ANDERSON v. JOHNSON

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Argument of J. Brad Reed

Chief Justice Earl Warren: Number 700, Brooks Lee Anderson, petitioner, versus Wilburn C. Johnson, warden.

Mr. Reed.

Mr. J. Brad Reed: Mr. Chief Justice, may it please the Court.

The petitioner in this case is a Negro.

The petitioner was indicted, tried and convicted in Maury County, Tennessee in 1949 for the offense of rape.

He contends in this case that Negroes were systematically excluded from the grand jury which indicted him and from the petty jury which tried and convicted him.

The salient facts in the case are wholly undisputed.

The census reports from Maury County were introduced into evidence in the District Court.

They showed that in excess of 20% of the total population of Maury County, at all relevant times, were Negro.

The proof also showed without dispute that prior to and including the time of petitioner's indictment, trial and conviction, no Negro, none whatever had ever served on any grand or petty jury in Maury County.

There's absolutely no question and I would hardly even think it necessary to mention it if it not for the fact that the District Court held otherwise that these two items make out a prima facie case of systematic exclusion showing a substantial percentage of the population to be Negro and showing an absolute failure of service at any time on the part of Negroes.

As stated, the District Court nevertheless held that petitioner had failed to make out a prima facie case.

Justice John M. Harlan: What year is his conviction?

Mr. J. Brad Reed: His conviction was in 1949, Your Honor.

His habeas corpus hearing in the Federal District Court was in 1964.

The case of Norris versus Alabama I think is completely determinative of this point of the prima facie case.

The case quite somewhat similar in all respects except the percentage of Negroes in Jackson County, Alabama was much, much smaller.

This is 294 U.S. 590 showing about 8% of the population to be Negro, on 591 showing that there had never been any service by Negroes on grand or petty jury and the court then states that testimony in itself made out a prima facie case of the denial of the equal protection which the Constitution guarantees.

Justice John M. Harlan: This might be irrelevant but what is the estimation in 15 years lapsed with his conviction with respect to the federal habeas corpus?

Mr. J. Brad Reed: Your Honor, I have no explanation for it.

I was appointed to represent the petitioner for the first time by the Sixth Circuit Court of Appeals.

I -- I have no idea why the petition was not filed earlier.

Chief Justice Earl Warren: Is there any background in the state courts that would point toward the reason?

There must have been some -- some indication of when the first attack is conviction in the state courts other than on appeal, if you did appeal.

Mr. J. Brad Reed: There was no appeal.

I'm not advised, Your Honor, as to when the habeas corpus proceeding in the State Court on this basis.

Mr. Davies informed me that it was in 1962.

I have an idea as to perhaps why the challenge was not previously made.

Of course, it was around that time that habeas corpus became -- that the use of the writ became prevalent and it kind of enters throughout the country.

Also, Mr. Davies relies heavily, and I will attempt to show that his reliance is misplaced on a Tennessee Supreme Court decision concerning a prior conviction in Maury County some two years prior to the -- I suppose three years prior to the petitioner's indictment and conviction in which the question of systematic exclusion was raised, proof was taken and the Court held that systematic exclusion had not been proved.

Certiorari was sought in this Court and denied.

I think that I will be able to convince the Court that the questions asked and the reasoning employed by the Tennessee Court in that case were erroneous and that the -- that the facts presented in the case was erroneously decided.

Nevertheless, this case -- this Court did not choose to review the case at that time and this may have had some inhibiting effect on the petitioner.

Chief Justice Earl Warren: What year was that?

Mr. J. Brad Reed: Your Honor, the decision of the Tennessee Supreme Court was in 1949.

The array of the grand and petty jury that was challenged was in 1946.

I am -- I'm speaking strictly on the record, Your Honor, expressing interest in -- and I would guess that was -- that was what it is and I'm sure that Mr. Davies will -- will say that's what it is.

At any rate, on the decisions beginning with Norris which was in 19 -- in 35 through Patton versus Mississippi in 47, Whitus decided last term and Coleman versus Alabama decided this time.

Petitioner clearly made out a prima facie case, shifted the burden, at least the burden of going forward to the respondent to prove that what the introduce evidence to the fact that Negroes had not been systemically excluded.

The respondent's first attempt to show no systematic exclusion was to say that petitioner had not shown that any Negroes were qualified for jury service.

Well, in the first place, respondent misconstrues the nature of the prima facie case.

The burden is shifted to him to introduce evidence to the effect that Negroes are not qualified.

The prima facie case has already been established.

It's very clear under Norris and the later decisions that the prima facie case is made out by showing a substantial percentage of Negroes in the population, not -- it is not necessary to show that a substantial percentage of Negroes aren't qualified for jury service.

Justice Hugo L. Black: Where is this county?

Mr. J. Brad Reed: Maury County, Your Honor.

It's south of Nashville.

It's in Southern Central Tennessee.

Justice Hugo L. Black: How close to the Alabama lines?

Do you know?

Mr. J. Brad Reed: I would estimate 40 miles from Alabama.

Justice Hugo L. Black: It's not in East Tennessee?

Mr. J. Brad Reed: No, Your Honor.

It's right in the middle of Tennessee but in the southern portion of middle Tennessee.

The respondent introduced the statutes setting forth the relevant qualifications for jurors which were fairly usual for this time which was 20 years ago.

They have since been changed but the qualifications set forth by the Tennessee statutes -- and this -- this is set forth in -- in our brief.

It's a combination of the general statute and the private act, which applied only to Maury County.

Adult, male freeholders or householders and upright intelligent men known for their integrity, fair character and sound judgment.

Respondent introduced no proof whatever that a smaller percentage of Negroes were adult males as compared with white adult males than the percentage of Negroes in the general population.

Respondent introduced no proof that a smaller percentage of Negroes than whites were freeholders or that a smaller percentage were white -- were householders or that a smaller percentage were upright intelligent men known for their integrity, fair character and sound judgment.

So it's our contention that the respondent has wholly failed in his attempt to carry the burden of showing that fewer Negroes than -- or that a smaller percentage of Negroes than those in the general population which was in excess of 20% were eligible for jury service.

Respondent introduced proof that the jurors were selected from the tax rolls but again introduced no evidence that a smaller percentage of Negroes than the 20% in the general population were taxpayers.

The Court has no evidence therefore on which to base any finding except that in excess of 20% of those persons eligible for jury duty were Negroes.

Respondent or rather petitioner was not satisfied with relying solely on the respondent's failure to carry the burden of proof.

So in the Court of Appeals to the extent possible at that time, we attempted to show that the result gained by respondent's failure to carry the burden of proof was in fact the correct result in this panel.

We introduced by agreement the sub-census I suppose you would call it, breaking down the population figures from the total population into adult male Negroes and adult male whites, which is the largest category under the jury qualification statute.

This showed, as you might guess, that again in excess of 20% of all adult males in Maury County were Negroes.

Then -- and this is found in our brief in footnote 1 an examination of the Tennessee authorities as to what a person had to be in order to constitute a householder.

An adult male householder unquestionably is qualified for jury service.

The only way to determine how many freeholders there were would be to go to the tax records.

This was respondent's responsibility and he did not carry it.

We examined the Tennessee authorities in detail and it set this forth in the brief to show that virtually all adult males are householders under the Tennessee law, and I won't belabor the point by discussing it here, but it's set forth in detail in the brief.

So -- so they're not being satisfied to rely wholly on the burden of proof.

Petitioner weren't here and went forward himself and showed that -- that in fact an excess of 20% of those persons eligible for jury duty were Negroes.

And we think that the courts below and this Court have no evidence to base any finding other than that.

Respondent next attempted to rebut petitioner's prima facie case and I may state that the Court of Appeals held that contrary to the District Court that a prima facie case had been made out but held that respondent had rebutted that case successfully.

They -- in doing so, they relied upon the elements which I will discuss important and important for us.

What was the nature of respondent's rebuttal evidence with respect to selection?

Well, as a background, perhaps it would be helpful to briefly discuss the method by which jurors are selected in Maury County.

First, the circuit judge appoints jury commissioners.

These commissioners then biannually select from whatever source they use and there was evidence of the tax books we use but again, no evidence that a smaller percentage of Negroes then in the general population were property owners.

They select a large list which is known as the general venire.

