Warren E. Burger: Number 268, Parker against North Carolina.
Norman B. Smith: May it please the Court. Mr. Chief Justice.
Warren E. Burger: Mr. Smith.
Norman B. Smith: I'm Norman Smith, I represent the petitioner in this case. This is a companion case to the Albert case and it again has to do with our North Carolina statutory system on the rendering of guilty pleas in capital cases. This proceeding is by habeas -- was by our statutory substitute for habeas corpus in North Carolina, our statutory Post Conviction Hearing Act. There was a petition for certiorari from an adverse determination there to our Court of Appeals in North Carolina which is our intermediate Appellate Court for most matters, but which is a court of final appellate jurisdiction for post conviction matters. Again, there was an adverse determination and again petition for certiorari that was filed in this Court, which of course was granted. This case has its beginnings in 1964, in the summer of 1964 the petitioner who was then a 15-year-old child was arrested by police at gun point about 11:00 one night in the City of Roanoke Rapids in North Carolina and he was taken to an interrogation cell and there he was interrogated for a time. He at first was extremely uncooperative, indeed refused to give his name and address. However, he apparently from some source knew that it was good idea to ask for counsel under these circumstances and the record indicates without any impeachment or contradiction that he did request that a counsel be provided for him. The police securing no fruits from their labors of interrogation on the initial interview placed him in a dimly lit or unlighted cell for the night in which there was no water available to him nor no food given to him. He was held over night and next morning he was again interrogated, this time he broke down rather quickly and did render a statement to the police, an oral statement to the effect that he had gone into the house in question and that he had committed some form of house breaking or that he had gotten through the door and some manner. The precise detail of this statement or confession is not a part of the record at any point along the way and I might like to point out to the Court here on this point that there was no hearing in Superior Court at the time the guilty plea was rendered in this case. That is there was no evidentiary hearing, no -- none of the state's testimony was given insofar as the record indicates and I'm not personally aware that there was one. There was some --
Potter Stewart: Are you familiar or not with the -- with the law of your state which I certain I'm not to know whether it is the practice to do that or not sure or is it varied by county or is it varied by case or what?
Norman B. Smith: It varies by the -- most of operation of individual solicitors and judge, There is as far as I know no statutory compulsion that this be done. Some judges in the exercise of care like to have -- always have something on this order. I think defendants quite clearly at this time also were permitted to make statements and to present evidence if they wished to do so.
Potter Stewart: On this four I gather that is from the record of the other case?
Norman B. Smith: Yes, there is no attention to the rules of evidence during such hearings. The defendants are permitted to get up and through counsel or give all sorts of unsworn testimonies to what kind of good character they have and so forth and so on.
Potter Stewart: This is a guilty plea and I suppose the purpose is to (a) ascertain whether the guilty plea is knowingly and voluntarily made not to cut against your case, I don't mean to, but and then but the purpose generally is for that and then also I suppose insofar as the trial judge has discretion in imposing sentence to apprise him of the circumstances of the offense so he can intelligently exercise his discretion, would that be?
Norman B. Smith: Yes, Your Honor, I think that's true, I think some of our judges except the philosophy of Rule 11 to the effect that there should always be basis in fact for the plea and then also of course it must be knowingly and voluntarily --
Potter Stewart: In this case, there was no discretion as far as the [Voice Overlaps] --
Norman B. Smith: The record does indicate --
Potter Stewart: -- am I correct about that?
Norman B. Smith: There was some colloquially between the court and the defendant and between the court and defendant's mother in which the court did inquire in the certain circumstances of defendant, his age, his educational background. We're shown friends and said he had unsuccessfully been enrolled in the ninth grade, I think the year prior. This was -- I think the record does indicate that this case had extreme racial aspects to it, the [Voice Overlaps]
Potter Stewart: Just before you proceed, perhaps you didn't understand my last question. Did the court have any discretion whatsoever in the sentence to be imposed in this case?
Norman B. Smith: I'm sorry, no this was under our old rule --
Potter Stewart: A mandatory life sentence --
Norman B. Smith: -- and it was a mandatory life sentence, yes.
Potter Stewart: -- could not be greater, could not be less?
