John G. Roberts, Jr.: We'll hear argument this morning in Case 17-9572, Flowers versus Mississippi. Ms. Johnson.
Sheri Lynn Johnson: Mr. Chief Justice, and may it please the Court: The only plausible interpretation of all of the evidence viewed cumulatively is that Doug Evans began jury selection in Flowers VI with an unconstitutional end in mind, to seat as few African American jurors as he could. The numbers alone are striking. In the first four trials, Mr. Evans exercised 36 peremptory challenges, all of them against African American jurors. In the sixth trial, he exercised five out of six of his challenges against African American jurors. If we look at the numbers of his -- regarding his questioning, they are likewise stark. He asked of the struck African American jurors an average of 29 questions. He asked of the seated white jurors an average of 1.1 questions. But these numbers do not stand alone. Mr. Evans was twice found to have discriminated on the basis of race in the exercise of his peremptory challenges against African American defendants in trials of the same case against the same defendant. There is no one who has a record of discrimination, adjudicated discrimination, like that of Mr. Evans.
Samuel A. Alito, Jr.: The history of the case prior to this trial is very troubling, and you've summarized that. And it is -- it is cause for concern and is certainly relevant to the decision that ultimately has to be made in the case. But if we were -- and I'm not suggesting that this is the way it should be analyzed; this is not the way it should be analyzed -- but, if we were to disregard everything that happened before this trial, and we looked at the strikes of the black prospective jurors as we would in any other Batson case, do you think you'd have much chance of winning?
Sheri Lynn Johnson: The evidence still is clear and convincing that Mr. Evans acted with discriminatory motivation in this case, even if we set aside his history and his -- the reasons that he was unwilling to tell the truth in previous cases.
Samuel A. Alito, Jr.: I mean, if we look at -- at the jurors in question one by one, there are aspects that I think would cause any prosecutor anywhere to want to get that jury -- that juror off the jury. You know, there's a juror who said that she -- she couldn't view the evidence objectively. She couldn't make a decision based just on the evidence. There's one who said that she -- because of her acquaintance with members of the Flowers family, she would lean toward the defendant. Another one who admitted that she made a false statement on her juror questionnaire because she'd say anything to get off the jury. I mean, do you think those are -- those are Batson claims that would likely succeed if this troubling history had not preceded this case?
Sheri Lynn Johnson: This Court has demanded a sensitive inquiry into all of the circumstances that prove racial discrimination. And, again, even setting aside his history, there are many circumstances here that suggest racial -- racial motivation. First, as I already said, there is an extraordinary record of disparate questioning. And the disparate questioning is not limited to those numbers but to the tone of his questioning. I believe that one of the -- the responses that you quoted came from an extremely aggressive pursuit of an African American juror who initially said she would not be troubled and ultimately said it's possible. Now, of course, a prosecutor could take that approach with every juror. If he took that aggressive approach with every juror, then there would be nothing to complain about. But he did not take that approach with white jurors. And then there is his out-of-court investigation of three African American jurors. And then there are --
Samuel A. Alito, Jr.: But what -- what's wrong with that? Again, putting aside the reasons to be suspicious, if a juror says, I don't -- I didn't work -- I don't work closely with the defendant's sister, I don't work close to the defendant's sister, and the prosecutor has reason to suspect that's not true, is there something wrong with the prosecutor going to the human relations person at that place of employment and bringing that person in to testify they actually work nine to ten inches apart? Is something wrong with that?
Sheri Lynn Johnson: There's nothing wrong with that if there was reason to disbelieve the juror. The juror volunteered that she knew her, that she worked in that place. There -- Mr. Evans cited no reason that he should not believe her. But, also, what happens after that is somewhat suspicious, which is he brings someone in to say: Well, they worked very close together. And that someone says: And I could produce the evidence. And when asked to produce the evidence of that, the records that produce it, he doesn't come back with that evidence. So I think we could certainly -- a prosecutor could --
Sonia Sotomayor: Wait.
Sheri Lynn Johnson: -- and a rich prosecutor might investigate all --
Samuel A. Alito, Jr.: What is your strongest --
Sonia Sotomayor: Did he -- did he have that witness ready that same day, or did --
Sheri Lynn Johnson: No, he brought the witness back the next day.
Sonia Sotomayor: The next day, okay.
Samuel A. Alito, Jr.: What is your strongest strike?
Sheri Lynn Johnson: I -- I think the most -- the clearest case is that of Carolyn Wright. Carolyn Wright -- about Carolyn Wright, he made three false statements. The first statement he made was that her wages were garnished. That was not --
Samuel A. Alito, Jr.: Well, actually, we have found that, in the record with a state exhibit on it, a judgment that shows that her wages were garnished.
Sheri Lynn Johnson: No, the wages -- there's a mark that shows that there was such a request, but both the trial court and the Mississippi Supreme Court looked at that record and found that her wages had not been garnished. And in --
Samuel A. Alito, Jr.: Well, we can look at that. We can look at the judgment. But the fact remains that she was -- this was -- one of the victims was the proprietor of -- of a family-owned store, right? That's a family-owned store?
Sheri Lynn Johnson: Correct.
Samuel A. Alito, Jr.: And the store -- the store sued her?
Sheri Lynn Johnson: Well, the store sued her. The victim herself had not sued her.
Samuel A. Alito, Jr.: Well, but the store did.
Sheri Lynn Johnson: It's the son-in-law later that sued her.
Samuel A. Alito, Jr.: But, normally, wouldn't that -- you know, again, put aside the history. We -- but we can't -- in the end, we can't do it, but if you did, don't you think a prosecutor or any attorney would be very wary of having a -- a juror who had been sued by one of the parties?
Sheri Lynn Johnson: I think that if this prosecutor had pursued bias with respect to white jurors as well as African American jurors, and then made that strike, then that would be a strike that would be a permissible strike. But, in fact, he didn't do that. So, first of all, I do want to notice that this was one of four victims. It does seem rather unlikely that a person in a quadruple homicide case would be biased by a subsequent suit of one of the relatives. But, even if we thought that that were true, one would have imagined that the prosecutor would have inquired about bias with respect to the other victims.
Ruth Bader Ginsburg: Wasn't there a question asked of the entire array of whether they had any debts to the -- to the store?
