Regan v. Wright Petition for Writ of Certiorari
Public Court Documents
November 30, 1981

Cite this item
-
Brief Collection, LDF Court Filings. Brawner v. Smith Brief for the Respondent in Opposition, 1969. b4fc1345-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d1b2005a-a7de-4e37-b859-7aa8788cde88/brawner-v-smith-brief-for-the-respondent-in-opposition. Accessed July 31, 2025.
Copied!
IN THE Supreme Court of the United States OCTOBER TERM, 1969 No. 486 CURTIS BRAWNER, Petitioner, v. S. LAMONT SMITH, Warden, Georgia State Prison, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA BRIEF FOR THE RESPONDENT IN OPPOSITION Arthur K. Bolton Attorney General P. O. Address: 132 Judicial Bldg. 40 Capitol Square Atlanta, Ga. 30334 Harold N. H ill , Jr . Executive Assistant Attorney General Marion O. Gordon Assistant Attorney General Courtney Wilder Stanton Assistant Attorney General INDEX OPINION BELOW Page _______ 1 JURISDICTION _______ QUESTIONS PRESENTED _________________ 2 1. The petitioner was indicted and convicted by grand and traverse juries of Elbert County, Georgia, which were drawn from jury lists selected from racially designated tax digests. Does this fact establish a prima facie case of systematic, racially based jury exclusion within the evidentiary rule of Whitus v. Georgia, 385 U.S. 545, where the petitioner estab lished the racial breakdowns of the jury lists but not of the source from which the lists were composed___ 2 2. The petitioner was represented at his original trial by a white, court-appointed trial counsel. Does such a counsel’s considered decision not to challenge jury-selection practices constitute a waiver binding on the petitioner where the decision was considered by counsel to be in his client’s best interests but where the petitioner was not himself consulted_________2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED _________________ 2 STATEMENT ______________________________ 2 ARGUMENT ___________________________ ___ 4 CONCLUSION _____________________________ 12 CERTIFICATE OF SERVICE________________ 13 i Page CASES CITED Johnson v. Ferbst, 304 U.S. 458 (1938)_________ 9 Jones v. Georgia, 389 U.S. 24 (1967)----------------- 4 Powell v. Alabama, 287 U.S. 45 (1932)__________ 9 Whitus v. Georgia, 385 U.S. 545 (1967)________2,4 STATUTES Ga. Code § 59-106 (1933) as amended, Ga. L. 1955, p. 247___________ ___________ 3 Ga. Code § 59-106 (1965 Rev.)_____________ __ 3 Ga. Code § 92-6307 (1933)__________________ 3 INDEX— continued ii IN THE Supreme Court of the United States OCTOBER TERM, 1969 No. 486 CURTIS BRAWNER, Petitioner, v. S. LAMONT SMITH, Warden, Georgia State Prison, Respondent. ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF GEORGIA BRIEF FOR THE RESPONDENT IN OPPOSITION OPINION BELOW The opinion of the Supreme Court of Georgia, set forth in the appendix to the petition, pp. la-6a, is re ported at 225 Ga. 296 (1969). JURISDICTION The jurisdictional requisites are adequately set forth in the petition. 1 2 QUESTIONS PRESENTED 1. Does the mere establishment of the racial break downs of the petitioner’s jury lists without establishing the racial breakdown of the source from which the lists were composed establish a prima-facie case of sys tematic, racially based jury exclusion within the evi dentiary rule of Whitus v. Georgia, 385 U.S. 545? 2. Does the mere fact that a negro petitioner’s court-appointed trial counsel was white impeach such counsel’s considered decision not to challenge jury-selec tion practices where the decision was considered by counsel to be in his client’s best interests? CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The constitutional and statutory provisions involved are adequately set forth in the petition. STATEMENT In general, the petitioner’s statement of the case as set forth in his petition accurately reflects the history of the prior proceedings. There are, however, significant discrepancies in that portion which purports to discuss the petitioner’s evidence at his State habeas-corpus pro ceeding. The respondent’s statement is therefore limited to that portion of the prior proceeding which the peti tioner has summarized beginning with the final para graph on page 4 of his petition and continuing through the next-to-the-last paragraph on page 5 of the petition. The statutory procedure in effect at the time of the petitioner’s original trial required the jury lists to be 3 selected from the tax digests of the respective counties. Ga. Code § 59-106 (1933), as amended, through Ga. L. 1955, p. 247; Ga. Code Ann. § 59-106 (1965 Rev.). At the time of the petitioner’s original trial, a statute required that the tax digests be maintained on a racially segregated basis. (Ga. Code § 92-6307 [1933]). The petitioner presented evidence that based on the 1960 census, the population of Elbert County over twenty-one years of age contained 