ANDERSON v. ALABAMA

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Argument of Jack Greenberg

Chief Justice Earl Warren: Number 326, Lewis Lloyd Anderson, Petitioner, versus Alabama.

Mr. Greenberg.

Mr. Jack Greenberg: May it please the Court.

This case is here under Title 28, U.S.C. 1257 (3), petitioner having asserted in the courts below various rights, privileges and immunities conferred by the Constitution of the United States, particularly the right of petitioner, a Negro clergyman, to be indicted and tried by grand and petit juries from which members of his race were not systematically excluded because of race.

Petitioner was indicted for murder in the second degree for an automobile accident.

He was convicted of manslaughter in the first degree and received the maximum penalty of 10 years imprisonment.

He applied to the -- he appealed to Alabama Court of Appeals, where he raised the jury question.

It was passed upon, the conviction was affirmed.

He applied to the Supreme Court of Alabama for a writ of certiorari, which was denied and certiorari was granted by this Court.

The evidence in the case is succinct and uncontradicted.

Dallas County, Alabama in which this crime occurred, according to the 1950 census have preponderantly a Negro population, approximately in the ratio of 8 to 7.

I might say that the 1960 census figures are not yet officially available, but an informal inquiry indicates to me that the ratio is now approximately equal with the population being about 6.5 to 6 in favor of white persons. Nevertheless, the -- at all times, the population ratio was approximately 50-50.

Justice Potter Stewart: This is South Alabama, Mr. Greenberg?

Mr. Jack Greenberg: This is a county.

Yes, it's about two counties West of Montgomery, near the Mississippi border.

Despite the large number of Negro citizens, either a majority or very slightly less than the majority, only once in the entire history of the county has a Negro ever served on a grand jury in this county and this was five years ago, before the present Solicitor took office.

The Solicitor testified on page 12 of the record and this is the heart of the case, how often are grand juries organized in Dallas County?

Answer: twice a year.

Question: And you have attended the organization since 1954?

The answer is, affirmative.

Since that time how many Negroes served on any grand jury in Dallas County?

Answer: None.

Did any serve on the present grand jury?

Answer: They did not.

The testimony concerning the one Negro who served a number of years ago was given by a jury member who testified that at time when he was on a jury, he did see a single Negro on a grand jury at that time.

Now, the court below held that the jury roll in this case, that is the list of names of prospective jurors, was based upon a foundation laid in the case of Fikes versus Alabama.

The jury rolls in Alabama are a continuing document in which names are continuously added and struck, if they become eligible or ineligible.

And that in 1953, according to the record in the Fikes case and we see this discussed on page 71 of this record, there were approximately 1500 names on the jury roll of which 250 to 300 were the names of Negroes.

That is about one-fifth.

Since 1953, names have been added to and dropped from the rolls and according to the testimony of the Chairman of the Jury Commission in this case, the ratio of 1 to 5 has dropped to a ratio of 1 to 12, because the number of Negroes has declined precipitously and this small fraction exists despite the fact that the population was approximately, 50% Negro.

There are series of Alabama statutes which appear in the appendix to our brief, which set forth the method by which jurors are to be selected in Dallas County and -- oh, selected in Alabama, including Dallas County.

And these statutes Title 30 Code of Alabama 18 states, “That the clerk of the Jury Commission is to obtain the name of every male citizen in the county.”

Title 20 says, “The Jury Commission shall meet and so forth and shall make in a well bound book, a role containing the name of every male citizen in the county.”

And Section 21 which recites, “Qualifications of persons on the jury roll, refers to the names of all male citizens.”

Nevertheless despite the fact that the statute imposes minimum qualifications, it does not even require an ability to read English.

It explicitly says, that you need not be able to read English if you are a freehold or a household, you would need a -- need not even be a property owner or merely a householder.

Justice John M. Harlan: Were there any Negroes on the jury panel in this case?

Mr. Jack Greenberg: There were five Negroes on the panel of whom three could not be found.

Therefore, actually when the panel appeared in court there were two.

None of those served on the jury, the grand jury or the petit jury in this case.

Justice John M. Harlan: Were they challenged or excused or what?

Mr. Jack Greenberg: The best I can say is that -- and the State says this is also, “The record contains innuendo that they were challenged by the State,” but that's not clear.

Justice Potter Stewart: Women do not serve as jurors in Alabama?

Mr. Jack Greenberg: Apparently not, apparently not.

The Jury Commissioners rather than selecting the name of every qualified male citizen of the County relied upon a system of personal inquiry.

And on page 35 to 36 of the record, we find the Chairman's description of how he went about selecting jurors.

Well, I go to different parts of the county and know good men and ask them about folks and other Jury Commissioners have done the same thing, a good many I know personally.

And he then testified what do you -- where do you get the list from?

How do arrive at the names of those you're going to interview?

I talked to people, I know citizens, high class folks of various parts of the County and I can go by their recommendations.

We try to get good folks is the way we try to do.

And though he testified that he introduced Negroes and whites both, when asked for the names of some Negroes in the interview, he said he would decline to give the names, because it might embarrass them.

And on page 53 of the record, he testifies to that effect.

When he did not know Negroes in a particular precinct he said, he would talk to some good white folks in the County and some here in town.

That's on page 53 of the record.

The panels in this County consist of approximately 60 to 90 persons.

Of -- of those 60 to 90, the number of Negroes has varied from about 2 to 6.

And this on -- testimony of the record by an average maximum of seven but I -- the general sense of the record is that 2 to 6 or 2 to 7 and sometimes, some might be found and some not -- might not be found.

In this particular case, of the five available Negroes on the panel, three were not found and 60% of them were not found.

Over the white persons available, a number also were not found at the exhibits on pages 25 and 26 of the record indicate, but that of course, was a much smaller percentage, nowhere near 60%.

It's somewhat in excess of 20% of the white persons were not found.

Justice Charles E. Whittaker: Are you -- are you sure that three were not found?

Mr. Jack Greenberg: Well no, I'm sorry.

It did not serve.

I -- I stand corrected, Your Honor.

They -- they were found, but they asked for excuses, I would say.

Justice Charles E. Whittaker: And of the five Negroes on this venire and two were excused for illness, one found in the overage exemption and two remained unfound?

Mr. Jack Greenberg: Yes.

I'm -- I'm quite sorry.

The -- they were excused.

It's not that they were not found.

They were excused, but I'm sorry I conveyed the -- the question.

Justice Potter Stewart: I don't know the term.

I completely understand the mechanics of how this has worked.

And this is a rural county in --

Mr. Jack Greenberg: Yes.

Justice Potter Stewart: -- South Alabama.

The venire consists of approximately how many?

Mr. Jack Greenberg: 1800 names.

Justice Potter Stewart: 1800 names?

Mr. Jack Greenberg: 1800 -- that's venire I'm sorry, no, the venire is -- in this case, with 68 names.

It varies from 60 to 90.

Justice Potter Stewart: The whole entire list is some 1800?

Mr. Jack Greenberg: That's correct.

Justice Potter Stewart: The list of eligible jurors and this is kept up as more or less for current list, but there is a turn over on the back --

Mr. Jack Greenberg: Right.

Justice Potter Stewart: -- because people die and new people are qualified and added to the list.

Mr. Jack Greenberg: That's correct.

Justice Potter Stewart: Then the venire -- is that for a particular lawsuit or is that for a particular term of court or what?

Mr. Jack Greenberg: Two -- they or -- for twice a year, they -- they call panels.

Twice a year --

Justice Potter Stewart: They call a venire.

Mr. Jack Greenberg: Yes, twice a year.

Justice Potter Stewart: And how's that called?

Mr. Jack Greenberg: They pull names out of the hat or out of the box.

Justice Potter Stewart: So on the 1800, they pull some 60 or 70 names out of a hat?

Mr. Jack Greenberg: Yes --

That's right.

That's right.

Justice Potter Stewart: And this is for a particular trial -- no, it's -- a term?

Mr. Jack Greenberg: No, particular term of the court, yes.

Justice Potter Stewart: And there're two terms of court a year?

Mr. Jack Greenberg: That's right.

There are sometimes special terms also, but fundamentally two terms.

Justice Potter Stewart: Criminal and civil?

Mr. Jack Greenberg: That's right.

Justice Potter Stewart: Does a judge ride circuit or just --

Mr. Jack Greenberg: I'm not -- I'm not aware of that.

I don't know.

Justice Potter Stewart: Yes.

Mr. Jack Greenberg: Yes, he does Mr. Holmes wasn't either --

Justice Potter Stewart: And holds in this County two regular terms and grants --

Mr. Jack Greenberg: Yes, sir.

Justice Potter Stewart: -- additional special term that he gets --

Mr. Jack Greenberg: That's correct.

Justice Potter Stewart: What age was he due to excuse on the account of age?

Justice Hugo L. Black: What is the age limit?

Mr. Jack Greenberg: 21 to 65.

Justice Hugo L. Black: What age were this two were excused on account of age?

Mr. Jack Greenberg: I don't believe if the --

Justice Charles E. Whittaker: (Inaudible)

Mr. Jack Greenberg: One was excused because of Number 66, young child is I believe, was excused and next to his name is noted, over 65.

Justice Hugo L. Black: It doesn't show his age?

Mr. Jack Greenberg: Over 65, that's all it says.

Justice Hugo L. Black: I meant it doesn't show how much over 65.