Sheri Lynn Johnson: Yes, but there was no question asked about suits or disputes with other -- with the other three victims, nor was there an inquiry into bias that I think any rational prosecutor would have made if concerned, truly, about bias, which was lawsuits, prosecutions of the jurors and their close relatives by his office. The prosecutor made no inquiry about that. If you were worried about bias, you would be worried about that. If you were --
Sonia Sotomayor: Did he even ask Ms. Wright how she felt about that suit and whether it would affect her in this case?
Sheri Lynn Johnson: In fact, she was asked about the suit. And when she was asked about that suit, what she said is that she had paid the debt and that she had no ill will toward the Tardys. And, indeed, if we follow up on this reason, I think this reason is especially suspicious because he cited the same reason with respect to Edith Burnside. So, first of all, he said -- with respect to Edith Burnside, he repeated the false statement that her wages had been garnished, despite the fact of having been called by the trial court on it the first time, and then he said that he was striking her in part on that basis. But Ms. Burnside had --
Sonia Sotomayor: Can you go back, and -- and just slow down a second? You said to Justice Alito that that record in -- that state record that says something about garnishment, that the state courts found that that was not adequate. Could you explain why not?
Sheri Lynn Johnson: Well --
Sonia Sotomayor: That judgment in the record, what is it or --
Sheri Lynn Johnson: The judgment --
Sonia Sotomayor: -- that -- it's not a -- it's a form in the record, but what does it mean?
Sheri Lynn Johnson: The form in the record reflects a suit, and there's a little check by garnishment. But, if you look at the order at the end, there is no garnishment order. The trial court looked at that and the Mississippi Supreme Court looked at that. And I think they are the experts about what their documents mean. And they said there was no garnishment.
Neil Gorsuch: What if -- what if it turned out there were a garnishment? How would that affect your argument, if at all?
Sheri Lynn Johnson: Well -- well, then that would mean that he only made two false statements about Juror Wright. The two false statements were that she knew Flowers' sister, Cora, and that she knew Flowers' sister, Sherita. So then there would be two. But, if I could go back for a moment to Ms. Burnside, when he repeated the story, I think the -- the pretext of this reason is apparent when we look at Ms. Burnside. Ms. Burnside worked for Ms. Tardy. Ms. Burnside worked for Ms. Tardy, caring for her mother. Ms. Burnside was helped during her divorce by Ms. Tardy. So whatever she might have felt negative about the son-in-law, the feelings she would have had about the victim herself could only have been positive. And yet he cited this same reason. When we look at that, what we see --
Samuel A. Alito, Jr.: Didn't Juror Burnside also say repeatedly she didn't want to judge anybody?
Sheri Lynn Johnson: No, she did not -- oh, Juror Burnside said --
Samuel A. Alito, Jr.: Yes.
Sheri Lynn Johnson: -- that she did not want to judge anyone. She did say that. But I think what's --
Samuel A. Alito, Jr.: And you think that's not a legitimate reason for -- for striking a juror who's going to have to judge whether someone who's accused of a serious crime is guilty or not?
Sheri Lynn Johnson: That is a legitimate reason for striking a judge -- I'm sorry, for striking a juror. (Laughter.)
Sheri Lynn Johnson: But the problem -- the problem isn't whether the reason is a legitimate reason but whether the reason was pretext. And when we look at what he did with respect to citing the relationship having been sued by the Tardys, it looks like everything he's saying is pretext. And if I could also go back to the rest of your question about Juror Wright. So there were three misrepresentations with respect to Juror Wright. There was also -- they also cited the number of defense witnesses that she knew. But the prosecutor, Doug Evans, did not question prospective white jurors Waller, Lester, Blaylock, and Fields about their relationships with witness -- with white -- with defense witnesses, nor did he strike them when he had an opportunity to do so.
Samuel A. Alito, Jr.: But isn't it true she also worked with the defendant's father?
Sheri Lynn Johnson: She worked in the same location as the defendant's father, but --
Samuel A. Alito, Jr.: She worked in the same store, right?
Sheri Lynn Johnson: She worked in the same store.
Samuel A. Alito, Jr.: At the world's smallest Walmart.
Sheri Lynn Johnson: That's what the --
Samuel A. Alito, Jr.: That's what they said.
Sheri Lynn Johnson: -- that's what the trial court described it as. But -- but it is important to notice that when she was asked does he still work there, she didn't even know if he still worked there. So there's really --
Samuel A. Alito, Jr.: Yeah, but did she still work there?
Sheri Lynn Johnson: She did.
Samuel A. Alito, Jr.: I thought she had left?
Sheri Lynn Johnson: No, that's another juror with respect to -- I believe with respect to Cora Flowers. But what I wanted to -- she didn't know if he still worked there, but --
Sonia Sotomayor: Compare her with Pamela Chesteen. That comparison is the one that I'm most interested in.
Sheri Lynn Johnson: I was about to do that. And so I think that it's true that working with someone under some circumstances might produce bias. It is interesting that the only thing she said that might suggest the closeness of the relationship is that she didn't know whether he still worked, and the -- and Evans did not ask about the closeness of the relationship. Nor did he worry about the closeness of the relationship with Juror Chesteen and four or I think it's maybe even five of Flowers' family members. Juror Chesteen worked as a teller in a bank where all five of them came and she waited --
Sonia Sotomayor: She said that she knew the father as well.
Sheri Lynn Johnson: Yes, she knew the father and the mother and two sisters and a brother. And Doug Evans --
Ruth Bader Ginsburg: But isn't --
Sheri Lynn Johnson: -- was not interested in pursuing --
Ruth Bader Ginsburg: -- isn't that -- that relationship of a bank teller to someone who comes to make a deposit different from someone who is a coworker and it would encounter someone in the work set -- setting on a daily basis?
Sheri Lynn Johnson: It is a different relationship or it could be a very different relationship. We can't actually even know the closeness of either relationship unless there was inquiry. But Doug Evans did not make that kind of an inquiry. Indeed, what he said to Juror Chesteen is -- and that was a purely professional relationship. He didn't ask whether she had a close relationship, whether she was worried. He instead presumed, reassured, everyone that she did not.
John G. Roberts, Jr.: All the -- all the -- the questions that we've been addressing here are the same sort of questions you would get in a typical Batson case, looking at the circumstances of the potential jurors that were struck in this case. But, I mean, of course, as -- as my colleagues have recognized, the case is unusual because you have the extensive history. And I think that's probably why the case is here for -- for review. And I'm interested, because, obviously, the rule we adopt will apply in other cases, how far your argument that we need to look at the past history is -- is pertinent. If -- if the prosecutor had -- had one Batson violation in his 30-year career, 20 years ago, is that something that should be brought out and pertinent in the assessment of the current Batson challenges?