Norman B. Smith: That's right sir. This was charged a first degree burglary. There was no indication that any other charges were being considered at that time. Although, there is a gratuitous finding by the judge, who heard the post conviction case that he shouldn't been charged with rape as well. Incidentally, the state has made the point in its brief and I think if I may say so quite inappropriately that there was an admission of guilt by the defendant in the post conviction hearing that he fully admitted his guilt and so forth and so on. I think a careful reading of the record indicates that the defendant did not admit guilt of either rape or burglary. He did admit that entered this house that he had relations with the woman who was there, but he was arrested as the record indicates on the very doorstep of the same house four nights later and it's quite clear that there was strong element of consent or implied consent or some sort of an arrangement which is hidden by background and has not been disclosed on the facts of the case. I hope that there will be new trial in this case and I hope that at the new trial, the defendant will have fair and full right to bring all these matters out to the attention of the triers of fact. Also, some further brief background material on the defendant; there is a psychiatric evaluation of the petitioner in the record indicating that he is an inhibitive and impulsive individual and this likely to act in such ways to secure his immediate goals. We suggest that in this case the immediate goal of the defendant and the overwhelming goal that loomed in front of him was the avoidance of capital punishment because of the strong racial connections which this case had in the times and spirit of the times in which the case was heard or brought up and we think that the record demonstrate that there was a very substantial fact of this present. The whole theoretical basis for the Jackson case as I understand it is this compulsion or this tendency to coerce people to render involuntary pleas for them to give up their rights of trial by jury and the right to plead not guilty, the right to have a full trial. I realize the course of the actual facts of the Jackson case and precise holding of the Jackson case go off in a different direction as the Court pointed out a moment ago in this raised argument, but it seems to me the whole theoretical basis for the Jackson case is to provide some protection for a person found in the position of the petitioner in this case. We say that the evidence on the record indicates that there was substantial coercion present. We say that there should be some sort of a test formulated by the Court in this case to determine when and when not to extend Jackson protection to an individual. We fully and candidly recognize that the court is not prepared to carve out a per se rule and to say that every guilty plea to every capital offense heretofore in one of those states or the federal jurisdiction where a Jackson type statute obtained must be now set aside. We do say however that some sort of test must be devised by the Court to decide when and when not to set aside these judgments and convictions.
Warren E. Burger: Well, counsel could you tell me whether in any case where the death sentence is a possibility, is it permitted in your view for the defendant to plead guilty to some lesser offense? What be the conditions that would have to exist to permit that?
Norman B. Smith: Well, Your Honor of course the facts of my case do not involve a lesser offense, but I realize that the Court does have that problem in the series of cases. My client here pleaded to the capital offense. I would say, I've discussed this point in a footnote in the brief. I suggested that where the lesser included offense carries a sentence so large that it is tantamount to life imprisonment that then the matter should be considered on a parity with a guilty plea carrying life imprisonment itself. And thus I suppose this rule would extend to Mrs. Bray's case. I don't know where the stopping point is Your Honor. Like this case as in many other cases the stopping point some where must be arbitrary and where this Court will place it or should place it, I cannot say. I do say however that my client falls within the boundary and within the limit for which we contend here. I would think --
Warren E. Burger: And that's because he plea -- he entered a plea of guilty as charged?
Norman B. Smith: Yes to the offense which ordinarily would be capital, were it not for the entering of the guilty plea.
Hugo L. Black: I presume that the stopping place would be a constitutional stopping place, wouldn't it, not just a decision of this Court?
Norman B. Smith: Well, of course this Court is charged with the duty of finding such as stopping place, Your Honor. I don't know where it would be. I suggest it as I say in the footnote that maybe the stopping point would be where you get a sentence which is tantamount to life imprisonment such as Henry Alfrod's 30-year sentence although that's not in my case and I really unable to say with certainty. I would think that the test -- that the Court should invoke in these cases is something like a test devise in Chapman versus California, carrying forward the realization that in not every case would the guilty plea be set aside, but only in those cases where the evidence made some showing that the fear of the death house, the fear of the gas chamber had an effect, substantial effect.
Warren E. Burger: That would be every case, wouldn't it, wouldn't the fear of the death house always be factor that could exert influence, if not the coercion?
Norman B. Smith: Well, --
Warren E. Burger: How could it not?
