ALEXANDER v. LOUISIANA

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Argument of Charles Stephen Ralston

Chief Justice Warren E. Burger: Argument in Number 5026.

Mr. Charles Stephen Ralston: Mr. Chief Justice and may it please the Court.

To briefly recapitulate, we have urged with regard to issue two in this case that the total exclusion of women where it is the direct result of procedures used by jury commissioners as shown by this record resulting in the total exclusion of more than one-half of the population of a community results in a jury system that in the words of this Court in Carter contravenes the very idea of the jury that is a body truly representative of the community.

Now, the reasons why a jury system which excludes women or such a system is not representative had been set out by this Court in its decision in Ballard versus United States which we quote in our brief.

And basically by excluding this group, an identifiable group, it excludes from the jury system a whole range of attitudes and perceptions that can be brought to bear in any criminal case and so excuse the system drastically away from its proper function, that is, its function to as a democratic institution.

Again, as this Court said in Ballard by such an exclusion there is injury to the jury system to the laws of institution to community at large and of the democratic ideals reflected in the processes of our Court.

A problem of what Lafayette Parish has done pursuant to Louisiana law and the problem with Louisiana statute itself is that it rests on assumptions about the function of women in our society which this Court has recently characterized in Reed versus Reed as arbitrary.

That is assumptions about the proper role of women, the notion of women will automatically have such responsibilities at home that they cannot serve on jury.

We contend that a State must devoid this kind of an assumption, this kind of a procedure that results in an unrepresentative jury system and essentially treat women on the same basis as men are treated, that is to focus in on specific and well defined concerns that may allow an exemption, such as occupational exemptions or more narrow exemptions for women who have special family duties that would make it a hardship for them to serve.

Justice Potter Stewart: You mean in individual cases?

Mr. Charles Stephen Ralston: In individual cases, Your Honor.

I might just point out as an illustration, Florida after the Hoyt decision, amended its statute allowing women who were pregnant or who had children, I believe under the age of 16 to exercise the personal exemption if they so wished.

The problem with --

Justice Potter Stewart: With respect to men some categories are exempted, are they not, just these categories not as to individual --

Mr. Charles Stephen Ralston: They are and the Louisiana statute, there are personal exemptions to be exercised by the individual.

The statute specifically says that they are not basis for challenge or cause.

As a matter of fact what Lafayette Parish did was not send questionnaires to even these exempted categories, although under the statute it seems that they should have and allow those individuals to exercise their own exemption.

Chief Justice Warren E. Burger: Which you think, it would violate the constitution if physicians for example were excluded in the same category as women, that is they were all excluded unless they ask to serve?

Mr. Charles Stephen Ralston: Your Honor, I think it would be preferable to have again an exemption that they could exercise at least on their wish.

Chief Justice Warren E. Burger: Well, we are only talking about what is constitutional here, are we not?

Mr. Charles Stephen Ralston: I would say that that kind of an exclusion would focus in on a narrow class of persons.

It would not result in a wholesale exclusion of a large group and thus focus in on what I think could be said to be a legitimate interest, that is they can -- given the importance of decision and having sufficient numbers and positions available.

Chief Justice Warren E. Burger: Otherwise you find a rational basis?

Mr. Charles Stephen Ralston: There would be a rational basis for that kind of a limited exclusion of a group and again the effect on jury system would not be particularly extreme in terms of the portion, numbers of people to be excluded and there are other possible groups, that same kind of exclusion could be exercised.

There maybe a problem at some point if there is so many groups excluded that you do result in a system that is unrepresentative.

But narrow exemptions or exclusions would, I think be proper.

Now, finally on this point, I just want to bring out that, we feel that any person faced with a criminal procedure has the right to object to the exclusion, this kind of a wholesale exclusion of a whole group even though in this case the defendant was a male, that the right to a jury system that fairly represents a community in light of the proper function of the jury to interpose between the accused and the State, the voice of the community.

