Defendant's Reply Brief

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o . 2 0 7 9 7

PHIL WHITUS and LEON DAVIS,
Appellants,

R. P.

versus

BALKCOM, JR., Warden, State Penitentiary, 
Reidsville, Georgia,

Appellee.

Appeal from the United States District Court for the 
Southern District of Georgia.

(June 18, 1964.)

Before TUTTLE, Chief Judge, and WISDOM, Circuit 
Judge, and CARSWELL, District Judge.

WISDOM, Circuit Judge: The difficulties this post­
conviction habeas corpus problem presents inhere in 
the dilemma in which a Negro defendant is placed when 
he is brought to trial in a state court in a county 
where Negroes are systematically excluded from



2 Whitus, et al. v. Balkcom, Jr.

juries.1 The matrix within which this problem de­
veloped is the social structure of the deep South.

The two Negro petitioners were tried in the Superior 
Court of Mitchell County, Georgia, for the murder of 
a white farmer. They were convicted and sentenced 
to die. Mitchell County is a small county in rural 
Georgia.2 No Negro has ever served on a grand jury 
or on a petit jury in Mitchell County. The attorneys 
for the petitioners were fully aware of this fact. They 
were also fully aware of the hostility that an attack 
on the all-white jury system would generate in a 
community already stirred up over the killing. Without 
consulting the defendants, the attorneys decided not 
to object, ili the trial or on appeal, to the systematic 
exclusion of Negroes from either jury. Later, in this 
habeas corpus proceeding, the federal district court 
held that the attorneys’ non-assertion in the state 
court of a timely objection to the composition of the 
juries was an effectual waiver of that objection.
1 See Sofaer, Federal Habeas Corpus for State Prisoners:
The Isolation Principle, 39 N.Y.U.L.Rev. 78 (1964); Reitz, Federal 
Habeas Corpus: Impact of an Abortive State proceeding, 74
Harv. L. Rev. 1315, 1324-32 (1961); Hart, Foreword: The Time
Chart of the Justices, 73 Harv. L, Rev. 84, 103-108 (1959); 
Brennan, Federal Habeas Corpus and State Prisoners: An Exer­
cise in Federalism, 7 Utah L. Rev. 423 (1961); Bator, Finality 
in Criminal Law and Federal Habeas Corpus for State Prisoners, 
76 Harv. L. Rev. 441 (1963); Schaeffer, Federalism and State 
Criminal Procedure, 70 Harv. L. Rev. (1956); See especially 
Comment, Negro Defendants and Southern Lawyers: Review in
Federal Habeas Corpus of Systematic Exclusion of Negroes 
from Juries, 72 Yale L. Jour. 559 (1963); Note, Lightfoot, Waiver 
of Right to be Tried Before Jury from which Members of One’s 
Race have not been Systematically Excluded, 16 Ala. L, Rev. 
117 (1963). See also Note, Racial Discrimination, Systematic 
Exclusion in Jury Selection, 24 La. L. Rev. 393 (1964).
2 The population of Mitchell County, according to the 1960 
census is about 20,000, 9,000 Negroes and 11,000 white persons.



Whitus, et al. v. Balkcom, Jr. 3

Many constitutional rights may be waived. And, in 
the interests of legal economy and the integrity of 
orderly procedure in state courts, a defendant’s non­
assertion of certain constitutional rights before a trial 
or in the early stages of a trial has been treated as a 
“waiver” of those rights. This handy rule applies, for 
example, to the right to be tried by a jury or the right 
to counsel. It does not fit this case.3

The core of this case is the lack of remedy in the 
state courts. The petitioners and their attorneys had 
no desire to give up their right to be tried by a jury 
chosen without regard to the race of the jurors. It 
was not to their interest to do so—except as a choice 
of evils. A choice of evils was indeed the only state 
remedy open to them. The petitioners could choose 
to be prejudiced by the hostility an attack on the all- 
white jury system would stir up. Or they could choose 
to be prejudiced by being deprived of a trial by a jury 
of their peers selected impartially from a cross-section 
of the community. This is the “grisly” ,4 hard, Hobson’s
8 “ The rights which a defendant may waive are those which 
establish procedures designed to insure fairness, but which a 
particular defendant may deem it advantageous to forego. The 
clearest example, perhaps, is the right to jury trial, which 
many defendants waive in the expectation that trial by a judge 
alone will be beneficial to their cause. . . .  If Johnson v. Zerbst 
permits a defendant to forego some of the constitutional safe­
guards if he deems it to his advantage to do so. The law re­
spects his choice in the first instance and holds him to it if he 
should later change his mind. These considerations are not rele­
vant when the defendant ‘waives’ an opportunity to protest un­
constitutional action, in the sense that a violation of a state rule 
of procedure forecloses some part of the review otherwise avail­
able in the state judicial system. If a forfeiture of constitutional 
rights is to be made the outcome of this kind of lapse, it must 
be explained on some basis other than an interest in allowing a 
defendant to follow what seems to him his most advantageous 
course of action.” Reitz, Federal Habeas Corpus: Impact of an



4 Whitus, et al. v. Balkcom, Jr.

choice the State puts to Negro defendants when it 
systematically excludes Negroes from juries; white 
defendants are not subjected to this burden.

The constitutional vice is not just the exclusion of 
Negroes from juries.* 4 5 It is also the State’s requiring 
Negro defendants to choose between an unfairly con­
stituted jury and a prejudiced jury. We hold that this 
discrimination violates both the equal protection and 
the due process clauses of the Fourteenth Amendment.6

I.