Norman B. Smith: -- I think one would have to say substantial influence.
Warren E. Burger: Could it be otherwise?
Norman B. Smith: I think it probably could be otherwise.
Warren E. Burger: Do you think -- do you see anything in the constitution which either forbids or tends to discourage or cast any doubt upon the whole idea of having guilty pleas entered in criminal cases?
Norman B. Smith: No, Your Honor I certainly am not attacking idea of allowing guilty pleas. I think you get into a quagmire when you have a disparity in sentencing, one involving life and the other involving death when you base a guilty plea on that distinction. Fortunately not every state is gotten into that quagmire. There are only some eight states and the federal jurisdiction indicating from footnotes contained in our brief and also footnotes or portions of the amicus brief filed by the NAACP legal defense fund. Also, on the basis of some rather sketchy statistics which I've gathered in the brief and which are on file with the Court, it's indicated that perhaps the total number of prisoners who would be affected by a favorable decision for my client in this case would not be an overwhelming number in that a great number of prisoners who've served out almost as many years as the average prisoner normally serves of the life sentence before dying or being paroled or in somehow the way terminating the service. And that also we're not contending for a per se rule but we would only provide new trials for those persons who could show in some way that the guilty -- that the fear of the gas chamber contributed substantially to the guilty plea so that the floodgate argument may not be as persuasive in this case as it would appear on the first blush.
Byron R. White: Is your client [Inaudible] bars or --?
Norman B. Smith: No, he's been denied relief all along the way and he is serving his life sentence. Also, in the present case, we feel that when you take the statutory construction together with the coerced confession which was obtained from the petitioner that these together make a rather potent showing of an invalidity of the guilty plea. The confession was clearly in violation of the Escobedo Rule. It was subsequent to the pronouncement of the Escobedo case and also we feel that the confession violated the principles declared by this Court in Gallagos versus Colorado. Considering the youth, the educational limitation as a physiological deficit of the prisoner, the fact that the prisoner's mother was kept from seeing him during the night in which the confession was obtained, his isolation and the denial of drinking water and other matters which are brought out in the record and which are not overcome by any adverse evidence. Even giving the state the benefit of always favorable testimony we feel quite clearly that under constitutional standards as shown by this Court, there was a coerced confession.
Potter Stewart: Is your United States against Jackson argument really just a part of a coerced confession argument or do you think it's an additional or different argument, did it deny it?
Norman B. Smith: Oh! We think the two go forward together and both taint the plea. We feel that this coerced confession adds weight to the Jackson type infirmity that was present in this case. How far the Court should go in allowing new trials when there is a Jackson defect in the statutes, I don't know. I would suggest though that because of this additional problem relating to the voluntariness of the confession, the Court would be justified certainly in setting this guilty plea aside.
Potter Stewart: So, you think in this case the -- your claim is that the guilty plea resulted from a combination of things, all bad --
Norman B. Smith: That's right.
Potter Stewart: -- (A) a coerced confession and (B) the statutory scheme of North Carolina which was coercive upon a person to plead guilty, is that it?
Norman B. Smith: That's right sir.
Potter Stewart: A combination of both?
Norman B. Smith: And we have another aspect to this case I want to bring briefly to the Court's attention if I may that is a completely unrelated matter, but certiorari was just generally granted in this case so I assume that the Court is interested in it. And this was the point concerning the systematic exclusion of Negroes from the grand jury which indicted the petitioner, of course he never came to trial, so the trial jury is not in question here. Quite clearly the statistics in this case show that the petitioner comes within that long line of cases decided by the Court on the permissible limits of racial exclusion of grand jurors providing he did not waive his right to attack this jurisdictional defect of the court. Evidence shows that seven-and-a-half percent of the jurors served on grand juries for the preceding four years that the Negro, five-and-a-half percent of those who served on the particular grand jury which indicted him were Negro. Only 4.4% of the jurors who had served for four years on all jury venires are were Negro, whereas the total population, the total adult population of county was 45% Negro and the tax payers of the county were 39%.
Thurgood Marshall: What do you say to the answer that Court of Appeals made that that was objected to little -- three years after the conviction?