This right extends to all persons and not simply to persons of the excluded class.

And I would just cite to the Court, two State cases that have taken this position, the case of Maryland versus Mattison 213 Atlantic 2nd 880, and Allen versus State of Georgia, 137 Southeast 2nd.

711.

I would just like to touch for a moment on the third issue involved in this case, that is the use of the statement taken from the defendant by interrogation.

We have pointed out in our brief the issue with regard to this question is the effect of the Harris case and briefly, we would like to urge that the Harris case is distinguishable on, really on two basis.

The first as you pointed out in our brief is the question of the reliability of the statement, whether or not the defendant actually said what he has claimed that he said and there are two points on this, number one, he denies, that is what he said and there is a conflict in the testimony of two of the police officers.

One said that he insisted, a number of times he did not commit the rape and the other police officer said, he did not say that.

In these kinds of questions of reliability, we feel the statement, Harris should not be excluded to that kind of case.

The other basis of distinction is the fact that in Harris it was admitted that the confession did not comply with Miranda and the jury was specifically instructed that it could be considered only for purpose of impeachment.

In this case, the trial judge held that the confession was taken in compliance with Miranda and that therefore presumably the use for all purposes and an examination of the record does not reveal that the judge instructed the jury that the confession could only be used for the limited purpose of impeaching the defendant’s testimony.

There is no so statement in his overall charge of the jury and there is no such statement at the time the confession was brought up.

The District Attorney did say at one point that he was going to impeach the defendant’s testimony, but the judge never instructed the juries to its limited use without such an instruction.

It is simply cannot be assumed that the jury may not have considered the confession as in terms of the proving of the actual fact of the commission of the crime.

Chief Justice Warren E. Burger: Was there a request for a limiting instruction?

Mr. Charles Stephen Ralston: No, Your Honor.

That does not appear in the record.

Again the judge has held that it did not violate Miranda.

So it maybe that everybody was going on the presumption that it could be used for all purposes.

But since it did not comply with Miranda, we feel this is kind of error that so permeates the whole system that the Court can hold the use of it unconstitutional even without a request for limiting instructions under those circumstances.

I will reserve the rest of my time for rebuttal.

Thank you.

Chief Justice Warren E. Burger: Very well Mr. Ralston.

Mr. DeBlanc.

Argument of Bertrand Deblanc

Mr. Bertrand Deblanc: Mr. Chief Justice and may it please the Court.

I like to just, excuse me, take my breathe.

Although, I have been here three times, of course --

Chief Justice Warren E. Burger: Well, just take your time counsel.

Mr. Bertrand Deblanc: I have been here three times. First time it was as Justice Douglas remembers, I was here representing an accused who had been electrocuted by the State, cannot be electrocuted by the State once and they were trying to electrocute him the second time and I was here to plead but --

Justice William O. Douglas: The arrest of Witherspoon.

Mr. Bertrand Deblanc: That is right, Your Honor.

We were not successful, but we had you on our side.

Justice William O. Douglas: You did a good presenting.

Mr. Bertrand Deblanc: Yes.

Very good.

If Your Honors, please, I would like to start off with the first point and there are three points involved here, the first one being that they are all complaining that there was a systematic exclusion of Negroes on the grand jury, the second being systematic exclusion of women and the third of being the failure to comply with Miranda.

So I would like to begin with the first point and say this that I came here today not to defend the commission or the clerk at Court who was a member, but to praise him in the manner in which he selected names to be considered for the grand jury as well as the petit jury, but I would like to point out to the Court that the complaint here is strictly to the grand jury.

He is not complaining that there was a -- that the trial was not fair or that there was anything wrong with the petit jury, but simply to the grand jury.

The clerk of Court began, as he said to attempt to get as wide the range of persons as he could to consider for a grand jury and petit jury service and I would like to point out that he sent out 11,000 questionnaires in a parish, a county we call it parish here in Louisiana, but where there was 40,000 population, he sent out 11,000 questionnaires according to his testimony which is in the record here and incidentally the record was compiled by the complainants and we are going to court on the record that they have got, they have complied and submitted.

