CASTANEDA v. PARTIDA

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Argument of Thomas Parker Beery

Chief Justice Warren E. Burger: We will hear arguments next in 75-1552, Castaneda against Partida.

Mr. Beery, you may proceed when you are ready.

Mr. Thomas Parker Beery: Mr. Chief Justice, and may it please the court.

I represent the petitioner here in Sheriff Claudio Castaneda of the Hidalgo County Texas.

In March of 1972, State District Judge Hose Alamia, a Mexican-American residing on Ninety-second District court of Hidalgo County Texas, selected five persons to serve as grand jury commissioners for that term of court.

Three of those five persons were of Mexican-American or Spanish-American dissent.

Those five commissioners in turn selected 20 persons to serve as potential grand jurors.

This list of 20 persons is known in Texas as the grand jury panel or list, or pool.

But the person that summoned those 20 persons to open court to be in panel later by Judge Alamia is the petitioner herein, Sheriff Claudio Castaneda.

Ten out of the 20 persons chosen by the Grand Jury Commissioners of the Mexican-American, ten were Anglo-American.

Three Mexican-Americans that were to be served by Sheriff Castaneda, could not be located.

One was listed on the return of the settlements as being out of state.

Two Anglo-Americans, shown by the record, were excused by the court prior to the formal empanelment of March 16, 1972.

On March 16th, in 1972, Judge Alamia empanelled the grand jury panel in Open Court.

One of the Mexican-American at that time was absent for the proceedings.

13 persons showed up, five Mexican-Americans have been absent, out of state or could not be found by Sheriff Castaneda.

Two Anglo-Americans had already been excused by the court leaving 13 persons to be in panel.

Judge Alamia at that time only needing 12 persons to serve on the grand jury had his option excusing one person for some sort of an emergency excuse.

One man by the name of Mr. Faulkner, an Anglo-American, has to be excused because he had a business over McAllen, Texas, having to do with a Drugstore.

One Mexican-American by the name of Mr. Cavio(ph) seemed to have more pressing matter, he had a father that was due for heart surgery in Houston the next week and Judge Alamia after considering both excuses, excused the Anglo-American, Mr. Faulkner, and kept Mr. Cavio on the grand jury.

That grand jury also, Judge Alamia, that same day on March 16th appointed a Mexican-American that's formed the grand jury.

The next day on March 17th, 1972, that particular grand jury consisting of five Mexican-Americans and seven Anglo-Americans indicted the respondent herein for the offense of burglary of a private residence at night with intent to commit rape.

Unknown Speaker: Mr. Beery is there a fixed-size for Grand Juries in Texas?

Mr. Thomas Parker Beery: At least twelve, Your Honor.

Unknown Speaker: And is there a minimum number that have to vote for indictment?

Mr. Thomas Parker Beery: Yes sir, nine, at least nine.

Chief Justice Warren E. Burger: Do you accept or do you challenge the figures that of 79.2%.

Mr. Thomas Parker Beery: No, I do not challenge the figures at all.

Chief Justice Warren E. Burger: Are you aware that there are totally inconsistent with what the Bureau of Census has in its files and records?

Mr. Thomas Parker Beery: I was relying on the exhibits that were introduced by the respondent back in 1973, the motion for new trial.

Chief Justice Warren E. Burger: And, you did not undertake to test those by finding out if the Bureau of Census...

Mr. Thomas Parker Beery: Not at that time, Your Honor.

To be honest with the court along those regards, the reason I did not is that there was such a clear waiver in this case of challenging the Grand Jury that indicted the respondent, and I did not feel it's necessary to even contest anything at the motions for new trial.

Unknown Speaker: They (Inaudible) the Francis v. Henderson.

Mr. Thomas Parker Beery: Excuse me Your Honor, I did not…

Unknown Speaker: Case of Francis v. Henderson.

Mr. Thomas Parker Beery: I believe that if we follow that case, I believe it applies very directly to this situation.

Unknown Speaker: The trouble is your statement.

The appellate courts considered the merits as pointed out by the Federal Court Of Appeals.

Mr. Thomas Parker Beery: That is very unfortunate that I did, so I devoted over half of my brief to the waiver issue to the Court Of Criminal Appeals, there was a case exactly on point by the name of Valdez versus State found in 408 Southwestern second, Page 209, took care of the situation.

