, and not as members of a race.” Cassell v. Texas, 
339 U.S. 282, 286. Petitioner contends that the jury selec­
tion procedures established by state law and used in 
Garland County, Arkansas, encourage and permit the se­
lection of jurors on the basis of race, in violation of the 
Fourteenth Amendment.

In Garland County, petit jury lists are selected by a 
jury commission consisting of three commissioners who 
meet together periodically and draw up a list of names 
(Tr. 47, 64). They rely primarily on their knowledge of 
persons in the community (Tr. 61), but also use a telephone 
book (Tr. 60, 77) and a list of persons who have previ­
ously served (Tr. 55, 77). At the time of petitioner’s trial, 
only qualified electors who had paid the poll tax were eli­
gible to be jurors.42 Thus the jury commissioners checked 
the poll tax books to determine whether the persons they 
had selected were qualified. In accordance with statute, 
Ark. Stat. Ann. §3-118 (1956), the poll tax books desig­
nated the race of all qualified electors (Tr. 57, 59).

In the recent case of Hamm v. Virginia State Board of 
Elections, 230 F. Supp. 156 (E.D.Va. 1964) aff’d sub nom. 
Tancil v. Woolls, 379 U.S. 19, a three-judge district court 
declared that Virginia statutes requiring that lists of

42 In November, 1964, Arkansas approved a constitutional amendment 
outlawing the poll tax. Ark. Const., Amend. 51.



47

voters and taxpayers be kept in separate books according 
to race violated the Fourteenth Amendment. The district 
court stated that it was now

axiomatic that no State can directly or casually pro­
mote a distinction in the treatment of persons solely 
on the basis of their color. To be within the condem­
nation, the governmental action need not effectuate 
segregation of facilities directly. Cf. Anderson v. 
Martin, 375 U.S. 399, 402, 84 S. Ct. 454, 11 L. Ed. 439 
1964. The result of the statute or policy must not 
tend to separate individuals by reason of difference 
in race or color. No form of State discrimination, no 
matter how subtle, is permissible under the guarantees 
of the Fourteenth Amendment. 230 F. Supp. at 157- 
158.

One of the Virginia statutes struck down dealt specifically 
with poll tax lists.43

The court of appeals in this case, however, merely stated 
that the Hamm case “ appears to cast some doubt on [the] 
validity” of racially designated poll tax books (C.A. 15). 
By refusing to give full weight to the three-judge court’s 
decision and this Court’s affirmance, the court of appeals 
was able, in a capital case, to avoid the full force of 
petitioner’s constitutional claim. The court should have 
acknowledged that racially designated poll tax books are 
unconstitutional and should have examined Arkansas’ jury 
selection procedures from this starting point. Its failure 
to do this, and the consequent need for clarification of the 
issue, is reason enough for this Court to grant certiorari.

The court of appeals tried to minimize the significance 
of the racially designated poll tax books on the ground that

43 The Arkansas statute differs in that it does not call for separate 
books, but this distinction is without significance.



48

the jury commissioners drew up an independent list of 
jurors before consulting the poll tax book. But the fact 
that an independent list is drawn up first does not elimi­
nate the many opportunities for discrimination created by 
the statutorily imposed system of racial designations.

A selection procedure which provides unnecessary oppor­
tunities for discrimination violates the Foiirteenth Amend­
ment. In Avery  v. Georgia, 345 U.S. 559, a conviction was 
reversed because the names of potential jurymen were 
placed on different colored slips according to race. The 
trial judge testified that he selected the slips without re­
gard to color, but Chief Justice Vinson stated that “Even 
if the white and yellow tickets were drawn from the jury 
box without discrimination, opportunity was available to 
resort to it at other stages in the selection process.” Id. 
at 562. And Justice Frankfurter, concurring said: “We~\

fmay accept the testimony of the judge who drew the 
slips from the box as to the honesty of his purpose; that 
testimony does not refute the fact that there were oppor­
tunities to discriminate, as experience tells us there will 
inevitably be when such differentiating slips were used. 
Id. at 564.

