Easley v. General Motors Corporation Reply Brief of Plaintiff-Appellant

    i pos FRA mA et z PT ST 3 A TE a Ewe em   

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 

  

No. 645 - Misc. 

  

WILLIAM HENRY FURMAN, 

Petitioner 

Ve 

THE STATE OF GEORGIA, 

Respondent 

  

ON PETITION FOR A WRIT OF CERTIORARI TO 

THE SUPREME COURT OF GEORGIA 

  

BRIEF FOR THE RESPONDENT IN OPPOSITION 

  

ARTHUR K. BOLTON 

Attorney General 

HAROLD N, HILL, JR. 

Executive Assistant 

Attorney General 

MARION O. GORDON 

Assistant Attorney General 

+ 

LARRY H. EVANS 

Attorney 

P. O. ADDRESS: 

132 State Judicial Building 

40 Capitol Square 

Atlanta, Georgia 30334 

 



TE EE ES = 

  

IN THE 

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1969 

  

No. 645 - Misc. 

  

WILLIAM HENRY FURMAN, 

Petitioner 

THE STATE OF GEORGIA, 

Respondent 

  

ON PETITION FOR A WRIT OF CERTIORARI TO 

THE SUPREME COURT OF GEORGIA 

  

BRIEF FOR THE RESPONDENT IN OPPOSITION 

  

PART I 

ARGUMENT 
  

A. GEORGIA'S PRACTICE OF VESTING CAPITAL TRIAL 

JURIES WITH DISCRETION TO IMPOSE THE DEATH PENALTY 

BASED ON THE EVIDENCE IN THE CASE DOES NOT VIOLATE THE 

DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE 

CONSTITUTION OF THE UNITED STATES. 

This question was not ruled upon by the court below. 

Furman v, State, 225 Ga. 253 (1969), Petitioner's Brief p. 7. 
  

A careful reading of the enumeration Of errors filed by the 

petitioner in the Supreme Court of Georgia will show that this 

 



  

  

question was not explicitly raised before that Court. 

Since the question was not properly presented to the 

lower court and was of course not ruled upon by that court, 

it cannot sic be raised by the petitioner. 28 U.S.C. § 1257, 

Beck v. Washington, 369 U.S. 541,549-550 (1961). 
  

Also the respondent was not served a copy of the peti- 

tioner's brief relating to this question. See petitioner's 

brief, p. 21 where he states, "Petitioner's views on this 

question are fully discussed in the brief for petitioner 

filed in Maxwell v. Bishop, 0.7. (1968) no. 622 at pp. 6-9, 
  

11-65, and therefore, rather than rehearse those arguments 

here, we respectfully refer the Court to that brief." Without 

the benefit of the petitioner's argument, it will be impossible 

for the respondent to intelligently refute it. 

Even though the question was not in raised in the 

court below and the respondent was not properly served with 

the petitioner's brief relating to this question, it is very 

clear that this question does not merit consideration by this 

Court, 

The laws of Georgia provide that a capital trial jury 

may, in its discretion, impose the death sentence without 

guidelines, standards or direction from the court. Williams 
  

Vv. State, 119 Ga. 425 (1903), Ga. Code § 26-1005. The 
  

Supreme Court of Georgia has held that this practice is not 

violative of the Constitution of the United States. Manor Vv. 
  

gate, 223 Ga. 594 (20) (1967), Chatterton v, Dutton, 223 Ga. 
  

243 (1967) cert. denied 389 U.S. 914 (1966), , 
  

 



  

This question has been ruled upon very recently by the 

Ninth Circuit Court of Appeals. Sims v. Evman, 405 P.24 
  

439 (13) (1969). In the Sims case at p. 447 the court said, 

"Additionally, petitioner contends that he was denied 

due process since the jury had no standards by which 

to determine the propriety of imposing the death 

penalty rather than life imprisonment. This contention 

has no merit. The type of jury discretion in sentencing 

allowed by the Arizona statute has always been upheld. 

See Winston v. United States, 172 U.S. 303, 19 s.ct. 212,   

43 L.Ed. 456 (1899); Andres v, United States, 333 U.S. 
  

740, 758-763, 68 S.Ct. 880, 92 L.E4. 1055 (1948), 

(concurring opinion); In Re Ernst, supra, 294 F.2d at 
  

560-561." 