I have no excuse for the Courts Of Criminal Appeals not get in to the waiver situation before that.

Unknown Speaker: Well, you tried it on the merits, didn’t the Judge testify on the merits?

Mr. Thomas Parker Beery: Judge Alamia testified later at the Federal Habeas Corpus before Judge..

Unknown Speaker: On the merits.

By the way, why didn’t the commissioner testify?

Any reason for that?

Mr. Thomas Parker Beery: I can’t explain that, I personally did not handle that particular hearing, Your Honor.

Unknown Speaker: Well, how can we ever find the states’ reasons for this if we do not have them to testify?

Mr. Thomas Parker Beery: I understand it.

Probably should have been done, but was not.

Unknown Speaker: Well isn’t that a failure for the State of Texas.

Mr. Thomas Parker Beery: It is a failure, but I do not blame it.

Unknown Speaker: And we cannot remedy it, can we?

Mr. Thomas Parker Beery: I believe that there are other facts and figures…

Unknown Speaker: Can we summarize it to the reason?

Mr. Thomas Parker Beery: I believe that there are other facts and figures within the record that tend to explain the disparity shown by the respondent.

Unknown Speaker: What facts?

Mr. Thomas Parker Beery: Well, the fact on, Your Honor, on Page 249 of the original transcript, introduced by the respondent, it has shown that in Hidalgo County Texas, that there were some 25,637 males of Spanish surnames, over 25 years or older.

Some 5,791 completed no school years whatsoever, representing, I compute that to be some 23%. Also, on the same Page 249 of the original transcript, out of 30,312 females with Spanish surnames, 25 years older there, 1970 who lived in the Hidalgo County area, 7,026 also completed no school year whatsoever, representing also 23%.

Now, some of those perhaps could have qualified as grand jurors, but one of the qualifications for being a grand juror in the state of Texas is that you should be able to read and write the English language.

Unknown Speaker: But wouldn’t it been much better if the people who picked the grand jury testified that we did not discriminate at all?

Wouldn’t it been helpful, wouldn’t it look good in the record?

Mr. Thomas Parker Beery: Oh, yes.

It will look good.

Unknown Speaker: Do I assume that the reason is not in the record because it wouldn’t be that testimony?

Mr. Thomas Parker Beery: No, not at all, Your Honor.

Unknown Speaker: But why, why it isn’t in the record?

Mr. Thomas Parker Beery: Again, your Honor, I did not handle that particular hearing.

I cannot explain to the court, why it was not done.

Unknown Speaker: But you have already said you were standing on the waiver proposition.

Mr. Thomas Parker Beery: That was at the motion for new trial.

Unknown Speaker: That was in the State Court System.

Mr. Thomas Parker Beery: In the State Court System, prior to the writ of Habeas Corpus here in Judge Reynaldo Garza Court.

At that particular time, I was with the District Attorney’s office and left for short while and then came back and did not handle the Habeas Corpus hearing over in Bransa, in front of Judge Garza.

Unknown Speaker: Is there a Supreme Court case that backs you up on the waiver point?

Mr. Thomas Parker Beery: On the waiver point?

Unknown Speaker: Yes, you only cited three Supreme Court cases in your brief, all in one paragraph.

Mr. Thomas Parker Beery: Well, the recent case of Francis versus Henderson that came out in May that I was unaware of.

Unknown Speaker: Do you think that helps you?

Mr. Thomas Parker Beery: I believe so, Your Honor.

That’s a case where there was a waiver in State Court, although we have the problem in this court, in this particular case that the State Court jumped over the waiver issue and went into the merits situation, which was unfortunate.

Unknown Speaker: Where did you cite Francis in your brief?

Mr. Thomas Parker Beery: I did not cite Francis, Your Honor, in that brief.

Unknown Speaker: You keep explaining what the other guy, the lawyer didn’t try to keep, but you did this brief, didn’t you?

Mr. Thomas Parker Beery: Yes Sir, I did.

Unknown Speaker: Would you rely on Francis now?

Mr. Thomas Parker Beery: I would rely on it Your Honor, but I do not include in my brief because quite frankly, I was unaware of it, all the time.

