Maxwell v. Stephens Brief for Appellant

    *vt •
UUl Tl> HJ. a 'a h i

For t h e  F iohttt C ircuit

W iu • i
A ppcllant,

—v.

F ax  1). B'n . : i.ns, Suj 
of AiFaii.- Mate Fi

Appellee.

Al 'UKAL UUO\ • i i i ( |,t  * I

J

L eroy D . Clark  
M ic h ael  M eltsxer  

Of Counsel

F jia ' i • 111 i l l;<>'
I Circle
^1 ■ -ik, \ <w York, .10019

Gkoroi. Howard, Jr.
J991 Main Street 
Fin Fluff, Arkansas

Uaroll J>. Anderson

205 Century Building 
Little Bock, Arkansas

Attorneys for Appellant



Iniiclt Stairs Court of Appeals
F or t h e  E ig h t h  C ircuit 

No. 17,729

W illiam  L . M a x w e l l ,
Appellant,

—v.—

Dan D. S t e p h e n s , Superintendent 
of Arkansas State Penitentiary,

Appellee,

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF ARKANSAS

--------------------- O --------------------

BRIEF FOR APPELLANT

Statement

Petitioner, a Negro, was charged by information for the 
crime of rape on November 7, 1961 (Ark. I).1 He was con­
victed in the Circuit Court of Garland County, Arkansas 
and sentenced to death on April 5, 1962 (Ark. 42). Ihe 
conviction was affirmed by the Supreme Court of Arkansas 
on May 27, 1963, Maxwell v. State, 236 Ark. 694, 370 S.W.2d 
113, and rehearing was denied on September 9, 1963.

A petition for writ of habeas corpus was filed in the 
United States District Court for the Eastern District of 
Arkansas on January 20, 1964, alleging deprivation of

1 The record has not been printed. 1’ he transcript of proceed 
ings in the state courts will be cited as (Ark. -  >■  The transcript 
of the habeas corpus hearing in the United States District Court 
will be cited as (U.S. — ). The entire record of proceedings in
the state courts has been incorporated into the federal •<•' *> -A (U.b. 
236, 270-71).



2

petitioner’s constitutional rights under the Fourteenth 
Amendment in that (a) Negroes had been systematically 
excluded from the jury panel, (b)- petitioner was tried in a 
hostile atmosphere, and (c) petitioner was illegally ar­
rested and unlawfully detained for several days (Petition 
for 'Writ of Habeas Corpus, R. I,2 pars. 2-4). On January 
21, 1964, the district court issued an order to show cause 
and stayed the scheduled execution (R. 6). On January 31, 
1964, the court permitted an amendment to the habeas 
corpus petition, alleging that certain clothing of petitioner 
was seized during an unlawful search and introduced 
at trial in violation of the Fourteenth Amendment (R. 13). 
On February 12, 1964, the petitioner filed a second amend­
ment, alleging a denial of due process of law and equal pro­
tection of the laws on the ground that "§41-3403 of the Stat­
utes of Arkansas, providing for the death penalty upon 
conviction of rape, has been unfairly administered against 
Negroes (R. 33). At (he hearing on February 12, 1964, the 
district court permitted the filing of the second amendment 
(U.S. 22).

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

The Arrest and Subsequent Search

The offense with which petitioner was charged occurred 
at approximately three o ’clock in the morning on November 
3, 1961 (Ark. 250, 25S). Soon thereafter, the victim of the

2 Citation is to the original papers in the district court, pagi­
nated consecutively.



3

crime was taken by the police to a hospital (U.S. 260), 
where she described her assailant and said he had given his 
name as AVillie C. Washington (U.S. 254, 256, 261-62). Two 
men, AVillie C. AVashington, Sr., and A\ illie C. V ashington, 
Jr., were taken before the woman, who said neither was the 
assailant (U.S. 262), but gave further descriptions to the 
policemen, including Officer 0. D. Pettns, a Negro (U.S. 
26). On hearing the description, Officer Pettus suggested 
the attacker might have been petitioner Maxwell (U.S. 
252-53, 256-63).

Policeman Clarence Childress testified that while driving 
a patrol car on that morning he was directed by radio to 
pick up Maxwell (U.S. 263-64). He knocked at the door of 
the Maxwell home and was let in by petitioner’s mother, 
Airs. Alaxwell (U.S. 265). Childress told Airs. Alaxwell he 
wanted to see her son (U.S. 265). She let him in the living 
room, checked to sec if petitioner was in his room, and led 
Childress into his room (U.S. 265).

Airs. Alaxwell testified that:

“ that morning it was late and I was asleep and someone 
knocked on the door and I woke up and [ asked who it 
was and he said the policeman and I went to the door 
to let him in. I le asked me did I have a son by the name 
of AVilliam and I told him yes and lie just come on in, 
he didn’t have a search warrant or anything and I let 
him. I didn’t know any better myself but I— 1 didn’t 
know that he—you know, everything was all right, my 
children were at home and all and I just let him in. 
(U.S. 134-35; see also U.S. 147, 156).

Airs. Alaxwell’s husband was working on the night shift and 
did not get home until 8:45 in the morning (U.S. 159).

Petitioner was awakened and told by Officer Childress to 
put on the clothes he had had on the night before (U.S.



4

186). Childress testified that petitioner first put on some 
clothes and then took them off and went to the closet to 
get some others (U.S. 266, 268). Petitioner testified that he 
first went to the closet to get the suit he had worn the previ­
ous night, but Childress directed him to put on clothes 
hanging over a chair (U.S. 187). In any event, petitioner 
eventually put on the clothes directed by Childress (U.S. 
187, 266).

According to the testimony of Officer Childress (U.S. 
266-66), Mrs. Maxwell (U.S. 135, 144-45), and the petitioner 
(U.S. 186), Childress told petitioner he was being taken to 
(he station for questioning and did not inform either peti­
tioner or Mrs. Maxwell of the offense being investigated. 
In Childress’s words, “No, I didn’t give them any advice at 
all because I didn’t know whether he was being arrested or 
what. 1 just received the call over the radio to go pick him 
up. [ didn’t know what it was”  (U.S. 267).3

Petitioner was taken by Officer Childress to the hospital 
(U.S. 267), and then taken before the; victim for identifica­
tion. The woman said petitioner was not the man (U.S. 
260), but later said she recognized petitioner but feared for 
her life if she identified him (Ark. 267). Six to eight police­
men were in the hospital room when she failed to identify 
him (Ark. 287). One officer testified that when petitioner 
was taken before the woman, she “ started shaking and 
drawing herself up and shaking real bad” (Ark. 313).

From the hospital, petitioner was taken to the police 
station (U.S. 244). Ilis clothes were removed and his hair

3 Just when the arrest occurred is unclear. The statement 
quoted above reveals the apprehending officer’s uncertainty. Lt. 
Crain indicated that the arrest occurred at about the time peti­
tioner arrived at the hospital (U.S. 259). Petitioner was not car­
ried before a magistrate Friday morning, November 3, 1961, be­
cause “ We still had not completed our investigation” (U.S. 253). 
Lt. Dodd stated that no charges had been placed against petitioner 
when he arrived at work at 8 o’clock in the morning (Ark. 345).



5

was combed by the police officers (Ark. 325, 338). Mean­
while the premises where the victim lived were being 
searched for evidence (Ark. 317).

At approximately five o ’clock in the morning, two hours 
after the crime and one hour after petitioner’s apprehen­
sion, Officers Crain and Timms of the Hot Springs Police 
Department went to petitioner’s home to get other clothing 
for evidentiary purposes (U.S. 211-44). They had no war­
rant (Ark. 331, U.S. 147, 248). Mrs. Maxwell let them m
because:

X opened the door and I was afraid to not let them in 
because—you know—when they said they were police 
officers—well, you just— I’ve just always—I just let 
the police officers in because I just feel like he is foi 
peace and all, and I just—I don’t know, I didn’t know 
anything—I never been in anything like this and 1 just 
let them in and 1 still didn’t think anything, didn’t any 
of those officer have any search warrant or anything, 
didn’t show me anything like that (U.S. 138).

There was contradictory testimony of Mrs. Maxwell (U.S. 
144-45, 148) and Lt. Crain (U.S. 243) as to whether she was 
informed of the charge against her son, but it was clearly 
established that Mrs. Maxwell was not warned that the 
clothing might be used as evidence (Ark. 335, U.S. 248-49). 
She led the officers into petitioner’s room and showed them 
where his clothes were (U.S. 138, 242). A blue coat was 
obtained from the closet (Ark. 331). Lt. Crain talked with 
Mrs. Maxwell while Timms went through the clothes (U.S. 
243). He said of Mrs. Maxwell that “ she was in— well, she 
wasn’t feeling any too good being—having a thing like that 
happen and her son being accused” (U.S. 243). Mrs. Max­
well testified that she was “ upset” by her son’s being taken 
into custody (U.S. 135-136).



