Maxwell v. Stephens Brief for Appellant
Public Court Documents
January 1, 1964

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Brief Collection, LDF Court Filings. Maxwell v. Stephens Brief for Appellant, 1964. 29eede50-bd9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d7ce2531-cea9-4a00-80c9-b46615419159/maxwell-v-stephens-brief-for-appellant. Accessed April 19, 2025.
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*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.