Norman B. Smith: That's the problem Your Honor, I think were faced with here. We have a conflict of authority prevailing in our part of the country and we're depending on this Court to clear it up. The Fourth Circuit, under the case of McNeil versus North Carolina and I might add the Fifth Circuit under the case of Cobb versus Balcombe and others has determined that there can be no waiver of such a constitutional jurisdictional defect to the court unless there is a showing of an intentional, knowing waiver living up to the full requirement of Carnley v. Cochran and Fay v. Noia and the other waiver cases that this Court has determined. The Court of Appeals of North Carolina on the other hand says he's represented by counsel, counsel is presumptively competent. Even though this matter was not discussed between petitioners and his counsel nor even brought up by the counsel or was it in any way brought to anyone's attention by the court, but he nevertheless is deemed to waive it. We say there cannot be a valid waiver when it takes place in a vacuum, when it takes place in the midst of ignorance and lack of information, lack of discussion so forth. This Court quite clearly has stated that waiver is a personal decision which must be arrived at by the defendant himself. In consultation with counsel he must have all of the facts at his disposal and that he must himself participate in the decision. Applying these principles to a similar case, the Fourth Circuit and McNeil versus North Carolina and the Fifth Circuit in Cobb v. Balcombe have come to me what is the inescapable conclusion that a waiver of constitutional nature must be established. Here, there is utterly an absence of evidence on this point that would favor the state and all the evidence clearly is in the petitioner's favor and that there was no discussion and consideration of it and we feel that constitution here compels a retrial on that ground.
Potter Stewart: The constitution you say compels that this conviction be set aside -- this judgment be set aside?
Norman B. Smith: Yes, Your Honor.
Potter Stewart: And for what?
Norman B. Smith: Well, for two reasons.
Potter Stewart: Yes, I understand why you say it should be set aside, but then set aside and for what further proceeding?
Norman B. Smith: Well, I should think the state would have to bring a new indictment against the petitioner and would have try him anew.
Potter Stewart: Try him or could he plead guilty?
Norman B. Smith: Well, he probably could plead guilty if he chose to do so --
Potter Stewart: Then wouldn't we back here with the same case?
Norman B. Smith: Well, if I were his lawyer I wouldn't advise him to plead guilty under the circumstances. I think I advise not guilty plea. Some of the persons of his own race now a days in North Carolina would be on his jury. I think he'd have a fair shake and I'd be quite willing to try this case on a not guilty plea and quite willing to bring it up here again if constitutional defects came in the trial which I hope and pray would not be the case.
Potter Stewart: But that would as a practical matter I suppose to be the result or reversal, would it not, that he'd be tried again by a jury which as I understand it if there is a finding of guilt would result in a death sentence unless the jury recommended mercy in which it would be a life sentence?
Norman B. Smith: Yes sir, he fully understands that because I explained this to a very throughly before the post conviction proceeding was commenced whether, a point Ms. Bray discussed is whether one once having received life can be put at risk of death again under these double jeopardy cases as I suppose at issue here.
Byron R. White: You say he thought he could -- you'd won if he were indictment to the plea guilty under the North Carolina statute?
Norman B. Smith: Not -- he could not plea guilty to burglary or rape because you can no longer do so in North Carolina.
Byron R. White: [Inaudible]
Norman B. Smith: That's right. Well, I believe I have nothing further except to thank the Court for hearing the argument and praying once again that the relief request be granted. Thank you.
Warren E. Burger: Mr. Safron.
Jacob L. Safron: Mr. Chief Justice, may it please the Court. Initially, I believe I have to disagree with the presentation of counsel's facts. Admittedly, approximately four nights before the night his client was arrested, this particular house in Roanoke Rapids, North Carolina was broken into and the female occupant raped. As a result, the house was put under surveillance and it occurred to approximately 11 PM on that Sunday night. And now at approximately 11 PM four nights later, Thursday night the house is under surveillance and the youth is viewed as he comes upon the grounds and comes to the door at that point he is arrested, at gun point of course, naturally. He was then brought to the police station, it's now --
Hugo L. Black: You say the house was under surveillance.
Jacob L. Safron: Yes, Your Honor.
Hugo L. Black: At the time the burglary was committed?
Jacob L. Safron: This is four nights later when he comes back --
Hugo L. Black: Yes.