These lists for the particular general venire are from which the juries that indicted and convicted petitioner was selected consisting of 1,501 persons.

This list was used for a two-year period and from this list before every term of court, three times each year, they were selected by a -- the names of all 1,501 were placed on individual slips of paper.

Before each term a boy, member as ten years of age drew a hundred or approximately a hundred names out of the box in which these 1,501 names were placed.

And that list of 100 is called the venire facias.

Obviously, we have no complaint about the method of selection.

They are completely at random.

Justice John M. Harlan: Is there any -- in the tax list themselves, is there any differentiation of taxpayers according to color?

Mr. J. Brad Reed: No, Your Honor.

There is none.

Justice John M. Harlan: Or any stage of the selection process, are there such list where color is due?

Mr. J. Brad Reed: With the differentiation?

Justice John M. Harlan: Yes.

Mr. J. Brad Reed: No, Your Honor.

Not the -- the record shows there is none.

If I may comment on that, the respondent attempts to use this in a way which I think the Court will see to be clearly impermissible.

Respondent says -- well, the jury commissioners were honest men and they only selected a few Negroes.

Therefore, there could be only a few Negroes who were property owners.

There could be only a few who are on the tax list.

Of course, the basic assumption to that line of reasoning is the impermissible assumption that the jury commissioners performed their duty in a -- in a manner which did not discriminate.

This is the -- and this is the contention that's raised in every systematic exclusion case.

Well gee, the jury commissioners were honest, upright men and they knew they weren't supposed to discriminate.

And for that reason, we'll presume that they didn't discriminate and we'll find those systematic exclusions that this Court is throwing out and paid no attention to that contention every time it has been raised.

So I -- I think that the Court will -- will decline to accept the respondent's invitation to -- to use that reasoning in this case.

From the venire facias of 100 names for a relatively brief period of time of a couple of weeks, those persons are notified and then the judge entertains request for excusal from service.

These are granted or denied and then the remaining jurors form the final venire facias from which grand jurors are selected.

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

Mr. J. Brad Reed: -- one persons who make up the biennial general venire from that list, there are selected three times a year admittedly at random approximately 100 names.

These persons, after request for excusal have been ruled on by the circuit judge composed of final venire facias, and then immediately upon the beginning of each term, there are selected from this list again admittedly at random.

The first 13 names drawn from the list compose the grand jury and then from the remaining names are selected the petty juries for the trials of cases during the term.

There are four distinct steps in the selection process.

The first is the selection by the jury commissioners of the general venire.

It is this step which -- with which we are extremely concerned right now.

Justice Byron R. White: You -- I gather your position here is different, or isn't it than it was in the court below?

Mr. J. Brad Reed: Yes, Your Honor.

It is different from what it was in the court below and the respondent has challenged the ability of the petitioner to change his position at this time because you raised the question on I think --

Justice Byron R. White: Well, did the lower court -- the lower court didn't -- or the court below didn't have an opportunity to pass on this issue in terms of you having attacking it and the other side supporting it?

It just said you -- you conceded that there were no -- there's nothing wrong with the first two steps.

Mr. J. Brad Reed: Yes, Your Honor.

I think that's -- that's a great characterization of what the Court said.

The -- our position in no way changes the facts of the case.

The facts are the same as they were in the court below.

Perhaps the best explanation is one of the passage of time.

The brief which was written by the petitioner who was the appellant in the Court of Appeals was written in 1965.

The Court will recall that at that time to a certain extent, the decisions were perhaps characterized as an imbroglio from Brown versus Allen, Speller versus Allen just before the time the debrief was found, Swain versus Alabama where there had been a showing of a substantial number of Negroes in the community.

There had been shown a wholly -- not wholly but somewhat desperate representation by Negroes on juries in the community that was essentially all that was shown and the courts had held that in each of these three cases that the Court couldn't say that as a matter of law, systematic exclusion could be shown simply from this disparity.

This time was prior to the Whitus case last term.

It was prior to the Jones case of this term.

It was prior to Mr. Finklestein's article in the Harvard Law Review suggesting a way out of this, if you will, imbroglio.

It is by the use of elementary probability theory.

And I can recall in writing the brief, it occurred to me that it looked like something was wrong but based on the decisions at that time and the authority that I was able to find, I simply couldn't find a basis for argument and I think by the same token that perhaps the Court of Appeals probably couldn't find a basis for a disposition of the case on this point.

As to say, this was almost three years ago.

The state of law has changed substantially now to the extent that we did make a concession and although which it is normally arguable as whether or not we made a concession, I think that -- I think that I have to admit that we did.

It is perfectly clear that any admission was purely an admission of law, not changing the facts at all.

Based on these facts, we admit that the law as it now stands does not show systematic exclusion.

I think that is the correct characterization of my position in the Court of Appeals.

Our position is now based on these very same facts and the law as it now stands three years later.

Systematic exclusion is shown by these facts, the intervening authorities being the Whitus case and its suggestion of the use of probability theory, the Jones case this term which perhaps furthers that suggestion or at least makes it again, Mr. Finklestein's article in the Harvard Law Review which spells it out in details, spells in detail the use of elementary probability theory to show -- not to show that there was systematic exclusion but to show that the selection was not made at random.

Probability theory used simply to show the likelihood that a random selection would have resulted in the particular configuration shown by the facts of this case.

Justice Byron R. White: What do you mean?

What do you use in regard aside from (Inaudible).

Mr. J. Brad Reed: Your Honor, I don't -- I would not -- would not state to the Court that it does have to be at random.

We're dealing -- you see, in this case, I think you'd say with the defensive use of probability theory.

The respondent introduces evidences.

Either the burden is on the respondent now.

We've made our prima facie case.

He says here, this evidence shows no systematic exclusion.

We simply used probability theory to show that his raising of these facts is not sufficient to show no systematic exclusion.

A random selection is the ideal, but I don't think that it's necessary.

But I do believe that substantial variations from a random selection called for an explanation.

I think that --

Justice Byron R. White: Did he use -- it is better to show what it goes for all the -- for all the so-called the list?

Mr. J. Brad Reed: The list of 100?

Justice Byron R. White: (Inaudible)

Mr. J. Brad Reed: No, Your Honor.

It does not.

Justice Byron R. White: No?

Mr. J. Brad Reed: Your Honor, there is testimony by -- perhaps the record -- perhaps --

Justice Byron R. White: All gone --

Mr. J. Brad Reed: Yes, Your Honor.

The record comments on this perhaps without -- without listing them.

There was a testimony introduced by the respondent of the -- of an attorney in Maury County who had been appointed to represent the petitioner at his trial in 1949.

He was questioned --- he was -- he was introduced I think purely on the question of systematic exclusion.

His testimony was to the effect first that no Negroes had ever served, which we've already dealt with.

Second, he was asked how many Negroes were -- appeared on the venire facias throughout this period and he said two -- sometimes two, sometimes three.

And -- and --

Justice Byron R. White: He had direct (Inaudible)

Mr. J. Brad Reed: No, Your Honor.

He was not.

We would again emphasize at this point that the burden of disproving --

Justice Byron R. White: Well, I understand that but (Inaudible).

Mr. J. Brad Reed: Yes, sir.

That he was not asked and we would say that the respondent's failure to ask him means that the issue must be --

Justice Byron R. White: But though and the record doesn't show whether or not there were actually drawn with the petty jury?

Mr. J. Brad Reed: No, Your Honor.

Justice Byron R. White: And if they were, whether or not any of them were excused?

Mr. J. Brad Reed: No, Your Honor.

The record is to the extent that it is complete.

It is complete only as to the general practice which prevailed prior to and through the indictment trial in conviction of the petitioner, not as to the particular configuration.

Justice Hugo L. Black: Did I understand you to say that no Negro had ever served on the jury?

Mr. J. Brad Reed: No.

That's correct, Your Honor.

On either a grand jury or a paid jury.

Justice Potter Stewart: Well, if I understand you, you're saying that the best the record shows is that not more than two or three were ever included in this period in the venire of a hundred?

Mr. J. Brad Reed: Yes, Your Honor.

Justice Potter Stewart: And further that none ever served either as a grand juror or as a petit juror at any time in this period?

Mr. J. Brad Reed: That's correct, Your Honor.