7

After the Jury Commission has completed a jury list, 
the Commission transmits the list to the Circuit Clerk 
(U.S. 99-101). The Circuit Clerk for Garland County be­
tween 1955 and 1963 testified that the lists had c’s after the 
names of Negroes when he received it (U.S. 48-50). He did 
not know whether the designation had been placed by the 
Commissioners (U.S. 48-50, 131-32). Several Commis­
sioners testified that they had not placed the designation 
on the lists (U.S. 73, 86-88, 95). The Clerk also testified 
that he copied the lists, placing the names and racial mark­
ings into a jury book (U.S. 42).

On most Jury Commissions during the past ten years, 
one of the Commissioners was a Negro (U.S. 47). Some 
Commissioners testified that they did not attempt to in­
clude or exclude any specific percentage of Negroes on the 
lists (U.S. 72, 73, 81, 82, 93). At one point, however, a 
Commissioner said that he tried to include Negroes on the 
jury panel (U.S. 78). Another Commissioner testified that 
the name of a Jew was added to one tentative list because 
no Jews had been included, and Commissioner Chitwood 
testified he included in a list submitted to the other Commis­
sioners a number of his competitors and their employees 
“ so they’d be busy” (U.S. 175),

The issue of discriminatory selection of jury panels was 
not raised in the state courts. Following petitioner’s appre­
hension on November 3, 1961, two counsel were appointed 
to defend him on November 28, 1961 (Ark. 2). They were 
discharged at their request on February 5, 1962. On Janu­
ary 31, 1962 Christopher C. Mercer was hired to defend 
petitioner (Ark. 13).

Mr. Mercer was familiar with the issue of systematic ex­
clusion of Negroes from juries and had raised it in previ­
ous cases (U.S. 275). He made a study of the jury records 
of Garland County while defending petitioner (U.S. 45, 
281, 284-85). While Mercer discussed many aspects of



8

the case with petitioner, including the desirability of cer­
tain jurors, he did not discuss with petitioner the question 
of raising or not raising the issue of racial discrimination 
in the jury selection process of the county (U.S. 298, 305).

Enforcement of the Death Penalty in Rape Cases

Section 41-3403 of the Arkansas Statutes provides for 
either the death penalty or life imprisonment upon convic­
tion for rape. Punishment in capital cases is determined by 
the jury. Ark. Stat. Ann. §43-2153 (1947).

According to the official records of the State Peniten­
tiary (Ark. 61) and the State Bureau of Vital Statistics 
(Ark. 73), between 1913 and 1962, 20 men wrere executed for 
the crime of rape in the State of Arkansas (Ark. 64, 74, 
Ex. B at 75). Only one of these was white, and the other 
19 were Negroes (Ibid.). Since the trial, another white 
man has been executed for rape (U.S. 308-09), bringing the 
total to 19 Negroes and 2 whites.

In the state trial court, counsel for petitioner stated that 
all of the Negroes executed for rape -were convicted of 
crimes against white women, and this was not disputed 
(Ark. *8). Both of the white men executed were guilty of 
crimes against white persons: Hollis Needham was exe­
cuted in 1950 for the rape of a girl aged 8 or 9 (Ark. 77), 
and Charles Franklin Fields was executed in 1964 for rape 
of a white woman, while a murder charge was pending 
against him (U.S. 310).

At the habeas corpus hearing in the district court, coun­
sel for petitioner requested that interrogatories be served 
on the Circuit Clerks of the 75 counties in Arkansas for the 
purpose of obtaining information concerning the number 
of persons charged with rape and the disposition of the 
cases (U.S. 6-8, 317-21, Ex. 6), but the district court lim­
ited proof to three counties (U.S. 317-21).



9

The Circuit Clerks of Garland County, Pulaski County,
and Jefferson County testified with regard to the persons
charged with rape in their respective counties between
January 1954 and January 1964 (XJ.S. 327, 358, 386). In
Garland County, 10 persons were charged with rape, seven
white and three Negro. Two of the Negro defendants were
charged with crimes against Negroes: one case was nol
prossed; the other defendant received a sentence of eight
years on a reduced charge. The third Negro defendant was
petitioner Maxwell, charged with a crime against a white
woman and sentenced to death (Tables 1, 4).

•

The race of the victim of five of the seven white persons 
charged during the same period was not determined. In 
the other two cases, one white man was charged with the 
rape of two white women and received a sentence of 21 
years on a reduced charge in both cases (Tables 1, 4).

In Pulaski County, ten Negroes and 13 white persons were 
charged with rape between 1954 and 1964. Of the 10 Negro 
defendants, 5 were charged with crimes against white per­
sons. Three of these received life sentences, one received 
the death sentence, and the fifth defendant has not been 
arrested. Four of the Negro defendants in Pulaski County 
were charged with crimes against other Negroes. Two re­
ceived life sentences; the others received sentences of three 
years and 21 years respectively on reduced charges. In one 
case the race of the victim was not determined (Tables 
2,5).

Of the 13 white men charged with rape in Pulaski County 
during this period only one was charged with a crime 
against a Negro victim and that defendant was found not 
guilty by a jury. The 12 cases involving white men charged 
with the rape of white women resulted in various disposi­
tions, including barn life sentences (Tables 2, 5).



10

In Jefferson County, 20 white persons and 8 Negroes 
were charged with rape in the past ten years. One Negro 
was charged with a crime against a white person and the 
case was dismissed. One white person was charged with a 
crime against two Negroes and in each case received a sen­
tence of 5 years on a reduced charge. One white defendant, 
Charles Franklin Fields, was executed for a crime against 
a white person (Tables 3, 6).

Taking the three counties together, three white defend­
ants were charged with crimes against Negroes; two of these 
charges resulted in sentences of five years on reduced 
charges, and the third resulted in a not guilty verdict. 
Seven Negroes were charged with the rape of white victims; 
two, including petitioner, received the death sentence, three 
were sentenced to life, one has not been arrested, and one 
prosecution was dismissed (Table 7).

In this case, the defendant is a Negro, charged with a 
crime against a white woman. Several occurrences during 
the proceedings in the state courts emphasized this basic 
fact and its consequences. During the hearing in the Circuit 
Court on petitioner’s motion to declare the death penalty 
statute unconstitutional, both the Superintendent of the 
State Penitentiary, Capt. Henslee, and the Solicitor, Mr. 
Whittington, used a derogatory reference for Negroes. 
Capt. Henslee testified: “ I have broken it down to where I 
can tell you how many white men and how many niggers 
have been electrocuted for rape” (Ark. 62). Subsequently, 
Mr. Whittington asked, “ Captain Henslee, do you happen 
to know the total number of white persons or nigger persons 
convicted of rape in the State of Arkansas during the period 
covered by this report?” (Ark. 67).

Prior to trial in the State Court, petitioner filed a peti­
tion for change of venue (Ark. 26). It was alleged that 
petitioner could not obtain a fair trial in the county, that 
there were rumors of violence, that many persons knew of



11

the hostile atmosphere toward petitioner but feared to give 
affidavits stating this (Ark. 26). On the hearing of this 
motion petitioner’s request that the Sheriff be sent out on 
the street to subpoena the first six citizens who came along 
to testify as to the ability of petitioner to receive a fair 
trial was rejected (Ark. 87-90). Moreover, while petitioner’s 
counsel was allowed to ask two witnesses whether they be­
lieved petitioner could receive a fair trial in the county, the 
Circuit Court consistently cut off all attempts of petitioner’s 
attorney to inquire into the witnesses’ bases for their opin­
ion (Ark. 97-99, 102-05).

During the formation of the jury, nine Negroes were 
called. Three of these were excused by the Court and the 
remaining six were peremptorily challenged by the State 
(Ark. 130, 132, 136, 180, 181, 186, 188, 195, 199, 201, 209, 
214, 217, 223, 226). The court reporter marked on the trial 
transcript the race of all Negroes called as prospective 
jurors (Ibid.), and the 12 persons on the jury that found 
defendant guilty and fixed his sentence at death were white 
(Ibid.).