But there were 11,000 questionnaires mailed out, out of the total of 40,000 persons in the parish of which there were 21,000 males.

He sent out this only to the male population.

Although, we did have a place to show whether they were male or female because the clerk did attempt and it is shown in the record that the clerk did attempt to get women interested in jury service.

As the record will show that he talked to my assistant who happens to be a lady, an Assistant District Attorney there and trying to get her to talk to the women’s clubs and get them interested in that and the reason, he said in the records, they had not done it before was because we had an old courthouse which has no facilities to help to -- for women jurors, but that was going to -- were being built at the time a new courthouse.

And at the time that the case was tried we tried it in the new courthouse, but at the time that the selection was made we were in the temporary courthouse at that particular time, but he did try to get the Assistant District Attorney to get the ladies interested.

Now, to go over this there were 21,000 males in the parish and there were 17,000 white and about 4,000 Negroes which amounted to 20% Negro and so far as the male population was concerned.

Then he has the registered voters here, we will show it that there were a total of 6,541 Negroes who were registered out of the total population of 9,000.

So there are -- the entire -- the population of this parish is very highly registered both white and Negro because out of the 9,400 Negroes in the parish there were 6,500 registered voters and there were 3,573 Negro males in the parish and 17,000 white males in the parish.

Now, he sent out 11,000 of these questionnaires and he went around looking as everywhere to try to get list from different people.

He used every eighth person who was registered and erased the border and that was -- there were 40,000 voters of which there 30 to 4,000 white and 6,500 Negro.

Now you have to consider that there were -- that is a parish that has very few Negroes, comparatively speaking, only 20% or 21% Negro there.

So they used every eighth person registered.

He took every eighth name and also they went through the City Directory which has every name of every person in the City of Lafayette which comprises most of the population of the parish and the phone directory which included all of the phones in the entire parish as well as list submitted by the school board and also a bunch of list submitted by other people and also by the commission.

There was no record.

They did not ask -- they asked the question, but he did not insist on as to how many questionnaires were returned.

So we do not know how many questionnaires were returned out of 11,000, but the clerk found by looking at it and making the determination as to whether they were qualified not to serve and he used the requirements of the law of the State, 21 years old, reads, speak, and write the English language.

Many people out there do not speak the English language, they speak French, both white and Negro, many people, many or whites and many Negroes speak only French there in this section of the State and they are not qualified unless they can read and right and speak the English language.

Many times we conduct a trial completely in French out there.

Now, this must now also be on the interdiction of mental or physical infirmity and not be interdicted.

Justice Potter Stewart: If you conduct a trial completely in French it is kind of inappropriate to have jurors who speak only the English, is it not?

Mr. Bertrand Deblanc: We speak, we conduct the trial in French only where it is a misdemeanor and the judge speaks French, the District Attorney speaks French, the lawyers on both sides speak French and the witnesses also speak French.

So only to those cases.

Justice Potter Stewart: You do not -- no jury trials in French?

Mr. Bertrand Deblanc: No jury trials in French.

Justice Potter Stewart: I see.

Mr. Bertrand Deblanc: We feel that sometimes misdemeanors are easier to try that way because it takes a whole lot longer to have an interpreter and they had to be a resident of the parish for a year.

So he stick to these out after receiving all these questionnaires and he found as far as qualification was good and placed on a card index, he had 6,354 white and 1,015 Negroes which he says in his brief comprised of 13 -- a level with 13% of the population, 14% either 13.76 and I will say the same thing but I must -- I did not put in there, in my brief, that it was -- it was over 21% of the entire male Negro population.

So there were 1,015 Negroes who were in the box who were qualified according to the clerk and used that box and it is in the record on page 15 of the record, appendix and so that means that were over 21% of the Negro male population considered for jury service as eligible by the clerk and by the commission.