Unknown Speaker: It would be one thing, if the Texas appellate courts has relied on the waiver, then Francis against Henderson would say that the Federal Habeas Corpus court would have to also, but here you cannot rely on Francis against Henderson, as I think you understand, and I have you told you in an answer to your question because the Texas appellate courts did precede to the merits, that was all pointed out by the Federal Court of Appeals here.

Mr. Thomas Parker Beery: Yes, I think it is quite clear on that particular point.

Unknown Speaker: Before you proceed, it seems to been held by the Federal District Court, that prima facie case was shown, and the District Court held at that prima facie had been rebutted and the Court Of Appeals, without independent examination as I read its opinion, simply accepted the proposition that a prima facie case of discrimination had been shown and deferred with the District Court in its holding that that prima facie case has not been rebutted.

Do you accept the proposition that a prima facie case has been shown?

I asked, because it seems, as I read these statutes of Texas that Juror Steven be eligible for consideration must be citizens, and a prima facie case consisted not in showing the percentage of citizens, but of showing the percentage of population, which is quite subject, quite showing, isn’t it?

Mr. Thomas Parker Beery: That is very true and also, I believe around page 266 of the original transcript, there is shown, I believe the figure of some 22,000 to 28,000 people in Hidalgo County Texas as of 1970 were foreign born.

How many of those persons are citizens or have become citizens, no one knows?

Unknown Speaker: So, do you or do you not accept the proposition that a prima facie case has been shown?

Mr. Thomas Parker Beery: I would accept the proposition as Judge Reynaldo Garza did, that it bears prima facie case.

Unknown Speaker: If jurors in order to be even eligible for considerations have to be citizens how do you prove a prima facie case by showing the proportion of residents?

Mr. Thomas Parker Beery: I will leave that to the respondent to answer that particular question.

I do not know, I do not know how many there are in the county, I do not think anybody knows.

Unknown Speaker: Then, why do you tell me you accept the finding that there was a prima facie case?

Mr. Thomas Parker Beery: Well, I think even when we subtract the 22,000 to 28,000 persons that are shown by those census figures in 1970 to be foreign born, but you are still going to come up with the disparity of some sort.

The disparity here was 30%, of course there was 80% supposedly the population was 79.2%.

Unknown Speaker: Population, but not citizens.

Mr. Thomas Parker Beery: Right, not eligible population.

But even subtracting that 22,000.

Unknown Speaker: Why did you not put any of that in your brief?

Mr. Thomas Parker Beery: Your Honor?

Unknown Speaker: Why didn’t you put any of what you argued now in the brief?

Why just save it, just bring it on.

Mr. Thomas Parker Beery: I have no answer to that, your Honor.

Unknown Speaker: I mean, have you filed any brief other than this?

Mr. Thomas Parker Beery: No sir that is the only brief that I have filed.

Unknown Speaker: And you say here you do not have waiver in here, haven’t you?

Mr. Thomas Parker Beery: No Your Honor, I do not.

Unknown Speaker: Not in here?

Mr. Thomas Parker Beery: No, I was relying on the federal cases, it said that once the State Court has reached the merits and jumped over the waiver issue, then federal courts would be bound by that particular ruling.

Unknown Speaker: He might be right about, but I think he can put it in here, in the brief.

I mean this brief does not help me at all, I guess I will just have to read the transcript.

Unknown Speaker: But my understanding is you, you are not relying on waiver in this court, are you?

Mr. Thomas Parker Beery: I do not believe that I can rely on waiver on this court.

I do not think I can, because the Court of Criminal Appeals did not write on the waiver issue, although they referred, squarely faced with the...

Unknown Speaker: Let us move on for merits then...

Mr. Thomas Parker Beery: Alright Sir.

Even assuming that a prima facie case was made by the respondent, 30% in this particular case, we did come back.

The petitioner in the hearing on the writ of habeas corpus before Judge Reynaldo Garza, with the sworn testimony of Judge Alamia, who did testify that he did not discriminate against Mexican-Americans in choosing the grand jury commissioners.

Also I think if we look at the cases cited by the respondent, especially Menees v. Bato (ph).

We can see really in those cases that, especially in Menees (ph) case over a ten year period of time, there had been some 150 Grand Jury Commissioners and none of those had been of the supposed excluded class Mexicans-Americans, but we are all Anglo-Americans.