Oversimplifying the facts, the homicide occurred 
November 15, 1959, when Leon Davis, one of the peti­
tioners, killed a respected white farmer after an 
altercation between the two precipitated by each caus­
ing his automobile to bump into the other’s automobile. 
Phil Whitus and two other Negroes were in Davis’s 
automobile and were at the scene of the killing. All
Abortive State Proceeding, 74 Harv. L. Rev. 1266, 1333, 1336 
(1961).
4 This is the term Mr. Justice Brennan used in Fay v. Noia, 
372 U. S. 391, 440, to describe Noia’s predicament.
5 The exclusion of Negroes from petit juries trying Negro 
defendants has been repeatedly held to violate the equal pro­
tection clause as well as the due process clause of the Fourteenth 
Amendment. Reece v. State of Georgia, 1955, 350 U. S. 85, 
76 S. Ct. 167, 100 L. Ed. 17; Patton v. State of Mississippi, 1947, 
332 U. S. 463, 68 S. Ct. 184, 92 L. Ed. 76: Norris v. State of 
Alabama, 1935, 294 U. S. 587, 55 S. Ct. 579, 79 L. Ed, 1074; 
Carter v. State of Texas, 1900, 177 U.S. 442, 20 S.Ct. 687, 44 L. 
Ed. 839; United States ex rel. Goldsby v. Ha.rpole, 5 Cir. 1959, 
263 F. 2d 71, cert, den’d 1959, 361 U.S. 838, 80 S. Ct. 58, 4 L. Ed. 
2d 78.
0 We have based our decision on Fay v. Noia, 372 U. S. 391. 
At the same time, we have considered, as Mr. Justice Harlan 
would require the Court to consider, “ the adequacy, or fairness, 
of the state ground” .



Whitus, et al. v. Balkcom, Jr. 5

four were indicted for murder. The attorneys for the 
defendants decided against requesting a change of 
venue.7 January 13, 1960, the jury found Davis and 
Whitus guilty as charged.8 Under Georgia law, since 
the jury withheld a recommendation of mercy, the 
verdict carried the sentence of death by electrocution.

The petitioners filed unsuccessful motions for new 
trials, appeals to the Supreme Court of Georgia, and 
petitions for certiorari to the United States Supreme 
Court.9 Davis contended that the trial court erred in 
admitting in evidence an allegedly coerced confession 
and in making an erroneous charge to the jury on 
insanity. Whitus contended that he did not participate 
in the killing in any way; that there was no conspiracy 
to commit any crime; and that whatever assistance he 
gave to Davis he gave unwillingly at the point of 
Davis’s gun. In the state court proceedings petitioners 
did not refer to the composition of the juries, except 
for a vague allusion in the petition for certiorari to 
the United States Supreme Court.

The attorneys first presented the issue now before 
this Court in a petition for habeas corpus in the United 
States District Court. That court denied the petition
7 Mr. Walter Jones, attorney for Whitus, testified that he “had 
a conference with the other attorneys in the case and we agreed 
that [if a request for a change were made and acted on favor­
ably] the trial judge might change it to Baker County and we 
were better off in Mitchell.”
8 The two other defendants pleaded guilty and were sentenced 
to life imprisonment. One was sixteen years of age. The other 
testified for the State.
9 Whitus v. State, 1960, 216 Ga. 284, 116 S.E,2d 205; cert, 
den’d 1961, 365 U. S. 831, 81 S. Ct. 718, 5 L. Ed. 2d 708; Davis 
v. State, 1960, 216 Ga. 110, 114 S.E.2d 877.



6 Whitus, et al. v. Balkcom, Jr.

on the ground, among others, that a state remedy 
through habeas corpus was still available. We affirmed. 
Whitus v. Balkcom, 5 Cir. 1962, 299 F.2d 844. The 
Supreme Court, per curiam, vacated the judgment and 
remanded the case. Whitus v. Balkcom, 1962, 370 U. S. 
728, 82 S. Ct. 1575, 8 L. Ed. 2d 803. Again the district 
court dismissed the petition.10 The petitioners are 
before us on their appeal from that order of dismissal.

The factual question of the existence of the custom 
of systematic exclusion of Negroes from the Mitchell 
County juries is not at issue. The appellee relies 
solely on the doctrine of waiver. The appellee’s brief 
states: “Rather than argue the substantive issue of 
systematic exclusion of Negroes from the juries of 
Mitchell County and thereby attempt to overcome this 
Court’s decision in United States ex rel. Seals v. Wiman, 
5 Cir. 1962, 304 F.2d 53, cert, den’d, 1963, 372 U. S. 924, 
83 S. Ct. 741, 9 L. Ed. 2d 729, appellee will admit for 
the purposes of this Appeal that the present case is 
adversely covered by such decision.”11
10 The district court held: (1) the evidence was sufficient
to support the conviction; (2) there was no evidence to support 
the contention that there was discrimination in the selection of 
the jury; (3) there was no violation of the petitioner’s right to 
equal protection or due process.
11 The district court found that there was a complete revision 
of the jury list two months before the commission of the crime, 
and the names of thirty Negroes were in the jury box at the 
time of the trial. The testimony, however, showed that no 
Negro had ever served on either the grand jury or the petit 
jury. The jury lists were based on the names on the County 
tax returns. These returns were on yellow sheets for the Negroes 
and white sheets for the whites. See Avery v. Georgia, 1953, 
345 U. S. 559, 73 S.Ct. 891, 97 L.Ed. 1244. See also Collins v. 
Walker, 5 Cir. 1964, 329 F.2d 100.



Whitus, et al. v. Balk.com, Jr. 7

II.

The classic, Johnson v. Zerbst definition of waiver 
is “an intentional relinquishment or abandonment of 
a known right or privilege” .12 The general principles 
governing “waiver” of constitutional rights, as that 
doctrine is applied in federal habeas corpus post-con­
viction proceedings, are succinctly stated in Mr. Justice 
Frankfurter’s separate opinion in Brown v. Allen, 1953, 
344 U. S. 443, 503, 73 S. Ct. 397, 97 L. Ed. 469:

“Of course, nothing we have said suggests 
that the federal habeas corpus jurisdiction can 
displace a State’s procedural rule requiring that 
certain errors be raised on appeal. Normally 
rights under the Federal Constitution may be 
waived at the trial, and may likewise be 
waived by failure to assert such errors on 
appeal. When a State insists that a defendant 
be held to his choice of trial strategy and not 
be allowed to try a different tack on State 
habeas corpus, he may be deemed to have 
waived his claim and thus have no right to 
assert on federal habeas corpus. Such con­
siderations of orderly appellate procedure give 
rise to the conventional statement that habeas 
corpus should not do service for an appeal. 
However, this does not touch one of those 
extraordinary cases in which a substantial 
claim goes to the very foundation of a proceed­
ing.” (Citations omitted. Emphasis added.)