3,474 white males, 3,843 white females, 1,272 non-white males, and 1,545 non-white females. (Tattnall County Transcript 22-24, 243; Petitioner’s Exhibit No. 2)* In percentage terms, non-whites constituted approximately twenty- seven per centum of the total population aged twenty- one years or older as of the year of the census. The petitioner introduced into evidence a certified copy of the Elbert County jury lists for the years 1963- 64. (TCT 25, 244). It appeared that the 1963-64 jury lists contained a total of 2,047 names, of which 26 were non-whites. The petitioner’s mathematics are grossly in error as an examination of the percentage computation set forth in the first beginning paragraph on page 5 of the petition will reveal. The petitioner’s evidence further went to show that there were forty-eight names on the trial-jury panel, of which two were negro. (TCT 40). *The respondent does not have available the paginated, certified record in this case. Consequently, he is forced to identify those portions of the record relied upon in the most accurate, available manner. Attempts to derive the pagination of the certified record by reference to the petition have not been successful. 4 ARGUMENT I. THE PETITIONER COMPLETELY FAILED TO ESTABLISH THE PRIMA-FACIE CASE OUTLINED IN WHITUS V. GEORGIA, 385 U.S. 545 (1967) AND DETAILED IN JONES V. GEORGIA, 389 U.S. 24 (1967). Before discussing the failure of the petitioner’s habeas- corpus counsel to establish a prima-facie case in ac cordance with the mode of proof authorized by Whitus v. Georgia, 385 U.S. 545 (1967) and Jones v. Georgia, 389 U.S. 24 (1967), the respondent notes briefly that the Georgia law did not prohibit or inhibit the estab lishment of such a case. In fact, the Georgia Civil Practice Act, Ga. Code Title 81A (1933), as amended, is modeled after the Federal Rules of Civil Procedure. In particular, the Georgia and Federal Rules for pre trial evidentiary development, including admissions of fact and genuineness of documents, axe virtually iden tical. As a consequence, the establishment of the facts necessary to show the prima-facie case under Whitus and Jones would seem to be so simple as to allow every such challenge to proceed to a decision on the merits. Instead, in the present case, we have an agonizing struggle consuming over 800 pages of record in an un successful attempt to establish the facts activating Whitus. In the first place, the Court will search the record in vain for the establishment of even a minutia of evidence linking the 1963-64 jury lists to the petitioner’s 1965 trial. In other words, all we really have is a jury list and a trial; there is absolutely no competent evidence to establish that the jury panels drawn and called for 5 the trial of petitioner’s case were drawn from the 1963- 64 jury lists. In fact, there is testimony which would indicate that some revision of the county’s jury lists took place just prior to the commencement of the peti tioner’s original trial. (TCT 45-6). The respondent submits that it goes without saying that the decisions in Whit us and Jones are both predicated upon a prima- facie case being established by competent proof de signed to show the actual jury lists utilized in selecting the juries involved in the conviction under attack. The simplicity of such proof suggests itself. All that need be established would be the date of the subsequent revision. This could be done without the necessity of resorting to time-consuming testimonial evidence. As things presently stand, this Court is without evi dence upon which to base the decision requested by the petitioner in view of the petitioner’s failure to estab lish the racial breakdown of the traverse and grand jury lists involved in his indictment and conviction. A closely related failure of the evidence exists with respect to the racial breakdown of the source. Here again, the respondent reads Whitus and Jones as re quiring that the actual source from which the jury lists were taken be identified by competent evidence. In the present case, an attempt was made to introduce certain testimony relative to the 1963 tax digests. There is absolutely no evidence that establishes whether the 1963-64 lists were based upon the 1963 digests. Normal experience, however, during the period that the tax digests constituted the source for jury selection, would make this nexus highly questionable in that tax digest preparation is not normally completed until relatively 6 late in the taxing year. Suffice it to say, that petitioner failed to prove which tax digests were utilized in select ing the jury lists from which his juries were drawn. Here again, there is the complete failure of proof. The sim plicity of such proof within the framework of Whitus and Jones adequately suggests itself. As an additional point, it might be well to note that the petitioner actually fails