author: Mr. Justice Brennan, Me. Justice Stewaet,

text:
    April 24, 1978
    No. 76-1738.
    Sewell v. Georgia.
   Appeal from Sup. Ct. Ga. dismissed for want of substantial federal question.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins, dissenting.

Appellant, William M. Sewell, appeals from a judgment of the Supreme Court of Georgia which affirmed his conviction on a one-count accusation framed under the Georgia obscenity statute, Ga. Code §26-2101 (1975). In July 1975, a police officer bought a magazine, Hot and Sultry, and a device said to be an “artificial vagina,” from appellant, an employee of the Stewart Avenue Adult Book Store. Shortly after this sale, the officer, joined by two others, entered the store, arrested appellant, and seized various vibrators, rubber devices shaped like penises, and other items alleged to be devices for sexual stimulation. After attempting unsuccessfully to have the seized material suppressed, appellant was convicted by a jury of selling the magazine and artificial vagina and of possessing the other material and was sentenced to 12 months in jail and a fine of $4,000.

Georgia Code § 26-2101 (a) (1975) provides:

“A person commits the offense of distributing obscene materials when he sells ... or otherwise disseminates to any person any obscene material of any description, knowing the obscene nature thereof, or offers to do so, or possesses such material with the intent to do so, provided that the word ‘knowing,’ as used herein, shall be deemed to be either actual or constructive knowledge of the obscene contents of the subject matter, and a person has constructive knowledge of the obscene contents if he has knowledge of facts which would put a reasonable and prudent person on notice as to the suspect nature of the material.”

Sections 26-2101 (b) through 26-2101 (d) define the term “obscene materials” used in §26-2101 (a). Section 26-2101 (b) covers published material alleged to be obscene and generally tracks the guidelines set out in Miller v. California,, 413 U. S. 15 (1973). Section 26-2101 (c) states that, in addition to material covered in subsection (b), “any device designed or marketed as useful primarily for the stimulation of human genital organs is obscene material under this section.” The jury was instructed that it should determine the obscenity of Hot and Sultry under the standards set out in §§ 26-2101 (a) and 26-2101 (b) and that the sale of the artificial vagina and the possession of the other material should be considered under §§ 26-2101 (a) and 26-2101 (c). The trial judge further charged the jury on the meaning of “knowing” in the words set out in § 26-2101 (a). A general verdict of guilty was returned.

In this Court, appellant raises constitutional objections to a number of features of § 26-2101. First, he argues that an obscenity statute which defines scienter in a manner which authorizes obscenity convictions on mere “constructive” knowledge impermissibly chills the dissemination of materials protected under the First and Fourteenth Amendments. Jurisdictional Statement 3. Second, he argues that there is no rational basis for § 26-2101 (c) and, in addition, that it is unconstitutionally vague. Jurisdictional Statement 3, 9-10. Third, appellant contends that Hot and Sultry is not obscene as a matter of law. Id., at 3. And, finally, appellant challenges the warrantless mass seizure of the sexual devices on First, Fourth, and Fourteenth Amendment grounds. Id., at 3, 17.

This is an, appeal and I cannot agree with the Court that the first and second questions presented can be dismissed as not presenting substantial federal questions.

I

In Ballew v. Georgia, ante, p. 223, we granted certiorari to consider, but did not reach, the precise scienter issue now raised by appellant. See Pet. for Cert, in Ballew v. Georgia, O. T. 1977, No. 76-761, p. 2. I see no basis for concluding that a federal constitutional question sufficiently substantial to be granted review on certiorari is now so insubstantial as not to require exercise of our mandatory appellate jurisdiction in this case. Moreover, even if others do not agree that the void-for-vagueness issue is substantial, the fact that appellant might have been convicted for sale or possession of the seized devices is irrelevant to consideration of the obscenity issue. As we said in Stromberg v. California, 283 U. S. 350, 367-368 (1931):

“The verdict against the appellant was a general one. It did not specify the ground upon which it rested. . . . [I]t is impossible to say under which clause of the statute the conviction was obtained. ... It follows that instead of its being permissible to hold, with the state court, that the verdict could be sustained if any one of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.”

See also Bachellar v. Maryland, 397 U. S. 564 (1970).

II

Appellant’s second argument, that § 26-2101 (c) is void for vagueness, also raises a substantial federal question — one of first impression in this Court — even though appellant fundamentally misapprehends the reach of the First Amendment in his argument that the protections of that Amendment extend to the sexual devices involved in this case. As we said in Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972):

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” (Footnotes omitted.)

See also Papachristou v. Jacksonville, 405 U. S. 156 (1972); Cline v. Frink Dairy Co., 274 U. S. 445 (1927); Connally v. General Construction Co., 269 U. S. 385 (1926).

Section 26-2101 (c) at least arguably offends both principles enunciated in Groyned. Even conceding that a jury could properly infer from the shapes of the seized devices that some could be used for sexual stimulation, the fact that some people might use the devices for that purpose scarcely suffices to show that they are designed or marketed primarily for sexual stimulation. As one commentator has noted, statutes couched in such terms of “judgment and degree” contain seeds of “inherent discontrol” over the law enforcement process and have been “virtually [the] exclusive target of void-for-vagueness nullification.” Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67, 92-93 (1960). Moreover, “it is in this realm, where the equilibrium between the individual’s claims of freedom and society’s demands upon him is left to be struck ad hoc on the basis of a subjective evaluation, . . . that there exists the risk of continuing irregularity with which the vagueness cases have been concerned.” Id., at 93.

In addition, although vague statutes may be saved from constitutional infirmity if they require specific intent as an element of an offense, see Papachristou v. Jacksonville, supra, at 163, the constructive scienter requirement of § 26-2101 (a), at least as applied in appellant’s trial, provides no reasonable assurance that persons will know or ought to know when they are likely to violate § 26-2101 (c).

The record here is very clear: Appellant was convicted solely on the basis of the guesses and assumptions of the single witness at trial — a policeman who had never used the devices, Tr. 24; never seen them used, id., at 25; and who knew of no one who used them for sexual stimulation, id., at 26 — that the seized devices were used primarily for the stimulation of human genitals. See id., at 22, 24. In explaining how he had reached his guesses and assumptions notwithstanding a total lack of personal familiarity with the seized devices, that witness stated that he had seen, in the course of his investigations, “newspapers that are printed and catalogs that are sent out to different people pertaining to these things.” Id., at 32. No catalogs were introduced into evidence and no evidence was given to show that the unidentified catalogs would likely have been sent to appellant. Thus, how the proverbial “reasonable man,” or even a “reasonable clerk in an adult book store,” would have been put on notice of the primary use to which the seized devices would be put is simply not apparent.

It is therefore hard to imagine a more stark prima facie case of a “vague law [which] impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.” Grayned v. City of Rockford, supra, at 108-109. In a society where the rule of law is paramount, it simply will not do to allow persons, however ignoble their trade — or perhaps because their trade is ignoble, cf. Papachristou v. City of Jacksonville, supra — to be convicted of crimes solely because policemen and juries, encouraged by the State, can conjure up scenes of sexual stimulation in which devices play a major role.