And there was one further evidence that with which we dealt in the brief and I think should be dealt with here, and that was as to the configuration of the general venire of 1500.

The number of Negroes on the list of 100 would in large part depend on the number of Negroes on the list of 1,500 because we admit that the list of 100, the venire facias was selected from the list of 1,500 at random.

A -- A boy ten years of age just drew the names out of a box, from a box containing the 1,500 names.

And consequently, the number which would appear on the list of 100 would depend very substantially on the number which appeared in the list of 1,500.

There is some proof with reference to the number which appeared on the list of 1,500.

This was in the affidavit introduced by the respondent, the affidavit of Judge Joe M. Ingram, the circuit judge who had tried the -- or who had been the judge during the trial of the petitioner for the offense with which he was charged.

Judge Ingram's testimony was to this effect.

First, he said.

“There was no discrimination.

I wouldn't appoint anybody who would discriminate.”

Well, I've dealt with that -- that sort of testimonies in type but no weight in a case like this.

Secondly, he listed -- named 22 Negroes whose names appeared on the general venire of 1,501.

His affidavit stated that he had discovered these from a casual examination of the list.

Well, I looked at the list of 1501 and as Mr. Justice Harlan pointed out this morning or asked this morning, there's no designation as to race.

But I questioned, well there's no such thing as a casual examination.

I will list some 1,500 more names.

He listed 22 Negroes --

Justice John M. Harlan: So he said -- he knew them.

That's because -- that's why he could identify them.

Mr. J. Brad Reed: Your Honor, I'm afraid I don't recall.

The -- it's on pages 46 and 47.

Justice John M. Harlan: Well, whatever he said, he didn't say that these were -- that these 22 were all the Negroes that --

Mr. J. Brad Reed: No, sir.

He did not.

Justice Byron R. White: It might have been 500 others as far as he knew.

Justice John M. Harlan: That's correct.

And it's for that reason that I have attempted to continue to emphasize the fact that the burden of going forward is now on the respondent and if the respondent is going to attempt to introduce into evidence the names of Negroes who appeared on the general venire, then he better make sure that he's introducing all of them because since the burden is on him, the Court when the list is presented to it has really no alternative but to assume that this is the total regardless of the nature of the testimony and the qualification.

I agreed fully the judge did not state that this was all, but I think that this is the only thing in the record from which the lower courts and this Court can make any determination of how many Negroes there were, and this was the evidence that they offered to show that there was no systematic exclusion.

Now, all that we have done is to show I think from the brief using elementary probability theory that this evidence proffered to show that there was no systematic exclusion.

It has no such a thing.

That the probability is so miniscule that it's -- it is as a practical matter impossible.

But for 22 to have been selected -- we don't know how many were selected.

All we are trying to do is as the respondent who has the burden of proof introduces evidence on a particular point, we simply attempt to meet that evidence and show that in that particular, he has not carried his burden.

And so it's in that context and in that limited context that our use of the probability theory with respect to 22 is involved.

And we did go somewhat further and that is, as stated earlier, the attorney for -- the attorney for petitioner in his trial in 1949 who's called as a witness by respondent stated that sometimes two and sometimes three Negroes were on the list of 100 on the general venire.

Taking the maximum number that he stated 3%, 3 out of 100.

We again applied the same -- as best as we could, we took their proof and assumed that if 3% were on the list of hundred, then we would maximize and transfer that assumption to the general venire and assume that 3% were on the general venire.

And this would result in 45 instead of 22 Negroes being on the general venire.

Again, we don't know how many were on the general venire.

We are simply attempting to meet the respondent in each instance where he tries to introduce evidence to show that there was no systematic exclusion.

We are simply trying to meet this evidence and show that the evidence in fact has no such a thing.

The problem -- pardon me, Your Honor.

Justice John M. Harlan: It's also -- it's also true that the respondent up against the proposition of trying to reach a structured situation 14 years ago.

The situation is created by -- whatever the reason was, the failure to apply this petition.

Mr. J. Brad Reed: Your Honor, that's --

Justice John M. Harlan: That's unfair it seems to me.

Mr. J. Brad Reed: Yes, sir.

It --

Justice John M. Harlan: Probability is everything else that are interested throughout this relevance of the case.

Mr. J. Brad Reed: I would answer that this way.

I agree, it does have -- it does have relevance.

However, the list is still in existence.

The list of 1,500 names is still in existence.

There had been a number of cases before this Court where the person in the respondent's position has gone over the list and accounted for the number of Negroes existing, and the percentages have appeared in numerous of the Court's claims.

The respondent in this case did not choose to follow that course of action and I don't think that the petitioner should suffer because the respondent chose not to do that.

The list is still in existence and if somebody wants to go over 1,500 names, then they certainly can.

We didn't feel it's necessary for us to do so because the burden was on the respondent and we simply attempted to respond to each of his contentions.

Justice Byron R. White: Well, in that respect where the law hasn't changed in three years, has it -- I mean, the idea of making a prima facie case with the fact that no Negroes ever serving on a jury plus the fact that a certain percentage of Negroes in the community, that's pretty old law.

Mr. J. Brad Reed: Yes, Your Honor.

It's the use of the probability theory to show the --

Justice Byron R. White: It is hardly changing the law.

Mr. J. Brad Reed: No, Your Honor.

That -- that's correct.

That is -- that is the change and I used the word change guardedly because if a change is made, if it's going to be made, perhaps it would be through this case rather than from any of the prior cases.

Justice Byron R. White: No, but --

Mr. J. Brad Reed: The change was that we would seek is with respect to the effect of showing a nominal percentage of Negroes on the general venire.

In the Brown case, in the Speller case, in the Swain case, Swain in '65, there was a great disparity between the percentage of Negroes in the community and the percentage of names appeared.

And yet, in each of those decisions, the Court held that systematic exclusion was not shown.

And Mr. Finklestein of course in detail deals with certain of these cases and states that perhaps the explanation which was proffered by the state in each of those cases was not sufficient.

We are attempting to show that in this case, the explanation proffered by the state is not sufficient to rebut petitioner's prima facie case.

So it's in that respect that I would say that the --

Justice Byron R. White: Fundamentally, Mr. Finklestein can't quite get to the -- nothing that he says quite gets around to -- to dealing with the situation after the 100 are chosen because there -- there are all sorts of reasons why Negroes which appear on out of the 100 might not end up on the jury.

So really, your -- your fundamental target at this part of your argument is the fact that the most there will meet -- the evidence shows there were only three Negroes that ever appeared among the 100 and that's grossly disproportionate to the number of Negroes in the community.

And that regardless of what might have happened to the Negroes on the -- out of the hundred, whether there were three or 20 after that regardless of what might have happened to them, they were in the -- on the -- out of the hundred.

Mr. J. Brad Reed: Your Honor, I think we're one step back from that.

Our argument is directed to the statement that there were not enough on the 1,500.

Justice Byron R. White: Well, I do understand that, but your big -- your big argument hinges around that only three turned up on the hundred, which is probably the best evidence of how many there were among the 1,500 because that was a random selection.

Mr. J. Brad Reed: Yes, Your Honor.

I'm -- I'm sorry I misunderstood what you're saying --

Justice Byron R. White: So that's what you're really hinging your prima facie case on, is that there were never more than three Negroes out of the hundred.

Mr. J. Brad Reed: No, sir.

We're basing our prima facie case on the fact that there had never been a Negro who had served, ever.

Justice Byron R. White: Well, then you have to go on to say that to meet the evidence that the Negroes role is excused because they are asked to be excused.

Now, do you attack that?

Mr. J. Brad Reed: Yes, we do.

Justice Byron R. White: And you say that the judge was not entitled to excuse Negroes who has to be excused.

You're saying that anyway, his excuse was rationally motivated.

You have to say that, don't you?

Let's assume that there were 20.

Let's assume there were 20 out of the 100 Negroes.

There were always 20 but none ever showed up on the jury.

You would still, on your argument I assume, say there was a prima facie case with discrimination.

Mr. J. Brad Reed: Yes, Your Honor.

Justice Byron R. White: And that it would not be sufficient I guess explanation by the state to put the judge on the stand and say I always excuse Negroes who ask to be excused that they always ask to be excused.