This exact question has been ruled upon by the Third 

Circuit [In Re Ernst, 294 F.2d 556 (3) (1961)]; the Tenth Cir-   

cuit [Sequra v. Patterson, 402 F.2d 249 (13) (1968)]; and   

the Ninth Circuit [Sims v. Evman, 405 F.24 439 (13) (1969)].   

Each of these federal appellate courts upheld the constitu- 

tionality of allowing a capital trial jury absolute discretion 

to impose the death penalty, uncontrolled by standards or 

directions from the court. Our research revealed no cases 

to the contrary nor any decisions from this Court on point. 

 



  

B. THE SUPREME COURT OF GEORGIA DID NOT MISAPPLY 

THE STANDARDS OF WITHERSPOON V, ILLINOIS, 391 U.S. 510 

(1968). 
  

The petitioner charges that juror Anchors was excused for 

cause in violation of the Witherspoon requirements. It is 
  

clear, based on Mr. Anchors' response to the State's question- 

ing on voir dire, that he would not have been an impartial juror   

and regardless of the evidence he would not have voted to impose 

the death penalty. (Trial transcript pp. 4-9). The requisites 

of Witherspoon v. Illinois, 391 U.S. 510 (1968) were complied 
  

with and Mr. Anchors was properly excused for cause. 

In the second prong of the petitioner's argument (petitioner's 

brief pp. 12-17) on this question he charges that "The court 

below erred in approving death qualification practices, whose 

constitutionality raises the question expressly reserved in 

Witherspoon." This issue was not raised in the lower court. 
  

Nowhere in the petitioner's enumeration of errors that was filed 

in the lower court was this question mentioned. Therefore the 

respondent will not respond to the petitioner's argument labeled 

npn, This is obviously a frivolous question and does not merit 

consideration by this Court. 

C. THE PETITIONER'S DEATH SENTENCE DOES NOT CON- 

STITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF 

THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION 

OF THE UNITED STATES. 

The Supreme Court of Georgia properly held that the 

petitioner's death sentence for murder was not cruel and un- 

usual punishment based on prior decisions of that court. 

* 

Manor v. State, 223 Ga. 594 (18) (1967). 
  

 



  

  

In Trop v. Dulles, 356 U.S. 86 (1958) at p. 99 this 
  

Court said: 

"Whatever the arguments may be against capital punish- 

ment, both on moral grounds and in terms of accomplishing 

the purposes of punishment - and they are forceful - the 

death penalty has been employed throughout our history, 

and, in a day when it is still widely accepted it cannot 

be said to violate the constitutional concept of cruelty.’ 

There is no merit in petitioner's argument that the 

Supreme Court of Georgia erred in finding that petitioner's 

death sentence was not cruel and unusual punishment. 

 



corm sempre 
  

  

CONCLUSION 
  

The respondent submits that the petitioner has failed 

to establish a basis or a need upon which this Court should 

grant certiorari. 

be denied. 

Please serve: 

LARRY H. EVANS 

132 State Judicial Building 

40 Capitol Square 

Atlanta, Georgia 30334 

The respondent urges that this petition 

Respectfully submitted, 

oll, CL Nd a 
  

Gls K. Li] 

Attorney General 

“tind 47 Ta 4 
  

HAROLD N. HILL, JR. Zr 
Executive Assistant 

Attorney General 

  

pL APP a (7 
oo O. GORDON 
Assistant Attorney General 

lee 
LARRY H. EVANS 

Attorney 

  

  

 



bi ei SA Ho inh A AR AH A A Ba oi a SB 
    EA 

  

CERTIFICATE OF SERVICE 
  

I, MARION O., GORDON, one of the Attorneys for the Re- 

spondent herein, and a member of the Bar of the Supreme Court 

of the United States, hereby certify that on the / 7H. day OF 

October, 1969, I served a copy of the foregoing Brief for the 

Respondent in Opposition on the Petitioner by mailing a copy 

in a duly-addressed envelope with postage prepaid to his 

counsel of record, Messrs. JACK GREENBERG, MICHAEL MELTSNER, 

JACK HIMMELSTEIN, and ELIZABETH B. DUBOIS, at 10 Columbus 

Circle, New York, New York 10019; Mr. ANTHONY G. AMSTERDAM, 

at Stanford University Law School, Stanford, California 94305; 

and Mr. B. CLARENCE MAYFIELD, at 910 West Broad Street, 

Savannah, Georgia 31401. 

Lf 

MARION O. GORDON 

  

Counsel for Respondent