For the reasons set out above, I would set this case for argument.

Me. Justice Stewaet,

dissenting.

The appellant stands convicted of the single crime of distributing obscene material in violation of Ga. Code § 26-2101 (1975). Cf. Robinson v. State, 143 Ga. App. 37, 38-39, 237 S. E. 2d 436, 438 (1977), vacated and remanded on other grounds, post, p. 991. The one-count indictment charged that he had sold both sexual devices, alleged to be obscene material as defined in §26-2101 (c), and a magazine, alleged to be obscene under the definition in § 26-2101 (b).

While the appellant does not claim that the definition of obscenity in subsection (b) is unconstitutional, he does ask this Court to examine the magazine in question and to determine that it is constitutionally protected as a matter of law. I continue to believe that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (Brennan, J., dissenting). I therefore believe that the appellant’s conviction cannot constitutionally rest on the sale of an allegedly obscene magazine.

Because it cannot be determined that the jury in this case did not convict the appellant on the basis of the magazine sale alone, I would reverse the judgment of the Supreme Court of Georgia. See Stromberg v. California, 283 U. S. 359, 368.

       Although I agree with my Brother Stewart, post, at 988-989, that § 26-2101 is unconstitutional as applied to the magazine involved in this case, I recognize that a majority of this Court does not agree with this view and, accordingly, I would hear argument on the scienter issue.

       Even if devices might in some circumstances be protected by the First and Fourteenth Amendments, this is not the case here since no claim is made that the devices are in any way expressive or that their possession and sale is in any way related to appellant’s right to speak.

       Moreover, the facial vagueness of § 26-2101 (c) is enhanced by its interpretation by law enforcement personnel. Although § 26-2101 (c) by its terms applies only to devices that are “designed or marketed as useful primarily for the stimulation of human genital organs,” the accusation against appellant nonetheless charged appellant with possession of “3 anal stimulators.” Clerk’s Tr. 3. So far as I know, no dictionary includes the human anus among the genital organs. See also Balthazar v. Superior Court, 573 F. 2d 698 (CA1 1978). The packaging of another item states quite clearly on the back that the item is a “doggy dong.” Whether this item, in the shape of a rubber candlestick, is to be used with dogs or humans — or simply as a “novelty,” for whatever ribald humor it may give rise to — it is impossible to discover how appellant or a jury could conclude that this item is primarily used for stimulation of human genitals.

      Like my Brother Brennan, ante, at 984 n. 1, I recognize that a majority of the Court does not share this view, and since I also agree with Part I of his dissenting opinion, I would alternatively note probable jurisdiction and hear argument in this case on the scienter issue, if three other Members of the Court were like-minded.


source: Caselaw Access Project

author: Mr. Justice Brennan, Mr. Justice Stewart,

license: Public Domain

text:
    No. 77-790.
    Teal v. Georgia.
   Appeal from Ct. App. Ga. dismissed for want of substantial federal question.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins,

dissenting.

Appellant, Warren Teal, appeals from a judgment of the Georgia Court of Appeals which affirmed his conviction on a one-count accusation framed under the Georgia obscenity statute, Ga. Code § 26-2101 (1975). On August 29,1975, two Atlanta area law enforcement officers bought a magazine, Piece Meal, from appellant, an employee of the Ponce de Leon Adult Book Store, and immediately arrested appellant and seized various items alleged to be devices “designed or marketed as useful primarily for the stimulation of human genital organs.” § 26-2101 (c). After attempting unsuccessfully to have the seized material suppressed, appellant was convicted by a jury of selling the magazine and possessing the devices and was sentenced to 12 months in jail and a $5,000 fine.

In this Court, appellant presents constitutional questions identical to those in Sewell v. Georgia, ante, p. 982, which are set out in my dissent there. For the reasons stated in that dissent, I would set this case for argument on the scienter and void-for-vagueness issues.

Mr. Justice Stewart,

dissenting.

This case is in all relevant respects identical to Sewell v. Georgia, ante, p. 982. For the reasons stated in my dissenting opinion in that case, I would reverse the judgment of the Georgia Court of Appeals, or alternatively, note probable jurisdiction and hear argument on the scienter issue.

      A review of the record in this case shows that, as in Sewell v. Georgia, ante, p. 982 (Brennan, J., dissenting), the scienter requirement does not save Ga. Code § 26-2101 (c) (1975) from vagueness. Although a police officer testified here that, in the course of viewing adult movies, he had seen some of the devices used to stimulate human genitals and, in addition, that he had seen a catalog which marketed the devices for such a/use, there was no showing that appellant had seen or should have seen the indicated movies or that appellant was familiar with any such catalog. Indeed, the trial judge refused to admit the catalog into evidence because it had no relation to the constructive scienter issue. Thus the conclusion that the seized devices were “useful primarily for the stimulation of human genital organs,” here as in Sewell, was reached solely from an inference to be drawn from the shape of the devices and the arresting officers’ guesses and assumptions.


text:
    No. 77-1220.
    Schroeder v. Municipal Court of the Los Cerritos Judicial District (California, Real Party in Interest) .
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of substantial federal question.


text:
    No. 77-6365.
    Gill v. Gill et al.
   Appeal from C. A. 3d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 77-1229.
    Huffman, Administrator v. Kentucky et al.
   Appeal from Ct. App. Ky. dismissed for want of substantial federal question.


text:
    No. 77-915.
    Robinson v. Georgia.
   Appeal from Ct. App. Ga. Judgment vacated and case remanded for further consideration in light of Ballew v. Georgia, ante, p. 223.

Mr. Justice Brennan,

with whom Mr. Justice Marshall joins,

dissenting.

Appellant, Ernest H. Robinson, appeals from a judgment of the Georgia Court of Appeals which affirmed his conviction on a one-count accusation framed under the Georgia obscenity statute, Ga. Code § 26-2101 (1975). As in Sewell v. Georgia, ante, p. 982, and Teal v. Georgia, ante, p. 989, appellant was an employee in an adult book store and was arrested for selling an allegedly obscene magazine to an Atlanta police officer. Immediately after the arrest, the police seized various devices thought to be “designed or marketed as useful primarily for the stimulation of human genital organs.” §26-2101 (c). After attempting unsuccessfully to have the seized material suppressed, appellant was convicted by a five-person jury of selling the magazine and possessing the devices and was sentenced to 12 months in jail and a $1,000 fine.

In this Court, appellant presents constitutional questions identical to those in Sewell v. Georgia, supra, and, in addition, alleges that a jury composed of only five persons is constitutionally deficient. Although I agree that appellant’s conviction by a five-person jury cannot stand, see Ballew v. Georgia, ante, p. 223, I would nonetheless set the case for argument on the scienter and void-for-vagueness issues, see Sewell v. Georgia, ante,, p. 982 (Brennan, J., dissenting), since a reversal on either of those grounds might bar a retrial, whereas Georgia is free under the Court’s remand order to put appellant to another trial under a statute that may well be unconstitutional.

Mr. Justice Stewart,

dissenting.