You would you say the judge was motivated by racial considerations.

Mr. J. Brad Reed: Yes, Your Honor.

Justice Byron R. White: And that's what you say in this case, isn't it?

Mr. J. Brad Reed: Yes, Your Honor.

That however is an entirely separate argument from the argument about the configuration of the general venire.

Justice Byron R. White: Oh, I understand that.

Mr. J. Brad Reed: Alright, so yes, we do.

Justice Byron R. White: And I would suppose you would also have to get around to saying that that the peremptory -- that the Negroes were always peremptory challenged that too, was racially motivated.

Mr. J. Brad Reed: Well, I think the Court has said that or as much as said it in Swain when they -- in which of course as you know they held that --

Justice Byron R. White: Well, just remember, the Court in Swain didn't say the burden was on the state to disprove racial discrimination in peremptory challenges.

Mr. J. Brad Reed: Yes, Your Honor.

That's correct.

Chief Justice Earl Warren: I suppose that really one of your reasons says that it couldn't be enough on the panel to the hundred because they didn't put enough of them in the general venire.

Mr. J. Brad Reed: Yes, Your Honor.

That's correct.

That -- that is --

Chief Justice Earl Warren: And there's nothing in the record to show how many there were, except this affidavit of the judge who says that the Court has no recollection how many -- of how many -- if any Negroes were drawn from the jury box that made up the grand trial juries for the May of 1949 term of the Circuit Court.

And then -- then you said though however, he had some recollection of some being on there and he named 22.

He said -- so therefore, the undersigned personally knows that there was no systematic exclusion of members of the colored race from jury service in this county at the time of the trial of petitioner.

Now, that's a non-secular, isn't it?

Mr. J. Brad Reed: Yes, Your Honor.

That's -- that is our point, that the listing of 22 does not show that there was no systematic exclusion.

Chief Justice Earl Warren: And there is no evidence to show that there were any more than that.

Mr. J. Brad Reed: That's correct, Your Honor.

Chief Justice Earl Warren: And I suppose in a county of this size, it would have been no greater to burden on the county to go over that list of 1,500 at that particular time and determine whether they were colored or white, would it?

Mr. J. Brad Reed: No, Your Honor.

If they don't want to -- if they don't want to take the trouble to do it, then you've got to assume that they didn't do it because they wouldn't find any more.

Chief Justice Earl Warren: I suppose by the same reason, it would be very difficult for an indigent defendant in jail to survey that whole jury system and concede how many were Negroes and how many were white.

Mr. J. Brad Reed: Yes, Your Honor.

In connection with the judge's naming of 22, which he states he personally knew from a casual examination, the attorney who represented the petitioner in the District Court had called as a witness a Negro who was a civil rights leader in the area at the time of trial.

It is in the late 1940s.

He asked the -- this witness.

He went through the list.

At least he went through I think 14 of the 22.

He said, “Do you know him?

Do you know him?”

The civil rights leader only knew 7, only knew half of those about -- about which he was asked.

And this made suspect in my mind on the assertion that a casual examination resulted in this list of 22.

If I may for a moment go back to Mr. Justice White's question about the fact that we did not raise this point in the Court of Appeals, I would add after admitting that it was not raised, I would add that it's clearly an admission of law, purely an admission of law.

The facts of guilt are admission as with respect or was with respect to the legal result from given facts.

And the authority is unanimous that an admission of law is not binding.

It's only an admission of fact which is binding.

And for that reason, we think that there's no question but to --

Justice Byron R. White: Well, the argument of this is whether this admitted admission that binds you, the question is whether this matter is within our jurisdiction since it hasn't been passed on by the advisory of the court -- by the court below.

Mr. J. Brad Reed: It wasn't specifically passed on, Your Honor, but the --

Justice Byron R. White: District -- Court of Appeals.

Mr. J. Brad Reed: Yes, sir.

The question phrased in the Court of Appeals was simply whether or not the fact showed systematic exclusion.

This is one way of showing systematic exclusion.

All of the facts were before the Court of Appeals, so technically, this question was before the Court of Appeals and I think -- and I don't think that there's a problem of jurisdiction.

The next question which has already been adverted to, is a question of the excusal by the judge of however many Negroes appeared on the venire facias of a hundred.

The proof in this matter was again not disputed.

First, the proof was there were never more than three.

Well, this results again from there being so few or too few Negroes on the general venire of 1,500 when a random selection from a list of 1,500 -- when a series of random selections from a list of 1,500 never produces more than three Negroes.

There are very few more than 3% on the list of 1,500.

There may be -- maybe 5% but they're certainly not 20%.

The evidence in the District Court was to the effect that the Negroes who were called never more than three always asked to be excused and always were excused.

They were excused sometimes with reason, often without reason.

They simply ask the judge in every instance, so the testimony went, to be excused and the excuse -- well, not that there was an excuse the judge did excuse.

We attack this procedure.

There was admittedly testimony to the effect that the judge was very liberal with whites, also.

His attitude was he didn't want to serve on the jury, I'll let you all.

Now, this causes a serious problem in a rural southern community where Negro has never served.

First of all, there are very few who call the testimony is never more than three.

It's known throughout the community, no Negro has ever served.

It's presumably known that the judge will excuse Negroes who asked to be.

There's an obvious pressure on Negroes under these circumstances to seek excusal from service.

We think that the situation is such, that there is an easy remedy, and that is for the judge to be required to grant excuses not only to Negroes but to whites only when there's a legal -- legal ground for excuse.

We don't suggest that he shouldn't excuse Negroes without cause but should excuse whites because we are trying to force service by Negroes.

We don't submit that that should be done, but he can even handedly grant or disallow excuse from service by simply requiring legal excuse.

He did not do so.

We don't -- we don't think that ill will on his part is necessary.

The effect was that Negroes never served and that effect is highly undesirable.

Justice Potter Stewart: Well, that effect -- that was the same effect of Swain against Alabama, wasn't it?

That was the result of Swain against Alabama, was it not?

Mr. J. Brad Reed: The proof in Swain though -- yes, Your Honor, it was.

The proof in Swain however, you recall the Court, at least to my reading, stated that the challenge, the use of the peremptory challenge system in a particular case so as to exclude on Negroes would not constitute systematic exclusion.

But the Court reserved the question and I think indicated its opinion in that reservation as to what the decision would be if the peremptory challenge system were always used consistently over a period of time with the result that no Negro ever served.

And in success of what we've got here, we consider Swain to be authority of our position.

In Swain, of course, it was a county prosecutor.

Here, it was a judge.

By a course of action, the result was Negroes never served over long extended -- well, uniformly from the beginning of the courts in Maury Country through the time the petitioner trial it never served.

Justice Byron R. White: Well, is this record clear the no Negro have ever been selected for the actual theory of service and it was then challenged?

Mr. J. Brad Reed: That's not in this record at all, Your Honor.

Justice Byron R. White: So as far as you know, there may have been -- as far as this record shows, their may have been Negroes actually drawn out of the hundreds that served on the petit jury and he wasn't excused but he was challenged.

Mr. J. Brad Reed: That could be -- yes, sir.

Except that the testimony with respect to the excuse which was dual first by the District Attorney at the time and secondly by the attorney who have represented the petitioner at the time.

So they always has to be excused, so to that extent, the record will indicate that they always have been excused.

Chief Justice Earl Warren: Mr. Reed, do you know if there had been any Negro served on a grand jury or a petit jury since this time?

Mr. J. Brad Reed: Yes, Your Honor.

I think Judge Ingram's affidavit in that respect is quite clear that since this time and as a matter of fact, so as the testimony of Mr. Tomlinson, the attorney for petitioner at the time of his trial that since that time, there has been service by Negroes.

Now, I'm not sure if this will not to exert only in grand juries but they're both quite explicit that there has been service since this time and I think that Mr. Tomlinson indicates that maybe the dates from 1950 or ‘51 or ‘52.

But the testimony is unanimous until this time.

Chief Justice Earl Warren: Is there any evidence to what extent that has been true?

Mr. J. Brad Reed: No, sir.

There is none.

Justice John M. Harlan: What was the Jones case decision?

Mr. J. Brad Reed: This case of Jones versus Georgia, it was decided per curiam October the 16th, I think it was a companion case to Coleman versus Alabama.