Mr. Jack Greenberg: No, it does not, no.

To explain this small number of Negroes on the panel -- that is 1 in 12 on -- in the jury rolls that is 1 in 12 and the fact that none have ever appeared in the grand jury, the State has produced with this one exception.

The State has produced evidence that 85% of the persons arrested in the County are Negroes.

When the states -- when the sheriff was questioned as to whether that meant that 85% of the Negroes were arrested, he said, “No.”

That meant 85% of persons arrested were Negroes, which could mean anywhere from 1% up -- it's completely meaningless statistic, but at any rate, 85% of the persons arrested are Negroes. This included approximately 25% repeaters, approximately 15% to 20% traffic offenses and other petty crimes.

Justice Charles E. Whittaker: Mr. Greenberg, I -- would like to just clear in my mind, I'm confused about it.

I understood there were 1800 in the list?

Mr. Jack Greenberg: On the roll or in --

Justice Charles E. Whittaker: (Inaudible)

Mr. Jack Greenberg: Yes.

That's correct.

Justice Charles E. Whittaker: All of which 300 were Negroes.

Mr. Jack Greenberg: That was in 1800 in the wheel.

In -- there was -- in 1953 there were 1500 of which 300 were Negroes.

By the time of this case, the number in the wheel had increased to 1800 of whom one-twelfth were Negroes, which I gather is about 150.

In other words the number of Negroes has been decreasing since 1953.

That's quite clear.

It's going down from a fifth to a twelfth.

The roll has increased from 1500 to 1800.

The number of Negroes has decreased from a fifth to a twelfth.

There's no contradiction about that at all and I don't gather that's challenged at all.

No question about that.

The Alabama Court of Appeals has held that there was no abuse of discretion in selecting the panels.

I'm referring to the Fikes case, which incidentally was in this Court on the jury question among other things, but was reversed on the basis of course, confession.

It said that at -- in 1953, there were 1500 on the panel, of whom a fifth were Negroes.

It said that the court had evidence of the arrests of that -- of -- there was a -- the judge could take judicial notice of a large number of Negro dependency had before him in criminal trials, although no evidence was offered on this by either side.

That petitioner had not shown coercion and that petitioner had not produced the jury rolls themselves in open court.

The respondents in this case rest upon these findings of the Alabama Court of Appeals, plus an assertion that the petitioners here assert some sort of right to proportional representation in jury selection.

The petitioners assert nothing of this sort.

We recognize that proportional representation violates the Constitution as set forth in the Cassell case that it constitutes inclusion as well as exclusion on the basis of race.

And petitioners do not assert there is -- and could not assert that there is any right of proportional representation in this case.

But the petitioners do contend that in a long and on varying series of cases, when this Court has been confronted with a gross statistical disparity -- not this in the Brown against Allen when he was about 6.7% in the population and this is about -- or 16% in the population about 6.7% on the rolls or in Cassell, 6.7% as against 6.5%.

One of these gross disparities of a third and non-ending up on juries, or 50% as in some cases, the Court then says a -- the petitioner has met this burden -- has created a prima facie case and is incumbent upon the State to come forth with some sort of explanation of why this situation exists.

Now, the State has in this case come forth -- come forth with an explanation and its explanation consists of we submit, an utterly meaningless statistic, that is 85% of the persons arrested are Negroes with an explicit disclaimer that this means that 85% of the Negroes in the County are arrested.

Now, we submit, this does not meet the burden.

It does not constitute any meeting of the prima facie case that we have made, that no Negro with one exception six years ago has ever ended up on a grand jury in this County.

I believe it was Mr. Justice Frankfurter in whose -- his opinion in the Cassell case, which has reflected the long line of opinions in this area.

He said that if one factor is uniformed in a continuing series of events that have brought the past through human intervention, the law would have to have the blindness of indifference, rather than the blindness of impartiality, not to attribute the uniform factor demands purpose.

And we submit that certainly that sort of case has been made here and that no evidence has been given to reply.

Moreover, we rely on Justice Reed's opinion in the Cassell case, an opinion which was not -- did not support the -- did not constitute the opinion of the Court, but the opinion of the four justices to the effect that when the Jury Commissioners rely upon a system of going out among their personal acquaintances of people that they know in selecting jurors especially in a county where there is a state statute setting forth minimal objective standards of that -- in a situation such as exists in Dallas County, Alabama, this is almost -- almost inevitably results in a gross disproportion such as we have found in this case and we submit that the State has not met the burden of -- of overcoming either of those two propositions.

Chief Justice Earl Warren: We'll recess now, Mr. Greenberg.

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Argument of David W. Clark

Chief Justice Earl Warren: --Lloyd Anderson, Petitioner, versus Alabama.

Mr. Greenberg, had you concluded your opening argument?

Mr. Clark, you may proceed.

Mr. David W. Clark: Thank you, sir.

May it please the Court.

Mr.Greenberg yesterday afternoon gave his summary of the case which he substantially covered the facts.

However, I noted few discrepancies which I would like to call to the attention of the Court before I proceed with my argument.

There were some mention of some perspective jurors not being found and that they were Negroes, there is nothing in the record which shows whether they were whites or Negroes.

In fact, it appears that all five Negroes were called at this jury -- on this jury.

And while I'm mentioning that exhibit, I should like to point out that they're excused and they're not found and the members who were struck were all marked in red ink.

There's no discrimination as to whether they were not found or excused.

Justice Charles E. Whittaker: (Inaudible)

Mr. David W. Clark: No, sir.

There is not, sir.

All the cards contained and they're all white cards.

They have the man's name, his occupation and where he lives.

There is nothing that would indicate his race, color or creed.

Justice Charles E. Whittaker: (Inaudible)

Mr. David W. Clark: May it please the Court.

My only information on that is Fikes versus State, in which they said that in the old jury roll was urged, there was a new one which contained approximately 1500 names of which 250 or 300 were Negroes.

That is my only information on that, Your Honor.

I should like to point out in the record on page 61 that if the hearing on these motions that the attorney for the petitioner made no objection except to the -- the number of Negroes on the jury roll.

Now, the Court, speaking to Attorney Gray says, "Do you make any claim in either of the grounds that there had been an arbitrary conduct in this Court as far as this venire is concerned that arbitrarily excluded any Negro that might be on this venire observance in this -- on this jury?"

And Attorney Hall says, "No, sir."

"Further, as I understand you just simply say that you don't think there were enough Negroes in the jury box or some reason connected with the jury roll or jury box."

Attorney Hall says, "Yes, sir."

That's on record page 71.

Argument of Mr.justice Brennan

Mr.justice Brennan: 71

Rebuttal of David W. Clark

Mr. David W. Clark: 61, sir, I'm sorry.

Argument of Mr.justice Black

Mr.justice Black: What was meant there --

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: -- in that -- that particular moment with reference to this venire?

Rebuttal of David W. Clark

Mr. David W. Clark: That was the petit jury venire.

Rebuttal of Mr.justice Black

Mr.justice Black: Well, what is that?

Rebuttal of David W. Clark

Mr. David W. Clark: There was a motion, I believe, at that time to quash the venire.

There was first a --

Rebuttal of Mr.justice Black

Mr.justice Black: All the jurors --

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: -- summoned for the week?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: All who had been summoned and qualified or had they been qualified at that --

Rebuttal of David W. Clark

Mr. David W. Clark: They had been qualified at that time, I believe.

Also, I should like to point out to the Court that there is no positive record as to who struck the two remaining Negro juries -- jurors.

As I point out, there were five jurors called.

One, I believe (Inaudible) was excused for being over 65, two were excused for -- one had an attack and one was sick, which he's permitted to -- for the trial juries in Alabama to excuse those men on noncapital cases.

Rebuttal of Mr.justice Black

Mr.justice Black: May I ask you just one other question --

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Justice Felix Frankfurter: -- to clear my mind.

How many were on the total venire for the week to try cases?

How many jurors?

Mr. David W. Clark: From the discussion of the case, sir, only five names are mentioned.

Rebuttal of Mr.justice Black

Mr.justice Black: Only what?

Rebuttal of David W. Clark

Mr. David W. Clark: Five Negroes are mentioned.

Rebuttal of Mr.justice Black

Mr.justice Black: I mean --

Rebuttal of David W. Clark

Mr. David W. Clark: Oh, the entire, I believe they are 68, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: 68.

Rebuttal of David W. Clark

Mr. David W. Clark: 68 people.

Rebuttal of Mr.justice Black

Mr.justice Black: Now, when the time came to strike, was there right given to strike from the entire 68 or was there a certain group brought into the courtroom?

Rebuttal of David W. Clark

Mr. David W. Clark: There was a hearing which they excuse some young and then they were strict on -- in accordance with Alabama law of which the State has one strike and the defendant has two.

Rebuttal of Mr.justice Black

Mr.justice Black: From the entire venire?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: I asked that because it used to be the practice in some of the counties that you would call for a certain number of jurors out of the entire venire.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes.

Well, this --

Rebuttal of Mr.justice Black

Mr.justice Black: They would be called into the courtroom and would strike from that --

Rebuttal of David W. Clark

Mr. David W. Clark: This was the entire venire.

Rebuttal of Mr.justice Black

Mr.justice Black: -- number which was left in the total venire.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

This was that case there.

That --

Rebuttal of Mr.justice Black

Mr.justice Black: This case?