This case is in all relevant respects identical to Sewell v. Georgia, ante, p. 982. For the reasons stated in my dissenting opinion in that case, I would reverse the judgment of the Georgia Court of Appeals, or, alternatively, note probable jurisdiction and hear argument on the scienter issue.


text:
    No. 77-440.
    Pleasure Driveway and Park District of Peoria, Illinois, et al. v. Kurek et al.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of City of Lafayette v. Louisiana Power & Light Co., ante, p. 389. Mr. Justice Stevens took no part in the consideration or decision of this case.


text:
    No. 77-734.
    City of Impact et al. v. Whitworth, dba Dinkie’s Food Mart.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of City of Lafayette v. Louisiana Power & Light Co., ante, p. 389.


text:
    No. 77-826.
    Fairfax Hospital Assn. et al. v. City of Fairfax et al.
   C. A. 4th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of City of Lafayette v. Louisiana Power & Light Co., ante, p. 389.


text:
    No. 77-835.
    University of Texas System et al. v. Assaf.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded to the United States District Court for the Southern District of Texas with directions to dismiss the case as moot. Board of Regents of the University of Texas System v. New Left Education Project, 414 U. S. 807 (1973).


text:
    No. A-807.
    Brown et al. v. Thomson, Governor of New Hampshire.
   C. A. 1st Cir. Motion to amend or clarify order which this Court entered March 24, 1978 [ante, p. 938], denied.


text:
    No. A-856.
    Kissinger v. Reporters Committee for Freedom of the Press et al.
   Application for stay of order of the United States District Court for the District of Columbia, entered January 25, 1978, presented to The Chief Justice and by him referred to the Court, granted pending final disposition of the appeals in the United States Court of Appeals for the District of Columbia Circuit.


text:
    No. D-134.
    In re Disbarment of Beitling.
   It is ordered that S. Richard Beitling of Independence, Mo., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 75-679.
    Internal Revenue Service v. Fruehauf Corp. et al.,
   429 U. S. 1085.

Motion of respondents to retax costs denied.


text:
    No. 77-529.
    Wise, Mayor of Dallas, et al. v. Lipscomb et al.
   C. A. 5th Cir. [Certiorari granted, 434 U. S. 1008.] Motion of Adelfa B. Callejo et al. for leave to participate in oral argument denied. Mr. Justice Brennan, Mr. Justice Marshall, and Mr. Justice Stevens would grant the motion.


text:
    No. 77-1200.
    American Association of Councils of Medical Staffs of Private Hospitals, Inc. v. Judges of the United States Court of Appeals for the Fifth Circuit.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 77-6462. No. 77-6479.
    Begley v. Carter et al.; and Ricks v. Collins, Warden.
   Motions for leave to file petitions for writs of habeas corpus denied.


text:
    No. 77-1131.
    In re Vendo Co.
   On February 10, 1978, petitioner filed for leave to file a petition for writ of mandamus and further prayed that a writ of mandamus issue to the United States District Court for the Northern District of Illinois directing the District Court to dissolve the preliminary injunction in Lektro-Vend Corp. v. Vendo Co. In Vendo Co. v. Lektro-Vend Corp., 433 U. S. 623 (1977), this Court had held that the preliminary injunction violated the Anti-Injunction Act, 28 U. S. C. § 2283. The Court has now been advised of an order entered on April 6, 1978, dissolving the injunction in accordance with the judgment of this Court. Petitioner’s motion is therefore dismissed as moot.


text:
    No. 77-1248.
    Illinois State Board of Elections v. Socialist Workers Party et al.
   Appeal from C. A. 7th Cir. Probable jurisdiction noted.


text:
    No. 77-533.
    Hisquierdo v. Hisquierdo.
   Sup. Ct. Cal. Certiorari granted.


text:
    (See also No. 77-6365, supra.)

    No. 77-880.
    Lowther et al. v. Maryland Employees Retirement System et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-993.
    Union Oil Company of California v. Ashland Oil Company of California et al.
   Temp. Emerg. Ct, App. Certiorari denied.


text:
    No. 77-1039.
    Franklin v. Atkins et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-1063.
    Eisenberg v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-1068.
    Pfister v. Waddy, U. S. District Judge; and Pfister v. Delta Air Lines, Inc., et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-1080. No. 77-6073.
    Redmond v. United States; and Lund v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-1081.
    Knehans v. Alexander, Secretary of the Army.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-1092.
    Thies v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-1097.
    Reynolds Metals Co. v. Brown, Secretary, Department of Defense, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-1099.
    Buttram v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-1101.
    Pappas Television, Inc. v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-1117.
    McFayden-Snider v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-1120.
    Tsanas v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-1124.
    Southwestern Life Insurance Co. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1133.
    Marino v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1160.
    Local 144, Hotel, Hospital, Nursing Home & Allied Health Services Union, SEIU, AFL-CIO v. Long Island College Hospital et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-1191.
    Gish et ux. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1209.
    Long Mfg., N. C., Inc. v. Dollar et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1218.
    Whitten et al. v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 77-1222.
    Ruud et al. v. Minnesota.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 77-1231.
    City of Cleveland v. Cleveland Electric Illuminating Co. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-1232. No. 77-6283. No. 77-6291.
    Carr v. United States; Anderson v. United States; and Bullard v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1241.
    Wagner et al. v. Burlington Northern, Inc., et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-1243.
    Detrich, Director, Department of Public Welfare of San Diego County v. Shelton G.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 77-1244.
    Waddell v. Pepsi Cola Co.
   Ct. App. D. C. Certiorari denied.


text:
    No. 77-1245.
    Paradise Palms Community Assn. v. Paradise Homes et al.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 77-1246.
    Maryland v. Wheeler.
   Ct. App-. Md. Certiorari denied.


text:
    No. 77-1304.
    McAdams v. Bell, Attorney General, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1357.
    Coleman v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 77-1367.
    Welsh v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-1375.
    Moroyoqui v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1393.
    Cardarella v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-5942.
    Hanna v. Illinois.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 77-5972.
    Armstead et al. v. Phelps, Corrections Secretary, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6054.
    Phillips v. Benton et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6094.
    Rosenmund v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 77-6101.
    Shaver v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6117.
    Jackson v. Overberg, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6191.
    Williams v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-6211.
    McNair v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6226.
    Luna v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6234.
    Perez v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6255.
    Young v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 77-6265.
    Thompson v. Florida; and Surace v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 77-6280.
    Davis v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 77-6296.
    Chapman v. Indiana.
   Ct. App. Ind. Certiorari denied.


text:
    No. 77-6297.
    Burr v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 77-6299.
    Plemons v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6301.
    Williams v. Ohio et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6305.
    Trice v. Kentucky.
   Ct. App. Ky. Certiorari denied.


text:
    No. 77-6310.
    Keeling v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 77-6317.
    Aguirre v. Morris, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6320.
    Mabery v. New York.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6322.
    Morgan v. Setliff, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-6324.
    Burrell v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6329.
    Sherley v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 77-6417.
    Watkins, dba Beltone Hearing Aid Center v. Lou Bachrodt Chevrolet, Inc.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 77-6436.
    Gay v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6446.
    Roach v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6449.
    Clyburn v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 77-6452.
    Black Horse v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-6453.
    Hernandez et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6461.
    Sacco v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6491.
    Jackson v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 77-1089.
    Hearst v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Brennan would grant certiorari limited to Questions VII and VIII presented by the petition.


text:
    No. 77-1308..
    National Broadcasting Co., Inc., et al. v. Niemi.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.