Sheri Lynn Johnson: Mr. Chief Justice, may I say one thing about Carolyn Wright that I don't want to forget?
John G. Roberts, Jr.: Sure.
Sheri Lynn Johnson: The other thing that's noteworthy about her is that she put on her death penalty questionnaire that she was strongly in favor of the death penalty. So, when we look at her as a whole, a -- a -- a prosecutor who was looking in a colorblind way would have been attracted to her.
John G. Roberts, Jr.: Now for my question?
Sheri Lynn Johnson: But now -- now for your question. And I apologize, but I was worried I would not get back to that. So I think this is an extraordinary case. I have combed the cases and I cannot find any case --
John G. Roberts, Jr.: No, no, I know it's -- you're -- you're fighting the hypothetical. My question is 30 years, a Batson violation 20 years ago, is that pertinent to the consideration in the current case?
Sheri Lynn Johnson: I'm sorry, I didn't understand the question then. Yes, it is pertinent, but it's weakly probative. So I think, when we conduct a consensitive inquiry, we look, as we would in a criminal case, we look at how recent a fabrication has been, whether it's on a relatively similar matter, whether the person has the same motive. So a case that occurred 30 years ago would be very different in terms of motive. It also would be quite different in terms of the established law of this Court.
John G. Roberts, Jr.: Well --
Sheri Lynn Johnson: So someone who violates Batson before it's announced or someone who violates Batson immediately thereafter, that's less probative than someone who has done so repeatedly.
John G. Roberts, Jr.: So -- so what is -- what is the rule you would have us adopt as a general rule, not just in a particular case as extreme as this one?
Sheri Lynn Johnson: The general rule is a rule that you have already adopted, which is that, in Stage 3, every factor that bears upon credibility is relevant. So that's the general rule. And I suppose if we say that in another way, the Mississippi Supreme Court asked only the question of is there a juror left -- is there a reason for this juror left standing that is not contradicted by the record and exactly matched by a white juror. And that's not the right rule. The right rule is a sensitive inquiry.
Brett M. Kavanaugh: Even --
Neil Gorsuch: Go ahead. Your turn.
Brett M. Kavanaugh: No, you go first. (Laughter.)
Neil Gorsuch: All right, all right.
John G. Roberts, Jr.: Justice Gorsuch.
Neil Gorsuch: All right. I want to pursue the Chief Justice's question just a little bit further so I can understand what you'd have us do in the next case. Let's just suppose this case, trial 6, was perfect and the strikes were without taint otherwise, but we have this history with this prosecutor. Would that be a problem still, or would there be no Batson violation in those circumstances?
Sheri Lynn Johnson: If there weren't eight misrepresentations of fact --
Neil Gorsuch: Right.
Sheri Lynn Johnson: -- disparate questioning --
Neil Gorsuch: Right, right.
Sheri Lynn Johnson: -- all that stuff --
Neil Gorsuch: Right. You're fighting the hypothetical again.
Sheri Lynn Johnson: -- and there's only the history --
Neil Gorsuch: Yeah, yeah. The hypothetical is let's suppose that this case, there were strikes, but they were explained by non-discriminatory reasons. Yet we have --
Sheri Lynn Johnson: And there were no other --
Neil Gorsuch: -- yet we have this prosecutor with this history. What then? How should the Court assess a case like that?
Sheri Lynn Johnson: If there are no other indicia of discrimination, then the defendant has not met his burden of proof by proving prior discrimination.
Neil Gorsuch: Okay. So we need discrimination in this trial in order to have a Batson violation?
Sheri Lynn Johnson: Yes.
Neil Gorsuch: Okay. All right. That's helpful. Thank you.
Brett M. Kavanaugh: My question was about the history. I thought that Swain had said that the history was relevant. In fact, Swain said history was the only way you could prove a violation. What Batson did was to say no, you can look even at the individual case. But Batson, as I read it, did not say you no longer take account of the history. Your reading of Swain and how Swain and Batson interact?
Sheri Lynn Johnson: I think that's entirely correct, Your Honor. Even in Swain, history was relevant. And to look more broadly, in Arlington Heights, this Court said that history is relevant. So -- and in Miller-El said that history was relevant. So there isn't a new rule about history being relevant. The Mississippi Supreme Court ignored what this Court has already said about history being relevant. And --
Ruth Bader Ginsburg: The court -- the court --
Sheri Lynn Johnson: -- the broader point, that everything --
Ruth Bader Ginsburg: -- the court said it took account of the history. So what are we to make of that?
Sheri Lynn Johnson: Well, if there were -- if the court had taken account of its -- of the history, it couldn't have come to this conclusion. And I think there's many reasons in the opinion to believe that they did not. They said, considering the history, it doesn't alter our opinion, and they pasted in their prior opinion that was history blind. They also said his -- his history does not undermine his stated reasons. That's wrong. It undermines those reasons. It may or may not be sufficient, but a history of will -- of a desire for a -- an all-white jury, a history of willingness to violate the Constitution, and a history of willingness to make false statements to a trial court, those things in the past with respect to at least three other jurors, that does undermine it. And then I think, when we look at what they actually did, there is no point in which they say: Yes, we are more skeptical of the reasons that he stated because he was dishonest before, or, yes, when I look at -- at the false statements he made here, the eight false statements he made here, those match with false statements that he made before. They never did that. So I think they did not consider his history, nor did they consider anything else that would be consistent with this Court's insistence that we look at the totality of the circumstances and conduct a sensitive inquiry into.
Elena Kagan: Ms. Johnson --
Ruth Bader Ginsburg: You say your strongest case is Juror, potential juror, Wright. One of your complaints is that there were many more questions asked of African American potential jurors, but that wasn't so in Wright's case, that she was asked, I think, only three questions. Is that --
Sheri Lynn Johnson: That's correct.
Ruth Bader Ginsburg: Yes.
Sheri Lynn Johnson: But I think, you know, it is -- actually, the relevance of the disparate questioning is not merely to ask how many questions this juror was asked. So it might indeed be as the Mississippi Supreme Court said that, with respect to some African American jurors, it was legitimate to ask them more questions because more of them knew Flowers' family. But the -- the point still remains -- and this is the point that this Court made in Miller-El -- disparate questioning of even another juror is relevant. It does suggest that the prosecutor is looking for reasons to strike an African American juror, as opposed to being interested in bias or death penalty attitudes or anything else.