So there were actually more Negroes who were considered for jury service than there were actually percentage of the community.

Now, he put them in there.

After he did that and he had these names, he has a -- you have to see in the – believe all the Court he has to fill up this whole table, thousands and thousands of cards and he has added onto it since that time, but he took out 400, 100 were necessary and he put it in the grand jury venire of which he had 373 whites and 27 Negroes which amounted to 6.75 of the population as what he figured of the population and there was one name drawn out of it.

Now the grand jury, when they draw up the grand jury venire, you have to understand that it is drawn by lots so they dipped in there and got 20 names for the grand jury venire of which 19 were white and 1 Negro.

But it could very well have been just the opposite.

It could have been -- quite a few because since that time, unlike this year, this grand jury -- this grand jury, we had no Negroes on it, but in one instance in the spring we had three on the grand jury, but it varies.

Justice Thurgood Marshall: Mr. DeBlanc -- when the clerk was making his choice, did he know the race of the people?

Mr. Bertrand Deblanc: Yes, yes Your Honor.

He did --

Justice Thurgood Marshall: If so how do you get from the command of the (Inaudible) of the case?

Mr. Bertrand Deblanc: Your Honor, if Your Honor please, the clerk said that he wanted -- they do not add because of identification purposes, he said that on page 51 and he needed that for identification purposes.

Justice Thurgood Marshall: Well, did he ask about remarks if they might have had on their face and hands for identification purposes?

Did he ask the color of the hair?

Mr. Bertrand Deblanc: No, Your Honor.

Justice Thurgood Marshall: So he only asked race for identification purposes?

Mr. Bertrand Deblanc: No, Your Honor, he asked raised and I thought also that he should have done it because I thought that in case, if the case would be appealed and brought to this Court and we would have no problem in determining how many Negroes and whites were there because if we did not have it on there we would be in a quandary here as to how many Negroes and whites we had no there and I wanted to be sure that this Court understood that there was more than the percentage Negroes in the parish --

Justice Thurgood Marshall: Well, how many (Voice Overlap)

Mr. Bertrand Deblanc: -- who were considered.

Justice Thurgood Marshall: How many -- but how many were on the grand jury?

Mr. Bertrand Deblanc: Sir?

Justice Thurgood Marshall: I am interested in how many were on the grand jury?

Now, how many person is a grand jury or how many they considered?

I want to know why only one showed up on the grand jury?

Mr. Bertrand Deblanc: That is just the way it falls, Your Honor.

Justice Thurgood Marshall: I see.

Mr. Bertrand Deblanc: It does not mean that every year is the same thing or every term is the same thing.

It just happened in that case and I do not believe that this Court would mold a hole just because one case that there was no Negroes on the jury.

The only way we can come back at that Your Honor, is to arbitrarily --

Justice Thurgood Marshall: What did the Whitus case say when the man knows the race and he did know the race here, is that Whitus or not?

Mr. Bertrand Deblanc: Yes.

But the Whitus case was a little different than that.

They had been consistent --

Justice Thurgood Marshall: Yes, except that It was in Georgia?

Mr. Bertrand Deblanc: They were considered over the period of time that they had certain so call of cause for Negroes and certain call of cause for whites and this is not the situation here.

Justice Thurgood Marshall: No.

It is just that you had the race on it.

They do not have (Voice Overlap)

Mr. Bertrand Deblanc: That is correct.

Justice Thurgood Marshall: (Voice Overlap) they had the race, the word?

Mr. Bertrand Deblanc: And how would we ever find out how many Negroes were on the jury if we had not put them on there -- put down the race, we would never be able to tell this Court how many were on and how many were not on.

I say Your Honor that the only way we can -- would be that -- to comply with the -- having a specific number of Negroes on the grand jury would be to arbitrarily put 21% Negroes on the grand jury.

That would be the one way I can see you could arbitrarily do that.