Prior to trial of the case, the Circuit Judge called the 
attorneys into his chambers and acknowledged the explo­
siveness of the situation presented by the trial of the Negro 
defendant for the crime of rape against a white woman by 
admonishing them to refrain from emphasizing any racial 
issues (Ark. 239), Nevertheless, in his opening statement 
to the jury, Mr. Whittington, the Solicitor, said;

May it please the Court, Ladies and Gentlemen of 
the Jury, this w'ill be the most serious case 1 have ever 
tried, it is probably the most serious case you will ever 
try as a jury. To start with, as you have previously 
heard, the defendant is a Negro, he is alleged to have 
raped a girl who is a white girl, I want to ask you first 
and tell you that it is your duty, and the Court will so



12

instruct you, to put from your mind any thought of 
race. Ladies and Gentlemen, race has nothing to do 
with i t . . . (Ark. 240).

During the trial the Solicitor asked the victim about a 
conversation in which her attacker criticized whites for not 
wanting to associate with colored people, said that he had 
always wanted to have relations with a white girl, and asked 
her if she had ever wanted to have relations with a Negro 
boy (Ark. 265).

At the close of the trial, Mr. Whittington began his sum­
mation by saying:

Yesterday, or day before yesterday rather, I was 
most impressed by a remark made by Mr. Kimball upon 
the examination of the juror. Mr. Kimball said, “ we 
are not trying a racial problem, we are trying an indi­
vidual.”  I think that is something that you should bear 
in your mind throughout all of your deliberations, that 
the race of any party concerned in this matter has 
absolutely nothing to do with it. You are under an abso­
lute duty to be fair and impartial, to determine the 
facts, and to apply the law to the facts. And I submit 
that it is your absolute duty to be fair and impartial 
and as Mr. Kimball said, do not consider this a racial 
problem, it is not (Ark. 386-387).

Mr. Whittington near the conclusion of his summation 
stated:

. . . you will feel that he must forfeit his life, and I 
submit to you, ladies and gentlemen, again that this is 
not a racial problem, this is an individual, it makes no 
difference what race that man is, if he was some, of 
some other race, and he did the act that he did beyond 
any doubt I think that he should suffer the punishment 
of death . .  . (Ark. 398).



Table 1

DISPOSITION OP CASES INVOLVING PERSONS CHARGED WITH RAPE, 
JANUARY 1, 1954-J ANUARY 1, 1964

Garland County

White Defendants Negro Defendants

Name

Year Kace 
of Pis- of
posi- Vic- Kecora
tion tim Disposition Cites* Name

Year Eace 
of Dis- of
posi- Vic- Becord
tion tim Disposition Cites*

James W. Kurrington 
William E. McElroy 
Clyde Hughes 
Gaines Armstrong, Sr. 
Billy Jack Roan 
William E. Walker 
William Lee Walker

1954 1 Nol pros 329
1954 1 Nol pros 330
1955 1 RC-10** 330-31
1955 t Nol pros 331
1960 1 Released 333
1963 W RC-21 334, 351
1963 W RC-21 335, 351

Aaron Blackwell

William Sellars 
William L. Maxwell

1962 C Nol pros

1963
1962

C
w

RC-8
Death

334, 
347-49
335, 354 
337

* References are to page in the transcript of hearing in the district court on which case is mentioned,
** RC followed by a number means a sentence of that number of years on a Reduced Charge.



Table 2
DISPOSITION OF CASES INVOLVING PERSONS CHARGED WITH RAPE, 

JANUARY 1, 1954-JANUARY 1, 1964

P ulaski County

White Defendants Negro Defendants

Year Race Year Race
of Dis- of of Dis- of
posi- Vic- Record posi- Vic- Record

Name tion tim Disposition Cites Name tion tim Disposition Cites

Charles Ford 1954 ? Nol pros 358-60 George D. Jones, Jr. 1954 w Never ar-
Ira Wilson Williams 1958 W Nol pros 361-62 rested 360
Ira Wilson Williams 1959 w RC-21 362 David Moore, Jr. 1957 c RC-3 360-61
Louis Jenkins 1960 w Pending 363 Alfred Cross 1960 f Dismissed 362
Gerald David Sharp 1961 c Not guiltv 366 Riley Williams 1961 w Life 363-66
Paul Fleschner 1962 w Life 366-67 Troy Alexander 1961 w Life 363-66
David Cooley 1962 w Pending 367-68 Marvin Aaron
Leon Price 1962 w Dismissed 368 Hammond 1961 w Life 363-66
Harvey Bowman 1962 w Dismissed 368 William Hall 1962 c RC-21 367
Wayne Leslie Smith 1962 w Life 369 Roy Raymond
Earl Emmett Leggett 1956 w Nol pros* 371 Johnson 1963 c Life 370-71
Earl Emmett Leggett 1956 w Nol pros* 371 Juroy Terrence « ----—
Clarence D. Andrews 1954 t Life 375 Jenkins 1963 c Life 370-71

Luther Bailey 1956 w Death 371-75

# Executed on conviction for murder.

i



16

SUMMARY— GARLAND COUNTY

White defendants charged with rape 7
White victims 2

Reduced charge—21 years 2

Race of victims unknown . 5

Negro defendants charged with rape 3
White victims 1

Death 1

Negro victims 2
Nol pros 1
Reduced charge— 8 years 1

Table 4



17
*j

SUMMARY— PULASKI COUNTY

Table 5

White defendants charged with rape 13
White victims 10

Nol pros or dismissed 5*
Reduced charge—21 years 1
Life sentence 2
Pending 2

Negro victims 1
Verdict—not guilty 1 I.

[1
Race of victims unknown 2

Negro defendants charged with rape 10
White victims 5

Never picked up 1
Life sentence 3
Death 1

Negro victims 4
Reduced charge— 3 years 1
Reduced charge— 21 years 1
Life sentence 2

Race of victim unknown 1

* Two of the cases against one man were nol prossed, and he 
was executed for murder.



18

SUMMARY—JEFFERSON COUNTY

Table 6

White defendants charged with rape 20
WThite victims 17

Dismissed 12*
Pending 1
3 year sentence 3

• Death sentence 1

Negro victims 2
Reduced charge— 21 years 2

Race of victim unknown 1

Negro defendants charged with rape 8
White victims 1

Dismissed 1

Negro victims 3
Reduced charge— 15 years 1
Reduced charge— 3 years 1
Dismissed 1

Race of victims unknown 4

Race of defendant unknown 4

* In one case the defendant received a life sentence on another 
rape charge.



19

Table 7

SU M M ARY--ALL THREE COUNTIES

White defendants 40 Negro defendants
Negro victims 3 White victims 7

RC—5 2 Dismissed,
Not guilty 1 nol pros 1

Life 3
Death 2
Not arrested 1

White Victims 29 Negro victims 9
Dismissed, 

nol pros 17
Dismissed, 

nol pros 2
Pending 3 RC— 3 years 2
Sentence 3 years 3 RC— 8 years 1
RC—21 years 3 RC— 15 years 1
Life 2 RC— 21 years 1
Death 1 Life 2

Race of victims 
unknown 8

Race o f victims 
unknown 5



20

Points and Authorities

I. Seizure of Petitioner’s Coat from a Closet in His Home 
While He was in Custody at Another Place, and Use 
of the Coat at Trial, Violated the Fourth, Fifth and 
Fourteenth Amendments to the United States Consti­
tution.

Ker v. California, 374 U. S. 23;
Preston v. United States, 376 U. S. 364;
Stoner v. California, 376 U. S. 483;
Gouled v. United States, 255 U. S. 298;
Boyd v. United States, 116 U. S. 627;
Mapp v. Ohio, 367 U. S. 643;
Malloy v. Hogan,------ U. S .------- , 12 L. ed. 2d 653;
Chapman v. United States, 365 U. S. 610;
Weeks v. United States, 232 U. S. 383;
Rios v. United States, 364 U. S. 253;
McDonald v. United States, 335 U. S. 451;
Judd v. United States, 190 F. 2d 649 (D. C. Cir. 

1951);
United States v. Roberts, 223 F. Supp. 49 (E. D. 

Ark. 1963);
Pekar v. United States, 315 F. 2d 319 (5th Cir. 

1963);
United States v. Jeffers, 342 U. S. 48;
Lustig v. United States, 338 U. S. 74;
Byars v. United States, 273 U. S. 28;
Klee v. United States, 53 F. 2d 58 (9th Cir. 1931); 
Jones v. United States, 362 U. S. 257;
United States v. Blok, 188 F. 2d 1019 (D. C. Cir. 

1950);
Abel v. United States, 362 U. S. 217;
Holzhey v. United States, 223 F. 2d 823 (5th Cir. 