Also, we would rely on the decision of Judge Garza, Reynaldo Garza that Mexican-American at least on our county, constitute a governing majority.

At the time in 1972, Judge Alamia was the only the District Judge that handled criminal matters, and was only the District judge that selected commissioners and in turn selected grand jurors.

Unknown Speaker: Mr. Berry, doesn’t that assume that members of an ethnic group will not discriminate against other members of an ethnic group?

Mr. Thomas Parker Beery: Yes, that is one of our assumptions, Your Honor.

Unknown Speaker: Do you think that is a valid assumption?

Mr. Thomas Parker Beery: I believe so, I believe it comports with deemed experience.

At least when they constitute a governing majority, it would be unreasonable on my opinion for Judge Alamia and Grand Jury Commissioners to discriminate against other Mexican-Americans.

Unknown Speaker: Is there any evidence in this record that supports your governing majority theory?

Mr. Thomas Parker Beery: There is some evidence, Your Honor.

For example, the population figures of some 80%, there is some support for that particular proposition.

Also, on the hearing on amended motion for new trial at the state judge level, I believe it is Page 216, that I asked the respondent at that time, if he knew of any Anglo-officials in the county and I believe his answer was, no.

Also, Judge Alamia at that particular time asked him if he knew if there was any Anglo-officials at all in the County, and again his answer was, no.

I believed that Judge Alamia also asked him about the Sheriff’s Department, the Police Department, if there was any Anglo’s on those particular departments that he knew of, he also said no.

Also, I believe the records shows that Judge Alamia is official elected State District Judge of Texas, and at that particular time, he was the only one that handled, by custom, criminal cases in our court.

Unknown Speaker: Going back now to my first question, you think it is not possible in Southern Texas, for a State Judge and the commissioners here to practice discrimination in favor of an Anglo minority.

Mr. Thomas Parker Beery: Oh, I believe it is possible, but I would think in that type of situation, perhaps it ought to be on the respondent to prove that it was a result of discrimination by Mexican-Americans against another Mexican-American, because I just do not believe that proposition compose with your human experience.

Unknown Speaker: Well, I gathered, you want us to really take judicial notice of that fact, when you speak of human experience.

Mr. Thomas Parker Beery: Yes.

Unknown Speaker: What exactly do you want us to take judicial notice of?

Mr. Thomas Parker Beery: That Mexican-Americans would not purposely and intentionally discriminate against other Mexican-Americans on sex and grandeur?

Unknown Speaker: I cannot agree why you got your man to stay, that will show you to be contrary.

Mr. Thomas Parker Beery: Might not be perfectly willing to see those studies, Your Honor.

Unknown Speaker: Well, I cannot take judicial notice of something that is in dispute?

Mr. Thomas Parker Beery: Well, at least Judge Garza of the United States District Court believed that to be the case, your Honor.

That they would not, especially elected officials, discriminate against the people who elect them.

Unknown Speaker: I didn’t think you put it in on the like an official point, I thought you put in on nationality?

Mr. Thomas Parker Beery: Well, the elected official in this case.

Unknown Speaker: And you say that there is not a single Spanish-speaking person in the country who would do harm to another Spanish speaking person?

Mr. Thomas Parker Beery: No, no I haven’t said that at all.

I said the elected, the elected officials there they like Judge Alamia will not intentionally discriminate, purposely discriminate against the people who elected them.

Unknown Speaker: Do you mean the charge was against the Judge, I thought it was against the commissioner?

Mr. Thomas Parker Beery: Well as I understand it, it is against the whole system and the Judge is part of the system because he appoints the commissioners.

I believe that is all I have at this particular time.

I will save some for rebuttal, thank you very much.

Chief Justice Warren E. Burger: Mr. Hall.

Argument of David G. Hall

Mr. David G. Hall: Mr. Chief Justice, and may it please the court.

The single most salient and important fact in this case, is Hidalgo County itself and the county’s demography.

It is 79.2% Mexican-American that is almost 80%.

Now, it is true that we are talking about total population here, rather that some of the cases that have been presented in this case that talked about in terms of adult population.

None of the cases in this court that I am aware of, in response to Mr. Justice Stewart’s inquiry to my friend Mr. Beery, have talked about it in terms of citizens as being the norm that by which we compare.