Jacob L. Safron: The house was under surveillance.
Hugo L. Black: Four nights later?
Jacob L. Safron: That's right Your Honor.
Hugo L. Black: But it was not the night that was broken into.
Jacob L. Safron: Oh! No Your Honor, of course not. He was brought to the police station for interrogation. He refused to tell his name, refused to tell where he was from. He was interrogated for approximately two hours. He was put in a cell for the remainder of the evening. This is from approximately 1:00 at night on, but they're not -- I would not believe that the cell was dimly lit or not lit at all for the middle of the night. He hadn't told the police officers who he was or where he'd come from. The police officers had to find out who he was independently and having determined independently who he was in the middle of the night in approximately 3:30 or 4:30, they went to the mother's house and told the mother that her son was in custody. And if they said, don't bother coming now or whatever they might have said, I don't know, but the next morning at sun rise, the mother was on the door steps of a very competent law firm in Roanoke Rapids, North Carolina waiting for the doors to open up and as soon as an attorney came in, she employed Mr. Cranford. Almost contemporaneously, the defendant was interrogated again early that morning, this is before counsel was employed and he admitted and confessed to the crime. Counsel arrived on the scene having been hired by the mother just a few minutes after --
Hugo L. Black: What did you say counsel's was name was?
Jacob L. Safron: Cranford.
Hugo L. Black: Not the counsel that's now representing?
Jacob L. Safron: No, Your Honor. This was privately retained counsel George O. Cranford of the Roanoke Rapids Bar. He arrived and he asked the petitioner, this is in the record just a few minutes later, was he scared and whether the attorney questioned petitioner is to whether when he made the confession had he threatened in any manner, whether any promises were made to him and whether he was scared at the time he made the statement, this is in the record. Petitioner told counsel that no threats or promises had been made then he was not scared. For two days --
Hugo L. Black: Is that evidence undisputed?
Jacob L. Safron: Completely undisputed Your Honor.
Hugo L. Black: What you say?
Jacob L. Safron: That's undisputed, that's on page 67 of the appendix. At the time of the trial, or when the case was on the docket for that term for two days preceding the trial, counsel spent these two days with petitioner and his mother and a written authorization was prepared as required by North Carolina law upon the submission of a plea of guilty to a capital case. The law requires that a plea of guilty to a capital case be in writing. Out of an abundance of caution, finally retained counsel, Mr. Cranford after these two days that he spent with the defendant and his mother, called in a fellow member of the bar to witness the execution of the authorization. This fellow member of the bar out of an abundance of caution in his own right interrogated the defendant and his mother at the time the defendant signed the written authorization, this is in the record too. That's in the appendix, page 73, Charlie D. Clark Jr. attorney at law in Roanoke Rapids wanted to be absolutely certain that petitioner knew what he was doing and the consequences of his act. The written tender of the plea of guilty was submitted to the court. It was accepted by the solicitor in writing and was accepted by the judge. The court, this is in the record, interrogated the defendant as to the voluntariness of his plea and the court also interrogated the defendant's mother in the courtroom, whereupon, the mandatory sentence of life imprisonment was imposed. From the facts of this case --
William O. Douglas: And how old was he at that time?