Rebuttal of David W. Clark

Mr. David W. Clark: -- this was 68.

Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: The whole 68?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

They were called less --

Rebuttal of Mr.justice Black

Mr.justice Black: Passed the --

Rebuttal of David W. Clark

Mr. David W. Clark: -- those who had been excused.

Rebuttal of Mr.justice Black

Mr.justice Black: Passed the question and they granted certain excuses.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: And then they were allowed to strike.

Rebuttal of David W. Clark

Mr. David W. Clark: That is correct.

Rebuttal of Mr.justice Black

Mr.justice Black: Plaintiff getting one and the defendant, two.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes sir, that is in con for Alabama law and --

Argument of Mr.justice Stewart

Mr.justice Stewart: This in -- in each lawsuit that comes up the whole 68 less those who have been excused coming to the courtroom?

Rebuttal of David W. Clark

Mr. David W. Clark: This was -- venire was drawn for this particular case.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Well, I understood yesterday that it was on for the -- for the -- for this particular term of court.

Rebuttal of David W. Clark

Mr. David W. Clark: I believe that was a grand jury that was called for that particular time.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Now, I am mixed up.

There are 1800 or so on the -- on the permanent list of jurors.

Is that right?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir, that is correct.

Approximately --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: And I -- we were told yesterday that there were two terms of court in this county.

Plus perhaps special term sometime.

And that for this term, I'd understood that this was the venire, these 68 people.

Rebuttal of David W. Clark

Mr. David W. Clark: This was a venire called for the petit jury --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Yes.

Rebuttal of David W. Clark

Mr. David W. Clark: -- that actually tried the man in --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: We're talking about --

Rebuttal of David W. Clark

Mr. David W. Clark: -- this particular --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: -- the petit jury.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Only and only the petit jury.

For that term or for that case?

Rebuttal of David W. Clark

Mr. David W. Clark: It says for that week, drawn for that week, I believe.

A jury list criminal court February 23rd, 1959 term that was the exhibit.

And they drew the 12 men striking them, as I've said, for this term.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Well, now, when the case is called for trial, what happens?

How many people come into the jury box or come into the courtroom as perspective jurors?

12 or 68 or what?

Rebuttal of David W. Clark

Mr. David W. Clark: 68 less these who have been excused.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: All of them coming into the court.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

And they are --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: And then --

Rebuttal of David W. Clark

Mr. David W. Clark: -- stricken.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Well, then, 12 of them come to the jury box and are then --

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: -- qualified for voir dire?

Rebuttal of David W. Clark

Mr. David W. Clark: -- 12 eventually are going to the jury box (Voice Overlap) --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Eventually, well, what happens --

Rebuttal of David W. Clark

Mr. David W. Clark: Well, they --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: -- before they do?

Rebuttal of David W. Clark

Mr. David W. Clark: Well, they strike them.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: They strike them before they go into the jury box?

Do they have voir dire of all 68 of them?

Rebuttal of David W. Clark

Mr. David W. Clark: They -- they qualify first.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: All 68 of them?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

They qualify.

First, they grant excuses for the -- the ones who asked to be excused for various reasons, sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Yes.

Rebuttal of David W. Clark

Mr. David W. Clark: And then they qualify them as to -- that came to the first and a thing of that nature that would disqualify them and then when they are down to the -- the rest of the jurors on there, then the -- the last step is for the State enter -- entered to strike the jury of the remaining people on this list.

Rebuttal of Mr.justice Black

Mr.justice Black: You strike it this way, do you not?As you left, you have paid them, 55 left after they excuse them.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: The one whose name appears at the top of the list is called around and they stated there, should they take him and the defendant is asked if he takes him.

Rebuttal of David W. Clark

Mr. David W. Clark: That's correct.

That's correct.

Rebuttal of Mr.justice Black

Mr.justice Black: And that's the way you strike it and you may get a juror without exhausting your entire venire at all.

Rebuttal of David W. Clark

Mr. David W. Clark: That is possible, sir.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: What the term is where -- where he is on the list, whether he's at the top of the list or is it alphabetical or what?

Rebuttal of David W. Clark

Mr. David W. Clark: Well, sir, in -- in this case, it was not alphabetically.

They were just drawn --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Who determines who's at the top of the list?

Rebuttal of David W. Clark

Mr. David W. Clark: They're just drawn out of the hat and input the -- the names are put in down.

Justice Charles E. Whittaker: You mean they are (Inaudible)

Mr. David W. Clark: That appears to be near that.

They're not alphabetically drawn in this case, sir, because here, we have (Inaudible).

Rebuttal of Mr.justice Black

Mr.justice Black: The clerk picks up, prepares that list, does it not?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir, that is correct.

Rebuttal of Mr.justice Black

Mr.justice Black: Puts them in a certain order.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: We had a case called one time somewhere where the question was whether certain names had been put at the bottom purposely so that it'd be difficult to reach.

And there's no question I can't raise.

Rebuttal of David W. Clark

Mr. David W. Clark: No, sir.

I believe it wasn't -- I believe that was Hill versus Texas where they had done that, if I'm not mistaken as to the name, but in that particular case, they had the first 12 white persons and after that, there were Negroes 13, 14, 15 and 16 and it was the custom of that community to draw the first way of the grand juries.

That did not exist in these things.

Chief Justice Earl Warren: But is this drawing that you say the clerk makes to -- of this list done in -- by lot in public, in the trial or --

Mr. David W. Clark: Yes, sir.

That was drawn in -- in the courtroom.

Chief Justice Earl Warren: It's done in the courtroom.

Mr. David W. Clark: In the courtroom, yes sir.

Chief Justice Earl Warren: Yes.

Mr. David W. Clark: Probably drawn a -- the cards as I've said are white with no distinguishing marks as to color of the --

Chief Justice Earl Warren: Yes.

Rebuttal of Mr.justice Black

Mr.justice Black: You mean they're drawn before -- they're just drawn out of the box and then that -- these that are drawn are summoned.

Is that correct?

Rebuttal of David W. Clark

Mr. David W. Clark: That is correct, yes.

Rebuttal of Mr.justice Black

Mr.justice Black: It may be done a week or two weeks before they --

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: -- their term.

They're drawn by the judge -- they are drawn by the judge still in the courtroom, are they?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: Open court.

And then they -- they give -- turned over to the sheriff and the order of clerk, in the order in which they are drawn, he draws up a list and they have summoned.

Rebuttal of David W. Clark

Mr. David W. Clark: That's correct, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: And does the law require him to follow the -- that same order when he makes up his list from those who were found?

Rebuttal of David W. Clark

Mr. David W. Clark: I found no code section require in that.

I think it is use as a practice sir.

And I should like to point out to the Court there is no definite record as to who struck the remaining two Negroes on the jury list on page 62 of the record.

There was a little discussion there in open court, I believe, when Mr. McCloud and Attorney Billingsley.

Chief Justice Earl Warren: What you names are Negroes on this list, do you recall Mr. Clark?

Mr. David W. Clark: No, sir.

I do not, sir.

No, sir.(Voice Overlap) --

Chief Justice Earl Warren: That's alright.

Just go ahead.

I suppose it's --

Mr. David W. Clark: I think one of them was Benny Phillips.

I don't recall the other nature, but he was one of the two.

Chief Justice Earl Warren: Go ahead.

Don't take your time for that.

Mr. David W. Clark: I should like further to point out that the question of when a Negro had registered on the grand jury was in 1954 or rather than 1953.

I think this is important to call to the attention of the Court for this reason.

There had been a new jury roll in October of 1953.

If we go on premise that the -- this bureau was in 1953, he would've been on the old role and he found a new one actually.

He was called in January of 1954, according to the testimony of one Gerald Hicks (ph) on page 45.

Now, there was a flat statement named at the present time.

There were 1800 jurors on the jury roll and of this number one in every 12, were Negroes.

I'd like to point out to the Court that on page -- record page 34 wherein Mr. Glen H. Depke, the Jury Commissioner and the chairman of it, about two-thirds down the page, "Can you tell the court," excuse me -- "How many names are on the jury list in Dallas County altogether?"

"I never count it.

I don't know."

"Do you have any judgment of the number of those names who are Negroes?"

"Well, I don't know all of them that are registered.

I don't know all the whites or non-whites, but I guess 1 in 12 would be none white."

"1 in 12?"

"Yes."

"Would you care to give us some estimate of the total number of jurors on the register?"

"I would guess somewhere around 1800.

That is -- points that I had strictly and yes he does know the exact number on that and the reason I want to point that out to the Court is that the jury rolls were never requested to be presented in the Court as on the hearing of this motion as they were in Norris versus Alabama."

Chief Justice Earl Warren: If they had -- if they had --

Mr. David W. Clark: The exact number could've been found.

Chief Justice Earl Warren: But they have told how many Negroes and how many whites were from -- from the names --

Mr. David W. Clark: Not from the names themselves.

They'd have to know it from personal observation of --

Chief Justice Earl Warren: Wouldn't be -- wouldn't do much good on this?

Mr. David W. Clark: They would not do if it gives the exact number.

That's all it would de novo people on the jury roll.

Chief Justice Earl Warren: Yes.

Yes.

Mr. David W. Clark: Those are all the correct entitled.

Chief Justice Earl Warren: Yes.

Mr. David W. Clark: Make any statement made by Mr.Greenberg.

Chief Justice Earl Warren: Yes.