12 Johnson v. Zerbst, 1938, 304 U. S. 458, 464, 58 S. Ct. 1019, 
82 L. Ed. 1461.



8 Whitus, et al. v. Balkcom, Jr.

The Supreme Court has recently expressed itself on 
the subject of waiver in Fay v. Noia, 1963, 372 U. S. 391, 
83 S. Ct. 822, 9 L. Ed. 2d 837, a case pertinent here 
on the facts. The Court said:

“If a habeas applicant, after consultation with 
competent counsel or otherwise, understand- 
ingly and knowingly forewent the privilege of 
seeking to vindicate his federal claims in the 
state courts, whether for strategic, tactical, or 
any other reasons that can fairly be described 
as the deliberate by-passing of state pro­
cedures, then it is open to the federal court 
on habeas to deny him all relief. . . .  At 
all events we wish it clearly understood that 
the standard here put forth depends on the 
considered choice of the petitioner. Cj. Carnley 
v. Cochran, 369 U. S. 506, 513-517; Moore v. 
Michigan, 355 U. S. 155, 162-165. A choice made 
by counsel not participated in by the petitioner 
does not automatically bar relief. Nor does a 
state court’s finding of waiver bar independent 
determination of the question by the federal 
courts on habeas, for waiver affecting federal 
rights is a federal question. E.g., Rice v. 
Olson, 324 U.S. 786.” (Emphasis added.)

In addition to its holding on waiver,18 Fay v. Noia 
makes it clear that to invoke the Great Writ a peti- 13 *
13 See Daniels v. Allen, 1953, 344 U. S. 482, 73 S.Ct. 420, 97 
L.Ed. 502. “ Clarity of anaylsis requires that each device be 
treated as an isolated doctrine, though such treatment is es­
sentially artificial. If exhaustion is interpreted to include 
presently unavailable remedies, it would appear that the waiver 
and adequate-state-ground rules are merely semantic variants of



Whitus, et al. v. Balkcom, Jr. 9

tioner need exhaust only the state remedies available 
to him at the time he files his petition. As to the 
applicability of the doctrine of “an adequate and in­
dependent state ground” , the Court said:

“ [T]he doctrine under which state procedural 
defaults are held to constitute an adequate 
and independent state law ground barring 
direct Supreme Court review is not to be ex­
tended to limit the power granted the federal 
courts under the federal habeas statute,” 372 
U.S. at 399.

Two recent decisions of this Court deal with waiver 
in systematic exclusion cases: United States ex rel. 
Goldsby v. Harpole, 5 Cir. 1959, 263 F.2d 71, cert, den’d 
1959, 361 U.S. 838, 80 S. Ct. 58, 4 L, Ed. 2d 78 and United 
States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F.2d 53, 
cert, den’d 1963, 372 U. S. 924, 83 S.Ct. 741, 9 L,Ed.2d 
729. Judge Rives was the author of both opinions; 
the author of this opinion was on both panels. In 
each case the attorneys for the Negro defendant did
the exhaustion requirement. Application of these principles to a 
given set of facts produces identical results. Thus, . . .  a 
habeas court could hold that by failing to exhaust a remedy 
no longer available, petitioner has waived his procedural rights 
and has created an adequate and independent state ground for 
his continued detention. No matter which theory is used, peti­
tioner is denied habeas corpus relief for failure to employ a 
presently unavailable remedy. Once it is decided, however,_ that 
the exhaustion requirement applies only to presently available 
remedies, an applicant would not be penalized under that theory 
for failing to appeal if he could no longer do so. But such an 
interpretation of the exhaustion requirement would be rendered 
nugatory if failure to appeal were to result in a forfeiture under 
the theories of waiver or adequate state ground. The danger 
in regarding the doctrines separately is this possibility of anti­
thetical application.” Sofaer, supra, Note 1, 39 N.Y.U.L.Rev. 
78, 82.



10 Whitus, et al. v. Balkcom, Jr.

not make a timely objection to the composition of the 
jury. In spite of this non-compliance with the state 
rule requiring such an objection to be made in the 
early stages of a trial,14 this Court held that there 
was no waiver. In Goldsby “we held that the conduct 
of Goldsby’s counsel without consultation with his 
client did not bind Goldsby to a waiver of his consti­
tutional right to object to the systematic exclusion of 
members of his race from the trial jury.”15 With 
regard to the grand jury, Judge Rives observed that 
systematic exclusion of Negroes from a grand jury in­
volves consequences less serious than the consequences 
of their exclusion from a trial jury. The Court held 
that the petitioner had waived any objection to the 
grand jury. In discussing this case in Seals, however, 
Judge Rives pointed out: “ [In Goldsby] the evidence 
to support objections to the composition of the jury 
was entirely unknown to the defendant Seals, who 
was at no time even consulted by his attorney on this 
subject. Further, that evidence was not known to the 
attorney who defended Seals. Finally, that evidence 
was not ‘easily ascertainable’ ” . 304 F.2d at 69. In
Seals, therefore, the Court held that there was no 
waiver of the constitutional objection to the composi­
tion of either the petit jury or the grand jury.

We approve of the holdings in Goldsby and Seals. 
The important fact in each case was that the attorney 
for the Negro defendant did not consult his client with
„ , See Seals v. State, 1961, 271 Ala. 622, 126 So.2d 474, cert, 
dend, 366 U. S. 954; Cobb v. State, 1962, 218 Ga. 10, 126 S E 2d 
231, cert, den’d 1963, 371 U. S. 948, 83 S. Ct. 499, 9 L.Ed 2d 497
15 United States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F2d 
53, 69.



Whitus, et al. v. Balkcom, Jr. 11

regard to his decision to refrain from making an attack 
on the jury system; and in Seals the evidence relating 
to systematic exclusion of Negroes from the juries was 
unknown to the defendant’s attorney, Goldsby has 
been construed as holding that in a capital case 
“before a defendant will be deemed to have waived 
his objection to trial by a petit jury infected by an 
unconstitutional exclusion for race, the record must 
show that the defendant, not just his counsel, took 
the action deliberately and after advice” .16 Adams v. 
United States, 5 Cir. 1962, 302 F.2d 307, 314 (dissenting 
opinion). Goldsby, however, does not go that far. 
The opinion makes this significant reservation:

“In ordinary procedural matters, the defendant 
in a criminal case is bound by the acts or non­
action of his counsel. . . .  It might extend to 
such a waiver even in capital cases, where the 
record affirmatively shows that the particular 
jury was desired by defendant’s counsel after 
conscientious consideration of that course of 
action which would be best for the client’s 
cause.” 263 F.2d 71 at 83.