Jacob L. Safron: He was 15, Your Honor. And the facts of this case, I don't believe a discussion is necessary upon whether or not the confession was involuntary, I believe the facts speak for themselves and of course the Jackson defect, we have previously argued. I'd like to spend some time on this question of grand jury discrimination. Mr. Smith was the post conviction attorney. He represented Mr. Parker at the post conviction. The only witness put on the stand was a Register of Deeds of Halifax County and from the testimony of Mr. Smith's witness or Mr. Wilson's testimony, it was apparent that there was no racial discrimination that the -- then statutory scheme in North Carolina was that the names for the grand jury were selected from the tax rolls. Admittedly, at that time, there were tax rolls maintain for both Caucasian and white -- excuse me Caucasian and Negro, this is subsequently been changed by statute and no longer exist. The tax rolls had to prepare that way but the names in the jury box had no indication, no racial discrimination. The testimony presented by Mr. Smith's witness show that the jury commissioners came from different parts of the county, selected individuals who were known to them to be of good moral character that the same criteria were applied uniformly. Now, I submit that perhaps what we get to in this instance is something akin to the former blue ribbon grand jury selection used in the Federal District Courts. There is no deliberate showing of racial exclusion, merely a showing that these jury commissioners pick up people known to them to be a good moral character. Perhaps of any issue confronting this Court today, this issue could perhaps to be most vital because it is counsel's contention here that unless there is a free, voluntary and knowing waiver of the right to attack the grand jury that that attack can be made at any time. So, it would appear that not only upon a plea of guilty, if counsel's arguments were to be followed, but also upon a plea of not guilty, unless the state could show that the waiver to attack the grand jury was freely, voluntarily and understandingly made. In the State of North Carolina since 1902, for the case of State v. Peoples, the Supreme Court of North Carolina has held that a defendant who cold show racial exclusion in the composition of the grand jury which indicted him was entitled to relief. Our statutes expressly provide that the method of grand jury selection maybe attacked. That attack has to come either one, prior to arraignment or two, prior to swearing in of the petit jury. This rule is quite similar to the rule in effect in the federal system.
Thurgood Marshall: Mr. Safron, what worries me just this moment, is that these two lawyers were so abundantly cautious in getting all this business for the plea of guilty, but they didn't get it written up that he voluntarily waived his grievance against the grand jury, is that correct?
Jacob L. Safron: That's true Your Honor, it's not included. I'll be quite frank with you, in all the authorizations of guilty pleas that I have ever seen prepared by counsel, I have yet to see counsel include that particular waiver. Usually, it's an authorization to plead guilty that the defendant understands his rights, but I have never seen that specified.
Thurgood Marshall: During all these discussion with his mother over two days, am I correct?
Jacob L. Safron: That's correct Your Honor.
Thurgood Marshall: Was that matter discussed?
Jacob L. Safron: Apparently not.
Thurgood Marshall: How could it been waived if it wasn't discussed?
Jacob L. Safron: Well, he was represented by privately retained counsel, Your Honor and apparently privately retained counsel was doing -- performing for his client the best services that he thought available under the circumstances. But what concerns me is this. Our statutes provide you may attack the grand jury selection. The federal rules provide that you can attack grand jury selection at any time prior, I believe similar here it is Rule 12 (b) (2). The federal rules of criminal procedure provide defenses and objections based on defects in the institution of the prosecution or in the indictment or information other than it fails to show jurisdiction to the court would charge an offense maybe raise only by motion before trial. Motion shall include all such defenses and objections then available to defendant. I submit that in either a trial upon a plea of not guilty or trial upon or submission of a guilty plea that this could have a horrendous effect if this Court were now to require that each and every such instance that the waiver be on the record. The federal system had blue ribbon grand jury selection. Not only of what we are talking now about Negro defendants, we're talking about Spanish-American defendants, we're talking about Puerto Rican and an attack could be made in the federal system, if collateral attack could be made on grand jury selection on behalf of every indigent white defendant. Because the former system in effect in the federal courts under the former blue ribbon system of grand jury selection presented a middle class grand jury. The indigents were not on that grand jury and so I submit that the total effect here would permit every defendant convicted on either plea of guilty or not guilty, unless somehow an express waiver could be shown that he would be now be permitted to collaterally attack the grand jury which indicted him. That this defendant is not given the opportunity to choose his own time and his own place to contest his guilt now that the evidence is in most instances no longer available now that the witnesses have moved or they forgotten, now that many instances are dead and the evidence has been destroyed. I submit that the picture presented would perhaps completely overburden the courts of all the states and of the federal judiciary. This case of course also presents the Jackson issue and also presents the issue of whether or not Jackson is retroactive, if Jackson is applicable. There are at the present time according to my research either eight or nine states which have possible Jackson defects if this Court should rule that these defects do exist. In the federal system of course there's a Federal Kidnapping Act, the Federal Bank Rubbery Act, there is the sale of narcotics to minors, the Atomic Secrets Act, here in the District of Columbia there is the rape statute. The Court of Appeals of course for the District of Columbia has previously held in Bailey versus United States that retroactivity is not to be applied in the rape statue. The effect once again, if retroactivity were to applied regardless of the argument previously presented that while the state is going to retry them after all some of these defendants have served a great deal of time and they are eligible for parole. This argument I think denies the -- is an argument of expediency in that regard because that argument says, well, there are a great number of men, but however they'll be eligible for parole and good number them on attack. I can advise this Court because I handle habeas corpus everyday of the week. I represent the state in the federal system and District Courts that the floodgates have opened up that petitions are coming in at a rate is unbelievable. All these defendants and particularly those in instances where the weight of the evidence was overwhelming or coming in, I was coerced to plea guilty because of the fear of death. I was coerced to plead guilty because of the statutory scheme. They are denying the fact that they plead guilty because at the time of their trial, the state had overwhelming proof of their guilt, but now they are coming in and now they are trying to choose this time and this place to once again litigate. Now, that the states in most instances, most probably cannot successfully be prosecuted. If the Court has no questions, that would conclude my argument.