Mr. David W. Clark: Now, the petitioner in his brief has cited in number of cases using short excerpts from them and stating or inferring that the procedure in this case now before the Court, is quite similar to these cases he'd cites.

Argument of Mr.justice Harlan

Mr.justice Harlan: Could I ask you a question?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Starting from the premise of the 1953, it's made up in the jury as the Government 300 Negro men (Inaudible)

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: (Inaudible)

Rebuttal of David W. Clark

Mr. David W. Clark: Well, it was out of 1500 at that time, sir.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: 1500 at that time.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Alright.

That's one problem.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: (Inaudible)

Rebuttal of David W. Clark

Mr. David W. Clark: May it please the Court.

On that, I would like to point out this Mr.Glen H.Depke who was appointed chairman of the Jury Commission in 1954.

And on -- this was his first appearance in court, perhaps he was flustered.

He says, "I guess they are now 1500 or 1800 names on the jury roll and I guess that 1 out of 12 is non-white."

He didn't know the exact number.

Justice Charles E. Whittaker: May I ask you sir?

Once a name gets in that what I call a wheel --

Mr. David W. Clark: Yes, sir.

Justice Charles E. Whittaker: -- that's what it was in the jurisdiction I practiced.

How did it ever get out of there?

I mean of course, I know you draw them but aren't to put back after they asserted?

Mr. David W. Clark: Yes sir, they are.

Justice Charles E. Whittaker: Well, if there were -- if there were certain number of whites and certain number of Negroes in originally, unless they died, how do they get out?

Mr. David W. Clark: Well, if they die or move away from that locality, they could pull their names out.

Justice Charles E. Whittaker: How would one tell?

If I went down there today and look at those cards, how would I tell how many were white and how many were Negroes?

Mr. David W. Clark: You couldn't and I don't believe I could either that there is no identification on the card itself.

Justice Charles E. Whittaker: Was there any other identification, any other record, showing?

Mr. David W. Clark: Well a county record would probably -- the birth record would show whether person was white or colored.

Justice Charles E. Whittaker: Well --

Mr. David W. Clark: Or something of that nature, but as far as the intermediate records are concerned, there is nothing that would identify him as to race.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: What would -- what would be this basis for Mr. Depke's statement?

Rebuttal of David W. Clark

Mr. David W. Clark: Just a guess beyond that, that's the only thing I can (Voice Overlap) --

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: He says 1 in 12.

He didn't --

Rebuttal of David W. Clark

Mr. David W. Clark: He was just grabbing one of the air and saying that that's 1 in 12.

Justice Charles E. Whittaker: If a juror who -- whose name is in this wheel, moves away, how does the Jury Commissioners know about that or assume they find out in some way, do they then go and take his name out of the wheel?

Mr. David W. Clark: Yes, sir.

They -- they authorize it.

Justice Charles E. Whittaker: They do.

Mr. David W. Clark: Yes, sir.

And then the court said and you name that from time to time.

Rebuttal of Mr.justice Black

Mr.justice Black: And you point to anything in the record which would neutralize or offset or refuse the statement whether it was a guess, an informed guess or what it was that was made of that they're being 1 in 12.

Rebuttal of David W. Clark

Mr. David W. Clark: No, sir.

That was just said statement --

Rebuttal of Mr.justice Black

Mr.justice Black: But we were --

Rebuttal of David W. Clark

Mr. David W. Clark: -- and that's the only thing we have in the record.

Rebuttal of Mr.justice Black

Mr.justice Black: We should assume I suppose that -- that we're not the fact, the State and its officials, would have accident, would we not?

Rebuttal of David W. Clark

Mr. David W. Clark: If they knew come in (Inaudible)

Rebuttal of Mr.justice Black

Mr.justice Black: Is there anyway --

Rebuttal of David W. Clark

Mr. David W. Clark: But It would have been -- it is an incumbent on the defendant in that case to have called for the jury roll if he want to show anything that he want to point out if he -- he knew that any had been excluded or he knew him by name or race.

Rebuttal of Mr.justice Black

Mr.justice Black: The gentleman who testified here, what position?

Rebuttal of David W. Clark

Mr. David W. Clark: He was chairman of the Jury Commission of Dallas County.

Rebuttal of Mr.justice Black

Mr.justice Black: Is it his duty to keep informed as to what names are there and who's there?

Is it -- is that a part of his responsibility?

Rebuttal of David W. Clark

Mr. David W. Clark: These are all responsibility, I would say, but the clerk keeps the actual names --

Rebuttal of Mr.justice Black

Mr.justice Black: Did he even keep the accurate names with its -- it's the duty of the Jury Commission isn't it to give the name finally and select to find (Voice Overlap) --

Rebuttal of David W. Clark

Mr. David W. Clark: To find people but --

Rebuttal of Mr.justice Black

Mr.justice Black: And I would assume that in Dallas County, the Jury Commissioner would have a pretty good knowledge or we can assume he can --

Rebuttal of David W. Clark

Mr. David W. Clark: He sure had the knowledge --

Rebuttal of Mr.justice Black

Mr.justice Black: -- whether they were white or colored.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

He should have a knowledge.

Rebuttal of Mr.justice Black

Mr.justice Black: And how can -- how can we decide this case on any basis except that this uncontradicted statement of his is correct whether -- whatever result it leads to is different.

Rebuttal of David W. Clark

Mr. David W. Clark: I may have pointed out that he had said that was the guess.

It -- it maybe -- that or now 1 in 10 or I don't know.

That it was his estimate and he kept saying it was a guess.

He didn't give up a definite statement to that -- there are so many --

Rebuttal of Mr.justice Black

Mr.justice Black: Well, I -- I suppose there's nobody and maybe not even the clerk perhaps who should be and better informed on that than the Jury Commissioner is he?

Rebuttal of David W. Clark

Mr. David W. Clark: Probably not, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: Of course that's their sole responsibility, isn't it?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

That was their --

Rebuttal of Mr.justice Black

Mr.justice Black: They have no other jobs, are these men, do they hold any other public job in Dallas County?

Rebuttal of David W. Clark

Mr. David W. Clark: No, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: That's that --

Rebuttal of David W. Clark

Mr. David W. Clark: They do not.

He was a retired army captain.

I believe they refer to him as Captain Death.

As I would -- said the petitioner cited in a number of cases and was using little excerpts from these cases in writing his excellent brief, in checking over these cases he cited.

However, I find that they are not exactly like in facts so that they would be as we say on all force with this case, for instance, Avery versus Georgia.

That decision rested on the ground that the use of the jury courts of white and yellow to -- to note the race that constituted prima facie evidence of discrimination.

I believe as this Court pointed out the box from which these cards were taken had an opening large enough for the judge to look in and see whether that was a white or yellow card.

We don't have anything like this in the present case.

The judge reached in, pulled out a name, the all name sort of just written on the cards, similar cards, no difference of cards.

Now, the other case cited was Cassell versus Texas.

That was a case where the Jury Commissioners went off on the idea following as they interpreted Akins versus Texas to mean that as long as they had one Negro on the jury that that satisfied the requirement for such discrimination -- that limitation of course, in violation.

We don't have this in -- in the present case.

Now, in Eubanks versus Louisiana, another case which was cited, this Court held that while the Jury Commissioners selected 75 names impartially, that the trial judge picked his grand jury from people he knew personally and had personal knowledge of their race and therefore, this was discrimination.

Hernandez versus Texas, that the Court after saying that the petition met the burden of proof is set out in Norris versus Alabama and said that the State has not rebutted this prima facie case.

In -- in that one, it seemed that the Jury Commissioners just left out all names that denoted Mexican or Spanish descent.

Now, Hill versus Texas is another one.

The Court held that the -- a prima facie case was ade out and the State bail needed.

And Negroes were omitted from the grand jury list for 16 years or more in spite of the fact that various names had been mentioned to them and they just failed to carry out their duties to investigate any of these people.

This wasn't the case here.

We had evidence, Mr.Depke that he had gone out in various parts of the county and going to stores and meeting places and -- and ask about people.

I would like to point out at this time that Dallas County is a rural community.

And your best source of information is usually a country grocery store in which you go and buy a soft drink and talk with the owner and he can tell you about everybody in that vicinity.

Now, there was something said in the testimony about if he didn't know any particular Negroes in that area.

He asked some good white men, that may seem as -- that was discrimination, but in this area of the State, most of the stores are run by white men, the grocery stores or country gentle merchandise stores and he probably has went and asked some questions.

Rebuttal of Mr.justice Black

Mr.justice Black: May I ask you just a few --

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: -- statistics, of course you realize whatever these cases say as you've said, we've got to consider this case somewhat on those facts.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

I'm just pointing out there was not on all force, are not very similarly.

Rebuttal of Mr.justice Black

Mr.justice Black: That is -- that's -- that's correct.

What is the -- the total voting population of Dallas County now?

Do you know?

Rebuttal of David W. Clark

Mr. David W. Clark: No, sir.

Frankly, I -- I don't --

Rebuttal of Mr.justice Black

Mr.justice Black: The record doesn't show.

Rebuttal of David W. Clark

Mr. David W. Clark: The record doesn't --

Rebuttal of Mr.justice Black

Mr.justice Black: What is the total -- you wouldn't know --

Rebuttal of David W. Clark

Mr. David W. Clark: Now, it did show the -- the number of Negro and whites over 21 males, I believe it was 6940 white males and 7438 Negro males to over 21.