Unknown Speaker: Was there any evidence in those other cases that the state had a requirement of citizenship for grand jury service?

Mr. David G. Hall: I am not aware of any state that does not have a requirement of citizenship for jury service.

Unknown Speaker: Was that discussed in any of the other cases?

Mr. David G. Hall: It has not been discussed in any case, either of this one and, by the, it hasn’t t been alleged by the state in this particular case.

Unknown Speaker: Well, if there is a requirement of citizenship, wouldn’t the most logical statistical approach be in terms of citizens?

Mr. David G. Hall: The question Your Honor, it comes down to who bears the burden of proving that, and I think the clear again board of the decisions of this court and particularly of the Fifth Circuit as well, are to the effect that the state bears that burden as a matter of explanation for the disparity.

If the state is going to say, “Well, yes this 40% of disparity does exists.”

Unknown Speaker: Well, but the question is what do you have to show in order to shift the burden to the state, and what I am saying is would not it the most logical type of statistics for your prima facie case be related to citizenship rather than just residents.

Mr. David G. Hall: Well, on at least four occasions in this court, in Avery v. Georgia.

Unknown Speaker: Well, and you have said that none of those refer to a requirement of citizenship, have you not?

Mr. David G. Hall: That is correct.

The disparity between the population and the jury pool is based upon the total population in Avery, Turner, Carter and Eubanks.

Justice John Paul Stevens: Mr. Hall, isn’t it probable that each of those cases, the total population and the total number of citizens were the same, whereas here there is a probability, it's a border county, and there is a probability of a large alien population?

Mr. David G. Hall: There is a possibility that there is a larger alien -- disproportion of alien population.

Justice John Paul Stevens: Well, is there something in the record that tends to support that inquiry?

You say there is 10,000 to 28,000 foreign-born persons.

Mr. David G. Hall: Mr. Justice Stevens, it really comes down at this point on the basis of the record to pure speculation and the question throughout on these kinds of issues, we can talk about the number of illegal aliens in the population, number of legal aliens, felons, illiterates, persons of unsound mind, those persons who lacking good moral character.

All those of which are qualifications for jury service, the question still comes down to who bears the burden of producing that information, and on this.

Justice John Paul Stevens: Do you think the District Judge sitting in that district could take judicial notice of the fact that there is a large alien population in the border community?

Mr. David G. Hall: No, I do not believe he could, because what we are talking about are -- the case of the prisoner here was a statistical case.

It is our opinion that the statistical case can really only be rebutted effectively with the use of statistics and hard information.

What the state has consistently relied on here is pure conjecture and speculation.

There is some possibility in the record that larger numbers of Mexican-Americans are disqualified on the basis of alienage or education or whatever it may be, but it is nothing more than just speculation, and the question still comes down.

Justice John Paul Stevens: When you say speculation, is -- your opponent says there is evidence in the record that 22,000 to 28,000 foreign born persons reside in the district.

Is that evidence or speculation?

Mr. David G. Hall: That, whether those persons are US citizens by birth, by virtue of having one parent who is an American citizen, whether they are naturalized individuals, none of that information is in the record.

Justice John Paul Stevens: I see.

Unknown Speaker: Did your proof show anything about what percentage were literate, that is could qualify for jury service?

Mr. David G. Hall: Your Honor, once again, the thrust of our proof was the total population by which to compare and then what’s the disparity with that that actually appears on the jury’s list elected by the commissioner and we did not get into the question of...

Unknown Speaker: But don’t you think that is quite important?

Mr. David G. Hall: If I were trying the case on behalf of the state, yes Your Honor, I would certainly want to go looking for those kinds of statistics, to try to explain that disparity.

Unknown Speaker: Do you have any obligation to show anything about the literacy question to the total Spanish-surname people?

Mr. David G. Hall: Your Honor, on understanding of the decisions of this court on Whitus, Turner, Coleman, Avery, Paten and Hill, indicates the contrary that when it comes to -- if the state is going to rely upon a suggestion that the victims of discrimination are victims solely because they lack the qualifications for service, then it is up to them to prove that fact.

Justice Byron R. White: Well, Mr. Hall, the cases that you have mentioned say that on the basis of pure statistics and a simple disparity between the population and the proportion and of the racial make-up of the panel.