1955);



21

Cuttinq v. United States, 169 F. 2d 951 (9th Cir.
1948) ;

Calhoun v. United States, 172 F. 2d 457 (5th Cir.
1949) cert. den. 337 U. S. 938;

United States v. Rees, 193 F. Supp. 849 (D. Md. 
1961);

United States v. Rabinowitz, 339 U. S. 56; 
United States v. Maroney, 220 F. Supp. 801; 
Communist Party v. Subversive Activities Con­

trol Board, 367 U. S. 1;
Fahy v. Connecticut, 375 U. S. 85.

II. Petitioner Was Denied Due Process Of Law And The 
Equal Protection Of The Laws When Sentenced Un­
der A Statute That Has Been Discriminatorily En­
forced Against Negroes.

Yick Wo v. Hopkins, 118 U. S. 356;
Shepard v. United States, 257 F. 2d 293 (6th Cir. 

1958);
Ark. Stat. Ann. §41-3403 (1947);
Rudolph v. Alabama, 152 So. 2d 662 (Ala. Sup. Ct.

1963), cert, den., 375 U. S. 889;
Hernandez v. Texas, 347 U. S. 475;
Smith v. Texas, 311 U. S. 128;
Bailey v. Henslee, 287 F. 2d 936 (8th Cir. 1961); 
Henslee v. Stewart, 311 F. 2d 691 (8th Cir. 1963); 
Dennis, a slave, v. State, 5 Ark. 230;
Norris v. Alabama, 294 U. S. 587.



)

III. Where Jury Panels Made Up By Jury Commissioners 
Who Refer To Poll Tax Lists On Which Racial Desig­
nations Appear According To Statute And The Lists 
Made Up By The Jury Commissioners Have Racial 
Designations, The Fourteenth Amendment Is Vio­
lated.

Avery v. Georgia, 345 U. S. 559;
Hamm v. Virginia State Board of Elections, 230

F. Supp. 146 (E. D. Va. 1964);
Bailey v. Henslee, 287 F. 2d 936, 947 (8th Cir.

1961); cert. den. 368 U. S. 877;
Cassell v. Texas, 339 U. S. 282;
Henslee v. Stewart, 311 F. 2d 691 (8th Cir. 1963); 
Anderson v. Martin, 375 U. S. 399;
Hamilton v. Alabama, 368 U. S. 52;
Strauder v. West Virginia, 100 U. S. 303;
Johnson v. Zerbst, 304 U. S. 458;
Fay v. Noia, 372 U. S. 391;
United States ex rel. Goldsby v. Harpole, 263 F.

2d 71 (5th Cir. 1959) cert. den. 361 U. S. 838; 
United States ex rel. Seals v. Wiman, 304 F. 2d 

53 (5th Cir. 1962) cert. den. 372 U. S. 924; 
Whitus v. Balkcom (No. 20797, 5th Cir., decided 

June 18, 1964);
Lillard v. State,------ A rk .--------, 365 S. W. 2d 144

(1963);
Mitchell v. State ex rel. Henslee, 233 Ark. 578, 346 

S. W. 2d 201 (1961);
Ark. Stat. Ann. §3-118;
Ark. Stat. Ann. §3-227 (1956 Replacement Vol­

ume) ;
Ark. Stat. Ann. §39-208 (1962 Replacement Vol­

ume) ;
Ark. Stat. Ann. §39-101.

22



23

A R G U M E N T

L

Seizure of Petitioner’s Coat While He Was in Custody, 
and Its Use at Trial, Violated the Fourth, Fifth and Four­
teenth Amendments.

A. Federal standards of unreasonable search and
seizure are applicable to the States.

Presented to this Court is the issue of whether the seizure 
by police officers of petitioner’s blue coat, found at his home 
while he was in custody elsewhere, and its use against him 
at trial violated the Constitution of the United States. The 
Fourth Amendment’s prohibition of unreasonable search 
and seizure has long been implemented by barring the Fed­
eral Government from using material so seized to aid a 
criminal prosecution, Boyd v. United States, 116 U. S. 627. 
In Mapp v. Ohio, 367 U. S. 643 it was held that the strictures 
under the Fourth Amendment against unreasonable search 
and seizure are applicable to the states under the due proc­
ess clause of the Fourteenth Amendment. In the recent case 
of Ker v. California, 374 U. S. 23, eight Justices of the 
Supreme Court agreed that a charge of unreasonable search 
or seizure against state authorities is to be measured against 
the standards developed in federal cases interpreting the 
Fourth Amendment.

The petitioner also raises the issue that the introduction 
of an article of clothing violated his right against self­
incrimination. The privilege against self-incrimination ob­
taining under the Fifth Amendment has recently been held 
to be a privilege available to defendants in state prosecu­
tions as a part of due process of law under the Fourteenth
Amendment. Malloy v. Hogan,------ U. S. --------, 12 L. ed.
653.



24

B. The search teas not incident to a lawful arrest.

While a search for some purposes may proceed without 
warrant when incident to a lawful arrest, it is necessary 
that the search be substantially contemporaneous in time 
and place with such an arrest. Chapman v. United States, 
365 U. S. 610. It is not entirely clear from the record when 
the police perfected petitioner’s arrest. He might have been 
arrested at 4 :00 A. M. when Officer Childress took him into 
custody for questioning (U. S. 265-67). Or the arrest might 
have occurred a short time later at the hospital to which 
petitioner had been taken for identification by the victim. 
Officer Crain testified to this effect (U. S. 257, 259). The 
search for and seizure of the coat occurred at approximately 
5:00 A. M.

Assuming the arrest was made at four o’clock when 
Officer Childress took him into custody, the search in which 
petitioner’s coat was seized occurred one hour later at 5 :00 
A. M. (U. S. 243-44), was made by two officers who had 
not aided in arresting petitioner (U. S. 243, 263-65), and 
was conducted while petitioner was under control of police 
officers at a distant place (U. S. 243-44). Assuming ar­
guendo that the police could have made some search of 
the premises legally at 4:00 A. M. if they arrested peti­
tioner then, does not make legal their search at 5 :00 A. M. 
The right to search without a warrant at the time of arrest 
abates if not effected at that time. Preston v. United States, 
376 U. S. 364.

Even if the arrest took place at the hospital, the search 
took place almost one hour later and was on premises other 
than where the petitioner was being arrested. A search 
without a warrant is not incident to an arrest if not “ con­
fined to the immediate vicinity of the arrest.” Stoner v. 
California, 376 U. S. 483, 486. It is clear from the above



25

facts that the search in question was not contemporaneous 
or connected with either of the instances of possible arrest.

C. The search without warrant was not justified 
as an emergency.

The main thrust of the Fourth Amendment is to require 
police officers to secure a warrant before searching any 
premises. Weeks v. United States, 232 U. S. 383. It is a 
general rule that a search without a warrant, absent certain 
limited and narrow exceptions, is deemed unreasonable. 
Rios v. United States, 364 U. S. 253, 261. The basis of this 
rule is obvious: a judicial forum must pass on the propriety 
of a planned search and must define the limits of that 
search. The court is meant to act as a buffer between the 
police department and ordinary citizens, protecting the 
latter from unwarranted and irresponsible invasion and in­
spection of their homes and personal effects.

The exceptions to the necessity of obtaining a warrant 
prior to search were made to deal with specifically defined 
and limited circumstances where the delay in obtaining a 
warrant might work great injury. Those exceptions en­
compass instances where a police officer may believe some 
party on certain premises is under some immediate threat 
or where evidence of a crime is in jeopardy of being de­
stroyed or removed from the premises, or as noted above, 
where the search is incident to a lawful arrest.

It is clear from the record that none of these exceptional 
circumstances are present in the instant case to justify the 
search by police officers, which occurred without a warrant 
(Ark. 331, U. S. 147, 248). The premises were not entered 
to protect someone therein nor was there any testimony 
that any articles connected with the crime were in jeopardy 
of being removed from the premises. Petitioner was away 
from the premises in the custody of police and was not



26

permitted to communicate with persons in his family until 
several days later (U. S. 141, 160, 189).

The officer who took the petitioner into custody at 4:00 
A. M. did not apprise Mrs. Maxwell of the charge against 
petitioner (U. S. 265-67). She, therefore, could have no 
knowledge of what she should confiscate, assuming she 
were so inclined. It was practicable for the police to secure 
a warrant and the only inconvenience would have been the 
short delay between 4:00 A. M. and the few hours later 
when judicial approval could have been secured. Avoidance 
of such delay on the ground of mere inconvenience does not 
justify the failure to secure a search warrant. McDonald 
v. United States, 335 U. S. 451, 454-455.