to demonstrate the racial breakdown of any tax digest. At the commencement of the case, counsel for the petitioner indicated that a wit ness who had been subpoenaed was not present. (TCT 5). The habeas-corpus court offered the petitioner’s counsel a continuance. (TCT 6). The petitioner’s coun sel elected to go ahead without the testimony of this witness. (TCT 6). The petitioner’s attempt to introduce secondary evidence was unsuccessful. (TCT 113). The petitioner’s counsel then indicated a desire to offer a certain deposition upon the point in question; however, upon the interposing of certain objections relating to the failure of the deponent to testify from an inde pendent recollection the proffer was withdrawn. (TCT 117). The net result was a failure of the evidence to establish the racial breakdown of any tax digest of El bert County. This Court is asked to grant this writ to review a decision which is at best abstract. Because of this, the present case cannot further illustrate the principle of law most clearly established in the footnote to Jones. In both Whitus and Jones there was competent proof to establish the prima-facie case. In the present case, there has not only been a failure to prove the case by competent evidence, but an underlying failure to in 7 vestigate the relevant factual underpinnings with a full appreciation of the tangible nature of the factors in volved. This Court has announced a very simple method whereby a negro can establish a prima-facie case of constitutionally prohibited systematic racial exclusion. The present morass has resulted from an unfortunate failure of the petitioner’s present habeas-corpus counsel to establish two of the five simple factors which con stitute the accepted mode of proof. II. THERE WAS A VALID, CONSCIENTIOUS WAIVER BY THE PETITIONER’S COUNSEL OF THE PETITIONER’S RIGHT TO CHAL LENGE THE JURY-SELECTION PROCEDURES EMPLOYED BY ELBERT COUNTY. The language utilized by the petitioner’s counsel in framing his second contention to this Court has the unfortunate effect of raising by inference an issue hav ing purely racist overtones not supported by even a single shred of evidence. It would seem that the peti tioner would have us believe that this whole question should turn upon the racial identification of his original- trial counsel. Petitioner has shown only that he is a negro and that his court-appointed defense counsel was a white attorney. From this, the Court is asked to deduce and hold that the original-trial counsel pro miscuously forfeited the rights of his negro client. Va rious cases are cited all of which deal with operative facts beyond the skin color of client and counsel. What ever might have been the lamentable practice in other cases, it is entirely unfair to make this accusation based upon the petitioner’s representation by Attorney Wilbur Orr. 8 The nature of the petitioner’s representation by Orr is well documented in the record now before this Court. The full transcript of the original trial is set out. (TCT 241/104-241/292; Petitioner’s Exhibit No. 1). Mr. Orr’s attitude toward this case is well demonstrated by his characterization upon deposition of the loss as “so very painful.” (TCT 69). Further, there is evidence that the counsel stayed with the case beyond the trial- court level, filing a motion for a new trial and, sub sequently, an appeal to the Supreme Court of Georgia. (TCT 60-70). The record further indicates that Orr voluntarily associated with compensated counsel em ployed by the NAACP’s Legal Defense Fund in the preparation of an application for a writ of certiorari to this Court seeking the review of the original conviction. (TCT 70). When this Court denied relief, Mr. Orr testified that he sought commutation from the State Board of Pardons and Paroles, and, when this was de nied, he was prepared to seek habeas-corpus relief. (TCT 70). Further, the record indicates that Mr. Orr made two trips to Reidsville, Georgia, a distance in excess of one hundred and fifty miles one-way in order to file and argue the petitioner’s original State habeas- corpus case. (TCT 70). Further, during the pendency of federal habeas-corpus proceedings in the present mat ter, Orr made two trips from Washington, Georgia, to Atlanta for the purpose of testifying at depositions taken on behalf of the petitioner. (TCT 28, 74). The impli cation that because of the petitioner’s skin color the original-trial counsel was less diligent or conscientious in his efforts to defend the petitioner is totally unwar ranted and should be purged from the petitioner’s pe tition. 