Mr. Justice Brennan would grant certiorari.


text:
    No. 77-1329.
    Ohio v. Teter.
   Ct. App. Ohio, Summit County. Motion of respondent for leave to proceed in forma, pauperis granted. Certiorari denied.


text:
    No. 77-1385.
    May v. Indiana.
   Ct. App. Ind. Certiorari denied.

Mr. Justice Stewart would grant certiorari.


author: Mr. Justice Marshall,

text:
    No. 77-5953.
    Riley v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins,

dissenting.

I dissent from the denial of certiorari. Petitioner was 16 years old at the time of his arrest in connection with three homicides. After being held for an hour and a half in a police car at the cemetery where the bodies were found, petitioner was taken to the police station, where his shoes, trousers, and shirt were removed and he was given a blanket and placed in a cell. An hour or two later, after being advised of his constitutional rights to remain silent and consult with an attorney, petitioner asked to speak to his father, who had come to the police station when he learned of his son’s arrest; this request was ignored by the police. Petitioner then confessed to the crimes, and later that evening repeated the confession to a prosecuting attorney, without having consulted. with the parent whom he had asked to see or with any other friendly adult. The confession was introduced over objection at petitioner’s trial, which led to his conviction for murder and to sentences of 75 to 225 years.

The Illinois courts considered and rejected petitioner’s argument, made initially in support of his motion to suppress the confession, that “the request of a juvenile defendant to see a parent is tantamount to an adult’s request for an attorney” and should terminate police interrogation. 49 Ill. App. 3d 304, 308, 364 N. E. 2d 306, 309 (1977). It is this argument that petitioner presses here.

I have recently expressed my view that this Court should decide whether a juvenile’s waiver of rights is valid in the absence of “competent advice from an adult who does not have significant conflicts of interest.” Little v. Arkansas, ante,p. 957 (dissenting from denial of certiorari). The instant case presents a related but less difficult issue, for we need not consider here whether the Constitution requires that a juvenile always receive adult advice before making a confession. Compare ante, at 958-959, and nn. 5-6. Nor need we decide whether adult advice tainted by conflict of interest is nevertheless sufficient for constitutional purposes. See ante, at 959-960. The narrow question presented here is simply whether an accused child’s request to see a parent must be honored by the police before they continue interrogation, at least when the parent is available at the police station and interested in speaking to his child.

There is a conflict of authority on this question that indicates a need for this Court to exercise its certiorari jurisdiction. See Sup. Ct. Rule 19. The Supreme Court of California has held:

“[WJhen ... a minor is taken into custody and is subjected to interrogation, without the presence of an attorney, his request to see one of his parents . . . must ... be construed to indicate that the minor suspect desires to invoke his Fifth Amendment privilege. The police must cease custodial interrogation immediately upon exercise of the privilege.” People v. Burton, 6 Cal. 3d 375, 383-384, 491 P. 2d 793, 798 (1971).

Other state courts have gone further, requiring that a juvenile always receive adult advice before the police may accept his confession, regardless of whether he asks to speak to an adult. See, e. g., Lewis v. State, 259 Ind. 431, 436-440, 288 N. E. 2d 138, 141-143 (1972); In re K. W. B., 500 S. W. 2d 275, 279-283 (Mo. App. 1973); Commonwealth v. Webster, 466 Pa. 314, 320-328, 353 A. 2d 372, 375-379 (1975); Commonwealth v. McCutchen, 463 Pa. 90, 343 A. 2d 669 (1975). On the other hand, at least two courts in addition to the court below have upheld the admission of confessions obtained after juveniles’ requests to see parents had been ignored by the police. Chaney v. Wainwright, 561 F. 2d 1129 (CA5 1977) (2-1 decision); State v. Young, 220 Kan. 541, 555, 552 P. 2d 905, 916 (1976) (noting that honoring juvenile’s request to see parent would be the “better police practice,” although not constitutionally required) .

In In re Gault, 387 U. S. 1 (1967), this Court emphasized that “the greatest care must be taken to assure that [a juvenile’s] admission was voluntary . . . [and] that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” Id., at 55. In light of this admonition, there is an obvious incongruity in requiring the police to honor an adult’s request for an attorney while allowing them to ignore a juvenile’s request to speak to a parent:

“[T]he state readily concedes that the police would have been required to accede to a request for an attorney. The accused who requests his mother rather than his ever-available attorney is the less knowledgeable, more easily coerced person most in need of protection from police overreaching. It makes no sense to protect the knowledgeable accused from stationhouse coercion while abandoning the young person who knows no more than to ask for the one person he trusts, his mother.” Chaney v. Wainwright, supra, at 1134 (Goldberg, J., dissenting) (footnote omitted).

These considerations, at the very least, indicate that the issue presented here is a substantial one. For this reason, and because of the conflict among state and federal courts on the question, I would grant the petition for certiorari.

       All facts are taken from the opinion of the Illinois Appellate Court. 49 Ill. App. 3d 304, 364 N. E. 2d 306 (1977). It appears that petitioner first told the police that he was 17 years old, but it is here undisputed that petitioner was 16 at the time of the events in question. See id., at 306, 310, 364 N. E. 2d, at 307-308, 310; Brief in Opposition 2.

       This clothing was apparently removed for evidentiary purposes. See 49 Ill. App. 3d, at 306, 364 N. E. 2d, at 307.

       Police testimony conflicted with both petitioner’s claim that he had asked to see his father and the father’s claim that he had asked repeatedly to see his son. There is no dispute, however, about the father’s presence at the police station that evening, and the trial court assumed, in ruling on petitioner’s suppression motion, that petitioner had made the request to see his father. Id., at 306-307, 310, 364 N. E. 2d, at 308, 310.

       Petitioner was convicted of two counts of murder, for which he received concurrent sentences of 75 to 225 years. He was also convicted of one count of involuntary manslaughter, for which he received a sentence of 3 to 10 years.

       The Illinois Supreme Court denied leave to appeal. App. B to Pet. for Cert.

       The Illinois court in the instant case similarly indicated that “ ‘it would be preferable to make sure, whenever possible, that a parent or guardian is present when a juvenile waives his rights,'” 49 Ill. App. 3d, at 311, 364 N. E. 2d, at 311, quoting In re Stiff, 32 Ill. App. 3d 971, 978, 336 N. E. 2d 619, 625 (1975).


text:
    No. 77-6016.
    Franklin et al. v. Shields et al.
   C. A. 4th Cir. Motion of Public Defender of Wisconsin for leave to file a brief as amicus curiae granted. Certiorari denied.