D. The search and seizure were not validated by consent.

1. Mrs. Maxwell did not give voluntary consent.

The court below sought to validate the search on the 
basis of consent given by Mrs. Maxwell. When no emer­
gency circumstances exist to justify a search without a 
warrant and regular processes are available to obtain search 
warrants, the courts should not readily sanction an alter­
native method of search. This is especially true when the 
alternative method so easily lends itself to abuse through 
both the deliberate action of the police and the fear of indi­
viduals in the face of authority. For these reasons the pre­
sumption has always been that consent is coerced unless 
proven otherwise by the police. Judd v. United States, 190 
F. 2d 649 (D. C. Cir. 1951); U. S. v. Roberts, 223 F. Supp. 
49, 58 (E. D. Ark. 1963).

Whether or not a consent to search the premises is given 
voluntarily or under conditions of implied coercion neces­
sarily turns on the factual situation of each case. The 
testimony regarding the search in the early morning of



27

November 3, 1961, is unclear on the record. Undoubtedly 
part of the lack of clarity is caused by the same circum­
stances which makes the alleged consent suspect—the hour 
at which it occurred. What is clear is that sometime around 
5:00 A.M., after her son had been taken away, Mrs. Max­
well, a Negro woman, was called on by two white police­
men (U. S. 241-44). She was in a confused and distraught 
state. Lt. Crain testified that “ she was in—well, she wasn’t 
feeling any too good being—having a thing like that hap­
pen and her son being accused”  (U. S. at 243). The police 
did not tell her that they were looking for evidence to be 
used against her son but asked her only to lead them to 
her son’s clothing (Ark. 335, U. S. 248-49). Mrs. Maxwell’s 
testimony not only corroborated Crain’s that she was 
“ upset”  (U. S. 135-136), but indicates also that her primary 
motive for allowing them in was confusion, “ . . . and I 
just—I don’t know, I didn’t know anything . . . ”  or fear of 
authority, “ I opened the door and I was afraid to not let 
them in because—you know—when they said they were 
police officers . . . ”  (U. S. 138). Mrs. Maxwell’s confusion 
and the fact that she reacted to police authority militate 
against finding voluntary consent. Pelcar v. United States, 
315 F. 2d 319 (5th Cir. 1963).

The situation described above illustrates why courts are 
extremely reluctant to find consent better than a theoretical 
discussion of the cases. How many women in Mrs. Max­
well’s position, wakened in the middle of the night, have 
either the temerity or the knowledge of their right not to 
allow the police admission? That Mrs. Maxwell was a Negro 
facing white policemen makes it less likely that she would 
have offered resistance. We contend that the police cannot 
carry their burden of proving that Mrs. Maxwell’s consent 
wras given voluntarily, intelligently, and in absence of im­
plied coercion.



28

2. Mrs. Maxwell needed authority from petitioner to 
consent to seizure of his personal clothing.

Police officers testified that they reappeared at peti­
tioner’s home an hour after he had been taken into custody. 
They stated the purpose of their second visit was to secure 
more of petitioner’s clothes. They did not have search 
warrants. Mrs. Maxwell admitted them to the house and 
showed them the closet in which petitioner’s clothes were 
hung. The officers took petitioner’s blue coat from the 
closet which they later introduced in evidence to prove 
that it was petitioner who had attacked the victim (U. S. 
241-44).

There is no evidence in the record that the petitioner 
had authorized his mother to consent to the seizure of his 
personal clothing. In fact, the record is clear that peti­
tioner was in the custody of the police and had no contact 
with anyone in his family between the time he was taken 
from his home at 4:00 A.M. and the search at 5:00 A.M. 
(U. S. 141,160, 189).

The opinion of the court below fully concedes that Mrs. 
Maxwell had no direct or implied authority from the peti­
tioner to surrender his personal clothing. The court ruled, 
however, that as petitioner had no proprietary interest in 
the room he occupied and was there only as a member of 
the family, the search of his room and seizure of his per­
sonal clothing could lawfully be effected through the consent 
of his mother, the proprietor. The court felt that the full 
proprietorship of the mother, coupled with the “ guest” 
status of the petitioner herein, was significantly different 
from those situations in which the defendant retained some 
proprietorship in the premises and thereby was not bound 
by the consent of the residual owner or his employees, see 
Stoner v. California, 376 U. S. 483; United States v. Jeffers, 
342 U. S. 48; Lustig v. U. S., 338 U. S. 74. The Court, in 
effect, held that the petitioner’s protection against invasion



29

of privacy and the seizure of personally owned articles was 
waived by the mere fact that the petitioner did not pay 
rent when residing in the home of his parents.

The holding of the court is not consistent with the nature 
and purpose of the rights sought to be protected under the 
Fourth Amendment. The interests protected by the Amend­
ment are privacy and security in one’s effects. The pres­
ence of these interests is not dependent on whether the 
party is in the payment of some definite and regular sums 
to secure his right to be on the premises; the interests are 
there, particularly, as here, where one legitimately or law­
fully may call the place which is searched home. The rights 
protected under the Fourth Amendment cannot he dimin­
ished by technical distinctions of proprietorship which in 
effect authorize an invasion of the substance of the con­
stitutional right. Byars v. U. S., 273 U. S. 28. One court 
has found that even a sublessee who occupies premises 
under a lease which may be immediately voided by the 
lessor is not, thereby, deprived of his objection to an un­
reasonable search and seizure even when such search is 
consented to by the lessor. Klee v. United States, 53 F. 2d 
58 (9th Cir. 1931).

It has also been found that persons who are temporary 
non-paying guests have full standing to object to unreason­
able searches and seizures. Jones v. United States, 362 
U. S. 257.

The court below thought it significant that Mrs. Harwell 
might have asked her son to vacate the premises at any 
time. The court in Klee v. United States, supra, noted that 
although the defendant may have been evicted from the 
premises forthwith by the lessor, no such demand had been 
made by the lessor, and while the defendant continued in 
possession of the premises, he was not subject to all 
searches and seizures consented to by the lessor. Mrs.



30

Maxwell conceivably may have evicted the petitioner from 
his home, but there is no evidence that she had not done 
so or wanted to and at the time of search petitioner could 
still legitimately claim the premises as his home.

The above illustrates another condition of the rights 
sought to be protected by the prohibition on unreasonable 
search and seizure. Assuming arguendo that petitioner’s 
mother could give consent for a full search of the entire 
premises, a lawful search does not without more-validate 
all seizures of property which police officers may come 
upon. United States v. Blok, 188 F. 2d 1019 (D. C. Cir. 
1950); Abel v. United States, 362 U. S. 217; Holzhey v. 
United States, 223 F. 2d 823 (5th Cir. 1955). The articles 
which the police seized belong to the petitioner and Mrs. 
Maxwell’s dominion over the premises did not likewise give 
her full dominion over petitioner’s personal effects. Her 
authority to consent to the seizure of these articles was nil.

3. The article in question could not be lawfully seized 
with search warrant or unauthorized consent of a 
third party.

The Court below failed to note that some articles and 
effects may not be seized even with a valid search warrant. 
Even with a search warrant the Fourth Amendment bars 
the seizure of articles which are merely evidence of the 
crime as opposed to articles which are contraband or were 
necessary to effect the crime, Gouled v. U. S., 255 U. S. 
298; Abel v. United States, 362 U. S. 217. If a judicial 
official could not authorize the seizure of the article it could 
not be seized by obtaining the consent of some third party 
with no judicial power who had no authority from petitioner 
to give such consent. In all the cases in which some party 
was permitted to give consent to a search and seizure of 
another party’s goods because of full proprietorship of 
the premises, the goods held to be properly seized were



31

stolen goods, Cutting v. U. S., 169 F. 2d 951 (9th Cir. 
1948); Calhoun v. U. S., 172 F. 2d 457 (5th Cir. 1949), 
cert. den. 337 U. S. 938; instruments of the crime, U. S. v. 
Rees, 193 F. Supp. 849 (D. Md. 1961); property whose mere 
possession by the defendant would have been unlawful, 
U. S. v, Rabinowitz, 339 U. S. 56; or abandoned material, 
U. S. v. Maroney, 220 F. Supp. 801; U. S. v. Roberts, 223 
F. Supp. 49, 58 (E. D. Ark. 1963).

The material seized by the police was the petitioner’s 
blue coat which was used to buttress testimony that the 
petitioner was at the scene of the crime (Ark. 357-59). The 
coat was, therefore, merely evidence to identify the peti­
tioner but was not directly or indirectly a fruit or instru­
ment of the crime.