Elena Kagan: Ms. Johnson, some time ago Justice Alito asked you about the prosecutor's investigation of certain potential jurors. And how many jurors did the prosecutor separately investigate and were --
Sheri Lynn Johnson: Three.
Elena Kagan: And all African American?
Sheri Lynn Johnson: All of them were African American. And when defense counsel said he's investigating African American jurors, there's no evidence that he investigated anyone else. He said nothing. So he had an opportunity to say, oh, I've investigated everyone, and he did not say that.
Elena Kagan: And can I ask you about the disparate questioning? Because you referred to something which struck me when -- as I read through all of this. This is -- unlike some Batson cases you see, it's a very small town where everybody knows everybody, apparently, or many people know many people, and it's a largely segregated town, where you might think that African Americans knew more African Americans than they would whites or vice versa. So does that account for some of the differential questioning? In other words, just sort of looking at the environment and saying, I have to push more on whether X knew Y because, given the circumstances of the town, X might very well have known Y?
Sheri Lynn Johnson: The Mississippi Supreme Court said that it accounted for some of the differential questioning, and I think that's correct. There are more African American jurors who report relationships with defense witnesses or the defense family members. But there are five -- five white jurors who report such relationships and whom the prosecutor did not ask questions about those relationships. So --
Ruth Bader Ginsburg: Such -- when you say "such relationships," were they relationships because of working at the same place or living in the same neighborhood, in the case of the white jurors?
Sheri Lynn Johnson: They were -- none of the relationships were working at the same place. But when -- when he was asked -- when -- when they were asked in group voir dire about whom they knew, white jurors responded that they knew defense witnesses, and they were not questioned about those witnesses. So we can't really know what the nature of those relationships are if we don't ask questions.
Samuel A. Alito, Jr.: Do you -- do you have those names or is -- is that in your brief someplace? I don't remember.
Sheri Lynn Johnson: It is in the brief, but it is Waller, Lester, Blaylock, and Fields, as well as Chesteen.
Sonia Sotomayor: I found it strange, but maybe you can -- or unusual, I should say, not strange -- unusual that there were some white jurors who had people accused of crimes in jail, relatives accused of crimes in jails. Were there any questions about how that affected those white jurors?
Sheri Lynn Johnson: No, there were no questions about that at all of three of them and I think a very brief question about -- for two of them. And I think that goes to the question of, was he really investigating bias when he asked this question about being sued by Tardy Furniture? If you're really investigating bias, you would be concerned about bias against your office. And he was not interested in that. With the Court's permission, I will reserve the rest of my time for rebuttal.
John G. Roberts, Jr.: Thank you, counsel.
Jason Davis: Mr. Chief Justice, and may it please the Court: The history in this case is troubling, but the history is confined to this case, and, as Mr. Chief Justice pointed out, it is unusual. There are -- this is the sixth trial in this small town, a small town of approximately 5,000 individuals. The questioning of whether the makeup or the limited number of individuals in the town was one of the reasons for follow-up questions is accurate. At the outset, let me say that the Mississippi Supreme Court's decision in this case was commensurate with Batson and its progeny. And I would return to Justice Gorsuch's question of if we disengage this troubling history -- and I agree, I'm not suggesting that, as Justice Alito said -- however, if we take that out of the case, we -- we don't have any taints.
Samuel A. Alito, Jr.: Could I just ask --
Brett M. Kavanaugh: We can't be --
Samuel A. Alito, Jr.: -- a question of the Mississippi law? Could the attorney general have said, you know, enough already, we're going to send one of our own people to try this case, preferably in a different county, where so many people don't know so many other people? Could he have done that?
Jason Davis: Statutorily, the Attorney General's Office is allowed to assist, is allowed to take over, but only upon request by that district attorney. So that was not an option in this case. We were not so requested.
Brett M. Kavanaugh: You -- you said if -- if we take the history out of the case. We can't take the history out of the case.
Jason Davis: No, Justice Kavanaugh. I'm not saying that's what I'm saying exactly happened --
Brett M. Kavanaugh: It was 42 -- 42 potential African American Americans and 41 are stricken, right?
Jason Davis: Yes, Your Honor, that is correct.
Brett M. Kavanaugh: We have to -- that's relevant, correct?
Jason Davis: That is relevant, yes, Your Honor. The -- as this Court has held in Miller-El, history is part of the consideration.
Elena Kagan: So you agree that it's not only the adjudicated Batson violations that are relevant but also the number of strikes such as Justice Kavanaugh listed?
Jason Davis: I do with qualification. There -- the strikes were unique. The strikes in this case are supported in the record. Each of the jurors that were struck either worked with a relative, were related, or knew, intimately, family members, the defendant or his family members, up to and including one juror who lied on her questionnaire and then admitted to lying on the stand.
Ruth Bader Ginsburg: You have a very strange position on potential jurors who lied because there was the case of white juror, Huggins, who said he had no knowledge of the Flowers case when, in fact, he was on a 2007 voir dire panel. And you say: Oh, well, that doesn't matter that -- that he lied because he didn't admit to lying. I think if someone lied and didn't admit to it, that would be a count against that person, rather than in that person's favor.
Jason Davis: And -- and the trial court in this case made the distinction that the juror who was struck for lying on her questionnaire admitted on the stand that she lied intentionally, which was not the case with Juror Huggins. And it would seem, it appeared, that he -- his participation in the panel, and he was dismissed long before he got anywhere near selection, that he either forgot that or it completely left his mind at the time he was initially questioned.
Sonia Sotomayor: But let's go back to that. If we're looking at whether this is pretext, Mr. Evans was willing to give an excuse to this juror and keep him, despite the fact that there was direct evidence that he knew about the case. He was willing to accept a white lie, but not a truthful answer under oath in front of a judge. Doesn't that suggest pretext to you?
Jason Davis: Again, Justice Sotomayor, the -- the issue as it reads from the record is that the juror who lied on her questionnaire expressly admitted that she lied for the sole purpose of getting off the jury.
Sonia Sotomayor: Well --
Jason Davis: And -- and that doesn't --
Sonia Sotomayor: -- I have to tell you, if that were the case, I -- I don't think one could take one juror and not push them on those questionnaires and come up to an intentional understatement or overstatement.