The unusual example—for an exclusion case—which 
Judge Rives gives is the only type of exclusion situa­
tion where there is a possibility of a true waiver * 50
16 Cf. “Before any waiver can become effective, the consent of 
government counsel and the sanction of the court must be had, 
in addition to the express and intelligent consent of the de­
fendant.” Patton v. United States, 1930, 281 U. S. 276, 312,
50 S.Ct. 253, 74 L.Ed. 854. “ [Clourts indulge every reasonable 
presumption against waiver of fundamental constitutional rights” , 
and “ do not presume acquiescence in the loss of fundamental 
rights” . Johnson v. Zerbst, 1938, 304 U. S. 458, 464.



12 Whitus, et al. v. Balkcom, Jr.

based on a free option.17 When a defendant’s attorney 
prefers a particular jury, there is “a voluntary choice 
between two meaningful alternatives” .18 Absent this 
preference, there is no voluntary choice to relinquish 
the right to a fairly constituted jury when the right 
must be relinquished in order not to imperil the 
defense.19 Even in a situation where a defendant’s 
attorney has a considered preference for a particular 
jury, under the decisions the attorney must consult 
with his client and the defendant must “understand- 
ingly and knowingly” forego his federal claims before 
a waiver would be established. But if the defendant 
lacks the capacity “understandingly and knowingly” 
to waive his right, it is an empty gesture to require 
consultation and it is meaningless to speak of waiver.
17 For example, in Carruthers v. Reed, 8 Cir. 1939, 102 F.2d 
933, cert, den’d 1939, 307 U.S. 643, the trial attorney knew certain 
jurors and believed that the defendant would receive a fair trial.
18 Comment, supra, note 1, 72 Yale L. Jour, at 567.
19 Professor Reitz brings out clearly the “great difficulties” 
that “arise in this attempted transition from ‘an intentional 
relinquishment or abandonment of a known right of privilege’ ” 
[Johnson v. Zerbst] to a case involving an abortive state pro­
ceeding. ( “An abortive state proceeding has occurred when a 
state criminal defendant, at some time in the past, had an op­
portunity to present to his own state’s courts any question rele­
vant to the power of the state to hold him in custody but lost 
that opportunity can no longer seek any relief there.” ) “The 
most that was waived was the right to review in the state Su­
preme Court. It takes some additional extrapolation to make 
that equivalent to waiver of the underlying federal right.” Reitz 
supra, note 1, 74 Harv. L. Rev. 1335. See also Moyers v. Yar­
brough, Bis Vexari: New Trials and Successive Prosecutions, 71 
Harv. L. Rev. 1, 6 (1960). In discussing “waiver” of the 
guarantee against double jeopardy, the authors wrote, “Yet it is 
obvious that a waiver rationale here, as elsewhere, serves only 
to state the conclusion without explaining the reason for it 
See also Sofaer, supra, Note 1, 39 N.Y.U.L.Rev. 78, 83-91; Com­
ment, Waiver of the Privilege Against Self Incrimination. Note, 
Waiver of the Privilege Against Self Incrimination, 14 Stan L 
Rev. 811 (1962).



Whitus, et al. v. Balkcom, Jr. 13

To return to the case before us, here the attorneys 
for the petitioners are able, conscientious, experienced, 
court-appointed white lawyers.20 The petitioners are 
ignorant Negroes whose frame of reference could not 
have included any comprehension of the traditional 
constitutional rights incident to a fair trial. Davis is 
illiterate and Whitus semi-illiterate. The Attorney 
General for the State, in his brief, makes a point of 
this in order to further his contention that the defend­
ants are bound by the fictitious waiver of their at­
torneys:

“It is evident from the record that defendants 
were men of lesser intelligence at least in their 
understanding of the law and were completely 
dependent upon their attorneys for a proper 
defense. . . . The testimony of the appellant, 
Leon Davis, at the first hearing before the 
District Court for the Southern District of 
Georgia lucidly points out that he does not 
comprehend the nature or meaning of the 
Constitution or the rights provided thereunder 
and is, in fact, entirely dependent on counsel 
for his defense.”

In these circumstances, it is unrealistic for the Court 
to attach significance to the presence or absence of 
consultation of the attorneys with the defendants and
20 The brief of the Attorney General states:

“ The court will remember that Honorable P. Walter 
Jones has represented Phil Whitus from the outset of this 
case. A fleeting glance at the history of this case proves 
conclusively that Mr. Jones has exerted every effort in be­
half of the appellant and is to be commended for his un­
selfish and tireless defense of this individual.”



14 Whitus, et al. v. Balkcom, Jr.

the presence or absence of express consent by the 
defendants to the so-called waiver. For the petitioners 
in this case, these protections are simply not adequate 
safeguards against forfeiture of constitutional rights. 
The defendants would have been no better off after 
consultation than before; had they been consulted and 
had they given instructions contrary to the attorneys’ 
advice, they would have been worse off. As the 
Supreme Court of Georgia said in Cobb v. State, 1962, 
218 Ga. 10, 126 S.E.2d 231, cert, den’d 1963, 371 U. S. 
948, 83 S. Ct. 499, 9 L.Ed.2d 497:

“Where, as here, the defendant knows nothing 
of his rights or whether it would be stra­
tegically wise to waive them in certain situa­
tions, it would be to require a vain and useless 
thing1 that he personally consent to such waiver.
If appointed counsel had been compelled to 
consult and be controlled by the directions 
given him by his client, who was only fifteen 
years old, and according to his own insistence, 
knew nothing of law, courts or legal procedure, 
his usefulness would have been destroyed and 
the defendant would not have been represented 
by counsel within the meaning of Art. I, Sec.
I, Par. V of the Georgia Constitution (Code 
Ann. §2-105).” (Emphasis added.)

Cobb involved facts very similar to the facts in the 
instant case. The futility of requiring an express 
waiver from the fifteen year old Negro defendant led 
the Georgia Supreme Court to conclude that “the



Whitus, et al. v. Balkcom, Jr. 15

waiver may be made on his behalf by counsel ap­
pointed by the court to defend him.”