9 The question truly presented is whether any lawyer, white or negro, was in a position to waive the jury-selec tion question. There is some point where the guiding hand of counsel must be allowed to conduct the case in what conscientiously seems, based on the counsel’s ex perience, to be the manner most favorable to the client. If we are to turn over to the client every decision to be made during the conduct of a trial, the effective coun sel will soon be dissipated. The sixth amendment “em bodies a realistic recognition of the obvious truth that the average defendant does not have- the professional legal skill to protect himself. . . .” Johnson v. Ferbst, 304 U.S. 458, 462, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Every criminal defendant “requires the guiding hand of counsel at every step in the proceedings against him. . . . If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932). In the present case, it is obvious that Orr’s client was a person of limited intellectual capacity. (TCT 50, 223). To require such a person to participate in the decisional features of his representation is to place a burden upon both the accused and his counsel which would neces sarily detract from the representation. Trial counsel must tap his wisdom, training, and experience in chart ing the course which, in his considered judgment, is most likely to produce the best result for the client. The continued vitality of the sixth amendment’s “realistic recognition of . . . (an) obvious truth” (Johnson v. Ferbst, supra) requires that “the guiding hand of coun sel” (Powell v. Alabama, supra) not be stayed while 10 the hapless client attempts to formulate a judgment which he is ill-equipped to make. Implicit in the con cept that a criminal defendant be guided by counsel is the requirement that the lawyer must make decisions related to trial strategy. Forcing the defendant to make such decisions would reduce counsel to a mere vehicle for the delivery of a position which might be sound, if by chance, the client happened to decide the course correctly. It is obvious from the testimony upon which the peti tioner relies that Mr. Orr made a deliberate, con scientious decision to attempt to submerge as much as possible the racial issues which were unfortunately pres ent as a result of the killing of a prominent white citi zen by a negro. It is equally obvious that the motivating factors did not have anything to do with Orr’s feeling of being ostracized by his white peer group, as the implication in the petition would have the Court be lieve. Rather, it was a conclusion reached on the basis of what was best for this particular client. It is to be noted that among the portions relied upon by the peti tioner in his petition there is contained the testimony of Mr. Orr to the effect that a challenge to the array on the ground of racial exclusion would not inure to the benefit of the petitioner even if successfully main tained. Orr’s decision to attempt to submerge the racial issue by waiving the right to file such a challenge was not only professional but most probably correct. Such a challenge would only have been advisable if it would have been beneficial to the client. In the present case, there was substantial evidence to indicate that the hos tility against this particular petitioner was not limited to the white community. (TCT 49, 238). Cases are continually being framed in which the strategy adopted by a defense counsel is sought to be impeached on habeas-corpus applications. Ofttirries, as here, these decisions are not easily made even by ex perienced counsel. Particularly where the client is of limited intellectual capacity, the necessity for making such decisions is ultimately that of the attorney. If the right to counsel is to be meaningful, the conscientious decisions of trial counsel not to engage in preliminary scrimmages not likely to aid the client’s long-range in terests in the outcome of the litigation must be upheld, even where the client has a right to engage in such preliminary scrimmages. 11 12 CONCLUSION For the foregoing reasons the petition for a writ of certiorari should be denied. Respectfully submitted, /s / Arthur K. Bolton Arthur K. Bolton Attorney General / s / Harold N. H ill , Jr . Harold N. H ill , Jr . Executive Assistant Attorney General /s / Marion O. Gordon Marion O. Gordon Assistant Attorney General / s / Courtney Wilder Stanton Courtney Wilder Stanton Assistant Attorney General Please serve: Courtney Wilder Stanton P. O. Address: 132 Judicial Building 40 Capitol Square Atlanta, Georgia 30334 13 CERTIFICATE OF SERVICE This is to certify that I have this day served a true and correct copy of the foregoing upon counsel for the petitioner, Messrs. Jack Greenberg, Norman C. Amaker and James N. Finney, 10 Columbus Circle, New York, New York 10019, and Messrs. Howard Moore, Jr. and Peter E. Rindskopf, 859:1/2 Hunter Street, N.W., At lanta, Georgia 30314, by depositing same in the United States mail, properly addressed and postage prepaid. This is to further certify that all parties required to be served have been served. This.day of September, 1969. st___________ l- ( f} £ o L.D /Vi