That Mrs. Maxwell’s consent could not operate against 
petitioner is more apparent when it is seen that the use 
of the clothing at trial, neither a fruit nor instrument of 
the crime, clearly violated petitioner’s right against self­
incrimination. Gouled v. United States, 255 U. S. 298;
Malloy v. Hogan,------ U. S. --------, 12 L. ed. 2d 653. The
privilege against self-incrimination is personal, Communist 
Party v. Subversive Activities Control Board, 367 U. S. 1, 
106, and can only be waived by the defendant or some party 
to whom he has delegated that authority.

Even if it is concluded that articles have not been seized 
in violation of the Fourth Amendment, it is still possible 
that the introduction of these articles into evidence may vio­
late the Fifth Amendment, U. S. v. Rees, 193 F. Supp. 849. 
The Fourth Amendment is aimed at the protection of one’s 
home and person against unreasonable official intrusion and 
investigation. The Fifth Amendment, however, has a dif­
ferent and perhaps more imperative purpose, namely, to 
save the defendant from being forced to aid in a criminal 
prosecution against himself.



32

E. The admission o f illegally seized evidence teas prejudicial 
to defendant and necessitates reversal o f his conviction.

Fahy v. Connecticut, 375 U. S. 85, disposes of any claim 
that the admission of the illegally seized coat was harmless 
error. There the Court said:

We are not concerned here with whether there was 
sufficient evidence on which the petitioner could have 
been convicted without the evidence complained of. 
The question is whether there is a reasonable possi­
bility that the evidence complained of might have con­
tributed to the conviction. 375 U. S. at 86.

Without a doubt, the illegally seized coat “ might have 
contributed to the conviction” in the instant case. Besides 
the testimony of the victim, the State produced only a 
series of inferences drawn from shreds of evidence found 
near the scene of the crime. For example, one witness tes­
tified that a thread of nylon found in defendant’s hair 
probably came from a stocking similar to one found near 
the victim’s house (Ark. 356). Several articles of clothing 
were analyzed for stains and for threads from other gar­
ments (Ark. 356-60). Each of these inferences was im­
portant to the State’s case (Ark. 362). The introduction 
of defendant’s coat strengthened the other inferences 
greatly. The test of Fahy is certainly met in the instant 
case.



33

n.
Petitioner Was Denied Due Process of Law and the 

Equal Protection of the Laws When Sentenced Under 
a Statute That Has Been Discriminatorily Enforced 
Against Negroes 3

Arkansas once had a statute providing the death penalty 
for slaves and a lesser penalty for others convicted of rape 
(see Dennis, a slave v. State, 5 Ark. 230, 233). Its present 
statute, Ark. Stat. Ann. §41-3403 (1947), allows imposition 
of the death penalty against all convicted rapists, irrespec­
tive of the race or status of the defendant. According to 
the statute books, Arkansas has brought its system of pun­
ishments into line with the standards imposed by the Con­
stitution. In practice, though, Negroes remain liable to the 
supreme penalty for the crime of rape, but whites, with 
very rare exceptions, suffer lesser punishments.

All would agree that the Fourteenth Amendment invali­
dates any statute imposing greater punishments on one 
race than on another for similar offenses. Enforcing the 
Fourteenth Amendment, Congress long ago provided that 
“ All persons within the jurisdiction o f the United States 
. . . shall be subject to like punishment, pains, penalties, 
taxes, licenses, and exactions of every kind, and to no 
other.” 42 U. S. C. §1981. Clearly, both this statute and the 
Constitution underlying it proscribe the practice of impos­
ing unequal punishments as well as any statutes command­
ing such a practice. As the Supreme Court held in Tick Wo 
v. Hopkins, 118 U. S. 356, 373:

“ Though the law itself be fair on its face and impartial 
in appearance, yet, if it is applied and administered 
by public authorities with an evil eye and an unequal 
hand so as to make unjust and illegal discriminations



34

between persons in similar circumstances, material to 
their rights, the denial of equal justice is still within 
the prohibition of the Constitution.”

The record before this Court exposes the racial inequality 
of punishments administered by the State of Arkansas. All 
but two of the men executed for rape since 1913 have been 
Negroes (Ark. 75, U. S. 308-09). Moreover, there is reason 
to believe that every person suffering the death penalty has 
been convicted of a crime against a white w&man (Ark. 
77, 78, U. S. 310). Thus, inequality results in two ways: 
Negro defendants are more likely to be sentenced to death; 
and only white women are protected by the shield of deter­
rence built by the state with the supreme penalty, if, indeed, 
that penalty serves any purpose at all.

Table 7, supra p. 19, shows the disparity o f treatment 
of Negroes and whites charged with rape in inter-racial 
crimes. In Garland, Pulaski and Jefferson Counties, only 
three charges of rape were placed against white men for 
the rape of Negro women. One resulted in the only not 
guilt} verdict recorded. The other two charges were made 
against one man, who was sentenced to five years on re­
duced charges. On the other hand, of the seven Negroes 
charged with raping white women, two (including peti­
tioner) were sentenced to death; three to life imprisonment, 
one defendant was not caught and one charge was dis­
missed.

This history raises serious doubts about the fairness of 
Arkansas’ system of criminal justice. As Justice Stewart 
of the Supreme Court wrote while a member of the Sixth 
Circuit, “ Whether a sentence is fair cannot, of course be 
gauged simply by comparing it with the punishment im­
posed upon others for similar offenses. But that test, 
though imperfect, is hardly irrelevant.”  Shepard v. United 
States, 257 F. 2d 293, 294 (6th Cir. 1958).



35

Unless these figures can be explained by factors that are 
compatible with the fair administration of justice, the peti­
tioner has been denied the fundamental right to equality 
in the courts. The figures cannot be explained by the pro­
portion of Negroes in the population of Arkansas, for it is 
considerably lower. Nor can they be explained by the asser­
tion that the crime rate is higher among Negroes, for in the 
three counties studied, nearly two-thirds of the prosecutions 
initiated for rape were against white persons (Table 7).

The court below suggested that the differing results in 
rape cases involving Negroes and those involving whites 
could be understood only by studying all aspects of every 
case, particularly where a jury is concerned. Admittedly, 
this would be an impossible task. But the discrepancy be­
tween the proportion of Negroes in the population, or 
Negroes charged with rape, and the proportion of Negroes 
who receive the death penalty cries out for an explanation. v. 
Petitioner contends that in view of the history of race 
relations in Arkansas, race is the answer. Is it his duty to 
rebut every other possible hypothesis? Should not the 
State be required at some point to come forward with a 
rational explanation ? Cf. Norris v. Alabama, 294 U. S. 587; 
Hernandez v. Texas, 347 U. S. 475.

The State presented no evidence, and rested on the un­
warranted assumption that whatever the reason for differ­
ing sentences, it was consistent with fairness. The district 
court accepted this approach and suggested, for example, 
that in rape trials the character of the prosecuting witness 
is usually an issue. I f  this fact is to explain why more 
Negroes than whites receive the death sentence, it must be 
assumed that victims of attacks by Negroes generally have 
better character than victims of attacks by whites, or that 
white women attacked by Negroes have better character 
than Negro women attacked by whites. There is no basis 
for such assumptions.



36

In contrast to the State’s failure to offer any rational 
explanation, petitioner suggests that differing sentences 
for Negroes and whites are consistent with many aspects of 
the system of justice in Arkansas. For example, in many 
counties in Arkansas, participation of Negroes on juries 
is restricted by unconstitutional means. See e.g., Bailey 
v. Henslee, 287 F. 2d 936 (8th Cir. 1961); Henslke v. 
Stewart, 311 F. 2d 691 (8th Cir. 1963). As shown in Argu­
ment III, infra, throughout Arkansas jury lists are selected 
from poll tax books on which racial designations appear 
pursuant to state statute. Thus, Negro participation on 
juries is not limited solely by their representation in the 
population, hut also by unconstitutional methods of exclu­
sion.

Moreover, responsibility for administration of penalties 
in rape cases lies with other officials of the State besides 
juries. Prosecutors have almost unlimited discretion to 
avert the death penalty. Members of the executive branch, 
including parole officers and the Governor himself, exer­
cise discretion in such matters. The state and federal 
courts, not given discretion in capital cases, are empowered 
to render decisions that can make the difference between 
life and death. Thus, every defendant charged with a 
capital offense is taken before successive forums before 
execution can result, and each forum is the product of a 
segregated system of justice.

The court below accepted at face value the statements 
of the prosecutors of Garland, Pulaski and Jefferson Coun­
ties to the effect that race plays no part in their conduct 
o f cases (U. S. 355, 385, 419). In an analogous situation, 
the Supreme Court has held it is not what public officials 
say but what they do which must be determinative when 
discrimination is at issue. Hernandez v. Texas, 347 U. S. 
475, 482; Smith v. Texas, 311 U. S. 128, 131-32.