Here, as in Cobb, the evidence showed no consulta­
tion between the attorneys and the petitioners on 
waiver and here too the petitioners lacked the com­
prehension to make an intelligent waiver. If, notwith­
standing, the State may treat the attorneys’ inaction 
as implied “waiver” , it is because the State, for its 
purposes, may establish a ground rule that orderly 
procedures compel a client to be bound by his lawyer’s 
action and inaction21 and require also that objections 
to juries be urged in the early stages of a trial; other­
wise, state procedures would be circumvented.

Such a state rule, so reasonable on its face, is an 
“ independent and adequate state ground”,22 which
21 Popeko v. United States, 5 Cir. 1961, 294 F.2d 168; Kennedy 
v. United States, 5 Cir. 1958, 259 F.2d 883.
22 In Fay v. Noia, 372 U. S. 391, 429-32, the Court commented: 
“ The fatal weakness of this contention is its failure to recognize 
that the adequate state-ground rule is a function of the limita­
tions of appellate review. . . . And so we have held that the 
adequate state-ground rule is a consequence of the Court’s obliga­
tion to refrain from rendering advisory opinions or passing upon 
moot questions. U But while our appellate function is concerned 
only with the judgments or decrees of state courts, the habeas 
corpus jurisdiction of the lower federal courts is not too con­
fined. The jurisdictional prerequisite is not the judgment of a 
state court but detention simpliciter. The entire" course of de­
cisions in this Court elaborating the rule of exhaustion of state 
remedies is wholly incompatible with the proposition that a state 
court judgment is required to confer federal habeas jurisdiction. 
And the broad power of the federal courts under 28 U.S.C. §2243 
summarily to hear the application and to ‘determine the facts, 
and dispose of the matter as law and justice require,’ is hardly 
characteristic of an appellate jurisdiction. Habeas lies to en­
force the right of personal liberty; when that right is denied and 
a person confined, the federal court has the power to release 
him. Indeed, it has no other power; it cannot revise the state 
court judgment; it can act only on the body of the petitioner.

. In Noia’s case the only relevant substantive law is



16 Whitus, et al. v. Balkcom, Jr.

Federal courts generally should respect. But, as 
stated in Fay v. Noia, “Federal courts have power 
under the federal habeas corpus statute to grant relief 
despite the applicant’s failure to have pursued a state 
remedy not available to him at the time he applies.” 
372 U. S. at 398.

The overriding duty of a federal court to protect the 
federally guaranteed rights of the individual citizen 
impels the court to inquire into the reasonableness, 
the constitutionality, of the state rule. “Reasonable 
consequences attached by the states to a failure to 
comply with reasonable rules must accordingly be 
respected. . . . But this assuredly does not mean
federal—the Fourteenth Amendment. State law appears only in 
the procedural framework for adjudicating the substantive federal 
question. The paramount interest is federal. Cf. Dice v. Akron, 
C. & Y.R.Co., 342 U. S. 359. That is not to say that the States 
have not a substantial interest in exacting compliance with their 
procedural rules from criminal defendants asserting federal de­
fenses. Of course orderly criminal procedure is a desideratum, 
and of course there must be sanctions for the flouting of such 
procedure. But that state interest ‘competes . . . against an 
ideal . . . [the] ideal of fair procedure.’ Schaeffer, Federalism 
and State Criminal Procedure, 70 Harv. L. Rev. 1, 5 (1956). And 
the only concrete impact the assumption of federal habeas juris­
diction in the face of a procedural default has on the state 
interest we have described, is that it prevents the State from 
closing off the convicted defendant’s last opportunity to vindi­
cate his constitutional rights, thereby punishing him for his de­
faults in the future.” Ct. Williams v. Georgia, 1955, 349 U. S. 
375, 393-405, 75 S.Ct. 814, 99 L.Ed. 1161. In McKenna v. Ellis, 
5 Cir. 1960, 280 F.2d 592, 603 rehearing denied and opinion 
modified, 289 F.2d 928, cert, den’d 1961, 368 U.S. 877, this Court 
granted habeas corpus although the prisoner had not complied 
with Texas procedure. We held: “Article 543 of the Texas Code
of Criminal Procedure sets forth very clearly the requirements 
for a continuance. We do not question the propriety, the reason­
ableness, the constitutionality of Article 543. ‘Such detailed 
and technical requirements of a motion for continuance, no doubt, 
serve a salutary purpose in a proper case, but they cannot 
justify putting a defendant to trial when he has been given no 
fair opportunity to secure the attendance of his witness.’ ”



Whitus, et al. v. Balkcom, Jr. 17

that every last technicality of state law must be 
sacrosanct.” Hart, Foreword: Time Chart for the 
Justices, 73 Harv. L. Rev. 84, 118 (1959). Professor 
Hart’s comments on a state rule that the escape of a 
prisoner nullifies his motion for a new trial23 are apt 
here:

“The reasonableness of the state rule and, 
even more, the reasonableness of its application 
in the particular circumstances of the case 
cried aloud for questioning. Life was at stake.
The constitutional rights which the prisoner 
asserted went to the very jugular of a system 
of ordered liberty—the right to be judged in 
an orderly trial before an unprejudiced tri­
bunal rather than by the whipped-up emotions 
of the community. States may punish an 
escape as a crime. But surely not all rights 
to a fair trial can become forfeit because of it. 
Especially are doubts stirred when the escape 

' in question can be viewed as a form of self­
protection from the very community hostility 
against which the prisoner had previously pro­
tested in vain by lawful means. These con­
siderations called for close scrutiny of the 
opposing considerations advanced by the state 
to show that the forfeiture it had decreed was 
necessary for the due enforcement of law.”
73 Harv. L. Rev. at 116.

23 See Irvin v. Dowd, 1959, 359 U. S. 394, 79 S.Ct. 825, 3 L.Ed.2d 
900



18 Whitus, et al. v. Balkcom, Jr.

III.

This ■ case is “one of those extraordinary cases” Mr. 
Justice Frankfurter may have had in mind in the 
caveat to his discussion of waiver in Brown v. Allen: 
the federal “claim goes to the very foundation of [the] 
proceeding” . When Negroes are systematically ex­
cluded from juries, the fictitious waiver rule puts 
Negro defendants, and only Negro defendants, to a 
choice of evils that deprives them of an effective 
remedy.

