Brawner v. Smith Brief for the Respondent in Opposition

    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___________
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