I do not think this Court would want us to arbitrarily place exactly the same number of Negroes on the grand jury as they are in the community because that is not what was said in the case of Swain versus Alabama where they said, we learned neither the jury rules nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group.

We learned from this, that the jurors will be selected as men not as a race and that is what we are doing Your Honor.

We are not selecting jurors according to race.

We are selecting jurors according to men and that is what we have been doing all the time.

And that is what we continue to do unless this Court will tell us different.

If this Court tells us that we have to select by proportion, we will do it, but so far we have followed Avery versus Georgia --

Justice Thurgood Marshall: Well, what would happen if this Court said you have to take race off of the qualifications in which (Voice Overlap)

Mr. Bertrand Deblanc: Then we would take it off.

We have -- try to follow whatever this Court says to do, but Avery versus Georgia says that we have got to utilize this.

In fact, as a matter of fact it was -- when Scott versus Walker was decided and Davis versus Davis which is a Fifth Circuit case and also Scott versus Walker, that was the time that he thought of this system and under my direction as a matter of fact as soon as Scott versus Walker was decided, I wrote and I wrote letters to all of these clerks of the Courts and told them they have got to comply with this Scott versus Walker and there is a conscientious duty on the local officials to develop a system of jury systems that would result in a factor of sex in the community and that they should be placed on a master list of these uses of source from which to select the grand and petit jurors and there should be no discrimination of any kind between any classes.

And he did so at my request and he has got in the record that he – well, I worked with him to try to get this system in effect there that and of course Akins, Your Honor, Akins versus Texas is the same thing.

They say defendants on our system of criminal statutes are not entitled to demand representatives of their racial inheritance upon jurors before whom they are tried.

They are simply entitled to a fair section of the community and there has been no evidence to show that the clerk of Court was in bad faith.

They had a chance to cross examine him.

They cross examined him.

They questioned him for a long time and they did not bring out anything to show that he was prejudiced in any way.

That he tried to get more Negroes than whites or whites more Negroes that he tried to select them in accordance with whether they were qualified or not qualified.

I would like to pass if Your Honor please to the next question which is the women on the jury.

I would like to point out that they are claiming that women were systematically excluded from grand jury which is not true.

We give them an exemption, but we do not exclude women from the grand jury or from any jury.

They are -- there were 18 States as a matter of fact now grant women and not include exemption the same as Louisiana and they fall on great portion of this -- over the population and as a matter of fact there are presently I think 21 million women in the United States who have children and the only difference between versus me as a lawyer and you, Your Honors as a judge in Louisiana is that we both exempt it, well I exempted as a lawyer, you are exempted as a judge and women are exempted because they are women and there were school teachers who were exempted, school bus drivers, pharmacists, ministers, lawyers, dentists, fireman, but the only difference, and they are not excluded, they are not excluded as a difference, they are not excluded, they are just exempted.

The only difference between us for instance, you as a judge and me as a lawyer is that we must claim our exemption and in order for them to be -- they have to waive their exemptions, but we must claim ours.

There is no difference at all between the treatment of a lawyer or a woman insofar as exemption is concerned.

It is just a matter of procedure.

If we want to be exempted as a lawyer, we must claim it also as a judge, a school teacher or bus driver, but the purpose is to save the women a trip to the courthouse to claim their exemption and that is the only difference, but we have certainly tried to get the women interested in serving on the grand jury.

In Louisiana there are one million three hundred -- over one million women who are married, over one million, I mean population – women, there are over 1 million women in the State and they all -- 69% are married and as your grand jury pays $12.00 a day, petit jury pays $8.00 a day for a woman has to get a babysitter, it is going to cost a whole lot more than that to try to get a babysitter even to serve on a grand jury.

If we could take testimony of my associate here he can tell you how much it cost him to get babysitters for his wife to come over here to hear the case today.

Of course, I have my own babysitters.

We have some old children who baby sit for our younger ones.