Justice Byron R. White: And it was citing Whitus?

Mr. J. Brad Reed: Yes, sir.

Justice Byron R. White: But there, there were tax rolls remarks.

Mr. J. Brad Reed: Yes, Your Honor.

These cases are somewhat different from this case because both In Whitus and in Jones, there had been -- Negroes had served on juries and the attack was as to the disparity.

And you see, we once step or moved from there, we're one step stronger than that because they've never --

Justice Byron R. White: They have discrimi -- they have the -- they have the mechanism before them where on which they could easily process discrimination.

They have the tax list mark, didn't they?

Mr. J. Brad Reed: Your Honor in Whitus, the tax lists were marked -- I don't remember Jones.

I'm not sure if you're correct.

The -- along that line, the petitioner, I mean the respondent has attempted to rely on that line of reason going back to the Cassell case -- Cassell versus Texas where there was a disparity but there was testimony that a much smaller percentage of Negroes were property owners.

It even went to the percentage as it did in Whitus and in Jones.

In this case, there has not been any testimony that a smaller percentage of Negroes own property without any qualifications as to specific percentages.

There's no evidence at all that a smaller percentage of Negroes were property owners than their percentage in the general population or than their percentage of the adult males, both of which are approved.

The respondent places strong reliance on the case of Kennedy versus the State decided about in the Tennessee Supreme Court in 1949 or ‘50.

With the Court's permission, I shall reserve a comment on that for rebuttal.

Chief Justice Earl Warren: You may.

Mr. Davies.

Argument of Ed R. Davies

Mr. Ed R. Davies: Yes, sir.

Mr. Chief Justice and may it please the Court.

The position of the respondent of the State of Tennessee, if you will, is really quite easily stated on whether it's so easily sustained, I believe remains to be the same and the position is this, this Court has many, many times been called to pass upon jury discrimination cases.

But this case is distinguishable from all but one of the other cases decided by this Court because this is a federal habeas corpus case.

In many of the cases decided previously by this Court, the Court has said, we must pay great respect to the determination of the facts made by the highest court of the state.

But, we also have to make our own determination where the federal question is involved.

The only other federal habeas corpus case involving discrimination that I have been able to find, Brown verus Allen.

And on that particular point, this case of course involved many points, but on this particular point, the Court held in favor of the convicting authority.

Now in this case then, it's my conclusion that the issue is, was the decision of the district judge clearly erroneous.

If it was clearly erroneous on the federal rules of Civil Procedure 52 (a) them this Court must reverse.

If on the other hand there is evidence in the record to sustain the finding of the District Court then it is my opinion that this Court may not make its own determination as to the federal question involved but must sustain the determination made by the district judge.

Now I think that -- yes, sir.

Justice Potter Stewart: That's the approach that the Court of Appeals brought to this case.

Mr. Ed R. Davies: That is correct.

Yes, sir.

And as my -- I will frankly state this.

I don't believe there is any habeas case decided by this Court where this particular point has been decided one way or the other.

There have been numerous decisions by the courts -- Federal Court of Appeals throughout the United States saying that 52 (a) is applicable and if --

Justice William J. Brennan: Well that, Mr. Davies I gather on this puzzling business that although it's criminal prosecution conviction that's in state, always collateral proceedings are civil proceedings.

Mr. Ed R. Davies: That is correct, sir.

Justice William J. Brennan: But I'm just interested.

I don't recall.

Have we in any habeas or any type of collateral proceeding suggested -- well, let's limit it to federal habeas that there was that limitation in review.

Has any case in this Court ever exist?

Mr. Ed R. Davies: Not to my knowledge, sir.

Justice William J. Brennan: Yes.

If I understand you, what you're suggesting is although on a direct review in a case like this, we might independently review the facts.

Mr. Ed R. Davies: That's correct, sir.

From the state view.

Justice William J. Brennan: When this comes up on the collateral federal habeas though we apply the ordinary limitations of review on factual questions decided in the civil cases.

Mr. Ed R. Davies: Yes, sir.

That is my understanding of the law based on the decisions of Federal Court of Appeals.

I do not believe that this Court have ever been called upon the past one way or the other on this particular point.

Justice Byron R. White: What do you think we do in federal criminal cases in direct review?

A federal criminal case tried in the Federal District Court.

Mr. Ed R. Davies: If Your Honor please, this does not come under Rule 52 (a) as I understand it because juries are involved.

Justice Byron R. White: I know but let's assume it's a trial of the Court, it makes findings.

Mr. Ed R. Davies: If Your Honor please, I still don't know the answer to that question where a jury is waived and the district judge decided the case without the intervention of a jury, you frankly called me on the way as I do not know the answer unless it is controlled -- I think the answer to that is this.

Justice Byron R. White: What do you -- what do you think happens in a federal criminal case when it's a pretrial hearing on -- to exclude some evidence as having been unconstitutional seized and the district judge make some finding and it's a factual determination not only as to what the historical facts were or are but as to whether these facts have the probable cause for example.

Mr. Ed R. Davies: Well, I think from the term of your question, my answer is obvious that you make the federal determinations the Supreme Court does but I believe that his is the distinguishing point here because the federal rules of civil procedure do not apply to the criminal case that you've just discussed and I believe that that is the answer although I frankly not able to quote to you verbatim the terms of the statute but I think that is the distinguishing factor because this is a civil case and controlled by the federal rules of civil procedure for all of them a corrosive criminal procedure.

Justice John M. Harlan: Well --

Mr. Ed R. Davies: Yes, sir.

Justice John M. Harlan: (Inaudible)

Mr. Ed R. Davies: No, sir.

Of course then I believe that he would be acting in a “clearly erroneous” manner under the law that has been laid down by this Court.

Justice John M. Harlan: I don't see --

Justice Tom C. Clark: Was it an argued case --

Justice John M. Harlan: (Inaudible)

Justice Potter Stewart: Here there was a complete de novo hearing in the Federal District Court.

Mr. Ed R. Davies: That is correct, if Your Honor please.

A like -- right lengthy hearing, the matter was then taken under advancement.

The petitioners counsel was given an opportunity to submit interrogatories or take affidavits from Judge Ingram, the state trial judge and as the matter of fact if I'm not mistaken, one deposition was taken subsequent to the hearing that being taken by me of the then sheriff of Maury County.

One other factor and I would like to point out is this that this case has changed its complexion dramatically since it was tried in the District Court.

There, I was faced as counsel for the respondent with some 15 as I recall, different allegations of unconstitutionality running the gamut from failing to give him a copy of his indictment, failing in giving jury list, inadequacy of counsel, everything that you can think of was brought into the Court as well as the only question as before the Court here.

It has been stated that the reason for taking Mr. Tomlinson's proof, the defense counsel's proof was purely to show what his testimony was on the jury discrimination issue.

This is not an accurate statement because this is the lawyer that is petitioned -- that the petitioner states was inadequate.

And there were many different issues that these witnesses were called upon to testify in the District Court.

Now further, the proof in the District Court was this and if there was a prima facie case created it is this case that after the respondent was called upon to revert.

The proof was this, no Negro had sat as a member of a petit jury or of the grand jury prior to the petitioner's trail in 1946.

That is -- 1949 I believe.

That is correct.

Because we have no proof in contrary of that.

Further, Negroes constituted a substantial portion of the population of Maury County, some 20% I believe.

Third, obviously, some weren't qualified.

Now, the petitioner did not prove that some were qualified.

Actually, the respondent proved that some were qualified because the respondent put on the proof of Mr. Tomlinson and the Attorney General Douglas and of the trial judge who showed by their testimony that some were qualified or else it would never be in the jury roles if they weren't qualified.

So the proof was, some were qualified.

Chief Justice Earl Warren: How many?

Mr. Ed R. Davies: There is no proof and was no proof in the District Court as to how many were qualified, if Your Honor please, because of this and I don't feel that it is the respondent's duty to prove the petitioner's case.

The petitioner, I feel like under the cases has got to prove that some were qualified and the Coleman case -- I beg your pardon.

In the Norris case, they did attempt to go in the population but the Court said, it really doesn't make any difference.

We know at least that 30 were qualified and none ever said, state you then have got the burden to show why they didn't sit or as in the District Court, the proof was some were qualified and the respondents proof goes on to show.