Now, it's gone in 1950 Census.

Rebuttal of Mr.justice Black

Mr.justice Black: What is the --

What are the literacy figures in Dallas County now, with reference to those over 21, do you know?

Rebuttal of David W. Clark

Mr. David W. Clark: No, sir.

But I -- I believe Mr. Greenberg cited it and I think he said in generally, the whites had a seventh grade education and colored people, approximately non-whites, about fourth grade education.

Rebuttal of Mr.justice Black

Mr.justice Black: You have schools for both, there now?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

We do.

Rebuttal of Mr.justice Black

Mr.justice Black: Scattered pretty well over the county?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir, they are.

Rebuttal of Mr.justice Black

Mr.justice Black: And you still have compulsory education for both groups?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Page 16 --

Rebuttal of Mr.justice Black

Mr.justice Black: Which is -- which is the law in Dallas County.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

That is in full sentence.

Rebuttal of Mr.justice Black

Mr.justice Black: Is this -- do you know how the illiterates of that compares in Dallas as to both races were the literacy or illiteracy in the other counties in the State.

Rebuttal of David W. Clark

Mr. David W. Clark: It's rather low that they didn't see that, I think we compared with the other places.

Rebuttal of Mr.justice Black

Mr.justice Black: The literacy?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

They don't go as far in schools as they do in some of the more populated counties.

This is a farming area.

Rebuttal of Mr.justice Black

Mr.justice Black: Is that it?

Is there any difference in the number so appreciable difference, total illiteracy.

That is that people can't read and write.

Do you have that between --

Rebuttal of David W. Clark

Mr. David W. Clark: No, sir, I don't have that (Inaudible)

Rebuttal of Mr.justice Black

Mr.justice Black: Well, that's not a notice -- I -- I wouldn't think that's a noticeable percentages of people in Dallas now, who couldn't read or write.

Rebuttal of David W. Clark

Mr. David W. Clark: I don't know the exact number, but I think they are deaf in minority.

They cannot read or write without brief in education.

Chief Justice Earl Warren: Is there any literacy test for jurors in that county?

Mr. David W. Clark: I believe they must read and write except that they are free holders or householders and that is the waived in that case.

Chief Justice Earl Warren: Yes.

So there is no literacy test?

Mr. David W. Clark: With those two exceptions, I just named there would be.

They have to be able to read and write, unless they are free holders or householders.

Chief Justice Earl Warren: Everybody?

Mr. David W. Clark: Everyone, yes.

Chief Justice Earl Warren: Unless they are free holders or householders.

Mr. David W. Clark: Yes, Your Honor.

Chief Justice Earl Warren: In that event, they do not have to be -- they do not have to follow any literacy test.

Mr. David W. Clark: That's correct, Your Honor.

Chief Justice Earl Warren: Yes.

Now, I was wondering -- I'm wondering this.

Mr. David W. Clark: Yes, sir.

Chief Justice Earl Warren: -- in these other cases that you have been talking about, if they have the same requirements for -- for drawing up the -- the jury panel that you have here, as I -- as I read it, the Jury Commission shall make in a well bound book roll containing the name of every male citizen living in the county who possessed the qualifications herein described.

The Jury Commission shall place on the jury roll and in the jury box the names of all male citizens of the county who are generally refuted to be honest and intelligent and are esteemed in the community for their integrity, good character and sound judgment.

Mr. David W. Clark: Yes.

Chief Justice Earl Warren: Now, as I understand it, they -- the Jury Commissioner only found 1800 --

Mr. David W. Clark: That is current.

Chief Justice Earl Warren: -- in this county who had fulfilled that requirement, both white and black.

Mr. David W. Clark: Yes, sir.

Chief Justice Earl Warren: But he is under the law, required to put all of them in there who have that character.

Mr. David W. Clark: Please the Court.

I cited in my brief the case of Wimbush versus State which is the Alabama case, 237 Ala.153.

Said the purpose of the statute providing no objection may be taken any venire jurors set to fraud in draw and summon the jurors, is to prevent quashing a venire if I may, irregularities and to obviate result and delays.

Well, in that, there was citing that Section 46 in which you just read and it was stated there that unless there was fraud in drawing or sounding the jurors that a motion to quash would not lie in that case.

Therefore that we have the Alabama condition determination that it doesn't require every --

Chief Justice Earl Warren: But it does not require.

Mr. David W. Clark: It does not require -- and that is of course, that case was 1939 and that came after that Attorney General's opinion cited by the petitioner in his brief.

Rebuttal of Mr.justice Black

Mr.justice Black: May I ask you now with reference to this.

What I'm sure you have realized is the crucial point in the case to Justice Harlan.

Assuming that it is correct that the percentage has dropped from --

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: -- from 1 in 5 to 1 in 12, is there any reasonable explanation that could be made on that from the record?

Rebuttal of David W. Clark

Mr. David W. Clark: No, sir.

The record doesn't show any -- any reason for that.

Rebuttal of Mr.justice Black

Mr.justice Black: There's certainly no --

Rebuttal of David W. Clark

Mr. David W. Clark: There --

Rebuttal of Mr.justice Black

Mr.justice Black: -- no less literacy among the --

Rebuttal of David W. Clark

Mr. David W. Clark: No, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: One group, the colored group that they were on, is any reason to assume that not just as many or more people of good character and reputation than they were before?

Rebuttal of David W. Clark

Mr. David W. Clark: May it please the Court in that -- that invades the discretionary power.

The Jury Commissioner it says that they shall go out and -- and check on these people and as the requirements so that each jurors must be honest and intelligent and have their reputation for integrity and good character and sound judgment in that community.

Rebuttal of Mr.justice Black

Mr.justice Black: But I have --

Rebuttal of David W. Clark

Mr. David W. Clark: So they have some discretion in that, it would -- it does follow that because every white person, when he became 21, he would not of itself, be a prospective juror that would not -- the qualification of a Negro.

Rebuttal of Mr.justice Black

Mr.justice Black: That is correct.

But I was asking on the -- with the idea that you had not only the state law but you have the federal law, which says there must be no discrimination on account of color.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: And what -- what reason can you think of except color to account for this decided drop in the -- percentages realizing of course, you do not have to have a special percentage.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: What reason can you advance in the practice in Alabama or what has occurred reference to filling the boxes or anything else, it could be responsible for that, except color.

Rebuttal of David W. Clark

Mr. David W. Clark: Well, Your Honor, the one thing I could think of, just off hand is that the Jury Commissioners put more names of whites than they did of the Negro race.

Now, whether --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: The record suggests -- the record suggests, one reason, don't it, the one reason that you relied on the court below, the -- that the fact that arrests in the county, 85% of those arrested in the county where non-whites and that suggest that --

Rebuttal of David W. Clark

Mr. David W. Clark: That (Voice Overlap) that goes along with the discretionary power of the Jury Commissioners to -- to lay it.

Justice Felix Frankfurter: When you say discretionary power, that implies that the discretion was exercised on something or on, hasn't it?

Mr. David W. Clark: Yes, sir.

Justice Felix Frankfurter: Now, what I want to know is on what was what you call the discretion exercise.

That Commissioners -- the jury -- the jury selectors didn't examine each one of the potential jurors, white and color, did they?

Mr. David W. Clark: No, they are the one who counted.

Justice Felix Frankfurter: How many -- on the basis of how many was the selection made if you straighten me out?

Mr. David W. Clark: I believe there were approximately 14,000 of both white and --

Justice Felix Frankfurter: Well, not --

Mr. David W. Clark: -- Negro race.

Justice Felix Frankfurter: -- with reference to the selection of this jury.

Mr. David W. Clark: Oh, no, sir.

Justice Felix Frankfurter: On the basis -- how many -- on the basis of how many in exact number was the selection of the 12 here made?

Mr. David W. Clark: The ones -- well, there were 68 to start with, some were excused, I would --

Justice Felix Frankfurter: 68.

Mr. David W. Clark: -- say around --

Justice Felix Frankfurter: Now --

Mr. David W. Clark: -- 40 people were left to be struck and there were two missing.

Justice Felix Frankfurter: But from the 68, how many, to start with, were white as against colored or colored as against white?

Mr. David W. Clark: Well, it was definitely shown that there were five Negroes --

Justice Felix Frankfurter: Now, those five --

Mr. David W. Clark: Those are the ones not found.

Justice Felix Frankfurter: Those -- those five were drawn out of how many?

Mr. David W. Clark: 5 out of 68.

Justice Felix Frankfurter: No, no.

I don't mean of the total.

Out of those five Negroes were drawn out of a total pool of how many Negroes?

Mr. David W. Clark: Well, if we follow Mr.Depke's guess that would be out of 150.

Justice Felix Frankfurter: 150.

Now did he make a custody exercise of personal judgment as to each one of the 150 or did he go as you suggested the local -- the general store, the grocery and talk with him?

Mr. David W. Clark: Well, he said he, in his testimony, said he went to various people and talk with them.He talked to some prospective jurors.

Justice Felix Frankfurter: But do we know whether he selected the five act of personal inspection, of personal examination of inquiry of each of the 150 face-to-face, probably not?

Mr. David W. Clark: I believe from his testimony, he did not.

Justice Felix Frankfurter: He did not.

Mr. David W. Clark: He did not.