Mr. Justice Brennan, Mr. Justice White, and Mr. Justice Marshall would grant certiorari.


text:
    No. 77-6288.
    Gibson v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.


text:
    No. 77-863. No. 77-1028.
    Buthorn v. United States, and Insurance Company of North America v. Mosley et al.,
   ante, p. 915;

ante, p. 918.

Petitions for rehearing denied.


text:
    May 1, 1978
    No. 77-1061.
    Darks v. Transok Pipe Line Co.
   Appeal from Ct. Crim. App. Okla. dismissed for want of substantial federal question.


text:
    No. 77-1250.
    International Tracers of America v. Estate of Hard et al.
   Appeal from Sup. Ct. Wash, dismissed for want of substantial federal question.


text:
    No. 77-1285.
    Township of Midland et al. v. Michigan State Boundary Commission et al.
   Appeal from Sup. Ct. Mich, dismissed for want of substantial federal question.


text:
    No. 77-6361.
    Raitport v. Acro-Matic, Inc.
   Appeal from Super. Ct. Pa. dismissed for want of substantial federal question.


text:
    No. 77-1176.
    Nabisco, Inc., et al. v. Korzen, Treasurer of Cook County, et al.
   Appeal from Sup. Ct. Ill. Motion of Northwestern University for leave to file a brief as amicus curiae granted. Appeal dismissed for want of substantial federal question.


text:
    No. 77-1287.
    Fisher v. Ohio.
   Appeal from Sup. Ct. Ohio dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 77-6289.
    Ward v. Utah.
   Appeal from Sup. Ct. Utah dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 76-1560.
    United States v. United States Gypsum Co. et al.
   C. A. 3d Cir. [Certiorari granted, 434 U. S. 815.] Motion of respondents Colon Brown et al. for leave to file supplemental brief after argument granted. Mr. Justice Blackmun took no part in the consideration or decision of this motion.


text:
    No. 77-1234.
    International Association of Machinists & Aerospace Workers, AFL-CIO v. Compagnie Nationale Air France.
   C. A. 2d Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 77-1471.
    Edwards et al., Members, House of Representatives v. Carter, President of the United States.
   C. A. D. C. Cir. Motion of petitioners to expedite consideration of petition for writ of certiorari denied. Application for injunction, presented to The Chief Justice, and by him referred to the Court., denied.


text:
    No. 77-6278. No. 77-6352. No. 77-6358.
    Knight v. United States District Court for the District of Massachusetts; Townsley v. Lindsay, Judge, et al.; and Siddle v. United States District Court for the Southern District of Ohio et al.
   Motions for leave to file petitions for writs of mandamus denied.


text:
    No. 77-1301.
    Gannett Co., Inc. v. DePasquale, Judge, et al.
   Ct. App. N. Y. Certiorari granted.


text:
    No. 77-1305.
    Parklane Hosiery Co., Inc., et al. v. Shore.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 77-6067.
    Duren v. Missouri.
   Sup. Ct. Mo. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.


text:
    (See also Nos. 77-1287 and 77-6289, supra.)

    No. 77-755.
    Rocky Mountain Motor Tariff Bureau, Inc., et al. v. United States et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-1008.
    Sioux City & New Orleans Barge Lines, Inc. v. Helena Marine Service, Inc.
   G. A. 8th Cir. Certiorari denied.


text:
    No. 77-1062.
    Darks et al. v. Transok Pipe Line Co.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-1095.
    Clemente et al. v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-1104.
    Monroe County Conservation Council, Inc., et al. v. Adams, Secretary of Transportation.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-1128.
    Griffin et ux. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-1145.
    Vernell v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1155.
    Santana v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-1170.
    Bibbs et al. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1174.
    Bell v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-1182.
    United Air Lines, Inc. v. Inda.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1190.
    All Island Delivery Service, Inc., et al. v. United States et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-1235.
    Lake Livingston Washateria, Inc., et al. v. Hasty et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1242.
    Tally v. Johnson et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1249.
    Bisping v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 77-1252.
    Donovan Construction Company of Minnesota v. Florida Telephone Corp.
   C. A. 5th Cir. Certiorari denied.


text:
    No, 77-1256.
    Barone v. Barnes, Judge, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-1259.
    Ben R. Hendrix Trading Co., Inc. v. J. Henry Schroeder Banking Corp. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1274.
    Aluminum Company of America et al. v. Cuyahoga County Board of Revision et al.
   Ct. App., Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 77-1280.
    E. F. I., Inc. v. M. I. I., dba Marketers International, Inc., et al.
   Ct. Civ. App. Tex., 14th Sup. Jud. Dist. Certiorari denied.


text:
    No. 77-1286.
    City of East Detroit v. Llewellyn et al.; City of East Detroit v. Vickery et al.; and Capri Theatre Co., Inc. v. City of East Detroit et al.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 77-1309.
    Maryland Public Interest Research Group v. Elkins, President, University of Maryland, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-1406.
    Gaetano et al. v. Silbert, U. S. Attorney.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-5941.
    Bhongsupatana v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5951.
    Smith v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 77-5957.
    Cedillo v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6084.
    Eminhizer v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 77-6100.
    Washington v. Iowa.
   Sup. Ct. Iowa. Certiorari denied.


text:
    No. 77-6192.
    Greer v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6222.
    Brannon v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6225.
    Rock v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6273.
    Moore v. Ford Motor Co., Wayne Assembly Plant.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 77-6290.
    McDaniel v. Hopper, Assistant District Attorney of Tulsa County, Oklahoma.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6330.
    Anderson v. Dabdo et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6336.
    Christiansen v. Gunn, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6337.
    Altizer v. Young, Acting Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6338.
    Thornton v. Delaware.
   Sup. Ct. Del. Certiorari denied.


text:
    No. 77-6340.
    Solomon v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 77-6341.
    Turner v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 77-6343.
    Skinner v. Cardwell, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6345.
    Apel v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6350.
    Hines v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 77-6351.
    Royse v. Washington et al.
   Sup. Ct. Wash. Certiorari denied.


text:
    No. 77-6360.
    Holsey v. Warden, Maryland Penitentiary.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 77-6364.
    Martin v. New England Telephone & Telegraph Co.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-6369.
    Ray v. Cowan, Penitentiary Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6370.
    Ellis v. Oklahoma et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6401.
    Reeb v. Economic Opportunity Atlanta, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6430.
    Fermin v. Califano, Secretary of Health, Education, and Welfare.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6456.
    Montoya-Guerrero v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6464.
    Pugh v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-6469.
    Burnett v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6490.
    Olivera v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-6495.
    Warme, aka Warner v. United States.
   C. A. 2d Cir. Certiorari denied.


author: Mr. Justice White,

text:
    No. 77-784.
    Maryland v. Marzullo.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

Mr. Justice White,

with whom Mr. Justice Rehnquist joins,

dissenting.

This petition presents a question of fundamental importance to the administration of criminal justice in both the state and federal courts: What minimum standard of competence must be displayed by an attorney for a criminal defendant in order to satisfy the requirement of the Sixth Amendment that the defendant receive the effective assistance of counsel?