Yes, some were qualified and some were called every single time.

Some were qualified and some were called.

Now, the use of the word prima facie in my opinion has confounded this whole record.

And I frankly don't know what prima facie means so that I could give you an all inclusive definition and say this is it.

Now, what the district judge held as I understand it -- yes, sir.

Chief Justice Earl Warren: Do you mean that state got to move forward with its abilities?

Mr. Ed R. Davies: Well judge, I believe that it depends on where the word is used as to what it means.

Now, may I explain by this?

If after the petitioner had testified and I reduce the testimony of Mr. Martin who was his witness from Maury County, Tennessee, if at that time, the respondent had said to the district judge, “I am not going to put on a broad if she is not to put on it approved”.

And the judge at that time have to make a distinction as to whether or not a prima facie case have been proven, his decision may well have been different from what it is at the conclusion of the case but that didn't happen.

There wasn't any motion for dismissal at the end of the petitioner's case or in any of this major.

The respondent did go further.

The respondent did put on proof and the district judge held this.

At the conclusion of all of the testimony, the petitioner's testimony as well as the respondent's testimony and considering it in one group, I find that the petitioner has not carried a prima facie case.

Now maybe his legalistic reasoning was --

Justice Hugo L. Black: In this case, have you heard the case of Patton against Mississippi?

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: What do you think about it?

Mr. Ed R. Davies: May I turn to my notes just one minute sir.

Justice Hugo L. Black: Well, I'll read you the statement.

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: Now, whatever the precise number of qualified appellate in the county, there was something.

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: And if it can possibly be conceived that all of them were disqualified for jury service by the commission of crime, did to the Government gambling, inability to read and write or to meet any other or all of the statutory test, we do not doubt that the state could have approved it.

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: We hold that the state wholly failed to meet the very strong evidence for the purpose of racial discrimination made out by the petitioner for the uncontradicted choice that for 30 years or more no Negro had served as a juror, the criminal courts of Lauderdale County.

When a jury selection plan or whatever it is operates in such a way as always resulted in a complete and long continued exclusion of any evidence of a large group of Negroes in any other racial groups indictments and verdict is turned against by jurors thus selected cannot stand.

Mr. Ed R. Davies: Yes, sir.

And may I comment then in this matter on Patton against Mississippi, in this case, they showed whether or not you were an elector was the basic qualification for jury sir and they show that there were 25 Negroes who were qualified electors and that 12 or 13 of this 25 were not exempt and the sheriff came in and testified, this means that if I bring in a hundred men for jury service that I must bring in one-fourth of a Negro because of the one percent.

And I can't bring in more than one-fourth of a Negro because that would then discriminate against white people and that's what the sheriff testified to in the record in Patton against Mississippi and for that reason, I just didn't bring in any and the Court said, well, some were qualified and you didn't put any on your own.

You don't have any here.

Well, unless different I think --

Justice Hugo L. Black: But if that -- but we went further from that.

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: And we said that in our end that whatever the precise number of qualified electors of the county and there were some.

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: And if it can possibly be conceive that all of them were disqualified for jury service and so forth.

And then we said, I just hope the state wholly failed to meet the very strong evidence of purposeful racial discrimination made out by the petitioner on uncontradicted showing for 30 years or more.

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: No Negro is said as a juror.

Mr. Ed R. Davies: Yes, sir.

But I think --

Justice Hugo L. Black: When that happens here, the convictions didn't stand.

Mr. Ed R. Davies: Yes, sir.

But if Your Honor please, we have shown in this case that some were called for jury of service --

Justice Hugo L. Black: It prompted any service.

Mr. Ed R. Davies: That's correct, sir.

Justice Hugo L. Black: What this was based on was that none have served --

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: -- for a period of 30 years.

Mr. Ed R. Davies: Yes, sir.

But I was going to say this and we did show that some were called that every jury terms that on the particular general jury list --

Justice Hugo L. Black: None had served.

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: Then why --

Mr. Ed R. Davies: Because --

Justice Hugo L. Black: -- do you not see that difference there?

Suppose they did called some of --

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: -- what the judge for some reason excused you or they excused them all.

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: He excused them all.

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: He said he always excuse wouldn't that be permanent already?

Mr. Ed R. Davies: No, sir.

Because if you look at other -- that's what happened here.

That is what I was going to say.

Some were called and the judge according to this record, excused those who came before him and said I wanted to be excused --

Justice Hugo L. Black: He put that in 30 years.

Mr. Ed R. Davies: Well, in this particular case, this judge was on since 1942.

Justice Hugo L. Black: But if it was --

Mr. Ed R. Davies: Alright, sir.

Justice Hugo L. Black: It was held that later term?

Mr. Ed R. Davies: Alright, sir.

But now, is he required to say no, I'm not going to honor your excuse.

Justice Hugo L. Black: The state is required to have it in a system.

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: It doesn't always exclude them from sitting on the jury.

Forget the fact that there is some who served.

That's what we've tried to write out in Patton against Mississippi.

Mr. Ed R. Davies: Alright sir, but the Court has further stated that just because the system maybe imperfect, there's no reason to show that the state has failed.

Justice Hugo L. Black: -- imperfect so that it always result to the same thing.

Mr. Ed R. Davies: Alright, sir.

Justice Hugo L. Black: No service.

Mr. Ed R. Davies: But I feel that it is just as unconstitutional for the judge to tell a Negro that you've got to sit on this jury --

Justice Hugo L. Black: No, that's not it.

He tells him you've got to serve one time.

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: 30 years, none served.

What does that mean to you that the states has done.

Mr. Ed R. Davies: If Your Honor please, I don't know that the -- that didn't prove to me just honestly that the state has done anything because I don't know why these Negroes do not want to serve.

Justice Hugo L. Black: That's right but what we've said is, when that factor is shown, the states got to make strong efforts to show it --

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: -- and he only tried to do it.

Mr. Ed R. Davies: Alright, sir.

And I feel that in this case, the state has done everything it could do to prove this after the passage of some 15 years.

Now, if Your Honor please, the three jury commissioners who were commissioners at the time this panel was selected.

At the time of the District Court hearing, two of them were dead and the third man was 90 years old and too old to attend the court.

That was one problem that I faced.

I don't know whether there are any other less available other than the 1,501 men general or basic jury list.

Now, the judge looked at this list and I believe that his affidavit is right clear as to what he said.

He did not say, I've looked at it carefully and these are the only Negroes on the list.

He looked at it and said, I know that 22 -- at least 22 of these three civil districts out of 10 of the county are Negro --

Justice Hugo L. Black: All they have shown in addition to this, what was shown here that every term of Court during the entire 30 years, 10 Negroes had been summoned.

Mr. Ed R. Davies: Yes, sir.

Justice Hugo L. Black: But none had served.

Mr. Ed R. Davies: Yes, sir.

Then we must come up with a satisfactory explanation as to why none have served and our explanation is that they have not served because the judge acted upon the request of the jurors to be excused.

Now, if that explanation is not satisfactory then that's why we're here to determine whether or not it's satisfactory.

That is the explanation now whether or not it's satisfactory or not.

It depends on the Court not on me.

But that is this explanation given.

Justice Hugo L. Black: That's the defense question.

Mr. Ed R. Davies: Yes, sir.

That is correct.

That is the defense.

And the state further says that one -- there is no testimony in this record of any hostile attitude toward Negroes in the community.

But even if there were --

Justice Hugo L. Black: How could there not be for 30 years, they haven't been a man who served.

Mr. Ed R. Davies: Well, if Your Honor please, I'm not enough of a sociologist just to know why they don't want to serve.

I've got enough data but I don't know why they don't want to serve sir.

But be that as it may, this is soon that there was a hostile community attitude.

Let's say that all of the employers of Negroes in Maury County says, “if you serve on that jury, you lose your job” but that's not the state action in my opinion.

And I think that is to determine the point.

Justice Hugo L. Black: But you don't talk of that --

Mr. Ed R. Davies: No, sir.

I don't offer this to the defense because I don't think I have to.

I don't think we got to that point.

All I'm saying is that if we have gotten to this point, if they have showed a hostile community attitude as they have intimated in the record, I think that this would be a defense because this is not state action.