Jason Davis: Again, Your Honor, that was -- and this is one of the issues with this case, is that each one of these strikes that we have, we don't have one single reason. We have numerous --
Sonia Sotomayor: That --
Stephen G. Breyer: All right. Let -- let's look at them. But you do have history. Trial 1: Five black juror possibles, uses peremptories, strikes all five. Trial two: Five black jurors possible, uses all five, strikes all five blacks. Okay. Trial number three: There were 17 black possible. He uses only 15 this time. Why? Because he ran out of peremptories. He only had 15. All right. Fourth trial: 16 black. He only struck 11. That's because he only had 11 peremptories perhaps. All right? Now we come to this trial with that background. Okay. And I don't think it's going to take much once you have that background. So now let's look at one black juror, one white one, potential. Okay? Let's call them 1 and 2. Both are women. Both are in their mid-40s. Both have some college education. Both strongly favor the death penalty. Now the potential black actually has a brother serving as a prison guard. Now you would have thought that might have favored the prosecution in the prosecutor's mind. Okay. So that's one difference. I don't think that cuts in your favor. Then have they ever had anybody arrested, you know? No, neither has. And do they know people in the case? Yeah. They each know something over 30 people, same, same, same, same. Now is there a connection with the Flowers family? Well, the black juror did, in fact, possibly work at some distance, we don't know quite what, with the father at Walmart, and the white one knew his father, mother, sister, cousin, through her work as a bank teller. And then we get the last thing, which the Mississippi Supreme Court thought was so crucial, is that the -- the black potential juror was sued for overdue credit, and maybe she paid the garnishment of $30. I don't know. But the white juror had been a friend of the victim's daughter in high school. Okay? There we have it. Potential black, potential white. And we have the whole background. Now, looking at that, you tell me, what was the difference as to why he could strike, if that background, Carolyn Wright, the potential African American juror who was Number 4, and Pamela Chesterton, the potential white American juror who was Number 17. What's the difference? What's the difference given all those similarities?
Jason Davis: Juror 14, Carolyn Wright, was struck because she was sued by Tardy.
Stephen G. Breyer: Yeah.
Jason Davis: Juror 14, Carolyn Wright, worked with the defendant's father, Archie, at Walmart.
Stephen G. Breyer: Yep.
Jason Davis: The distinction would be the --
Stephen G. Breyer: Wait, wait. You didn't add that Juror Number 17 had been a friend of the victim's daughter in high school and also knew Flowers' father, mother, sister, and a cousin through her work as a teller at the bank.
Jason Davis: Wright's relationship with the father was a work relationship, an employee/employee relationship. Chesteen was a bank teller, admitted that she just saw them coming in through the bank. So this was a -- an employee and customer relationship, which the Mississippi Supreme Court made a distinction.
Stephen G. Breyer: In other words, it was closer, the first relationship?
Jason Davis: Well, the --
Stephen G. Breyer: And the record when I read that will bear out that the first one really was a closer relation than seeing them every week or whatever as a bank teller.
Jason Davis: Well, the record --
Stephen G. Breyer: Will -- will it say that? I don't think it will because I think they said, well, how closely physically did you work with the -- the father? And there was no answer to that question.
Jason Davis: The -- the record will bear out that the district attorney only struck those individuals that worked with members of his family. And that was consistent.
Stephen G. Breyer: Okay. So that's the reason. The distinction is when I go back in the record, I have to say, knowing Flowers' father, mother, sister, cousin through the work as a bank teller is not a good reason for striking somebody. But working with Flowers' father at some unknown distance at Walmart is. And that's the crucial difference I will find. There is a difference there, but is there anything else? Because, after all, I have the history, plus -- plus now I've narrowed it down -- that's why I asked -- I've narrowed it down to that being the difference.
Jason Davis: Again, Justice Breyer, I would also say that one of the differing things was that she was sued by Tardy.
Stephen G. Breyer: Yes.
Jason Davis: Which was a theme with at least one other --
Stephen G. Breyer: Right. And so I also should look at that and then decide whether that really is more significant than the fact that Number 17 was friends with the victim's daughter in high school. You know, sometimes you're friends with your high school -- your high school pals you don't forget. So -- so I -- so those are the two things I should look at. Is there anything else?
Jason Davis: I think that's enough, Your Honor.
Elena Kagan: I mean, in many --
Stephen G. Breyer: Well, I do too. (Laughter.)
Samuel A. Alito, Jr.: Is there any --
Elena Kagan: -- in many respects, Mr. Davis, Ms. Wright is a -- is a perfect juror for a prosecutor. Right? She is -- she strongly favors the death penalty. Her uncle is a prison security guard. Her relative is the victim of a violent crime. Except for her race, you would think that this is a juror that a prosecutor would love when she walks in the door. Isn't she?
Jason Davis: Not if she works with the defendant's family and not if she was sued by the workplace of one of the victims. And -- and that's the distinguishing factor here.
Neil Gorsuch: Counsel --
Stephen G. Breyer: I don't want to imply, I'm sorry, that you have directed me to the two relevant parts of the record, and before I make up my mind definitely, I will read those two relevant parts, both sides. Okay?
John G. Roberts, Jr.: Again -- counsel, again, we're sort of conducting this as if it were one -- one case. And in terms of a broader rule, do you -- do you recognize or do we recognize in our precedent any restriction on the prior history that can be brought up with respect to a current -- current case?
Jason Davis: No, Your Honor. And -- and far be it from me to presume the full basis for the grant, but I certainly see that as one of the issues before the Court, is, as Your Honor asked, how far are we to go? And -- and -- and what does it matter? What -- what part does that history play?
John G. Roberts, Jr.: But my point is do you -- is there anything in our precedent that suggests that there ought to be a limitation on looking to the history of the prosecutor involved?
Jason Davis: There's no limitation on the history. I think certainly the precedent says that you have to consider it. I'm not aware of any language in Batson and its progeny for this particular circumstance where we have six trials by the same district attorney. I'm not aware of any. This is a unique situation in that regard.
Neil Gorsuch: And -- and along those lines, Justice Breyer's pointed out a dichotomy that in other circumstances might be explicable by an innocent reason. But, if all of the history is relevant, as you acknowledged, how -- does that -- what light does that shed on what otherwise might appear to be an innocent strike? And when -- when should -- what rule would you lay down -- I know that's hard to do, but we're presumably taking cases to guide future disputes, not just to resolve this one. How -- how would you -- how would you write that rule as to the relevance of the past information with -- when we're looking at the current trial?