Despite the clear significance of this question, the Federal Courts of Appeals are in disarray. Three Circuits subscribe to the view that the representation of a defendant will be deemed adequate as a matter of constitutional law unless it was “such as to make a mockery, a sham or a farce of the trial.” United States v. Madrid Ramirez, 535 F. 2d 125, 129 (CA1 1976); Rickenbacker v. Warden, 550 F. 2d 62, 65 (CA2 1976); Gillihan v. Rodriguez, 551 F. 2d 1182, 1187 (CA10 1977). Four Circuits require, however, that defense counsel render “reasonably competent” assistance. United States v. De Coster, 159 U. S. App. D. C. 326, 331, 487 F. 2d 1197, 1202 (1973); Beasley v. United States, 491 F. 2d 687, 696 (CA6 1974) (“reasonably effective assistance”); United States v. Fessel, 531 F. 2d 1275, 1278 (CA5 1976) (“reasonably effective assistance”); United States v. Easter, 539 F. 2d 663, 665-666 (CA8 1976) (“customary skills and diligence that a reasonably competent attorney would perform under similar circumstances”). The Third and Seventh Circuits have developed their own, apparently different, standards for determining whether effective assistance of counsel has been rendered to a defendant. Moore v. United States, 432 F. 2d 730, 736 (CA3 1970) (“the exercise of the customary skill and knowledge which normally prevails at the time and place”); United States ex rel. Williams v. Twomey, 510 F. 2d 634, 641 (CA7 1975) (“assistance which meets a minimum standard of professional representation”). The Court of Appeals for the Ninth Circuit is internally divided. Compare Saunders v. Eyman, No. 75-3485 (Apr. 18, 1977) (“farce or a mockery of justice”) with Cooper v. Fitzharris, 551 F. 2d 1162, 1166 (1977) (“reasonably effective assistance”), rehearing en banc granted.

This case presents an appropriate occasion for addressing this issue. The District Court, following an earlier decision of the Fourth Circuit which held that “one is deprived of effective assistance of counsel only in those extreme instances where the representation is so transparently inadequate as to make a farce of the trial,” Root v. Cunningham, 344 F. 2d 1, 3 (1965), found that the representation which had been provided to defendant was adequate for constitutional purposes. The Court of Appeals for the Fourth Circuit expressly disavowed the test used in Root, adopted a new test requiring “representation within the range of competence demanded of attorneys in criminal cases,” and applied this new standard to reverse the District Court. Thus, the choice of standard was determinative of the outcome of this case. Moreover, the Court of Appeals focused on a relatively discrete problem in the conduct of the trial, so that analysis of the adequacy of representation will not require inquiry into all aspects of the preparation and handling of the case.

The decisions of this Court recognize that the right to counsel is fundamental to a fair trial. Gideon v. Wainwright, 372 U. S. 335 (1963); Powell v. Alabama, 287 U. S. 45, 68-69 (1932); and, in the last analysis, it is this Court's responsibility to determine what level of competence satisfies the constitutional imperative. It also follows that we should attempt to eliminate disparities in the minimum quality of representation required to be provided to indigent defendants. In refusing to review a case which so clearly frames an issue that has divided the Courts of Appeals, the Court shirks its central responsibility as the court of last resort, particularly its function in the administration of criminal justice under a Constitution such as ours.

I respectfully dissent.


text:
    No. 77-943.
    Illinois v. Gray.
   Sup. Ct. Ill. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied, it appearing that the judgment below rests on an adequate state ground. Mr. Justice Stewart and Mr. Justice Marshall would deny petition without explanation.

Mr. Justice Stevens.

The Court’s occasional practice of explaining its denials of certiorari, see, e. g., Michigan v. Allensworth, ante, p. 933; Illinois v. Pendleton, ante, p. 956; Illinois v. Garlick, 434 U. S. 988 (1977), is, I believe, inconsistent with the rule that such denials have no precedential value. Since I regard that rule as an important aspect of our practice, I do not join the Court’s explanation in this case.


text:
    No. 77-1262.
    Beck v. Morrison Pump Co., Inc.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Stevens took no part in the consideration or decision of this petition.


text:
    No. 77-1266.
    Morial et al. v. Judiciary Commission of the State of Louisiana et al.
   C. A. 5th Cir. Certiorari

denied.

Mr. Justice White would grant certiorari.


text:
    No. 77-1277.
    Missouri State Highway Commission v. Meyer.
   C. A. 8th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-6025.
    Huffman v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins,

dissenting.

Petitioner, a Negro male, was convicted by an all-white jury of raping a white woman, and was sentenced to life imprisonment. In a post-conviction proceeding, he moved for a new trial on the ground that racial bias in the jury selection process deprived him of his Sixth Amendment right to an impartial jury and his Fourteenth Amendment rights to equal protection and due process. The trial court denied the motion, and the Florida District Court of Appeal affirmed without opinion, 336 So. 2d 612 (1976). With three justices dissenting, a four-man majority of the Florida Supreme Court dismissed petitioner’s certiorari petition for lack of jurisdiction, without explanation. 350 So. 2d 5 (1977).

There can be no dispute that Negroes were systematically excluded from petitioner’s jury in violation of the Fourteenth Amendment. The all-white jury was selected from an all-white venire, drawn from the same master jury list which the Florida District Court of Appeal held, in Jordan v. State, 293 So. 2d 131 (1974), to have been composed in a racially discriminatory fashion. As the District Court of Appeal noted in Jordan, the jury list was derived by a method rife with opportunity for racial discrimination, and reflected a substantial statistical disparity between the proportion of Negroes included and those who were eligible. The State was unable in Jordan to rebut the prima facie case of discrimination thus demonstrated, see, e. g., Castaneda v. Partida, 430 U. S. 482, 494-495 (1977); Alexander v. Louisiana, 405 U. S. 625, 630-631 (1972), and the State does not here contest that the jury which convicted petitioner was selected in an unconstitutional manner.

The State argues, instead,' that we are foreclosed from reaching the merits of petitioner’s claim by virtue of his failure to raise the issue by written motion prior to selection of the individual jurors, as required by Fla. Rule Crim. Proc. 3.290. But petitioner did present a timely oral motion, and, under the circumstances of this case, adherence to the requirement of a written motion would serve only “to force resort to an arid ritual of meaningless form.” Staub v. City of Baxley, 355 U. S. 313, 320 (1958). As soon as he saw the all-white venire, petitioner’s counsel moved to strike the panel, and requested an opportunity to question the jury commissioners to determine whether Negroes had been systematically excluded. The trial judge expressed willingness to allow questioning of the supervisor of elections but not the jury commissioners, and — because the supervisor of elections would not have been able to offer any relevant testimony — counsel agreed to proceed with trial, with the “understand [ing] . . . that I have placed on the record that the jury panel is white.” App. to Pet. for Cert. E-6.