A. We know what happens when the attorney’s 
inaction is treated as a waiver of the exclusion issue: 
the Negro defendant loses the benefits of a trial by 
his peers. We quote two sentences on the subject 
from a Supreme Court opinion in 1879:

“The very idea of a jury is a body of men com­
posed of the peers or equals of the person 
whose rights it is selected or summoned to 
determine; that is, of his neighbors, fellows, 
associates, persons having the same legal 
status in society as that which he holds. . . . 
[C]ompelling a colored man to submit to a 
trial for his life by a jury drawn from a panel 
from which the State has expressly excluded 
every man of his race, because of color alone, 
however well qualified in other respects, is 
. . . a denial to him of equal protection
of the law.” Strauder v. West Virginia, 1879,
100 U. S. 303, 309, 25 L. Ed. 664.



Whitus, et al. v. Balkcom, Jr. 19

B. We believe that we know what happens when a 
white attorney for a Negro defendant raises the ex­
clusion issue in a county dominated by segregation 
patterns and practices: both the defendant and his 
attorney will suffer from community hostility.

The burden of making hard decisions is one that 
attorneys are used to carrying. But the burden is 
exceptionally heavy when the life and liberty of an 
accused depend on the weight to be given something 
as imponderable as the extent of the additional anti- 
Negro reaction that would be engendered by attacking 
the all-white jury system. As if this were not suf­
ficiently difficult, there is the intolerable complication 
that the reaction against an attorney who raises the 
exclusion issue may stretch from persiflage to ostra­
cism. The intensity of the reaction will depend on 
how bad racial relations are in the particular county, 
the standing of the defendant’s attorney at the bar 
and in his community, the happening of unpredictable 
local events, and coincidental accidents of history. The 
reprisals may be real or chimerical; if chimerical, 'they 
may seem real to any particular attorney. All of this 
adds up to pressures which may, consciously or sub­
consciously, affect an attorney’s measured evaluation 
of which evil is the lesser evil in this Hobson’s choice 
of evils.24 Later, should there be a post-conviction
24 “In response to a questionnaire prepared by the Journal 
and sent to 100 southern lawyers whose names were picked at 
random, 20 stated that they felt the Fifth Circuit was correct in 
taking judicial notice that lawyers in the South rarely raise the 
issue of jury exclusion. Fourteen felt the Fifth Circuit was in­
correct either because there is no jury exclusion (9) or because 
the issue is raised when the facts so warrant (5).

“ In answer to the question whether you would ‘raise at trial 
level the issue of systematic exclusion of Negroes from the



20 Whitus, et al. v. Balkcom, Jr.

habeas corpus proceeding, the attorney’s knowledge 
that his integrity may be questioned and his pro­
fessional skill second-guessed in an antagonistic atmos­
phere may cause him to slant his explanation for 
making the wrong guess. The exposure of a Negro 
on trial for his life to these factors destructive of 
justice and federally protected rights and harmful to 
the public policy of encouraging adequate legal repre­
sentation of indigents is a monstrous price to pay for 
the convenience to the state of the procedural rule 
euphemistically termed “waiver” .25 * 26
jury, if you thought there was reasonable evidence of such 
exclusion,’ 21 answered yes and 13 responded no.

“ Reasons given for the failure to raise the objection included 
a desire not to prejudice the lawyer’s position in the community 
(2), a desire not to prejudice the client’s interests by stirring 
up community feeling against him, thereby hoping to achieve 
the best result for the Negro client (11), and a feeling that it 
would make no difference to the outcome of the case whether 
or not there is jury exclusion (15).

“ In response to the questionnaire prepared by the Journal, 
one Alabama lawyer wrote:

“ If I accepted a Negro for jury duty and put him on with 
11 white men I would prejudice the white men against me 
and my client.

A lawyer in Florida wrote:
“ It has been my observation and it is my present thinking 
that the interests of a Negro client in the South would be 
better protected by the white man than colored.”

Comment, Negro Defendants and Southern Lawyers: Review in
Federal Habeas Corpus of Systematic Exclusion of Negroes from 
Juries, 72 Yale L. Journ. 559, 565 (1963).
26 “It is relevant to ask, for purposes of a corollary to the 
federal exhaustion rule, whether the price of utilizing the state 
remedies was too great . . . This is particularly significant in 
the case of the Negro defendant who had to give up the chance 
of an unprejudiced trial in order to raise the constitutional ob­
jections at the time prescribed by state procedural law. In some 
circumstances, the situation might be such that the defendant 
could not be said to have had an effective state remedy available 
to him, even though formally a method for challenging the 
juries existed. But even in less extreme cases, there ought to be 
serious doubt that a defendant should be put to this Hobson’s 
choice with respect to a constitutionally guaranteed right, jf Not 
everyone will agree that the federal courts should go to the



Whitus, et al. v. Balkcom, Jr. 21

C. We turn now to the bases in the decision-making 
process for judicial consideration of these matters.

(1) We start with a fair inference. If the segrega­
tion policy in a county is so strong that Negroes are 
systematically excluded from the jury system, com­
munity hostility would be generated against any 
“trouble-maker” who would attempt to upset the all- 
white make-up of the jury system. Such hostility would 
directly affect the Negro defendant. It would carry 
over and affect the defendant’s attorney. Whether 
horrendous or merely embarrassing, the prospect of 
social extra-legal pressures distorting an attorney’s 
judgment is a burden only Negro defendants bear.

(2) In Goldsby we took judicial notice of the fact 
that in some areas in the deep South lawyers almost 
never raised the exclusion issue.* 26 We said:

“Moreover, the very prejudice which causes 
the dominant race to exclude members of what 
it may assume to be an inferior race from jury 
service operates with multiplied intensity 
against one who resists such exclusion. . . .
Such courageous and unselfish lawyers as find 
it essential for their clients’ protection to fight 
against the systematic exclusion of Negroes

merits of these applications. It seems to me, however, that 
entertaining them would not pose a serious threat to the general 
requirement of exhaustion of state remedies, since the factors 
which governed the actions of the defendants were unrelated to 
the exhaustion rule.” Reitz, supra, Note 1, 74 Harv. L. Rev. at 
1372.
26 McNaughton, Judicial Notice-Exerpts Relating to the Morgan- 
Wigmore Controversy, 14 Vand. L. Rev. 778, 789 (1961); Mc­
Cormick, Judicial Notice, 5 Vand. L. Rev. 296, 315 (1952).