An influx may be drawn that there has been systematic racial discrimination, and because there is hardly any other explanation.

I gather the cases say that -- and if there some other explanations the state ought to prove it, but now the state says that normal inference of systematic racial discrimination should not necessarily be drawn because the it just does not make sense, this is the argument anyway, that the people who choose juries would systematically discriminate against their own race.

Now, the inference out of the cases rests in human experience and in logic and common sense, and the state is saying that that inference should not be drawn when the great majority of the population is, well, when the discrimination is not against the minority.

Mr. David G. Hall: Well, of course there are number of examples where we have seen discrimination against a majority and the courts have really not talked.

This court has not talked about, nor as of any other, that I am aware of, talked about the focused attention upon who is doing the discriminating.

The thrust of your question, Mr. Justice White, is perfectly well taken.

I think all of us, -- this case would have been an easy case in 1969, before Judge Alamia took the bench.

This disparity, is grotesque disparity has been presented to this court.

All the state is relying upon other that the speculation in the record, we talked about as far as alienage and education is concerned, is what -- and I think what they would like for this court to do is to erect an ir-rebuttable presumption that a black cannot discriminate against a black, than a Mexican-American Judge, and Mexican-American.

Unknown Speaker: No, they are just going to say that you wouldn’t make out your prima facie case based on just the statistics you’ve presented, that just a disparity would not prove your case.

Well, that's all the state suggested, because all you have got is the disparity.

Mr. David G. Hall: Not necessarily, we can…

Unknown Speaker: Well, what else do you have?

Mr. David G. Hall: Well, first of all we have got the Texas system itself, which is a totally subjective system.

It's totally part of the same argument, so that is part of argument in the cases on the books, go to justify the inferences, that it is a, this disparity -- there is this disparity and there is this opportunity for discrimination.

Mr. David G. Hall: Well, if you remove from us the ability to rely upon a statistical case, and you remove from us the ability to rely in part proof -- as in such cases as Turner, for example, which talks about the subjective, that the discrimination occurs at that point when subjective discretion is permitted.

Unknown Speaker: But who won the cases normally where the people choosing the jury?

Historically the cases and the key-man system, there were White Jury Commissioners choosing juries.

Mr. David G. Hall: Without being articulate in the opinions, that seems to be the case, I would assume that is the case.

Unknown Speaker: The power structure was involved, here the power structure is just the reverse, is it not?

Mr. David G. Hall: Not entirely, and we are talking about...

Unknown Speaker: Not entirely but we are talking at the reverse of the one Justice White was talking about.

Unknown Speaker: In the record, who owns the property down there?

Mr. David G. Hall: Well, there is nothing in the record about that and there is nothing in the record about the number in 1972 or 1971, when this incident occurred, as to the number of registered voters, and whether they were Mexican-American majority or minority or the members of the Mexican officer holders, nothing in the record about that, what kind of offices they have.

What case really boils down to is with where do we place the burden of proof in this kind of a situation, as the burden falls upon the single defendant and the single criminal action to prove that his class, his ethnic group, is as qualified or more qualified than the rest of the population in the community, then you settled him with an enormous burden that is not shared by criminal defendants in other kinds of jurisdictions.

Unknown Speaker: Mr. Hall you concede, as I understand it, that you as an individual defendant have the burden of making a prima facie case.

Mr. David G. Hall: That is correct.

Unknown Speaker: I suppose the question here then in the case like this, what is a prima facie case?

Mr. David G. Hall: That is correct and as we say it based upon the decisions of this court, admittedly Mr. Justice White, in a different kind of a context, but applying the same rules to Hidalgo Country that we applied at the rest of the nation, that a prima facie case is made by showing some kind of a disparity, a significant disparity.

Unknown Speaker: What do you think you are entitled to in a grand jury?

Mr. David G. Hall: We are not entitled proportional representation under Swain, of course.

Unknown Speaker: You think you are entitled to a fair cross-section?

Mr. David G. Hall: I think we are entitled to a fair cross-section.

Unknown Speaker: Where did you get that?

Mr. David G. Hall: Of course, Peter’s and Taylor, the two most recent opinions.