That a state must not provide unnecessary “ opportu­
nities to discriminate” is also shown by Anderson v. Martin, 
375 U.S. 559, where this Court ended the Louisiana prac­
tice of designating the race of all candidates for public 
office. There was, of course, no positive proof that these 
racial designations in any way influenced the voting pat­
terns of Louisiana citizens. Nonetheless, the Court held 
that the designations were unconstitutional because the 
state was indicating that race was “an important—per­
haps paramount— consideration” in a voter’s choice. Id. 
at 402. The Court added that a state cannot “encourage 
its citizens to vote for a candidate solely on account of



49

race. Cf. Steele v. Louisville & N. R. Co., 323 TJ.S. 192, 
203, 89 L. Ed. 173, 183, 65 S. Ct. 226 (1944). And that 
which cannot be done by express statutory prohibition 
cannot be done by indirection.” Id. at 404. In the jury 
situation it is clear that a state cannot encourage, or even 
permit, its jury commissioners to select juries on the basis 
of race. But the Arkansas procedure, “by indirection,” 
both permits and encourages selection along racial lines.

The Court of Appeals, having held against petitioner 
on the merits, stated that it was “unnecessary to consider 
the arg’ument [raised in the district court] that Maxwell 
waived any objections to the petit jury panel and did so 
within the permitted scope of Fay v. Noia, supra, 372 U.S. 
438-40 (1963).” The district court had strongly suggested 
that petitioner waived his rights with respect to jury se­
lection by failing to raise the issue in the state courts. It 
relied on the fact that the attorney who represented peti­
tioner in the state courts was aware of petitioner’s con­
stitutional rights and familiar with the procedure for 
selecting jurors in Garland County. The district court 
also noted the trial attorney’s testimony that he had “dis­
cussed the jury panel” with petitioner. It apparently in­
terpreted this testimony as meaning that the attorney had 
discussed with Maxwell the jury selection procedures used 
in Arkansas. A more plausible interpretation is that the 
attorney merely talked with petitioner about the desir­
ability of certain jurors. There was no explicit evidence 
that the attorney discussed with petitioner the question of 
raising or not raising a challenge to the method of jury 
selection by motion to quash, and, in fact, the attorney 
testified that he never gave petitioner this choice (Tr. 297- 
298, 305-306). There is no evidence that petitioner knew 
or understood the nature of the right involved or the par­
ticular practices of the jury commission attacked here.



50

Waiver of a constitutional right is the “ intentional re­
linquishment or abandonment of a known right or privi­
lege.” Johnson v. Zerbst, 304 U.S. 458, 464. In Fay v. 
Noia, 372 U.S. 391, this Court declared that “the doctrine 
of fictitious waiver is unacceptable.” The strict standards 
required by the courts before finding waiver of the con­
stitutional right to a jury chosen without discrimination 
on account of race are set forth in a line of Fifth Circuit 
cases. United States ex rel. Goldsby v. Harpole, 263 F.2d 
71 (5th Cir. 1959), cert, denied, 361 U.S. 838; United States 
ex rel. Seals v. Wiman, 304 F.2d 53 (5th Cir. 1962), cert, 
denied 372 U.S. 924; Whitus v. Balkcom, 333 F.2d 496 (5th 
Cir. 1964), cert denied, 379 U.S. 93; Cobb v. Balkcom, 339 
F.2d 95 (5th Cir. 1964). In Goldsby and Seals, as in the 
case of petitioner, “ the important fact . . . was that the 
attorney for the Negro defendant did not consult his client 
with regard to his decision to refrain from making attacks 
on the jury system.” Whitus, supra, 333 F.2d at 502. Thus 
the fact that trial counsel did not raise the issue with re­
spect to county jury selection methods can in no way 
prejudice petitioner, for petitioner was never actually 
consulted concerning the attorney’s failure to raise the
issue.



51

CONCLUSION

For the foregoing reasons the petition for writ of 
certiorari should be granted.

Respectfully submitted,

J ack  Greenberg 
J ames M. N abrit, III 
M ich ael  M eltsner 
L eroy D. Clark 
F ran k  H . H effron

10 Columbus Circle 
New York, New York 10019

George H oward, J r .
329% Main Street 
Pine Bluff, Arkansas

H arold B. A nderson

205 Century Building 
Little Rock, Arkansas

A n th o n y  G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania

Attorneys for Petitioner



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