22 Whitus, et al. v. Balkcom, Jr.

from juries sometimes do so at the risk of 
personal sacrifice which may extend to loss 
of practice and social ostracism. As Judges 
of a Circuit comprising six states of the deep 
South, we think that it is our duty to take 
judicial notice that lawyers residing in many 
southern jurisdictions rarely, almost to the 
point of never, raise the issue of systematic 
exclusion of Negroes from juries.” (Emphasis 
added.) 263 F.2d at 82.

The effect will, of course, be accentuated if the case 
is one involving the murder of a white man by a Negro 
or the rape of a white woman by a Negro or if the 
timing of a trial should happen to coincide with 
fevers running high because of bad racial relations.

(3) The fact, standing alone, that no Negro has 
ever served on a jury in the particular county where 
his case is tried strongly indicates, if it does not 
create a presumption, that there was a tacit agree­
ment by the bar of that county not to raise the consti­
tutional issue. In such case the Negro would have no 
adequate remedy, either because of the powerful 
environmental factors infecting the jury system or 
because of ineffective representation by counsel. At 
the very least, that fact alone establishes a prima 
facie case putting the burden of going forward on the 
State to show that there was a true waiver; that the 
non-assertion of the defendant’s constitutional right 
was not caused by environmental pressures or inef­
fective representation by the defendant’s attorney.



Whitus, et al. v. Balkcom, Jr. 23

(4) This case is a doubly strong one for the de­
fendant because, unlike Goldsby,27 we have the benefit 
of specific testimony from Whitus’s trial attorney on 
the motivation for his non-action. As we noted in 
Goldsby, “Conscientious southern lawyers often reason 
that the prejudicial effects on their client of raising the 
issue far outweigh any practical protection in the 
individual case.” 263 F.2d at 82. Here, Mr. Walter 
Jones, attorney for Whitus, testified that he had hopes 
for an acquittal of his client on the charge of murder, 
whatever other offense he might have committed. In 
the habeas corpus hearing Mr. Jones testified:

“Q. Did you confer with Phil Whitus and 
receive his express permission to waive his 
objection to the trial jury unconstitutionally 
selected and discriminatorily selected?

“A. No, I did not.
“Q. Why did you not raise this question 

on the trial of Phil Whitus in Mitchell County, 
Georgia?

“A. Well, I had talked to Phil Whitus and 
I conferred with the attorneys who repre­

27 In Goldsby, the defendant’s first lawyer, a Negro, was willing 
to raise the exclusion issue. His white lawyer refused to join 
with the Negro lawyer in representing the defendant and did not 
raise the exclusion issue after the Negro lawyer left the case. 
The attorney’s failure to raise the issue and the lack of any 
explanation could give rise to the inference that the trial counsel 
was not acting in the best interests of his client. In Goldsby, 
however, we said, as we do here, that sometimes raising the 
issue may cause more prejudice than it is worth. The necessity 
for the attorney making this choice, not just the composition of 
the jury, is the constitutional vice. See Comment, Negro De­
fendants and Southern Lawyers: Review in Habeas Corpus of
Systematic Exclusion of Negroes from Juries, 72 Yale L Jour. 
559, 564 (1963).



24 Whitus, et al. v. Balkcom, Jr.

sented the other defendants and I knew ap­
proximately what they would testify and I 
had hopes that I could obtain an acquittal 
under the facts as l knew• them, and I realized 
that the case had created quite a bit of noto­
riety and to have brought up such a question 
at the lower court would have filled the air 
with such hostility that an acquittal would 
have been almost impossible.

“Q. The Solicitor General asked you just 
now if you requested a change of venue. Did 
you have a conference with the judge con­
cerning the possibility of that?

“A. No, sir. I had a conference with the 
other attorneys in the case and we agreed 
that he might change it to Baker County and 
we were better off in Mitchell.

“Q. Would there have been the same dis­
crimination in Baker County?

“A. Yes, sir.
“Q. As I understand, you said that the 

reason for not raising the question of dis­
crimination was because you thought it would 
create a hostile feeling and would hurt your 
client?

“A. Yes, sir.” (Emphasis added.)

The measure of the merits of Whitus’s defense and 
the measure of his dilemma is that the Chief Justice 
and two other members of the Supreme Court of



Whitus, et al. v. Balkcom, Jr. 25

Georgia agreed with Mr. Jones’s theory of the case 
and wrote a strong dissent.28

D. In Fay v. Noia the defendant was also con­
fronted with a “grisly” choice. In that ease a de­
fendant was convicted of murder. Years later, long 
after his time for appeal had expired, he applied for 
habeas corpus on the ground that he had been con­
victed on the basis of a coerced confession. The Su­
preme Court held that the petitioner’s failure to appeal 
in the state court was not a waiver of his rights and 
did not bar habeas corpus relief. The Court first
28 In his dissenting opinion, Chief Justice Duckworth said:

“In full recognition of the established rule of law that holds 
those parties to a criminal conspiracy or enterprise, who commit 
no overt act, equally guilty with those who commit the overt 
acts, I am, nevertheless, simply unable to find any basis either in 
law or common reason for holding this defendant guilty of murder 
where all the evidence excludes any possibility of conspiracy 
among the four, who included this defendant and the person who 
did the killing. They had planned no robbery, theft or other 
crime, and indeed had no reason to expect to see the deceased 
before he went to them. Thereafter, this defendant had no 
dealings, words or feelings with or toward the deceased. Why 
should he want to harm the deceased? There is positively a 
complete absence of even a suspicion of any motive. The slayer 
committed every criminal act that caused the death. He needed 
no help from this accused other than pushing the car and racing 
the motor, both of which were done at his command while he 
held the gun with which he later shot the deceased, who had 
already been knocked unconscious by the killer. To say that this 
was not enough to cause a reasonable person to fear that a 
refusal to obey would endanger his life, is to ignore realities and 
human nature. No act of his harmed a hair of the deceased. 
Even if he was cowardly and foolish in obeying the murderer 
who held a gun, this would not show his guilt of criminal desire 
or intent. Human life should not be taken by the State with 
such total lack of evidence of either act or intent as this record 
shows. Unless he is saved by the clemency of the Pardon and 
Parole Board, his life will be forfeited for a crime he never com­
mitted and had no cause for wanting it committed. If this de­
cision fixes the law, then every person stands in danger of being 
electrocuted if a murder is committed by someone of his as­
sociates even though he had no knowledge that it was going to 
be done.” Whitus v. State, 116 S.E.2d at 207.