Unknown Speaker: Well, of course Peter’s -- can you cite any majority opinions indicating on a constitutional basis that there is a right to a fair cross-section?

Mr. David G. Hall: Of course, Mr. Justice Marshall wrote one…

Unknown Speaker: You have got a right to a jury that’s picked without racial discrimination.

That is what’s you have got a right to.

Mr. David G. Hall: That is correct.

Unknown Speaker: That is as far as the case as the cases goes so far on grand jury, isn’t it?

Mr. David G. Hall: On grand juries, yes.

Now, of course, I believe in your opinion in Peter’s, excuse me in Taylor, that you cited the language, Mr. Justice Marshall used in Peter’s.

Unknown Speaker: But Taylor was the --

Mr. David G. Hall: Was the Sixth Amendment Petit jury case.

Unknown Speaker: That is correct, the petit jury.

Mr. David G. Hall: But, at that what focus -- the interesting focus of both Peter’s and Taylor’s are upon not the discrimination, like in Taylor, it was difficult to say that there was intentional discrimination because it was the women who were refusing to opt in to the system that resulted in a jury pool, that was not representative of a cross-section of the community.

Unknown Speaker: Yes, but that -- making a prima facie case about -- of what you have a right to as a cross-section is one thing and making a prima facie case what you have got a right to is to be free from racial discrimination, is something else again.

Mr. David G. Hall: That is correct, and I do not want to confuse the two.

I understand the distinction, but I just wanted to point out to the court that there seems to be at least in those two cases, a renewed emphasis upon the defendant’s right to a jury that is representative of his community, at least in the Sixth Amendment petit jury situation.

Unknown Speaker: I believe, the Court Of Appeals has already disagreed with Judge Garza’s determination but perhaps not open to re-examination in many respects, but you are showing in the case, dependent on an assumption that all of the Spanish-surname people or citizens and that they were all literate, did it not?

That is where you get your 79.2% figure.

Mr. David G. Hall: Your Honor, the 79.2% figure is total population and I relied upon Avery, Turner, Carter and Eubanks among other decisions in a lower and the Fifth Circuit, to support the proposition that we are entitled to use -- let me kind of back-off of that a second.

If the disparity here were less, somewhere in the norm of, in the order of say 15% to 20%, I certainly would have gone off to attempt to show that that could not possibly been based upon alienage, literacy or the others.

But here we have a 40% disparity, forty-plus.

In 1939 this court decided Pierre versus Louisiana, there was a 49% disparity there, and that was a total exclusion case.

In Arnold in 1964 there was one 44.47%.

There are 43 other written opinions of this court on this subject, and none reached a disparity any higher than this one, with the exception of the two I just mentioned.

When you have got those kinds of disparities, it is our argument that there is a lot of room there for conjecture about alienage and literacy, and sound mind and good moral character and the other statutory qualifications.

But the burden properly has to be placed upon the state to explain.

Unknown Speaker: You think your 79.2% shifted the burden to the state, and the state should then have come in and demonstrated in some ways statistically that half of them could not speak English and 40% of them were not citizens and so forth.

Mr. David G. Hall: Yes, you’re Honor.

Unknown Speaker: If that, if they could make that showing.

Mr. David G. Hall: If they can make that showing, now of course, they have the testimony of Judge Alamia who had been empanelling the juries for two–and-half year period.

One person had ever disqualified himself for language, he was not a Spanish speaker, he was a Polish descent, who does not speak English, he was an Anglo in other words.

That is the only evidence in the record about the language.

Unknown Speaker: Mr. Hall, when you speak of the 43 cases from this court, are you lumping together Petit jury and Grand jury cases?

Mr. David G. Hall: Yes, you’re Honor, I am including all of those on the subject.

Unknown Speaker: And they are all but all, but one involved the alleged discrimination against Negros?

Mr. David G. Hall: At Hernandez is the exception.

Yes, Your Honor.

Unknown Speaker: One exception.

Mr. David G. Hall: At Hernandez, 1954.

Unknown Speaker: And, what were the figures in that case?

Mr. David G. Hall: Hernandez was 11.1% in Jackson County Texas in 1952 or 1953, but there were no Mexican-Americans ever having appeared on, it was a total exclusion.

Unknown Speaker: Oh, it was a total exclusion case, wasn’t it?