Byron R. White: What do you do about the segregated taxes?
Jacob L. Safron: That of course Your Honor -- that has been abolished by statute, at that time it was required by statute.
Byron R. White: How about this case?
Jacob L. Safron: Now, at the time this grand jury was selected, there were two tax lists, one for white and one for Negro. The tax lists -- however, the grand jury list had no racial designation at all.
Byron R. White: Well, how about the -- do you mean the names were drawn of the taxes lists after they were drawn?
Jacob L. Safron: Once they were taken from the list, they had no designation and I believe in this case and most other cases --
Byron R. White: Why this --
Jacob L. Safron: Of course Your Honor, in this case at the post conviction hearing conducted by Mr. Smith himself, he completely failed to show except to his statistics that there was any discrimination. His own witness refuted that contention. His own witness said “This is the procedure that was used and --“
Byron R. White: What university major in the number of Negroes on its grand jury against all the total population or just the names? They weren't any -- were there women serving on grand juries in North Carolina at this time?
Jacob L. Safron: Women? Yes, Your Honor, we've had women -- I have no idea how far back but we've had --
Byron R. White: Well, it must to be there years if I understood briefs that women weren't serving on those grand juries [Voice Overlaps]
Jacob L. Safron: Oh! Perhaps to this one county because it's when these middle poorer counties and I don't think they had restrooms for women in the courthouse. If that's the situation I believe that perhaps women had been excluded from that jury because they didn't have restroom facilities for the women.
Byron R. White: So, we're measuring this against capital problem, not the population?
Jacob L. Safron: Perhaps so Your Honor, yes.
Byron R. White: But even so the 134 Negroes out of the total number of grand jurors is the -- how do you suppose that happened?
Jacob L. Safron: Well, --Just because that the -- just the commissioners didn't know Negroes or was it because they knew Negroes, but thought they were incompetent?
Jacob L. Safron: No, the testimony that was brought out was that the same criteria was used in selecting white prospective grand jurors as the Negro grand jurors, that the criteria used was the criteria of the North Carolina statute.
Byron R. White: Well, then if you have the -- if they employed the same criteria and they examine the same number of Negroes and whites where you can get the same number of Negroes and whites on the jury list, but that wasn't so?
Jacob L. Safron: I would submit this that the commissioners knew more white people.
Byron R. White: That's the answer, isn't it?
Jacob L. Safron: I --
Byron R. White: And they didn't know very many Negroes to whom to apply the criteria?
Jacob L. Safron: But the criteria was equally applied and I submit it's similar to the situation formally in effect in the federal system. The blue ribbon type of jury where there was a recommendation. Those --
Byron R. White: Since the taxes lists were segregated then knew how many Negro names they were considering and how many white names they were considering, didn't they?
Jacob L. Safron: Of course, the total number of names was before them in the tax list, you would have two volumes at that time, one white, one colored. Now, of course our statutes have been amended and we only we have one for individuals and incorporations and additional sources have been added by statute. The voter registration list and other items it's all through into one part now to increase the listing. Of course this is the tax list, people who have listed for the purpose of both personal property taxation and ad valorem taxation. So I would submit that this perhaps is another basis for a difference that perhaps you had more white residents of the county with property who listed for the purpose of taxation.
Warren E. Burger: The case is submitted. Thank you for your submission gentlemen.