Jason Davis: In responding to that, Your Honor, let me say that when we use the word "history," we are limiting it to this case, this district attorney and his over 25 years of experience, having searched for additional cases and no cases cited by the Petitioner, outside of this case, in regards to a Batson violation. So the history is limited here. The question then is what to do in a case like this. How much does the specter of those two prior violations come into play in the -- in the analysis in this? I think it certainly has to be looked at. I believe the trial judge --
Sonia Sotomayor: Is it just the specter of the two violations? Weren't there two cases that were overturned or -- in which prosecutorial misconduct -- at least the first was overturned on prosecutorial misconduct. They didn't even reach the Batson challenge.
Jason Davis: Yes, Your Honor.
Sonia Sotomayor: But doesn't that tell you something about this man's passion for this case? I -- I don't even need to call it anything else, but doesn't that tell you how you should be looking at this case?
Jason Davis: I -- I can't speak to his passion for the case, Your Honor. I can speak to his pursuit of conviction in this in the sense of the six trials, which -- in which there -- there were --
Sonia Sotomayor: But he didn't -- I understand he didn't ask the attorney general to step in, which he could have, to prosecute the case. But I understand he lobbied two legislators to try to change the venue, legislatively. Is that correct?
Jason Davis: That's my understanding, Your Honor.
Sonia Sotomayor: So he could try the case?
Jason Davis: Well, try the case outside of Montgomery County.
Sonia Sotomayor: Instead of getting the attorney general to try the case?
Jason Davis: And -- and I would again reiterate --
Sonia Sotomayor: In his own county?
Jason Davis: Yes, Your Honor. And -- and we are strictly prohibited from inter -- interjecting ourselves in cases we tried, not in this case but in another case, and our supreme court --
Brett M. Kavanaugh: In Batson --
Jason Davis: -- said you can't do that.
Brett M. Kavanaugh: Sorry, in Batson, we held that a prosecutor cannot state merely that he challenged jurors in the defendant's case -- of the defendant's race on the assumption or his intuitive judgment that they would be partial to the defendant because of their shared race. That was really the critical sentence in Batson, and the dissent disagreed with that. The critical change. You can't just assume that someone's going to be favorable to someone because they share the same race. And when you look at the 41 out of 42, how do you look at that and not come away with thinking what was going on there was what the dissent in Batson said was permissible, that the majority said was not permissible, that there's a stereotype that you're just going to favor someone because they're the same race as the defendant?
Jason Davis: I respectfully, in this case, in no way agree that there was some prior determination made by the district attorney that -- that because of this person's race, they were not going to be favorable. Again, this case has spanned some 23 years now in this small community. One of the inherent problems that --
Elena Kagan: But I -- I guess I don't understand how you can say this. In this case, there were three adjudicated Batson violations.
Jason Davis: Two.
Elena Kagan: Okay, two. (Laughter.)
Jason Davis: Two. The -- Flowers III and Flowers II both had adjudicated Batson issues. That the trial court was aware of that was evident. The same trial judge presided over the fifth trial. And in this case, we had the same defense counsel. Counsel moved in motions that were offered in the fifth trial up to and including, in Joint Appendix 42, Motion Number 57, which was a motion to bar prosecution from exercising peremptory strikes at all or at least from exercising them against non-white minority members. Judge Loper adopted his prior rulings. His ruling on that motion also included caution, caution to both parties that if there's any objections or challenges based on demeanor or based on a juror's appearance, that if it wasn't in the record, he was not going to consider it.
Samuel A. Alito, Jr.: Did we have some --
Sonia Sotomayor: I'm sorry, counsel, did you just --
Samuel A. Alito, Jr.: -- couldn't we say of this -- go ahead.
John G. Roberts, Jr.: Justice Sotomayor.
Sonia Sotomayor: Did you just say that the same judge who tried the fifth trial also tried the sixth -- the sixth trial?
Jason Davis: Yes, Your Honor.
Sonia Sotomayor: And wasn't he the judge that ordered Mr. Evans to prosecute the sole holdout juror in the fifth trial?
Jason Davis: There --
Sonia Sotomayor: And didn't Mr. Evans do that?
Jason Davis: There --
Sonia Sotomayor: And the attorney general take over the case and say there was no basis for that prosecution?
Jason Davis: There were two jurors that were bound over to the grand jury on the basis of perjury. One pleaded guilty to that, and the other was nolle-prossed. Again -- and that was handled by the Attorney General's Office, not my division but another.
Sonia Sotomayor: But I think the attorney general nolle-prossed it because there was no basis for that prosecution.
Jason Davis: I don't know that there was not a basis. I just know that it was nolle-prossed.
Elena Kagan: May -- may I ask you about --
Samuel A. Alito, Jr.: Well, could we say in -- in this case, because of the unusual and really disturbing history, this case just could not have been tried this sixth time by the same prosecutor? That he -- that he just cannot -- in light of the history, you just can't untangle what happened before from the particular strikes in this case?
Jason Davis: But, again, Your Honor, you know, hindsight is 20/20. I -- I was not involved in any consideration on that. Had I been, it -- it might have been a suggestion of mine that that be the case, but that wasn't. And -- however, the record in this case by no means supports the conclusion that the Mississippi Supreme Court's decision ran afoul of Batson or its progeny. And -- and if I may, I'd like to return to what I was saying about the trial judge's being aware of the history. Specifically, Judge Loper said, at -- the transcript at page 314, "I know what Flowers III said." He then cautioned the state: "I'm going to look very closely at this case." Again, the judge acknowledging that he would be diligent in making sure the same type of error did not occur again.
Elena Kagan: But what -- well, how closely did he look? I mean, let's talk -- talk just about the questioning in this case. The numbers themselves are staggering, the number of questions that were asked to African Americans versus whites. But more than the numbers, if you look at the -- the way -- what these questions were targeted to do, let's take, for example, the questions on the death penalty. This prosecutor would question a white person who said that he or she had reservations about the death penalty, and the questions are all designed to rehabilitate the person. You know, the prosecutor would say: Well, if the law required you to do it, you could follow the law, couldn't you? And then the person would say yes. But if an African American said that -- that he or she had qualms about the death penalty, the prosecutor would say the exact opposite. The prosecutor would say something like, well, it would be really hard for you to apply the death penalty then, wouldn't it? So, in every case, this kind of disparate questioning, you know, it -- it looks as though he's -- he's designing, he's trying to create a record for striking black jurors that -- and -- and -- and for distinguishing black jurors from white jurors by means of his questioning, which is sort of, you know, completely opposite from the questioning that he gives to whites.