But they are -- I think that complaint of course is not that the white was unconstitutional.

They are not complaining about the unconstitutionality of white.

They are complaining as I understand it is that the way we apply in Louisiana, that we have not encouraged any women to serve and that in Florida they did have some, in Louisiana there was none.

I do not believe that they would want a -- have a woman on the jury be good because the last time they put one on out there, they made her the foreman of the jury and they convicted the accused.

In fact that was a rape case, but I do not think they will try it again.

Justice Potter Stewart: Well, this accused could have not done it, came out any worse if women were jury?

Mr. Bertrand Deblanc: Yes it could have been, if you would add a woman he could have been thrown to the electric chair and probably would because he was part of the act --

Justice Potter Stewart: (Voice Overlap) power to one woman.

Mr. Bertrand Deblanc: That is right, really one -- remarkable if I won one Your Honor.

I can testify to that, but I would like to also now pass to our last point Your Honor.

Justice Byron R. White: May I ask before you do --

Mr. Bertrand Deblanc: Yes.

Justice Byron R. White: When last year, were there women on the grand jury in your parish?

Mr. Bertrand Deblanc: Is that one now?

Justice Byron R. White: Has there ever been one?

Mr. Bertrand Deblanc: In -- not in my parish.

There has been one in my other -- when -- well, I have three parishes, in Acadia Parish is the parish I am telling you about where they have had a woman on the grand jury, made the foreman and convicted the accused of rape.

But -- in the rape case.

Justice Byron R. White: Was she on the grand jury or the petty jury?

Mr. Bertrand Deblanc: She was on the petty jury, she was on the petty jury, yes.

Justice Byron R. White: And my question was when have you had a woman on the grand jury?

Mr. Bertrand Deblanc: But we have many --

Justice Byron R. White: (Voice Overlap) any of the three.

Mr. Bertrand Deblanc: Yes.

We have in Acadia Parish.

Justice Byron R. White: You do have?

Mr. Bertrand Deblanc: Yes.

Now we have -- venire percentages in all three parish are women, which we did not have before -- we had -- we have a new courthouse --

Unknown Speaker: Are women now serving in all three parishes on grand jury?

Mr. Bertrand Deblanc: No Your Honor.

Unknown Speaker: Only in one?

Mr. Bertrand Deblanc: Yes.

Unknown Speaker: Out of the three, Acadia and here what kind to be involved here?

Mr. Bertrand Deblanc: This is Lafayette.

Unknown Speaker: Parish is Lafayette?

Mr. Bertrand Deblanc: Yes.

But they have not -- they have not made our request, a new courthouse.

Unknown Speaker: When -- can you recall when Lafayette Parish last had a woman on the grand jury?

Mr. Bertrand Deblanc: No, Your Honor.

There -- they have not made any -- there have never been no application made by them for to waive their exemption.

I notice that there are -- under the -- in Hoyt case that they -- the Court said that the way these States included the District of Columbia that time in 61 where a woman had a absolute exemption based upon sex, exercisable in one form or another and the -- and that in age stage they were exempted if they had been a responsibilities which would cause a new hardship and I would like to think of myself as the representative of this -- by the way there is a -- there is this brief.

It was filed by certain bar on this whole question, but he spent – he got a 40 page brief and he spent all but the eighth over the last four pages in giving the history of women’s right which I agree with.

It is a very well written brief about women’s rights and I really agree with all he said except the last two pages where he talked about this particular case and he represents a 180 million or 180,000 women who belongs to this organization of which my assistant happens to be a member.

I would like to think of myself representing 21 million women that are at a liberty to make their own choice as to whether they should serve or not.

Justice Thurgood Marshall: It does not -- your questionnaire given the right does in questionnaires say, will you bring her exemption or not?

Mr. Bertrand Deblanc: Yes Your Honor.

Justice Thurgood Marshall: Well, why would that not send to the woman?