Justice Felix Frankfurter: Therefore, what you call an exercise of discretion was based on some -- was derived from a basis other than his own determination when he saw John Smith that John Smith would not be a good perspective juror, isn't that right?

Mr. David W. Clark: Yes, sir.

Well, the statute says about the reputation in --

Justice Felix Frankfurter: Well I'm not -- I'm not questioning it.

I just want to know what the basis of the choice what you call in answer to Justice Black's question.

He exercised discretion --

Mr. David W. Clark: Yes, sir.

Justice Felix Frankfurter: -- when we have this drop which raises questions of how did it come about.

It might come about because in a particular year, in a particular era, in a particular county, there may have been only two personal inspections five whom in his judgment would qualify.

But that isn't the situation we had.

Mr. David W. Clark: No, sir.

Justice Felix Frankfurter: So that he relied on somebody else or somebody else's --

Mr. David W. Clark: Well, there are three Jury Commissioners.

Justice Felix Frankfurter: Pardon me?

Mr. David W. Clark: There are three Jury Commissioners in that case that may have been --

Justice Felix Frankfurter: Whether three of them -- whether three of them.

The three of them relied not on the personal examination and judgment upon the individual 150, but some secondary source.

Is that right?

I don't mean by secondary to --

Mr. David W. Clark: I realize what you mean now.

Justice Felix Frankfurter: -- to derogate from the force.

All I'm trying to search --

Mr. David W. Clark: From his statement, he said that he interviewed some persons and some just their reputation as we might say hearsay.

Justice Felix Frankfurter: But you couldn't or -- or could you, unless the record shows it, you couldn't, there was a record, say that he did a sampling on the basis of which he rejected 104 -- on the basis of which the juror commissioners rejected 145.

That's what this gets down to, doesn't it?

Isn't that right?

Mr. David W. Clark: No, sir.

There were 150 in the jury roll and I believe they were -- they were just a name for taken out by the jury.

Justice Felix Frankfurter: But I thought you've said the -- I asked you in this --

Mr. David W. Clark: Oh, I -- I am -- I must --

Justice Felix Frankfurter: -- the five Negroes were out of a potential body of how many Negroes?

Mr. David W. Clark: Approximately 150.

Justice Felix Frankfurter: Well, that's what I say.

So 145 were rejected through sampling of the 150 of the -- through sampling, isn't that true?

Mr. David W. Clark: No, sir, because that the -- there was a jury roll of approximately 1800 and just -- so they were -- the names were picked out.

They were -- the -- there were no five Negroes picked out.

It was just five --

Justice Felix Frankfurter: Were the 150 put into the box to be picked out from?

Mr. David W. Clark: As Mr. Depke said there were approximately 150 and colored --

Justice Felix Frankfurter: Colored, names and by chance, they just picked five and yet out of the white names, they picked X out of Y, whatever it is?

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: The same percentage, the approximate thing?

Rebuttal of David W. Clark

Mr. David W. Clark: --percentage, I believe.

Justice Felix Frankfurter: So this -- so that the -- the selection you say was based on -- on chance, on the -- on the (Voice Overlap) on the impersonalness and the disinterestedness of chance.

Mr. David W. Clark: That is correct, sir.

Justice Felix Frankfurter: Well then, where -- where did the -- where did the discretion come in?

Mr. David W. Clark: Well, the discretion is that when the Jury Commission goes out into the district and they ask about one of the names they have, say, it's John Jones --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Making up the list of 1800 (Voice Overlap) --

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, making up the list or adding to the list.

Then --

Justice Felix Frankfurter: Well -- well that I so understood in evident added and put my questions correctly.

In making up the list --

Mr. David W. Clark: Yes, sir.

Justice Felix Frankfurter: -- you rejected or the Commissioners rejected how many out of how many?

Mr. David W. Clark: I don't have those facts.

I don't believe they were brought out at the trial.

Justice Felix Frankfurter: But is that important if -- if out of a potential body of jurors, how many -- only an -- an unfair ratio that from the colored jurors was left as against the whites and if it occurs regularly, then I'd like to know where discretion played its part?

Mr. David W. Clark: Well, when the Jury Commission goes out to interview perspective jurors, if -- if the --

Justice Felix Frankfurter: Even -- even the way which you indicate by going to the grocery stores of the (Voice Overlap) --

Mr. David W. Clark: Well, I -- I just said in the --

Justice Felix Frankfurter: -- or the local teacher or doctor or whatnot.

Mr. David W. Clark: Teacher, doctor in one community, sir.

If they say well that's a good person, he's had maybe a few driving offenses or -- or perhaps he was -- gets drunk occasionally, which is possibility, it did.

And that happens quite seldom and otherwise, he's a person of good character and either white or Negro that they could put him in the service --

Justice Felix Frankfurter: Yes, but there's a disproportion --

Mr. David W. Clark: In a roll.

Justice Felix Frankfurter: -- there's a disproportion in the result of this process, isn't there so far as numbers go?

Mr. David W. Clark: Yes, sir, there is.

Justice Felix Frankfurter: And that's the problem that would come before us.

Whether this -- this proportion is the product of -- of fair judgment on relevant materials or is a product of the chances of life, the contingencies of life or whether it is a product of starting out to say we're not going to have more than X number of Negroes.

Mr. David W. Clark: Nowhere in the testimony was there anything brought out as to we picked on -- on this jury, five Negroes.

Justice Felix Frankfurter: Well, there was nothing like that either in the Cassell case that the reference has been made to that.

And for myself, if something operates discriminatorily, uniformly, then there's -- then it isn't the operation of either chance or -- or discretion based on relevant criteria because the dice don't always fall seven-eleven --

Mr. David W. Clark: That's correct, sir.

Justice Felix Frankfurter: -- not even for the (Voice Overlap) draw.

Mr. David W. Clark: That's correct.

Justice Felix Frankfurter: Isn't that true?

Mr. David W. Clark: That is true, sir.

Justice Felix Frankfurter: And how do you account for this discrepancy?

Mr. David W. Clark: As I have said, the only way I could is that the Jury Commission only put on a -- a certain number of white and colored names with those that they interviewed or checked into and it -- suppose in this case, there are more whites than colored.

Justice Felix Frankfurter: What you're saying -- are you saying that the juror of the Commission going around and making an honest effort to find out according to his life who was serviceable jurors, I mean --

Mr. David W. Clark: Yes, sir.

Justice Felix Frankfurter: -- one function of being a juror, he went through the grocery store and he went to the local doctor and he went to the teacher and whatnot.

And they said, there is Jones and there is Smith and there is Robinson.

And -- and apparently, those are the only ones his recommenders could give him, is that it?

Mr. David W. Clark: Well, he goes out with the names already and -- and checks his names out.

Justice Felix Frankfurter: But the potentialities, yes.

Mr. David W. Clark: Yes, sir.

Justice Felix Frankfurter: And they say, well I wouldn't have him.

I wouldn't have him.

And you say it's the result of that kind of as saying the people under, there's tool --

Mr. David W. Clark: Yes.

Justice Felix Frankfurter: -- the judgment of his advisers, his own knowledge (Inaudible) jury.

Mr. David W. Clark: Yes, sir.

Justice Felix Frankfurter: That's your position.

Mr. David W. Clark: And I believe this Court has held its burden is on the petitioner and instance like that the defendant to -- to show there has been some discrimination.

Justice Felix Frankfurter: Let me ask you this question, Mr. Clark.

Mr. David W. Clark: Yes, sir.

Justice Felix Frankfurter: These are perhaps broad questions.

Has the Attorney General of Alabama any relation to the jury selecting process?

Mr. David W. Clark: No, sir, we don't (Inaudible)

Justice Felix Frankfurter: Who -- when do they derive their standards for selecting jurors?

I know the statute is there.

Mr. David W. Clark: Yes sir, on the statutes.

Justice Felix Frankfurter: Yes.

But who tells them, who is it?

Is it the local judge?

Could the Attorney General send out a general letter of instructions or advice or information saying, "We have carefully studied the decisions of the Supreme Court of United States which are ultimately governing to this matter and we would like to enumerate what it is that you can come in compliance with those decisions in the light of the statute," because there's no suggestion here, but the statute as such, is there -- is unconstitutional?

Mr. David W. Clark: No, sir, there's nothing --

Justice Felix Frankfurter: Discrimination isn't written on the face of the statute.

Mr. David W. Clark: No, sir.

Not on the statute.

Justice Felix Frankfurter: Alright.

Therefore, it's a question of the tools that were given to them, namely, the statute how they should use those tools.

Mr. David W. Clark: Yes.

I will point out that while the Attorney General could do that, I should also point out that any member of the Jury Commission could write to the Attorney General upon opinion of how he (Voice Overlap) --

Justice Felix Frankfurter: Had there been any such general instruction by anybody either the Attorney General's Office or the Court to which the Jury Commissioners were attached in whatever way they are attached?

Mr. David W. Clark: No, sir.

I don't believe so.

Justice Felix Frankfurter: So that every Jury Commissioner is guided by his own life or what he's heard, what these decisions are.

Mr. David W. Clark: Yes, sir.

Justice Felix Frankfurter: Suppose you were coming back from this argument, suppose you were Attorney General or you could -- could be your chief, suppose there were such a letter of instruction or -- or recommendation, could you as you stand there, formulate what you conceive to be the duties of Jury Commissioner in the light of our decision, what would you tell them?