Jason Davis: I think the questions that the district attorney asked were a direct result of those responses these particular jurors provided in general voir dire. And --
Elena Kagan: Well, I think what I'm saying is it's not two jurors, one white, one black, says, I have reservations about the death penalty, and he says to the white one: But you could follow the law. And he says to the black one: Well, I don't know, I guess you can't follow the law.
Jason Davis: Respectfully, Your Honor, that's not the case as I read the record. The -- each juror that indicated they were against the death penalty is certainly one that, in a general context, that a prosecutor would not want to be on the jury. And, of course, we had in this case vacillation amongst these jurors, for example, Flancie Jones, who on her juror questionnaire said she was strongly against the death penalty and then, during questioning, said she could consider it, but then went on to admit that she lied on her juror questionnaire. So the questions that the district attorney asked were to follow up on what was on the juror questionnaire with regard to their statements therein regarding the death penalty. In this case, the record itself shows that the district attorney offered valid race-neutral reasons for each strike. Each strike was considered by the trial court, who had made aware -- made the parties aware of -- that he was aware of the history of the case, and the record supports that all the jurors that were struck were struck because they were either sued by Tardy Furniture, they were either related to the defendant, or friends with, or had worked with members of the defendant's family. And these are all valid race-neutral reasons.
Ruth Bader Ginsburg: But there were no questions of white jurors who said they had a relationship with defense witnesses. There were no follow-up questions for them. They just said, yes, they knew defense witnesses.
Jason Davis: The only -- to my recollection, Justice Ginsburg, is Pamela Chesteen, who indicated that she knew Flowers' family but only because she was a bank teller and she'd seen them come in. Again, that was a general question.
Ruth Bader Ginsburg: But we didn't -- we don't know what the relationship of the others were because they weren't asked. They said they had a relationship with defense witnesses, but they weren't asked what is the relationship.
Jason Davis: I -- I'm sorry, I misunderstood. Regarding the ones that said they knew these witnesses in the case, Your Honor, yes. And the Mississippi Supreme Court noted that, that they were. And, again, this is part and parcel of the issue with this unique case, is that, you know, 5,000 people in a town, everybody knows everybody, and everybody knew everything about the case. And the Mississippi Supreme Court noted that these witnesses on both sides knew numerous witnesses for both the prosecution and the defense. And that is, of course, but one part of the analysis. You have to look at the reasons that the -- that were offered by the district attorney. And in this case, they all support the strikes that were made.
Brett M. Kavanaugh: Well, the -- part of Batson was about confidence of the community and the fairness of the criminal justice system, right?
Jason Davis: Yes, Your Honor.
Brett M. Kavanaugh: And that was against a backdrop of a lot of decades of all-white juries convicting black defendants. Swain said let's put a stop to that but really didn't give the tools for eradicating discrimination, so you had another 21 years of that, until Batson. And then Batson said: We're going to give you the tools to eradicate that so that the -- not just for the fairness to the defendant and to the juror, but that the community has confidence in the fairness of the system. And can you say, as you sit here today, confidently you have confidence in the -- how this all transpired in this case?
Jason Davis: I have confidence in this record, Justice Kavanaugh. I have confidence in the strikes that this district attorney made based on the four corners of this record. I have confidence that, if reviewed with an eye towards what actually transpired, it supports the Mississippi Supreme Court's decision in this case. That I have confidence in.
Brett M. Kavanaugh: Thank you.
Sonia Sotomayor: Do you have confidence in how this case was prosecuted?
Jason Davis: Based on this record, yes, Your Honor, I do.
Sonia Sotomayor: You know, I -- one of the first things I did when I found this case was to try to do some research because at least my former state prosecutor's office would have substituted attorneys long before the fifth, sixth trial. Regrettably, I don't -- wasn't able to find any formalized guidance on that. But it does seem odd to me that any prosecutor would continue to try a case with this history.
Jason Davis: And, again, I would agree completely, Justice Sotomayor, that we have an unusual circumstance, an unusual case with these six trials having been all tried by the same prosecutor. But I would resubmit, again, that the decision of the Mississippi Supreme Court in this instance was not violative of Batson and its progeny. Thank you, Mr. Chief Justice.
John G. Roberts, Jr.: Thank you, counsel. You have four minutes remaining, Ms. Johnson.
Sheri Lynn Johnson: Unless this Court has further questions, I will waive rebuttal.
Clarence Thomas: Ms. Johnson, did you -- would you be kind enough to tell me whether or not you exercised any peremptories?
Sheri Lynn Johnson: I was not the trial lawyer.
Clarence Thomas: Well, did your -- were any peremptories exercised by the defendant?
Sheri Lynn Johnson: They were.
Clarence Thomas: And what was the race of the jurors struck there?
Sheri Lynn Johnson: She only exercised peremptories against white jurors. But I would add that the motive -- her motivation is not the question here. The question is the motivation of Doug Evans.
Sonia Sotomayor: She didn't have any black jurors to exercise peremptories against -- except the first one?
Sheri Lynn Johnson: Except the first one.
Sonia Sotomayor: But so did the prosecutor, except that one?
Sheri Lynn Johnson: Correct.
Sonia Sotomayor: After that, every black juror that was available on the panel was struck --
Sheri Lynn Johnson: Yes.
Sonia Sotomayor: -- by --
Sheri Lynn Johnson: He struck one -- he seated one African American juror, and at the very end struck one white juror. When all of the evidence in this case is considered, just as in Foster versus Chapman, the conclusion that race was a substantial part of Evans' motivation is inescapable, and the Mississippi Supreme Court's conclusion to the contrary is clearly erroneous. Thank you.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.


Earl Warren: Dupuy H. Anderson, et al., Appellants, versus Wade O. Martin, Jr. Attorney General Gremillion.