Mr. Bertrand Deblanc: Well, because -- you see in the -- in this -- in the Hoyt case it was stated that they talk about the exclusion of the jury -- the inclusion on the jury list of persons so exempted, usually serves as a waste of time to the Court and in the Hoyt case is what this Court said.

So, they were grant -- they were -- did not call them if they were exempted.

Justice Thurgood Marshall: I understand this questionnaire says the man, are you going to claim your exemption or not?

Mr. Bertrand Deblanc: That is right.

Justice Thurgood Marshall: Do you say the only reason you do not bother that the woman is, supposed they had claimed their exemption.

Mr. Bertrand Deblanc: That is right.

Justice Thurgood Marshall: Well, why not let them claim it in the questionnaire?

Mr. Bertrand Deblanc: What -- you see Your Honor, if we did that and who would we mail --(Voice Overlap)

Justice Thurgood Marshall: If you did that you might have found out, it would require a few who would not claim that?

Mr. Bertrand Deblanc: Well, that -- maybe I will be in and if Your Honors please --

Justice Thurgood Marshall: Well, why do you not find out?

Mr. Bertrand Deblanc: I will -- well, I will take Your Honor's suggestion and I will --

Justice Thurgood Marshall: Well, that would not have to, I think?

Mr. Bertrand Deblanc: No it will not, but --

Justice Thurgood Marshall: Well, that case we are talking about?

Mr. Bertrand Deblanc: I know but I do not feel as though that was in itself the fact that I -- the clerk of Court had no responsibility.

I do not feel that the clerk of court had any responsibility to determine himself whether or not the women of the parish wanted to serve.

He did take means, he asked my assistant to go out and talk to these women and asked them to get themselves interested in this and they did not.

But he did not feel as though he should send questionnaires out to them.

As a matter of fact one of the ladies Your Honors please, one of the ladies did sent one in.

He had one woman who had wanted to serve.

And I would like to draw to my last point Your Honor which is the question of whether or not the accused rights were prejudice insofar as the constitution is concerned in the Miranda versus Arizona.

Now, understanding this particular case, Your Honor, insofar as the Miranda was concerned we did not use the statement in convicting the accused and presenting our side of the case.

We did not use it at all and we had no intention because we were able to prove and that I think is an unusual case where they caught the accused in the act of committing the rape which is a very unusual case.

So it was not necessary to use the confession.

So we did not use it, did not mention it at all.

But we did serve on the accused and his lawyer before the trial started without the jury knowing about it, we served a notice that we would introduce the confession, you see, because that is the law of the State.

If you intend to use a confession you have to give a notice ahead of time so which we did.

But when we presented our side of the case we did not use the confession.

And at the end of that our presentation of the case, when the defense or when they had to prove their side they came on and they have put him on the stand.

So as soon as they have got through with their examination of chief then I asked the Court to withdraw the jury.

And after the jury was withdrawn and I advised the Court that we have a confession which we intended to use to impeach the testimony of the accused and so while they were out, we then proceeded to show the voluntary nature, under the law of the State we have to show the voluntary nature of the confession, which we did.

We showed the voluntary nature of the confession as well as the compliance with Miranda.

Now, their complaint is that Miranda was complied with all except for one thing, they said that the accused were not told that he was entitled to an attorney at the time that the statement was given.

So that was what we -- we did inform him, he was informed, he was informed by the officer or which one, was it called officer, he was informed of all of the rights in the Miranda but we did not inform him Your Honor that he was entitled to an attorney at that time when he gave the statement.

So that is what their complaint is now.

So but the judge thought that he did complied with Miranda because they said he was told you are entitled to an attorney.

So he said that -- he indicated that he thought that when he said you are entitled to an attorney the guy should have understood at that time, but he did not say at this time.

He did not use the word at this time.

So then that is their complaint, but I am saying this that the statement was voluntary, was shown to be voluntary.

The Court found it was voluntary.