Justice Hugo L. Black: You don't mean that you think that every employer got to tell the event they're working with.

They couldn't say it on the jury, do you?

That would not be a farfetched interest.

Mr. Ed R. Davies: Oh yes, sir.

That could be a farfetched interest but I was still above the same token, I don't think it would be a state action and I think --

Justice Hugo L. Black: No, it wouldn't be a state action if that had happened.

Mr. Ed R. Davies: Yes, sir.

But there's no proof in this record of any body else coercing this people or anybody coercing these people.

There is no reason in the record at all.

Justice Hugo L. Black: There's proof that for 30 years none had served.

Mr. Ed R. Davies: That's correct, sir.

That is correct.

Justice Hugo L. Black: Do you think it had ever happened by accident?

Mr. Ed R. Davies: I just don't know the answer to that question sir.

Justice Hugo L. Black: What's your judgment then?

Mr. Ed R. Davies: I would say not if you ask me on my judgment.

I would say not.

As I indicated earlier being very close to this area, I suspect I know why they didn't serve but I don't think this is state action.

And I feel like the judge is not entitled to make a man serve because he is a Negro in order to give the Court -- the case an appearance of constitutionality and that's what he'd be doing.

Justice Hugo L. Black: Well, that what happened here, isn't it but they have two every time of three every time and none of them ever served.

That's to give it an appearance of the constitutionality.

Mr. Ed R. Davies: Well, if that is --

Justice Hugo L. Black: That's a common knowledge.

Mr. Ed R. Davies: If that is the case and that is proven then I feel like that's unconstitutional.

I'd like to point out one other thing in regard to the proof of this record as to how many appeared at each term on the hundred men jury panel.

It is true that in this record, Mr. Tomlinson did state more or less casually that every time they would call a jury, two or three would appear.

Chief Justice Earl Warren: Who is Mr. Tomlinson?

Mr. Ed R. Davies: Mr. Tomlinson is -- Pride Tomlinson, Jr. was a son of a member of the Supreme Court of Tennessee and who was the defendant's court appointed counsel in the case.

Now, he did testify this, however, looking at the record, the reported case in the Kennedy case, the Kennedy case is the one that I was been alluded to by the petitioner as not having anybody and whatsoever in this case.

Now, I realize that the Kennedy case is not inclusive in this Court.

It's not binding in this Court.

I do think it can be persuasive to the Court.

One reason that it could be persuasive on this Court is because in 1946, when the Kennedy case was tried, there was a very full investigation into the entire jury practices in Maury County Tennessee some 1100 pages of the record were devoted to this one part.

The jury commissioners did testify, the trial judge heard their testimony.

The Supreme Court of Tennessee ruled an opinion.

Now, in that case there was a proof in the record and decided by the Supreme Court of Tennessee that of the 109 names selected for jury service on the panel at which Kennedy have been tried, there were 10 Negroes.

Of the 59 actually drawn out for petit jury of service in this case, there were four Negroes which is a different figure from the actual figure in the records as testified to by Mr. Pride Tomlinson.

If Your Honors -- yes, sir.

Justice John M. Harlan: (Inaudible)

Mr. Ed R. Davies: It's the first that I know of with the exception of Kennedy in which certiorari was not granted.

I know of no others.

Justice Potter Stewart: Well, the case you mentioned, the habeas corpus case was from Tennessee I believe.

Mr. Ed R. Davies: Brown versus Allen was from South Carolina -- from the North Carolina.

I don't -- I don't know of any --

Justice John M. Harlan: Is it -- and that has been reviewed under --

Mr. Ed R. Davies: I know of none sir.

Justice John M. Harlan: What?

Mr. Ed R. Davies: I know of other juries from this case coming from Tennessee.

Chief Justice Earl Warren: I understood from the counsel that since this trial, Negroes have served on the juries.

Mr. Ed R. Davies: That is what the record shows.

Chief Justice Earl Warren: Yes.

To what extent is that true?

Mr. Ed R. Davies: I don't know the answer to that.

That's not in the record.

I just don't know.

We do not go into this point as to -- after this --

Chief Justice Earl Warren: What happen -- one sort or whether it's a common practice.

Now, you could tell us that certainly.

Mr. Ed R. Davies: By speaking out of the record, I can.

Yes, sir.

Chief Justice Earl Warren: That's alright, tell us.

Mr. Ed R. Davies: Alright, sir.

I don't -- I think it is common practice that Negroes served on juries throughout the State of Tennessee and no --

Chief Justice Earl Warren: At the present time.

Mr. Ed R. Davies: At the present time.

I know in Davidson County that there are Negroes serving on every panel and I can -- and I'll start to say that I have never tried a case in the civil courts that would add at least some being on the jury.

I don't think that's correct but I could almost state that in every group of jurors called into the court room for service on juries there would be some Negroes in the panel and of course, the population of Davidson County is much greater than the Maury County -- that's Nashville sir.

Chief Justice Earl Warren: Nashville.

Mr. Ed R. Davies: Nashville.

Chief Justice Earl Warren: That's Nashville.

Mr. Ed R. Davies: -- shall be counted on.

I just don't know --

Chief Justice Earl Warren: So it's not at all uncommon now for Negroes to serve criminal juries in --

Mr. Ed R. Davies: I would say -- I would express it that it is common for Negroes to serve on jury.

Chief Justice Earl Warren: I -- I wonder why if there was no discrimination at the time of this man's trial and before that, why would it be that there never had been a Negro that served on the jury since that time that has become a common practice?

Mr. Ed R. Davies: You want my personal opinion on this sir?

Chief Justice Earl Warren: Well, yes of course.

Whatever answer you could give us.

Mr. Ed R. Davies: Well, I suspect that it is the same reasoning that we heard in the Mississippi case to show before that we are -- Mississippi is not the only state that has been guilty of not having his house in order and but slowly but surely all of us are getting our houses in order and I think that's the answer to it and I suspect that the reason that Negro man didn't want to serve on juries in Maury County because they felt like that the white members of the jury didn't want them on the jury with them.

That's my suspicion and I suspect that's the -- one of the reasons that they did asked to be excused but I still don't see that that's chargeable to the State of Tennessee.

Chief Justice Earl Warren: But would you say that was the only reason or the fact that it never had been a Negro served on either grand jury or petit jury.

Mr. Ed R. Davies: I could not state but that was the only reason.

In fact, the record did show that the reasons given to the trial judge would vary.

Some would be from employers stating that this man is my employee and I need him in his work and I don't want him in jury.

Others would say, coming on their own but after they say I need it at my work just to interfere, I don't want to serve it.

According to Mr. Tomlinson I believe some just said that it won't serve and white man did the same thing.

They just didn't want to serve and the judge apparently never had any trouble of constituting a jury and he's just excused as I feel he had the discretion to do under the right broad authority given by the Tennessee statutes.

I think that would be --

Chief Justice Earl Warren: That is your personal opinion.

Mr. Ed R. Davies: That is my personal opinion.

Chief Justice Earl Warren: I urge you to give.

Mr. Ed R. Davies: Yes, sir.

That is my personal opinion that the record did not go into that.

Now, this also must be brought out that the census report which does show the number of adult Negro males was not before the District Court but was introduced into the Court of Appeals.

Now, the petitioner would take the respondent to test for failing then to come in and show what percentage of this were not qualified and my answer to that is on this ground.

One, why and how do you go about proving something after the evidentiary hearing has closed other than by stipulation.

Two, why should I attempt to introduce proof on an issue which he conceded in the Court of Appeals?

The petitioner did concede in the Court of Appeals that there was no discrimination in the Constitution of the overall jury list.

Then what difference does it make?

Why should I come in and prove how many men were disqualified in the composition of the jury in order to make up the jury list if that's not an issue in the Court of Appeals?

Chief Justice Earl Warren: We're determining what happened in the District Court.

Mr. Ed R. Davies: That's correct sir.

And in the District Court --

Chief Justice Earl Warren: Why didn't -- why -- why didn't it show then that you have tested?

Mr. Ed R. Davies: Because in the District Court, the petitioner proved only that -- through cross examination of my witnesses that some were qualified.

And to revert that, I approve yes, some were qualified and some were called every term.