26 Whitus, et al. v. Balkcom, Jr.

eliminated the possibliity of any express waiver: “A 
choice made by counsel not participated in by the 
petitioner does not automatically bar relief.” Mr. 
Justice Brennan, for the majority, then explained 
why Noia’s choice not to appeal was not a matter of 
trial strategy or a deliberate attempt to by-pass state 
procedures:

“Under no reasonable view can the State’s ver­
sion of Noia’s reason for not appealing support 
an inference of deliberate by-passing of the 
state court system. For Noia to have appealed 
in 1942 would have been to run a substantial 
risk of electrocution. His was the grisly choice 
whether to sit content with life imprisonment 
or to travel the uncertain avenue of appeal 
which, if successful, might well have led to a 
retrial and death sentence. See, e.g., Palko v. 
Connecticut, 302 U. S. 319. He declined to play 
Russian roulette in this fashion. This was a 
choice by Noia not to appeal, but under the 
circumstances it cannot realistically be deemed 
a merely tactical or strategic litigation step, or 
in any way a deliberate circumvention of state 
procedures.”

Recently a commentator has observed the analogy 
between the defendant’s situation in the Noia case and 
the defendant’s position in the instant case “in that 
here he must choose whether to assert his consti­
tutional right with a possibility of forfeiting his chances 
for an unprejudiced trial, or remain silent and gamble



Whitus, et al. v. Balkcom, Jr. 27

on the outcome of the trial with the possibility of 
raising the question later if the outcome proves un­
satisfactory” . Note, 16 Ala. L. Rev. 117 (1963).29 The 
instant case, however, is a stronger case than Fay v. 
Noia for habeas corpus relief. Noia could have exer­
cised his right to appeal without suffering any consti­
tutional deprivation. But here, in order for the pe­
titioners to exercise their right to a jury from which 
Negroes were not excluded, the petitioners had to com­
promise their right to a fair trial on the merits of 
their defense.

IV.

We summarize. Taking waiver as the “intentional 
relinquishment or abandonment of a known right or 
privilege” , the facts show that the petitioners made no 
“deliberate” , meaningful waiver of their objection to * So.
29 The note is on Ex parte Aaron, Ala. S.Ct. 1963, 155 So. 2d 
334. On the authority of Seals v. State, 1961, 271 Ala. 622, 126
So. 2d 474, cert, den’d 1961, 366 U. S. 954, 81 S.Ct. 1909, 6 
L.Ed.2d 1246, the Court held that the defendant, a Negro indicted 
for the rape of a white woman, had waived the systematic 
exclusion issue. At arraignment, in answer to a question from the 
trial judge, the defendant’s attorney stated that they did not 
intend to attack either the grand jury or the petit jury venire 
because of “ the racial make-up of such grand jury or petit jury 
venire” . The note concludes, “Thus, the Alabama court has yet 
to recognize the principle advanced in the Noia case—that even 
a knowing failure to assert this particular constitutional right 
does not constitute a waiver, or, more concisely, that there can 
be no waiver at the present time of this constitutional right. . . .  
Would it not be better to align [Alabama’s] concept of waiver 
with that set out in the Noia case, thereby enabling defendants, 
by coram nobis in state courts, to assert the right for the first 
time, rather than forcing an unsuccessful defendant into the 
federal courts on habeas corpus when the obvious result will be 
a federal decision overturning a decision of our highest state 
court, with the chafing effect it will undoubtedly have on federal- 
state relations?” Note, 16 Ala. L. Jour. 117, 123 (1963).



28 Whitus, et al. v. Balkcom, Jr.

systematic exclusion of Negroes from the juries in 
Mitchell County. Taking “waiver” as a formula stand­
ing for the rule that non-assertion of an objection to 
state procedures vitiates the objection, we hold: under 
Fay v. Noia, in a federal habeas corpus proceeding the 
court cannot permit a state ground rule to frustrate the 
federally guaranteed right to a fair trial before a 
fairly constituted jury. We do not say that “no waiver 
can be effective if some adverse consequences might 
reasonably be expected to follow the exercise of that 
right.”80 We say that the doctrine of fictitious waiver 
is unacceptable when the state compels an accused 
person to choose between an unfairly constituted jury 
and a prejudiced jury. In short, while giving full ef­
fect to the holding of the majority in Fay v. Noia the 
Court has attempted to answer the basic question Mr. 
Justice Harlan asked in his dissenting opinion: 
“Whether the choice made by the defendant is one 
that the State could constitutionally require.”30 31 We 
hold that the State could not constitutionally require 
the petitioners to make a guess and a gamble between 
two evils. This burden, which only Negro defendants 
bear, violates the requirements of due process and 
equal protection of the laws guaranteed by the Four­
teenth Amendment.

*  *  *

As in Goldsby and Seals, the Court expresses its 
present opinion that a period of eight months from and 
after the entry of this judgment or its final test by 
certiorari, or otherwise, will be sufficient to afford the
30 Pay v. Noia, 1963, 372 U. S. 391, 472 (dissenting opinion).
31 Ibid.



Whitus, et al. v. Balkcom, Jr. 29

State an opportunity to take the necessary steps to 
reindict and retry the petitioners. Any such reindict­
ment must of course be by a grand jury from which 
Negroes have not been systematically excluded, and 
any such retrial must be before a jury from which 
Negroes have not been systematically excluded, or be­
fore some court or tribunal so constituted as not to 
violate the petitioners’ constitutional rights. For the 
guidance of the parties, the Court expresses the present 
opinion that if petitioners are reindicted and retried 
and if any question should arise as to the legality or 
constitutionality of such indictment or trial, that should 
be decided not upon the present petition but in the 
regular course by the Courts of the State of Georgia, 
subject to possible review by the Supreme Court of the 
United States.

The judgment of the district court is reversed, judg­
ment here rendered in accordance with the holdings of 
this opinion, and the cause remanded for any further 
proceedings which may be found necessary or proper.

REVERSED, RENDERED, and REMANDED.

CARSWELL, District Judge, concurring specially: 
Sharing fully the Courts’ view that there was no 

meaningful waiver by these appellants of their basic 
Constitutional right to face trial by jurors selected 
without systematic racial exclusion, I, therefore, con­
cur in the basic holding of the Courts’ opinion.

Adm. Office, U. S. Courts—E. S. Upton Printing Co., N. O,, La.