It was proven to be voluntary outside the presence of a jury then again in the presence of a jury, we showed it was voluntary.

We did prove it, it was voluntary.

It was reliable and there was no coercion of any kind there.

As a matter of fact he was drinking coffee, asked the fellow if he would like to have some coffee, he said no, I do not want to drink coffee, offered him, I think some cigarettes and some phone call or anything.

But it was a friendly place to -- attitude in that park but --

Justice Potter Stewart: It is not clear to me Mr. DeBlanc, how the -- this -- the confession was used?

You said it was not used in the States case in chief --

Mr. Bertrand Deblanc: Yes.

Justice Potter Stewart: And then the defendant took the stand on his own behalf and was there any talk about whether or not he had confessed?

Mr. Bertrand Deblanc: Well, you see that was the point, that is why if -- when he took the stand he had a completely different story and so he told his story to the jury about how this thing happened.

That he was going out to burglarize the place with a friend of his and that while they were, they happen to stumble on this girl who was in the Corvette down there, so we might (Inaudible) Your Honor and when he got down there that was when the officer shone the lights on him and arrest him so, that was his story why, you see.

Justice Potter Stewart: Alright, but then how was this confession used?

Mr. Bertrand Deblanc: Well, then I –

Justice Potter Stewart: He testified along those lines I understand that?

Mr. Bertrand Deblanc: Then I asked him, okay, then I went back and cross examined if he -- and I said now, did you not, you say this is the way it happened.

Now, even the fact that you had a conversation with the officer on blank, they are blank and did you not tell them this.

No, I did not and this and this, no I did not.

So then I said, now, Your Honor please, I intend to impeach this man’s testimony by the testimony of officer so on, so on, so on, so on, so on and that is the way I did it.

And then we put the officers on the stand but did not introduce the confession.

We just put the officer in the stand and --

Justice Potter Stewart: Who has testified?

Who testified what in the --

Mr. Bertrand Deblanc: Testified that he did make the statement that he denied having made.

Justice Potter Stewart: Well, that is introducing an oral confession?

Mr. Bertrand Deblanc: Well, in a way, yes.

Justice Potter Stewart: But the --

Mr. Bertrand Deblanc: But it was used to impeach his testimony alone.

Justice Potter Stewart: I understand.

I think I understand.

The written piece of paper never went into evidence, is that correct?

Mr. Bertrand Deblanc: No sir.

Justice Thurgood Marshall: (Inaudible)

Mr. Bertrand Deblanc: We -- I thought from -- thank you, Your Honor.

Chief Justice Warren E. Burger: Very well.

Thank you Mr. DeBlanc.

You have just one minute left Mr. --

Rebuttal of Charles Stephen Ralston

Mr. Charles Stephen Ralston: Yes, Your Honor.

I just -- the main point I want to make was that Mr. DeBlanc indicated the one reason, the racial designation was on these papers was so that they would know how many blacks were serving.

And the point I wanted to make is you can compile racial statistics without having the racial statistic from the racial information on the documents that are actually used by the jury commission.

They have no problem with compiling the racial statistics as such.

The point is where they can be used as an opportunity to discriminate as a result here then Whitus directed the file.

Chief Justice Warren E. Burger: Do I understand you are not objecting to having the racial designation for some purposes as long as they are not available to the person drawing the grand jury, is that it?

Mr. Charles Stephen Ralston: Well, for example if you send out a questionnaire that has a perforated section on par which the person is asked if he will to respond to his race, he is removed by a clerical person that filed the way and then used after the whole process has finished a cross check.

That might be perfectly alright, but this kind of a system is not.

Chief Justice Warren E. Burger: Do you think they have not met the standards of Whitus?

Mr. Charles Stephen Ralston: As long as they are not used so there is an opportunity to discriminate, they compile statistics as such and cross check, I would think it would be permissible.

Chief Justice Warren E. Burger: Very well, thank you gentlemen.

The case is submitted.