I did not feel that it was necessary for me to go further than that neither the District Court --

Chief Justice Earl Warren: Don't you think when the states appealing with magnitude to the family that it has burden to show such facts after it as been demonstrated that there never has been Negro on the jury rather than to put that burden on an indigent defendant to prove?

Mr. Ed R. Davies: Well, if Your Honor please, the indigent defendant has have to the best lawyers that I know of representing him and I don't feel any obligation to help him prove his case very frankly.

I do not.

Chief Justice Earl Warren: But if as Justice Black's reading of Tomlinson shows that the state does have a burden to prove that, don't you think that it should do that much at least and not compel the defendant to do it?

Mr. Ed R. Davies: No, sir.

I really don't feel so.

I feel like this is an adversary proceeding regardless of this.

This petitioner had witnesses brought up here from Columbia know of no reason that he was adversely affected because of lack of finances and anything of that nature and of now reason he was prejudice on that regard.

The Court instructed him as to -- if you wanted to take additional proof, how to go about that, they just want any -- in my opinion no prejudice at all in the trial of the case in so far as the marshalling of this evidence is concerned.

I frankly feel that this was not a very important issue in the District Court.

I think it was one of many in the District Court.

Chief Justice Earl Warren: Well, could that be because in some of the states, I don't know whether it's Mississippi or not but it's almost impossible for a Negro defendant to get a white lawyer to raise this issue that that has been demonstrated to us here on a case.

Now, it won't raise the question as to whether it had been systematic intrusion.

Mr. Ed R. Davies: Well, I suspect that if you will note in my brief that I stated there clearly, I did not take the position that this man had waived this question about failing to appeal to the Supreme Court of Tennessee because there, he then -- did have a white lawyer.

The case had just been -- the Kennedy case had just been decided.

It would have been fruitless for this lawyer to have raised it.

And I make no question about a waiver in this case because it was just an intentional packed under his large bar but there is no -- I can state categorically that he has no difficulty today in getting a white lawyer to raise the questions he once raised if I might state this that I'm not a member of the Attorney General staff of the State of Tennessee.

I'm the special counsel because of the great volume of these cases that we have had and I've represented many more petitioners than I've represented the respondent and I've never hesitated to raise any of these questions whether it confused the trial judge of misconduct or anything else.

You just raise them and do the best you can and I don't see that there's any problem about that today in the Tennessee.

Now, again, I state that at the time of his trial there may have been some problems about getting Mr. Tomlinson to raise this particular issue about motion to quash or something of that nature.

Chief Justice Earl Warren: Of course that's the time we're dealing with the year 1949 and not today.

Mr. Ed R. Davies: Well, I misunderstood your question.

I thought you meant today was he having any trouble of getting these questions presented to the Court.

And my answer would be no.

It is not today.

Chief Justice Earl Warren: Yes.

Mr. Ed R. Davies: In 1949, I suspect that he could have had some problem and for that very reason that I did not insist that he'd been entitled to waive at that time.

But let's take this in regard to the mathematical argument which the petitioner have now advances.

I do not feel that this argument is valid in this case because one, there is no proof that there were only 22 Negroes on the 1501 jury list.

There was no proof as to the number of white men or Negro men on the tax rolls and the jury list were taken from the tax rolls and there is no distinction on the tax rolls between white and Negro.

There's no distinction on the jury list between white and Negro.

The census report showing the breakdown as to adult males was not before the District Court.

The mathematician came up with all these figure has never yet testified.

I've never seen him.

This was all brought in to the record even after the Court of Appeals passed on it.

Actually, it was not in the record that brought in in the case.

And at this as I mentioned earlier, it was conceded in the Court of Appeals that there was no discrimination practice in the composition of this general venire.

So I would state this that in -- including this case that this man -- and this man is no new comer to the criminal law.

This is his seventh felony conviction.

He's been in the penitentiary since 1929 on various convictions.

He knows his way around criminal courts and yet --

Chief Justice Earl Warren: Would that make any difference to whoever is entitled to system?

Mr. Ed R. Davies: Oh, no sir.

No, certainly not.

It would make no difference there but it does --

Chief Justice Earl Warren: Why is that in the case?

Mr. Ed R. Davies: Well, it's in the case for this reason.

I think it does bear weight on the delay that this man has years in bringing the case to the attention of the Court at a time some 15 years later when the jury commissioners, the man who really knew what situation were before their first hand knowledge would be it or to held and come to court and I think that does have some bearing on the case.

Alright, this then is what he came in to the District Court and proved as I've stated again and again that some none served, there were numerous in the county, some were qualified.

The respondent then came further to show yes, that is true and every time the court through Mr. Tomlinson and Attorney General Bumpus and the trial judge, some were called and those that were called told me the juries that didn't want to serve and they were excused for that reason.

Now, that's the explanation of the state and that's why I said early, it's relatively easy to state now whether or not it's so easily sustained is up to the Court and not to me but that is the position of the state.

I thank you very much for the attention.

Chief Justice Earl Warren: Mr. Reed.

Rebuttal of J. Brad Reed

Mr. J. Brad Reed: Mr. Chief Justice and may it please the Court.

There is one manner that the Court may have are completely in mind but I'm not sure if Mr. Davies does.

He keeps talking about the fact that we didn't prove there were any qualified, any Negroes who were qualified jurors.

If I may quote from Norris versus Alabama as to point a prima facie case comes into effect, maybe this will help.

This was following the testimony that Negroes constituted some way around, well, a large substantial percent of the population and that none had ever served.

The Court then says, that testimony in itself made out of prima facie case of equal protection.

The case does made was supplemented by direct testimony that specified Negroes who qualify and that makes it absolutely clear that it is not part of my case to prove that any Negroes were qualified or have approved years that they constituted a substantial portion of the population and that none had ever served.

On the question of whether or not the clearly erroneous rule applies, I don't think it's necessary for the Court to reach that question for this reason.

I'm reading from the appendix page 58, the District Court's opinion, petitioner has failed to establish a prima facie case.

Well, I -- assuming arguendo that the clear erroneous rule applies, it couldn't be anymore clearly erroneous.

He then goes on to consider the other evidence having held that no prima facie case was made and he has obviously considered the evidence in the wrong light.

We're not asking as Mr. Davies implied that a judge forced a Negro to serve.

In fact, I have attempted to scrupulously avoid such a suggestion.

We are suggesting that the Court not excuse anybody, white or Negro without cause.

That's all we're asking.

When he had the reason that they have never served, I think Mr. Davies was exactly right.

They've always -- on the record shows that they've always asked to be excused whether they have had cause or not, the judge is excused where you can even-handedly stop that.

You don't require Negroes to do anything different than from whites, you just require the judge to not excuse someone unless there's legal excuse or legal reason for it.

Now, with respect to the use of statistics in this case, the -- I admit there is a problem, I didn't represent the petitioner in the District Court and consequently, I have attempted to use presumptions to establish some of the figures.

I think that we've justified in doing this because of the proof in the record.

I think there's sufficient proof in the record to show how many Negroes were on a particular list.

The best evidence of this in fact is in the Kennedy case which Mr. Davies relies on.

They go to great trouble to name or rather to list a number of Negroes on the general venire as being -- the case says there were nine Negroes out of a 110 where two of them were dead and one of them had moved out the county and so I think we put it well not count those.

Of the remaining living residence, 6.6% of the list of a hundred or in this 106 were Negroes.

Now, we have shown and the same was true in Kennedy who has no proof that a lesser percentage of the population was Negro or rather a less percentage of qualified jurors were Negroes.

And therefore, I think that not only is it reasonable to assume, the Court must assume that the same percentage of Negroes were qualified for jury duty as it was in the percentage of Negro Adult male residents of the county.

Using that percentage, we have shown in our brief that a composition of a venire facias of a hundred or 106 containing 6.6% Negroes would happen would occur at random list in once in a million times.

Now, we submit this solely to show that the selection was not made at random.

The Supreme Court said, you see here, this evidence shows that a random selection or shows no systematic exclusion.

This is the evidence they rely on.

We used elementary; it's at the beginning of every book on statistical theory.

Elementary probability theory to show that the evidence proper, to show that there was no systematic exclusion doesn't have that effect at all.

That's the only way we've used it here.

Thank you,Your Honor.

Chief Justice Earl Warren: Thank you.