Mr. David W. Clark: I think in the light of the juror -- of this Court decision, there should be no discrimination.

I believe you have frequently held that.

Justice Felix Frankfurter: I know, but they -- nobody suggested that they consciously discriminated in this case, do they?

Mr. David W. Clark: No.

Justice Felix Frankfurter: So it's the operation of a system on misconception of what -- how that system is to work.

That's what he gets down to, isn't it?

Mr. David W. Clark: Yes sir, the exercise in the legislation.

Justice Felix Frankfurter: And people might as honest as days long or more honest than a 24-hour day.

Mr. David W. Clark: Yes, sir.

Justice Felix Frankfurter: And yet misconceive what it is that their duty is.

That's -- that's the real problem and that this problem, isn't it?

Mr. David W. Clark: Yes.

Yes, sir, and I would like to point out that Mr.Depke in his testimony as to his immediate precinct pointed out that there were seven members on the jury roll -- jurors, four were Negroes and three were whites.

That was in his own precinct, sir.

So --

Justice Felix Frankfurter: That -- what kind of a population -- how large a population would that cover?

Can you make a guess on that?

Mr. David W. Clark: Very small to that there were only seven jurors in there, possibly 100 people this precinct is.

Justice Felix Frankfurter: What you said, said seven Negroes and three whites?

Mr. David W. Clark: I mean they were seven jurors.

There were four Negroes and three whites.

Justice Felix Frankfurter: Three whites.

Rebuttal of Mr.justice Black

Mr.justice Black: What precinct was that?

Rebuttal of David W. Clark

Mr. David W. Clark: Martin Station was the name given to that.

Rebuttal of Mr.justice Black

Mr.justice Black: What's the division of population to that precinct?

Rebuttal of David W. Clark

Mr. David W. Clark: I don't have --

Rebuttal of Mr.justice Black

Mr.justice Black: Three whites and blacks.

Rebuttal of David W. Clark

Mr. David W. Clark: I do not know that, sir, but based on the county population that if we go along the 1950 census, it would be about half and half of --

Rebuttal of Mr.justice Black

Mr.justice Black: What, in that precinct?

I'm talking about that precinct?

Rebuttal of David W. Clark

Mr. David W. Clark: Martin Station?

Rebuttal of Mr.justice Black

Mr.justice Black: Yes.

Rebuttal of David W. Clark

Mr. David W. Clark: I assume it's approximate that sir, but I do not know, I don't have any (Inaudible)

Justice Felix Frankfurter: Have you -- have your counties --

Mr. David W. Clark: Yes, we have.

Justice Felix Frankfurter: Have your counties in which the county's almost completely Negro -- Negro population?

Mr. David W. Clark: Yes, sir, they are.

Justice Felix Frankfurter: Are there any --

Mr. David W. Clark: Approximately three counties in the State.

Rebuttal of Mr.justice Black

Mr.justice Black: Pardon me?

Rebuttal of David W. Clark

Mr. David W. Clark: Approximately three counties.

Rebuttal of Mr.justice Black

Mr.justice Black: Three counties.

Have we got any data in this record or any judicial notice or statistical census reports as to what the situation is in those counties?

Rebuttal of David W. Clark

Mr. David W. Clark: No, sir.

That wasn't brought out at the trial.

I believe those counties are Lowndes, Marengo and Tuskegee.

Rebuttal of Mr.justice Black

Mr.justice Black: You have precinct in Dallas County, do you not, where the same kind of disproportion exist (Voice Overlap) --

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, I have some.

Now, in another case, it was cited on Neal versus Delaware, we definitely have the statute there that excluded persons that have been dissent from jury service, but of course that ever gone this face was -- this different from this one that we have here and another one cited was Pierre versus Louisiana.

And this was one where there were approximately one-half the population was Negro.

And that no Negro had said it was petit or grand jury in the last 10 years.

Now, in anytime on the grand jury and they had 300 names in the venire box, three of these were Negroes, one was a dead person, dead Negroes, so there were really only two out of 299, and they held this was discrimination.

Well, that -- that's a long way from the case we have before the Court.

The only similarity there is that there were approximately half of the population was Negro.

In the Reese versus Georgia, another case cited, we -- that was a due process matter in which the Georgia rule of practice required the defendant to challenge the composition of the grand jury before the indictment, where the grand jury was empanelled, sworn in eight days before the man was indicted in that case and he did not have counsel appointed until the day after he was indicted.Of course, that was due process.

It was violated there.

That's nowhere near the case before the Court.

Shepherd versus Florida, we had discrimination there.

Negroes were discriminated against on the jury system.

And there was also the possible race rot and things of that nature, newspaper writings that just prevented a fair trial to the man so that was questioned in.

Smith versus Texas was the other one that -- where they drew a grand jury in which they put the first way of names, white people and then 13, 14, 15, 16 were of the Negro race and there was a local practice to pick the first 12.

And that was just a stag deck, so to speak, there.

Of course, Estrada versus West Virginia is the one that said that all white male through 21 years and a citizen of this States shall be liable to serve as jurors except this hearing provided and they provided for certain state officials.

Of course, that excluded all persons of Negro descent.

But once again, that's a long ways from the case we have before the Court.

Rebuttal of Mr.justice Black

Mr.justice Black: I'd like to ask one more --

Rebuttal of David W. Clark

Mr. David W. Clark: Yes.

Rebuttal of Mr.justice Black

Mr.justice Black: -- just to get it clear, I hate to ask you so many questions.

Rebuttal of David W. Clark

Mr. David W. Clark: (Voice Overlap)

Rebuttal of Mr.justice Black

Mr.justice Black: Does the record show whether the box has been emptied (Inaudible) in anyway --

Rebuttal of David W. Clark

Mr. David W. Clark: No, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: --up to the time when there were a bigger percentage of colored people.

Rebuttal of David W. Clark

Mr. David W. Clark: That did -- there was a showing that in 1953, October 1953, the box was pushed of all means and then a new disc was made up.

Rebuttal of Mr.justice Black

Mr.justice Black: Completely refilled.

Rebuttal of David W. Clark

Mr. David W. Clark: Completely refilled.

That was the time that 1500 were put in.

Now --

Rebuttal of Mr.justice Black

Mr.justice Black: Now -- now, after what I'm getting at is, what does it show has happened since then with reference to the box?

Had there been supplements to put in?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, there had been additional names and the deletion of certain names, people who died (Inaudible).

Rebuttal of Mr.justice Black

Mr.justice Black: Well, has there -- had there been one or two times when they put in a large number according to the record?

Rebuttal of David W. Clark

Mr. David W. Clark: The record didn't show of any.

Rebuttal of Mr.justice Black

Mr.justice Black: Has there been one or two times whether -- when they took out a large number according to the record?

Rebuttal of David W. Clark

Mr. David W. Clark: The record did not show that once again.

Rebuttal of Mr.justice Black

Mr.justice Black: It doesn't show it either way?

Rebuttal of David W. Clark

Mr. David W. Clark: The defendant did not ask that question.

I did not endeavor to bring that out in any fashion.

Rebuttal of Mr.justice Black

Mr.justice Black: They stood on the results rather than --

Rebuttal of David W. Clark

Mr. David W. Clark: They stood on the ground that there were 1800 jurors.

There were only approximately 150 Negroes.

Now, the petitioner in his brief on page 14 says that petitioner does not challenge the system of selecting jurors as such in Alabama.

He points that out on himself.

In fact, he points out several things in the -- it just is undecided of what he had based in his claim that there was discrimination at the trial.

It was pointed out and the Court asked the attorney for the present petition.

Did he have any objection to the way the jury was known and he said, "No, except for the names -- discrepancy that the pro -- pro rata share of names being just a small portion of Negroes."

Justice Charles E. Whittaker: Do you know if whether or not, there was any practice in that section of the State where Negro defendants not to want, but to strike Negro jurors in criminal cases.

Mr. David W. Clark: No, sir, I would point out though that as to who struck and who stood to gain by the striking up and there was no showing that had these two Negroes been left on the jury that the case would have changed one way or the other.

On the other hand, as they were struck, that's the reason the petitioners up here claiming there was discrimination.

So if there was anybody to profit by the striking, it -- it would be to presume that it was the petitioner.

He had two chances against one of the State to strike him.

Rebuttal of Mr.justice Black

Mr.justice Black: Well, are you arguing that they struck him?

I don't know that that have --

Rebuttal of David W. Clark

Mr. David W. Clark: The record does not show.

Mr. David W. Clark: It's possible that they did.

If they -- if they did, then they created their own petition of here, the ground for it.

Rebuttal of Mr.justice Black

Mr.justice Black: I would suppose

Rebuttal of David W. Clark

Mr. David W. Clark: No, sir.

The record does not show.

I've pointed that out by record at page 62.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Would there be minutes that even or not in the record is reflecting that back in your court?

Rebuttal of David W. Clark

Mr. David W. Clark: No, sir.

I don't have knowledge of such.

Justice Charles E. Whittaker: Well your examination is ordinarily not transcribed?

Mr. David W. Clark: They were not in this case.

Rebuttal of Mr.justice Black

Mr.justice Black: There'd be no difficulty to find out where difficult -- everybody knows who struck the -- find out in five minutes.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, so they -- they could have it if they want to present it.

That's another thing I want to point out that the petitioner could have brought that up who struck them.

He could have made that a point on his appeal.