The jury commissioners’ testimony clearly was essential to development of petitioner’s discrimination claim. See n. 2, supra. Thus, rejection of counsel’s request to interrogate the commissioners was tantamount to denial of petitioner’s claim, and the filing of a written motion would have served no immediate purpose and would have unnecessarily delayed the proceedings. The dissenting opinions in the Florida Supreme Court concluded that in this situation petitioner was not foreclosed as a matter of state law from raising his claim on collateral attack, notwithstanding his failure to comply with the letter of Rule 3.290. See 350 So. 2d, at 7-8 (Boyd, J., dissenting); id., at 8-9 (Sundberg, J., dissenting). But, even assuming that the Florida Supreme Court’s dismissal for lack of jurisdiction was based on petitioner’s failure to make a written motion, such a purely formalistic application of a state procedural rule does not constitute an independent and adequate state ground barring review in this Court. Cf. Wright v. Georgia, 373 U. S. 284, 289-291 (1963); NAACP v. Alabama ex rel. Flowers, 377 U. S. 288, 293-297 (1964). As Mr. Justice Holmes so eloquently stated: “Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” Davis v. Wechsler, 263 U. S. 22, 24 (1923).

I would grant certiorari and set the case for oral argument.

Mr. Justice Stevens.

As Mr. Justice Marshall points out, the dissenting members of the Florida Supreme Court expressed the opinion that, as a matter of state law, the petitioner could assert his federal claim in a state collateral proceeding. Ante, at 1016. The majority of that court, however, concluded that the claim could not be raised in such a proceeding. They therefore did not decide the federal constitutional question. Since petitioner has now exhausted his state remedies, the federal question remains open for decision in a federal habeas corpus proceeding.

As the petition comes to us, we may assume that a summary reversal might have been appropriate on direct review of petitioner’s conviction, and also that a collateral attack in the federal court should succeed. It does not follow, however, that this Court has the power to compel a State to employ a collateral post-conviction remedy in which specific federal claims may be raised. See Case v. Nebraska, 381 U. S. 336. Accordingly, totally apart from the considerations discussed by Mr. Justice Marshall, there are serious procedural questions that must be answered before addressing the merits of petitioner’s federal claim. In making this observation I do not presume to explain the reasons for the Court’s action; I write only to identify this as one of the many cases in which a persuasive dissent may create the unwarranted impression that the Court has acted arbitrarily in denying a petition for certiorari.

       Petitioner was also convicted of burglary, for which he was given a concurrent life sentence. On appeal, the convictions were affirmed, but the concurrent sentence for burglary was reduced to 15 years. 301 So. 2d 815 (Fla. App. 1974).

       Petitioner was convicted in November 1972 in Sarasota County, Fla. The Jordan court found that the master jury list in use in Sarasota County at that time was compiled from voter registration cards, which indicated the race of the voter, and. were taken from only 4 or 5 out of the 45 voting precincts in the county. The jury commissioners did not use objective criteria for choosing precincts, and the precincts that were selected here “had virtually no registered black voters,” whereas approximately 50% of the registered voters in two precincts, and 2.65% of the voters in the county as a whole, were Negroes. 293 So. 2d, at 132-133, and n. 7. The Jordan court found that, out of a total of 1,344 persons on the jury list, at most 4 were Negroes (0.297%), and that the chance of drawing such a small percentage of Negroes in a random sample of 1,344 of the registered voters in the county as a whole would be less than 1 in 10 million. Id., at 133 n. 4.

       Rule 3.290 provides:
      “The state or defendant may challenge the panel. A challenge to the panel may be made only on the ground that the prospective jurors were not selected or drawn according to law. Challenges to the panel shall be made and decided before any individual juror is examined, unless otherwise ordered by the court. A challenge to the panel shall be in writing and shall specify the facts constituting the ground of the challenge. Challenges to the panel shall be tried by the court. Upon the trial of a challenge to the panel the witnesses may be examined on oath by the court and may be so examined by either party. If the challenge to the panel is sustained, the court shall discharge the panel. If the challenge is not sustained, the individual jurors shall be called.”

       Counsel explained his failure to file a written motion, with the following:
      “I might say that I did not file such a motion in writing for the Court because I didn’t see the panel until today.” App. to Pet. for Cert. E-3.

       Under these circumstances, it is simply untenable to suggest, as the State does, Response to Pet. for Cert. 1, that petitioner “abandoned” his oral motion by not accepting the trial judge’s offer to allow questioning of the supervisor of elections.

       It is not clear whether the court’s dismissal was based on petitioner’s failure to comply with Rule 3.290, or solely on a conclusion that there was no direct conflict between the decision of the District Court of Appeal in this case, and the decision of that court in Jordan v. State. See Fla. Const., Art. 5, § 3 (b) (3) (limiting certiorari jurisdiction of Florida Supreme Court to cases in which there is a "direct conflict” between decisions of district courts of appeal, and to several other categories of cases not relevant here.)


text:
    No. 77-6359.
    Ross v. Hopper, Warden.
   Sup. Ct. Ga. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentence in this case.


text:
    No. 76-1719. No. 77-953. No. 77-1056. No. 77-5733. No. 77-5965.
    Washington Medical Center, Inc., et al. v. United States, Buffalo River Conservation and Recreation Council et al. v. National Park Service et al., Sunbeam Television Corp. et al. v. Shevin, Attorney General of Florida, et al., Morgan v. United States, and Cox v. United States,
   434 U. S. 902;

ante, p. 924;

ante, p. 920;

ante, p. 926;

ante, p. 927.

Petitions for rehearing denied.


author: Mr. Justice Rehnquist,

text:
    BRACY et al. v. UNITED STATES
    No. A-798 (77-1360).
    Decided March 29, 1978
   Mr. Justice Rehnquist,

Circuit Justice.

Applicants were convicted of several related narcotics offenses in the United States District Court for the Southern District of California. The Court of Appeals for the Ninth Circuit affirmed their convictions, and denied their petition for rehearing on February 28, 1978. That court granted their request for a stay of its mandate only pending consideration of their petition for rehearing, and not pending their petition for certiorari. The Court of Appeals denied rehearing and issued its mandate, and applicants now request that I stay the enforcement of the judgment of the Court of Appeals pending disposition of that petition for certiorari here.

The chief contention raised by applicants in their petition for certiorari is that a witness committed perjury before the grand jury which indicted them. The witness admitted his perjury at trial, and applicants moved to dismiss the indictment, contending that the prosecutor should have immediately informed the defense and the court when he became aware of the perjury. The District Court denied the motion, and the Court of Appeals affirmed, relying on its opinion in United States v. Basurto, 497 F. 2d 781, 785-786 (1974), which held that perjury by a witness would invalidate an indictment only when his testimony was material.

Applicants rely upon such cases as Mooney v. Holohan, 294 U. S. 103 (1935), in support of their contention that the disclosure of the perjury required the court to declare a mistrial on its own motion. Pet. for Cert. 10. In that case, this Court first held that the knowing introduction of perjured testimony at a criminal trial rendered the resulting conviction constitutionally invalid. Later cases have held that the prosecutor has a duty to correct testimony he knows to be false, even if its introduction was not knowing and intentional. Giglio v. United States, 405 U. S. 150 (1972); Napue v. Illinois, 360 U. S. 264 (1959). Applicants suggest that the prosecutor has a similar duty with regard to testimony introduced in grand jury proceedings which is later shown to have been false.