Mr. David G. Hall: Right.

Unknown Speaker: Mr. Hall, is there any question about this issue being here, am I correct in my impression, it was raised for the first time and they appealed in the Texas State Court?

Mr. David G. Hall: That is correct your Honor, it was raised for the first time after the trial on a motion for new trial, and the Texas Court of Criminal Appeals ignored the State’s arguments about waiver and decided the case on the merits, Coleman v. Alabama, Ervin v. Diode.

There are number of decisions of this court indicating to the Lower courts and then also of this court, of course, it will reach the merits in that kind of a circumstance.

Unknown Speaker: Mr. Hall, your opponent made reference to the number of persons, Mexican-Americans, who had no schoolings.

Where does that come in the records, in the Habeas Corpus hearing?

Mr. David G. Hall: Your Honor, the record is essentially the same record that was made in the state court.

Now, what we did was introduce that entire record in the...

Unknown Speaker: How was that opinion involved in the State’s court if this issue wasn’t raised at the trial level, that is what puzzled me.

Mr. David G. Hall: It was raised on a motion for new trial.

The State court permitted me to make the showing of this on motion for new trial.

Unknown Speaker: And, in their response to the motion for a new trial, they put in these figures?

Mr. David G. Hall: No, all they are relying solely on figures that we put into the record.

Unknown Speaker: Oh, I see.

Mr. David G. Hall: The Habeas petitioner’s figures, the respondents’ figures here.

Unknown Speaker: One other question Mr. Hall, that troubles me.

Supposing that there were full trial on the evidences shown that the jury commissioners had actually been motivated by a desire to get their social peers on the grand jury, people of same economic status, was that a state decline?

Mr. David G. Hall: This was a suggestion, I suppose it raised in the Federal District Courts.

Unknown Speaker: Judge Garza raised that.

Mr. David G. Hall: Judge Garza raised that question, he was saying that this is really not, perhaps is not ethnic or national origin discrimination, but rather it is class or status.

Unknown Speaker: In which way would that cut, if that was the fact?

Mr. David G. Hall: If that were the fact, if that is what it were, then we would have certainly the disproportional impact upon Mexican-Americans, given economic status of Mexican-Americans in the County, but then it would raise this whole specter of the cross-section again and...

Unknown Speaker: Whether we cut one way to the Petit jury, it would not hurt you in the Petit jury, it would help you.

But, on the grand jury, it is a problem.

Mr. David G. Hall: Correct.

In closing, the only statement I would like, the further statement I would like to make to the court is that we are talking about an individual’s opportunity to be tried before a jury of his or her peers.

Unknown Speaker: Indicted?

Mr. David G. Hall: Yes, your Honor, indicted.

Of course, on that point in Alexander v. Louisiana, I believe Mr. Justice White, in a Footnote points out that the standards and principles for judging the kinds of claims are essentially the same.

I believe it was court footnote, that's correct.

Unknown Speaker: Mr. Hall, let me ask you one other question.

As I read the Court of Appeals’ opinion, if the case is remanded for a further hearing, and there will be the state given an opportunity to put it any other evidence, is that your reading, or do you think the case is over?

Mr. David G. Hall: That was not my understanding of it, now the state has already had two opportunities for hearing.

As a matter of fact, when this case was first taken into the Federal Court on the Habeas Corpus, the State was advised by Judge Garza in a memorandum order, that the petitioner had shown sufficient evidence to shift the burden of proof to them and that they were expecting to come forward with evidence, and this they have totally failed too.

Now, on two occasions they have refused to put in any kind of evidence other than the testimony of the Judge.

Unknown Speaker: I understand, that goes the question whether they should get another hearing.

My question is how do you interpret the mandate that the court ends up by saying it remanded for further proceedings, rather than just simply reversing and directing the writ issue.

Mr. David G. Hall: I presume, the way I understood that, I presume what they were suggesting is that it be remanded to the District Court for the purpose of issuing an order requiring a trial, a re-indictment or retrial within 90 days.

That is my understanding of it.

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

Mr. David G. Hall: Thank you.

Chief Justice Warren E. Burger: Do you have any further Mr. Beery?

Rebuttal of Thomas Parker Beery

Mr. Thomas Parker Beery: I believe that is all, Your Honor, thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.