He did not choose to do that.

He did not choose to ask for the jury roll to be brought out in court, to show if there were at the last minute as in Norris versus Alabama, some names handwritten on the roll.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Perhaps they can supply that to his knowledge and rebut.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: That still, the Court was not answering the charge that they have made.

I'm not sure that it would be relevant.

What they're saying is that regardless of the fact he did -- that normally you had it on --

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir.

Rebuttal of Mr.justice Black

Mr.justice Black: -- shows in itself that couldn't have been, using Justice Frankfurter's statements, of pure chance.

Rebuttal of David W. Clark

Mr. David W. Clark: It could have been.

Rebuttal of Mr.justice Black

Mr.justice Black: I'd say that -- that's the argument.

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, sir (Voice Overlap).

Now, I'd like to point out to one or two more recent cases.

One is Speller versus Allen, in which in Vance County, North Carolina, there were 145 names out of a total of 2126 names in the jury box, and this Court held that that was no evidence of discrimination in that case.

Chief Justice Earl Warren: We also have in this case, do we not, that since a new system came in, in 1953, with the county almost evenly divided between Negroes and -- and whites, that there never had been anyone sit on the petit jury and only one person that ever -- no one -- never had been a colored person who had sat on a trial jury and only one who had sat on the grand jury?

Mr. David W. Clark: So the testimony is closed, sir.

Chief Justice Earl Warren: Yes.

Mr. David W. Clark: They could have been -- go stricken on the petit jury.

I don't know who did that, but since the grand jury, it was never changed there.

That is our contention.

Now, in the Speller versus Allen case, it was pointed out that they had incidentally filled that -- refilled that jury box.

And this Court held that -- that past acts of theirs were just evidence of past attitude of mind and it should not govern in this case, as they had now made a diligent effort to discharge their duties properly in selecting the jury.

That is our contention here that the prayers of Jury Commission is making a diligent effort to comply with the law and therefore, there has been no actual evidence of discrimination shown by the petitioner in this case.

The burden was upon him.

We contend he failed to show it to meet that burden.

There was evidence presented by the solicitor, the sheriff, various other people as to how many had been called each time and there was more or less in proportion to the number of Negroes on the jury roll.

We contend there was no evidence of discrimination shown in this case and that the judgment should be affirmed.

Thank you.

Chief Justice Earl Warren: Mr. Goldberg or Mr. Greenberg.

Argument of Mr.jack Greenberg

Mr.jack Greenberg: May it please the Court.

I would like to emphasize at this point that the discrimination about which we're talking exist on two levels.

First, there is the shocking disproportion of only 1 in 12 in a county which is about evenly divided in population.

But even more shocking than that is the fact that only once has a Negro ever graduated, so to speak, from the panel to the grand jury itself, and that once was about five or six years ago.

And we are pointing to both those aspects of discrimination not merely the disproportion of 1 in 12 about which there has been some discussion.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Was that --

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: What you're talking about both the grand and the petit juries?

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: No, at this point, I'm merely talking about the grand jury.

There's only 1 in 12 on the panel -- 1 in 12 in the box.

Panels end up about 1 in 12 also.

Then the names are picked from a -- a hat, from the panel going to the grand jury of 18 and a Negro never gets on it.

Now, the -- in connection with that, I'd like to refer to some of the language in Avery against Georgia.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Could I ask you a question?

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: Yes.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Without suggesting that it's either relevant or irrelevant, what is the fact if you -- if you know as to who struck these jurors, the name of the jurors?

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: I -- I don't know.

The -- Mr.Hall might be able to tell me.

I believe that, as I read that colloquy on the last page of the record, that the State struck them.

The State said, "Now, I want the record to show that the defendant struck these two jurors and defendant Lewis, and the -- wait a minute, that's not true, the States struck them."

And then the counsel for the State said, "Well, I'm sorry, I made a mistake, I withdraw everything that I said."

Now, that is not a flat admission, but I -- I think it raises a very strong inference that it was the State, in fact, who struck them.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Do your --

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: -- I read from this record here --

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: -- do your colleagues know what the facts are?

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: Well, I can ask Mr.Hall right now.

He says that the State struck them.

He was at the trial.

But the -- the colloquy does give rise to that inference on page 62 of the record.

Mr. McCloud, the counsel for the -- the Solicitor said, "I want to make a statement."

This is the fact that Negroes were drawn, summons and did appear in the courtroom and the State of Alabama did not strike all of these jury lists, the defense struck part of them.

And the Court said, "Alright."

Then Attorney Billingsley said, "I don't quite understand what Mr.McCloud is saying.

He said before our contention is relative to the motion filed yesterday."

There were some Negroes on the jury and the States struck them.

And then Mr.McCloud said, "I beg your pardon."

And further down he says, "I apologize.

I withdraw everything I said with reference to that."

I won't contend that that's absolutely clear.

I think it raises the inference that the State struck them there.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: And that was the petit jury.

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: That was the petit jury, yes.

So far as the grand jury is concerned, as I say that 1 in 12 in a county by evenly divided is -- is quite a shocking disproportion which calls for some explanation, but even more shocking is that nobody ever is promoted from the panel of, let's say, 68 to the grand jury itself, except this single individual.

Rebuttal of Mr.justice Black

Mr.justice Black: May I ask you if this evidence shows how that one was selected, what kind of case was up that week?

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: No, it does not.

Rebuttal of Mr.justice Black

Mr.justice Black: When it occurred -- when did it occur?

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: In 1953 or 1954.

Rebuttal of Mr.justice Black

Mr.justice Black: Did it occur at anytime in connection with the opinions that were handed down or does the record show?

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: The record does not show.

Jury Commissioner vaguely recollected that there had been a Negro and then a juror who was vice president of the bank in town, I believe, at that term of the court, testified that he had served on that jury and there was a Negro on the jury with him whose name was Roosevelt Dawson.

That's all the record shows in that respect.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Mr.Greenberg, in Alabama, can there be a -- an information as one of the -- as an indictment by a grand jury as a preliminary to a criminal trial or is it -- are all trials by indictment?

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: I'm not aware of that.

Rebuttal of Mr.justice Stewart

Mr.justice Stewart: Do they have an information as well as indictment in Alabama?

Rebuttal of David W. Clark

Mr. David W. Clark: Yes, Mr. Hall informs me, yes, sir.

Rebuttal of Mr.justice Brennan

Mr.justice Brennan: Capital offenses too?

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: Is that also capital offenses?

No not from Mr. Hall, definitely not for capital --

Rebuttal of Mr.justice Brennan

Mr.justice Brennan: Not for capital offenses.

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: Not for capital --

Rebuttal of Mr.justice Black

Mr.justice Black: Well -- do you mean they have an information for felony?

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: I'm -- I'm sorry that I --

Rebuttal of Mr.justice Brennan

Mr.justice Brennan: Well, what (Inaudible) there's no information for any felony?

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: Mr.Hall says that no information for felony so far as he know.

The --

Justice Felix Frankfurter: We would have to know what a felony is in Alabama.

Mr.jack Greenberg: The question arises as to how this occurred and the State takes the position that no Negro has ever ended up on the grand jury as a result of pure chance.

And apparently, are just that we have not been able to demonstrate how this is done.

In that connection, we submit that the language of Avery against Georgia is -- is entirely pertinent in which the opinion of the Court said, "That the court below affirmed however because petitioner had failed to prove some particular act of discrimination by some particular officer responsible for the selection of the jury.

And the State now argues that it is petitioner's burden to fill this factual vacuum.

We cannot agree if there was a vacuum that is one which the State must fill by moving in with sufficient evidence to dispel the prima facie case of discrimination.

That's the situation which we submit we have here.

There has been some suggestion by the State that there has apparently been some waiver of the questions presented here in the court below.

We submit the record clearly shows that these questions were presented and preserved that every stage of litigation below, motion to quash the indictment uses language which was repeated later in a motion to quash the venire and a motion challenge in the composition of the jury, the motion for new trial, the petition for writ of certiorari to the Supreme Court of Alabama.

And that language is -- the language charges that Negroes are excluded from grand juries organizing said county and State solely because of their race and color or -- or discriminated against in the organization of grand juries in said county of said State solely because of their race or color.

And that no member of said race or a mere token number are included on the jury roll or have their names placed in the jury box or if they are placed on the jury roll or in the jury box, they are not drawn for service on any grand jury.

And that is, in fact, what petitioner claims occurred in this case.

So far as the --

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Does the challenge here is either to the petit jury or to the grand jury or both?

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: It was both.

Rebuttal of Mr.justice Harlan

Mr.justice Harlan: Both.

Rebuttal of Mr.jack Greenberg

Mr.jack Greenberg: Both.

The -- some statement by the respondent that the figure of 1800 names in the jury box is only a guess, this man was the chairman of the Jury Commission.

He was a person principally charged with the duties of conducting the business of the Jury Commission.

There was no objection to his testimony.

I might point out that when he took the stand the first time, he concluded his testimony by asking,

"May I make a statement?"

There was an objection.

He was not permitted to make a statement.

He was later recalled to the stand at which time he testified a second time.

And certainly, if there were anything to correct or any additional testimony or not only was it -- within the power of the State as a general proposition, but this particular witness had a later opportunity to correct anything that he said at this time.

We submit that on the record in this case, there is no question but that there has been racial discrimination in the selection of the jury.