Because it seems to me that applicants misconceive the function of the grand jury in our system of criminal justice, I cannot conclude that four Justices of this Court are likely to vote to grant their petition. The grand jury does not sit to determine the truth of the charges brought against a defendant, but only to determine whether there is probable cause to believe them true, so as to require him to stand trial. Because of this limited function, we have held that an indictment is not invalidated by the grand jury's consideration of hearsay, Costello v. United States, 350 U. S. 359 (1956), or by the introduction of evidence obtained in violation of the Fourth Amendment, United States v. Calandra, 414 U. S. 338 (1974). While the presentation of inadmissible evidence at trial may pose a substantial threat to the integrity of that factfinding process, its introduction before the grand jury poses no such threat. I have no reason to believe this Court will not continue to abide by the language of Mr. Justice Black in Costello, supra, at 363: “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.”

The application is denied.


text:
    VETTERLI et al. v. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA et al.
    No. A-830 (77-1395).
    Decided April 10, 1978
   Mr. Justice Rehnquist,

Circuit Justice.

Applicants, members of the Pasadena City Board of Education, seek a stay of an order issued by the United States District Court for the Central District of California, pending disposition of a motion for leave to file a petition for a writ of mandamus and of a petition for writ of mandamus. They claim that portions of the District Court’s order violate the decision and judgment of this Court in Pasadena City Board of Education v. Spangler, 427 U. S. 424 (1976), and that the order, unless stayed, will subject them to the irreparable harm of having to engage in burdensome and disruptive activities necessary to comply with the District Court’s order. Since my reading of the record indicates that the order does not conflict with our decision in Spangler, supra, I decline to issue the stay.

Spangler arose out of a suit commenced in 1968 by high school students and their parents, alleging that various school officials had unconstitutionally segregated the public schools in Pasadena. In 1970, after trial, the District Court, holding that the defendants had violated the Fourteenth Amendment, ordered them to submit a plan for desegregation which would provide that beginning with the 1970-1971 school year there would be no school “with a majority of any minority students.” The defendants complied. In 1974, however, applicants, successors in office to the previous defendants, filed a motion with the District Court seeking to modify the 1970 order by eliminating the “no majority” requirement. The District Court denied the motion, ruling that the “no majority” requirement was an inflexible one to be applied anew each school year even though subsequent changes in the racial mix in the schools were caused by factors for which the defendants might not be considered responsible. The Court of Appeals affirmed that ruling, but we reversed, concluding that the District Court had exceeded its authority in enforcing the “no majority” provision so as to require annual readjustment of attendance zones.

Upon remand to the District Court, a hearing was scheduled on applicants’ motion for dissolution of the 1970 injunction. Applicants represented that there was no plan at that time to make any changes in the method of making student assignments. Shortly thereafter, on July 1, 1977, the District Court deleted the “no majority” provision from the injunction. The hearing was completed and the matter submitted to the District Court for resolution. By late January 1978, when no further action had been taken by the District Court, however, applicants withdrew their representation that no changes would be made in the method of student assignments and on February 28, 1978, the District Court entered the following oral order:

“[P] ending decision of this Court on the submitted matters before the Court or until further order of the Court, . . . each of you are enjoined from making any changes, in the method of student assignments in the Pasadena Unified School District that was in effect on October 21, 1977.”

The applicants, concerned that the District Court did not include in the order anything expressly relating to the “no majority” provision, sought a clarification of the order later that same day. Applicants’ counsel stated:

“We have concluded from that omission, your Honor, that the purport of the order which was issued or the injunction which was issued this morning to those defendants was that they are indeed enjoined to take measures for the purpose of insuring that no school in the district has a majority of any minority students.”

The judge replied:

“That is right, Mr. McDonough. There is to be no change in the student assignment system that was in force on October 21st, 1977.”

Applicants, relying totally on the judge’s comment that “[t]hat is right,” now contend that the District Court has reimposed the “no majority” requirement contrary to the dictates of our decision in Spangler, supra. If that were true, a writ of mandamus might properly issue to execute the Court’s judgment. See Vendo Co. v. Lektro-Vend Corp., 434 U. S. 425 (1978). But I do not think the judge’s statements during the colloquy can be read as having that effect, and I accordingly deny the application for a stay.

The District Court took steps which unequivocally lifted the offending part of the 1970 order. See n. 3, supra. That was done on July 1, 1977. And there is nothing in the record before me to indicate that after that date the “no majority” requirement was part of the method of student assignments. On February 28 the District Court ordered applicants to refrain from making any changes in the method of student assignments in effect as of October 21, 1977, a date well after the July 1 date on which the “no majority” requirement was eliminated from the 1970 injunction. On its face this order certainly cannot be read as reimposing the “no majority” requirement.

Even as a matter of language, one would have to strain to read the colloquy occurring later that same day as indicating that the judge thought his order had reimposed the “no majority” provision. Busy judges and busy lawyers do not invariably speak with mathematical precision in such colloquies. The obligations imposed by an injunction must be clear and well defined. A judge should not be thought, by a cryptic and offhanded remark in a later proceeding, to have reimposed an obligation which he specifically and unequivocally eliminated just a few months before pursuant to the direction of this Court and to which he made absolutely no reference in the original order. I will not indulge the presumption that the District Court acted contrary to these well-settled principles in the absence of a clear indication that it in fact did.

Since the District Court’s order of February 28 does not conflict with our decision in Spangler by placing applicants under any obligation to annually reassign students so that there is no school “with a majority of any minority students,” I do not think five Members of this Court will vote to grant a writ of mandamus. Thus, I see no reason to issue the requested stay.

Of course, if at some future time the District Court actually reimposes the “no majority” requirement in contravention of our decision in Spangler or otherwise requires applicants to comply with such a provision, applicants may again petition this Court or the Court of Appeals for relief. At this time such relief appears unwarranted, however, because applicants do not appear to be under any such obligation.

       Three separate orders are actually involved, but all are substantially identical.

       The cause was initially remanded to the Court of Appeals which in turn merely remanded it to the District Court, noting that “all determinations as to modifications required under [Spangler] . . . should initially be made by the district court.” Spangler v. Pasadena City Board of Education, 549 F. 2d 733 (CA9 1977).

       The District Court entered the following order:
      “IT IS HEREBY ORDERED, ADJUDGED AND DECREED: The no majority of any minority provision contained in this Court’s judgment of January 23, 1970 is hereby stricken from the Pasadena Plan as required by the Supreme Court’s opinion of June 28, 1976.”

         Prior to issuance of the order the District Court had entertained proposed orders to be entered against the applicants pending disposition of ■ the case. The United States and the student plaintiffs-intervenors submitted proposed written orders which expressly reaffirmed the District Court’s order striking the “no majority” requirement. Applicants argued that no further order was justified, but that if an order were made it should specifically include the provision that “£n]othing in this order requires defendants to take any measures for the purpose of insuring that no school in the Pasadena Unified School District has a majority of any minority students.”