37

During the proceedings in the state courts in this case, 
several occurrences underscored the presence of the racial 
factor where a Negro was charged with the rape of a white. 
Both the prosecutor and a witness who was a public official 
used the term “ nigger” (Ark. 62, 67). All of the nine 
Negroes who appeared for jury service were excused or 
challenged (Ark. 130, 132, 136, 180, 181, 186, 188, 195, 201, 
209, 214, 217, 223, 226). And throughout the trial the 
prosecutor made repeated references to the race of the 
defendant and the victim (Ark. 240, 386-87, 398), under 
the guise of requesting the jurors to dismiss the fact from 
their minds.

Many more factors could be mentioned. The state laws 
on segregation could be compiled. The history of the State’s 
resistance to desegregation of schools in Little Rock could 
be reviewed. Racial conditions in Arkansas are not a mys­
tery. Petitioner’s contention that race is a factor in the 
disposition of cases involving rape charges, and in admin­
istration of the death penalty, is consistent with those 
conditions.

This case presents a complex issue involving fundamental 
rights. Life hangs in the balance. Petitioner presented 
statistics on executions covering the entire State of Arkan­
sas. He sought to present figures from all counties on 
the rate of prosecutions and the disposition of cases, but 
the attempt was thwarted by the court (U. S. 317-21). If 
he failed to present figures conclusively establishing a pat­
tern of discrimination in sentencing for rape, he certainly 
presented enough to justify further inquiry, and the dis­
trict court erred in restricting his proof to three counties.

Finally, it is urged that imposition of the death penalty 
for the crime of rape violates due process of law, as a cruel 
and unusual punishment. In Rudolph v. Alabama, 152 So. 
2d 662 (Ala. Sup. Ct. 1963), cert, den., 375 U. S. 889, three



Justices of the Supreme Court, in dissent, thought several 
aspects of this issue worthy of consideration in the light 
o f evolving standards of decency, and modem methods of 
handling problems of criminality. Arkansas is one of the 
few jurisdictions which impose the extreme penalty for 
rape; the standard of equality in administration of that 
punishment should be very strict.

in.
Petitioner Has Been Denied Rights Secured by the Due 

Process and Equal Protection Clauses of the Fourteenth 
Amendment in That County Jury Lists Indicate the Race 
of Persons Summoned and These Lists Are Compiled 
From Racially Designated Poll Tax Books.

The District Judge found that poll tax books in Garland 
County showed the racial designation4 of the taxpayer pur­
suant to state law. See Ark. Stat. Ann. §§ 3-118; 3-227 (1956 
Replacement Volume).5 The Jury Commission selected 
prospective jurors from these poll tax books which revealed 
race and placed their names on jury lists. A small “c”  
was placed next to the names of colored electors on these 
jury lists (Exhibit 2). See Ark. Sat. Ann. §39-208 (1962 
Replacement Volume). The poll books vTere also employed 
by the Commissioners to determine whether the jurors 
were qualified voters as required by Ark. Stat. Ann 
§§39-101; 39-208 (1962 Replacement Volume) which pro­
vide that only electors may serve as grand or petit jury­
men. The name of every juror Avas checked against the poll

4 The poll tax receipt form contains a space for designation of 
the race of the taxpayer (U. S. 98).

5 Although some jury commissioners testified that they could 
not remember racial designations on the poll books, the books 
themselves were placed in evidence as Exhibit 1 and contained 
a small “c” after the names of Negro electors.



39

book before his name was placed on the jury list (R. 70, 
80). One Commissioner testified that the qualifications of 
jurors could be determined by reference to these racially 
designated poll tax books (U. S. 61). Completed jury lists 
were transmitted by the Commission to the Circuit Clerk 
who testified that the lists had c’s after the names of 
Negroes when he received it (U. S. 48-50).

The selection of prospective jurors from a source clearly 
indicating race was held to deprive a Negro defendant of 
the equal protection of the laws by the United States Su­
preme Court in Avery v. Georgia, 345 U. S. 559. In Avery, 
the Jury Commissioners selected jurors from county tax 
returns which listed Negro and white taxpayers separately. 
A list of prospective jurors was compiled from these re­
turns and white tickets were printed for the white jurors 
and yellow tickets for the Negro jurors. The tickets were 
then drawn from a jury box by a judge of the Superior 
Court who testified that he did not practice discrimination 
in any way in the discharge of that duty. Avery’s final 
jury panel did not contain the names of any Negroes, but 
the United States Supreme Court reversed on the ground 
that the racially designated tickets offered an opportunity 
to discriminate in the selection process, 345 U. S. at 562, 
which constituted a prima facie case of unconstitutional 
exclusion. There was no finding of actual discrimination. 
Relying, in part, on Avery, this Court has characterized 
the Arkansas jury selection practices attacked here as “ a 
device for race identification with its possibility of abuse,”  
Bailey v. Henslee, 287 F. 2d 936, 947 (8th Cir. 1961), cert, 
den. 368 U. S. 877; Henslee v. Stewart, 311 F. 2d 691, 695. 
While it is true that both Bailey v. Henslee, supra, and 
Henslee v. Stewart, supra, involved additional factors, the 
decision of the Supreme Court in Avery does not require 
a showing of prejudice. The Court struck down the use of 
racial designation in that case because of the ever-present



40

opportunity for selection on account of race—whether ex- 
culsion or inclusion6—which is provided by selection from 
a racially designated source of names. As stated by the 
Supreme Court, “ Obviously that practice makes it easier 
for those to discriminate who are of a mood to discrimi­
nate,”  345 U. S. at 562.

Despite the presence of the letter “ c” next to the names 
of- Negroes on the jury lists used by the Circuit Court 
and selection of jurors for these lists from racially desig­
nated poll tax 'books compiled in compliance with Ark. 
Stat. Ann §§ 3-118; 3-227 (1956 Replacement Volume), the 
district court held that “ it fairly appears that racial des­
ignation did not affect in any way their selection of the 
jurors who served on the jury panels.” The district court 
reasoned, therefore, as did the Supreme Court of Georgia 
in Avery v. State, 209 Ga. 116, 70 S. E. 2d 716, at 722, 
when that court held “ the practice of placing the names 
of white and colored jurors in the jury box on tickets of 
different colors did no harm in this instance and, conse­
quently, furnished no specific objections to the jurors chal­
lenged by the accused.” It was, however, this holding that 
proof of actual discrimination was necessary to violate 
the Fourteenth Amendment which the United States Su­
preme Court reversed in Avery v. Georgia, 345 U. S. 559. 
Here, as in Avery and Anderson v. Martin, 375 U. S. 399 
(holding a Louisiana statute requiring race of candidate 
on ballot violates Fourteenth Amendment), the vice of the 
statute lies in the placing of the power of the state behind 
a racial classification that induces racial prejudice. “ In 
this case, as in those, the degree of prejudice can never 
be known,” and, therefore, with a capital charge “we do

6 See Cassell v. Texas, 339 U. S. 282, where systematic inclusion 
in, as well as exclusion from grand jury panels was condemned 
by the Supreme Court.



41
! \

not stop to determine whether prejudice resulted,”  Hamil­
ton v. Alabama, 368 U. S. 52,55.

As recognized in Strauder v. West Virginia, 100 U. S. 
303, 308, written with a memory of the slave system still 
fresh, the danger in racial distinctions supported by gov­
ernment is not gross physical separation or, indeed, preju­
dice to a particular litigant in the sense that members of 
another race might be most likely to vote against them. 
Rather, the evil is that exclusion of Negroes from juries 
“ is practically a brand upon them, affixed by law; an as­
sertion of their inferiority, and a stimulant to that race 
prejudice which is an impediment to securing to individuals 
of the race that equal justice which the law aims to secure 
to all others.”  The line of cases descending from Strauder 
does not rest upon a concept of injury to a particular 
defendant as Avery demonstrates. See also, Cassell v. 
Texas, 339 U. S. 282, where there was indictment by a 
grand jury from which Negroes had been systematically 
excluded (indeed, there was also systematic inclusion of 
Negroes), but no claim of such exclusion or inclusion with 
respect to the petit jury. See Justice Jackson’s dissent, 
339 U. S. at 298.

The obvious opportunity, if not inducement, for selection 
of jurors on account of race present in Garland County is 
authorized by a clearly unconstitutional statute. A three- 
judge federal court had before it statutes of the Common­
wealth of Virginia similar to Ark. Stat. Ann. §§3-118; 3-227 
(1956 Replacement Volume) requiring lists of voters and 
taxpayers to be kept and arranged in separate books in 
Hamm v. Virginia State Board of Elections, 230 F. Supp. 
146 (E. D. Va. 1964). The court declared the statutes 
unconstitutional, in violation of the Fourteenth Amend­
ment, as not pursuant to any legitimate interest of the 
state. The opinion of the court applies unmistakably to 
the requirement of racially designated tax hooks:



42

The “ separate but equal” racial doctrine was con­
demned a decade ago in Brown v. Board of Education, 
347 U. S. 483, 74 S. Ct. 686, 98 L. ed. 873 (1954). Sub­
sequent decisional law has made it axiomatic that no 
State can directly dictate or casually promote a distinc­
tion in the treatment of persons solely on the basis 
of their color. To be within the condemnation, the

governmental action need not effectuate segregation of 
facilities directly. Cf. Anderson v. Martin, 375 U. S. 
399, 402, 84 S. Ct. 454, 11 L. ed. 439 (1964). The result 
of the statute or policy must not tend to separate 
individuals by reason of difference in race or color. 
No form of State discrimination, no matter how subtle, 
is permissible under the guarantees of the Fourteenth 
Amendment freedoms. See, e.g., Burton v. Wilmington 
Parking Authority, 365 U. S. 715, 721-26; 81 S. Ct. 
856, 6 L. ed. 2d 45 (1961); National Ass’n for Advance­
ment of Colored People v. State of Alabama, ex rel. 
Patterson, 357 U. S. 449, 463, 78 S. Ct. 1163, 2 L. ed. 2d 
1488 (1958). (Emphasis supplied.)

The system of selection condemned by the United States 
Supreme Court in Avery was in fact potentially less dan­
gerous than that in effect in Garland County because in 
the Georgia case the names of prospective jurors were 
placed on colored cards and drawn from a jury box by a 
judge who could, at least, if determined not to consider 
race, look away to avoid the colored cards before him. 
In Garland County, however, the Commissioners themselves 
prepare a racially designated list to constitute a jury panel 
from the racially designated source of poll books. They also 
check the jury list against the poll books in order to ensure 
that all jurors are qualified electors. In these circum­
stances, it is impossible to avoid knowledge of the race of 
prospective jurors at a crucial stage in the selection process.



43

But no state can promote or encourage racial classification 
in the administration of justice in such a manner without 
violating the Fourteenth Amendment. Cf. Anderson v. 
Martin, 375 U. S. 399.

The district court ruled on the merits of petiitoner’s co 
tention that the method of selecting prospective jurors fol­
lowed in Garland County violated the Fourteenth Amend­
ment, but the court also strongly suggested that petitioner 
waived his rights with respect to jury selection by failing 
to raise the issue in the state courts. The district court 
relied on the fact that the attorney who represented peti­
tioner in the state courts was aware of the petitioner’s con­
stitutional rights and familiar with the manner of selecting 
of jurors in the county. The court also relied on the attor­
ney s testimony that he had discussed the jury panel with 
petitioner (but cf. U. S. 305). There was, however, no evi­
dence that the attorney discussed with petitioner the ques­
tion of raising or not raising a challenge to the method of 
jury selection by motion to quash and, in fact, it is clear 
from a reading of the record that the attorney never gave 
petitioner this choice (U. S. 297-98, 305).

Waiver of a constitutional right is the “ intentional re­
linquishment or abandonment of a known right or privi­
lege.”  Johnson v. Zerbst, 304 U. S. 458, 464. Fay v. Noia, 
372 U. S. 391, stands squarely for the proposition that “ the 
doctrine of fictitious waiver is unacceptable.”  On this rec­
ord, there is absolutely no evidence sustaining the conclu­
sion of the District Judge that petitioner chose deliberately 
not to challenge the method of jury selection, for there is 
no evidence that he knew or understood the nature of the 
right involved or the particular practices of the Jury Com­
mission attacked here. The strict standards required by 
the courts before finding waiver of the constitutional right 
to a jury chosen without discrimination on account of race,



44

is amply supported by a line of Fifth Circuit cases. United 
States ex rel. Goldsby v. Harpole, 263 F. 2d 71 (5th Cir. 
1959) cert, denied 361 U. S. 838; United States ex rel. Seals 
v. Wiman, 304 F. 2d 53 (5th Cir. 1962) cert, denied 372 
U. S. 924; and Wliitus v. Balkcom (No. 20797, 5th Cir., de­
cided June 18, 1964). In Goldsby and Seals, as in the case 
of petitioner, “ the important fact in each case was that the

attorney for the Negro defendant did not consult his client 
with regard to his decision to refrain from making an at­
tack on the jury system.”  Wliitus, supra. In Seals, supra, 
the evidence relating to systematic exclusion was unknown 
to the defendant’s attorney, but this was not the case in 
Goldsby, supra, or in Wliitus, supra.

The fact that counsel did not raise the issue with respect 
to county jury selection methods can in no way prejudice 
petitioner, for petitioner was never actually consulted con­
cerning, or agreed to, the attorney’s failure to raise the 
issue. Nor can the attorney’s failure to present the issue 
serve as a bar to this court’s consideration of it now. The 
Supreme Court of Arkansas has rejected the identical argu­
ment with respect to racial designation on the poll books 
and jury lists made in this court by petitioner. See Lillard 
v. State, 365 S. W. 2d 144 (1963). Moreover, under Ar­
kansas law, petitioner has lost his right to complain of 
the racial designation by not raising the issue at his state 
trial. Mitchell v. State ex rel. Henslee, 346 S. W. 2d 201 
(1961).

Under these circumstances, petitioner cannot be required 
to undergo an exercise in futility. Exhaustion of state 
remedies is a requirement for the exercise of federal habeas 
corpus jurisdiction only when these remedies are available 
and meaningful. Fay v. Noia, 372 U. S. 391. Here, the 
Supreme Court of Arkansas will not consider the merits 
of petitioner’s claim because it was not raised at his trial



45

and even if the court did choose to consider the issue, it 
would obviously reject petitioner’s contention as it has in 
the past. Lillard v. State, supra. Under the rule of Fay 
v. Noia, supra, the constitutional question is properly be­
fore this court on habeas.

\ I

| \  ' i

CONCLUSION

For the foregoing reasons it is respectfully submitted 
that the judgment below should be reversed and that the 
writ of habeas corpus should be granted, or in the alter­
native, that the case should be remanded for further 
proof on the question of discriminatory enforcement 
of the death penalty in cases of rape.

Respectfully submitted,

J ac k  G reenberg

J am es  M. N ab b it , HE 
. F r a n k  H . H effron

10 Columbus Circle 
New York, New York 10019

G eorge H oward, Jr.
32914 Main Street 
Pine Bluff, Arkansas

H arold B. A nderson

205 Century Building 
Little Rock, Arkansas

Attorneys for Appellant

L eroy D . Clabk 
M ich ael  M eltsneb  

Of Counsel



APPENDIX

State Statutes

A b k an sas  S tatu tes  A n no tated , §3-118 
(1956 Replacement Volume)

3-118. List of poll tax payers furnished coumty cleric 
and election commissioners.— Not later than the 15th day 
of October of each year the collector shall file with the 
county clerk a list containing the correct names, alpha­
betically arranged (according to the political or voting 
townships, and according to color) of all persons who have 
up to and including October 1st o f that year paid the poll 
tax assessed against them respectively.. . .

A rkansas S tatutes A n no tated , §3-227 
(1956 Replacement Volume)

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

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

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

Or, if any person offering to vote shall have attained the 
age of twenty-one [21] years since the time of assessing 
taxes next preceding such election, which period of assess-



2a

ment is here declared to mean between the second Monday 
in May and the second Monday in September of each year, 
and possesses the other necessary qualifications, and shall 
submit evidence by written affidavit, satisfactory to the 
judges of election, establishing that fact, he shall be per­
mitted to vote.

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

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

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



3a

the judges of primary elections with printed copies of such 
lists. . .  .

A rkansas Statutes A nnotated §39-101 
(1962 Replacement Volume)

39-101. Grand jurors— Qualifications.—No person shall 
he qualified to serve as a grand juryman unless he is an 
elector and citizen of the county in which he may be called 
to serve, temperate and of good behavior.

A rkansas Statutes A nnotated §39-208

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



4a

A rkansas S tatu tes A nnotated  §41-3403 
(1962 Replacement Volume)

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

A rkansas S tatu tes A nnotated  §43-2153 
(1962 Replacement Volume) •

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