Jack P. F. Gremillion: Honorable Chief Justice and Justices of the Court, I'm here representing the Louisiana Secretary of State who is charged under this particular act with preparing the ballots. And as a chief election officer of the State of Louisiana, all of the ballots are prepared by him. Then they go to the printer. And then they are placed on the voting machines. Now, we have voting machines in every precinct in the State of Louisiana and we have had for about -- had for about 10 years now. They proved very effective and very beneficial on the ballot which is prepared by the Secretary of State, are three things, the man -- the candidate's name, his race and at first, when it -- legislature first prepared ballots who instructed the Secretary of State to prepare these ballots, we found that we had a lot of illiterate people in Louisiana. There are a lot of people who were registered to vote who couldn't read and write. And so later on, they put the number on the voting machine. So, we have three things that appear on the ballot, a number, a name and a race and that is all that is on the voting machine other than the instruction that you got to push this button and switch this switch and so forth. Now, we have in a Democratic primary -- well, a Republican primary, too, but there's very few Republicans in Louisiana, I apologize for that. But we're having a primary election on December the 7th in Louisiana. And of course, I am a candidate for a reelection. And I reemphasize that in my case, number 20 is my ballot number, my race and my name and that's all that appears on the ballot. Now, that information, and may it please the Court, is given to the Secretary of State in a form of a qualification paper that the candidate himself must fill out. On that qualification paper, approximately six things, he signs an affidavit. He says that I'm a qualified voter, that I possess all the qualifications under Louisiana law, that I'm a registered voter in a certain ward, in a certain precinct. He says, "I herewith pay the fee which is required by the committee involved. He also says that I am not a dummy candidate. He also says that I am not a subversive person as defined under the appropriate section of Louisiana law. And he also says that I am a member of blank and that candidate fills in his race and it is from that qualification paper that the committee passes on the -- and accepts and they're given to the Secretary of State and from there, he prepares the ballot. I give you that information so you can understand the -- the Louisiana legal machinery on just how the ballot is prepared. The question in this case, as far as I'm concerned and I hope the Court, is really a simple one. It comes down to this. Can a State require information on a ballot, such as race, for the purpose of informing the electorate? Can it do that when it treats all of the candidates alike? Now, is that unconstitutional? Does it violate any section of the United States Constitution? I don't think that the First Amendment is involved here because there's no freedom of speech being denied to anyone. I don't think the Fifteenth Amendment is involved here because no one is being denied the right to vote on account of race. The only thing that we are concerned with and can be concerned with as a result of this complaint is whether or not it violates the Due Process and the Equal Protection Clauses of the United States Constitution. The State is, of course, charged with the qualification of voters. It can pass laws regulating voting. It can pass laws regulating qualified. It's within its own spill when it does that. And it commits no offense to anyone or to the Federal Constitution as long as those laws treat all alike and there is no discrimination. Now, there's no discrimination in this statute. We're not involved with a segregation case here. We're not involved with any reprisals in this matter. We're not involved with the interest of an individual ballot as against the -- the interest of the State. There is nothing that prevents or says in the law that a candidate has got to have -- has got to have complete anonymity when he places his name on the ballot box. The State does not go into the election box and vote. It's done entirely secret. And the right to vote is a cherished privilege and should be enjoyed by everyone. But we must remember and we must appreciate that when a person goes into the ballot box and votes, he has the privilege of discriminating. He can vote against the candidate because of his race. He can vote against him because he doesn't like a number. He can vote against him because he don't like the way he talks or walks or he can vote against him because he's -- it is the incumbent, there's a lot of people that work with everybody on the office. I hope that's not true on December the 7th of course. But when a man goes into -- a lady goes into the voting booth, if there's none running for office, he necessarily must vote for one. When he does that, he actually discriminates against the other eight. So that is a privilege of voting. That is one of the cherished principles of voting. So I reemphasize --
Arthur J. Goldberg: Can a State drop a person exercising his private prejudice?
Jack P. F. Gremillion: If the State would pass a law attempting to exercise prejudices, it's my opinion, it would be unconstitutional and would be violative of the Fourteenth Amendment, yes.
Arthur J. Goldberg: General, what -- what then is the purpose of this designation on the ballot?
Jack P. F. Gremillion: Purely to let people know who they are voting for. Now, we had a -- a Governor in 1940 by the name of Sam Jones who ran for office. Now, can you imagine how many Sam Jones is of the different races there are in the State of Louisiana? Suppose that Ike Smith wanted to run for office, how many would we have? That's the only question involved purely having an informed electorate and that is absolutely all. We have some 61 Negroes running for office in Louisiana in the primary coming up on December the 7th. We even had, in one parish and it may be interesting to note, we had one justice apiece and a constable who were Negroes, who qualified and it didn't even have any opposition and they're going back into office without any opposition.
Speaker: Could the State require a candidate to state his religious denomination on the ballot?
Jack P. F. Gremillion: No, and I don't believe that -- I believe that they would be doing offense to the First Amendment if they did so. Now, of course, the Government in its amicus curiae brief points out that if a State want to aid the voters that it could publish a biographical sketch which, of course, would show you a religious affiliation, your clubs that you belong to, where you live and what your college education or your high school education would be. With all due respect to the Government's position, I -- I think that if they say that's alright, then their brief is completely in our favor and should be treated that way because I personally think, in all sincerity, that if the State did that, as the Government want -- would have us do, then we would definitely be aiding candidates and we will be practicing discrimination and we would be fostering prejudices. I -- I have no doubt about that and I think that that would definitely be unconstitutional. But I come back to the fact that this case should not be embellished with platonic ideas, this is strictly a legal question. And this, of course, is a court of law. And the question here and sole question here is can a State pass such a regulation without doing offense to the Federal Constitution? Many states, as also cited in the Government's brief, require you to say where your residence is. And in Massachusetts, they want you to know whether you're an incumbent or not. Well, if -- if that's --and those -- those who've never charged, I see no difference between stating what your race is and stating that you live at such and such an address. Because it's -- many of the voters, for instance, in Louisiana if you'd have one of the candidates here before they finish, rather Mr. Belton, whom I know real well, I know where he lives, he lives in Scotlandville which is a very heavily populated Negro community near Southern University and if he would put his residence down there, everyone would know his race. I'm saying if we didn't have race against and it had residence the way the other States did.
Arthur J. Goldberg: But if, General, assuming out of race here by the State (Inaudible) the voter that race is and should be an important element in making (Inaudible)?
Jack P. F. Gremillion: Now -- now if the State would've done as in the McDonald case, where it selected one particular race, I think that that McDonald decision is correct. I agree with it that it's completely in -- in apposite here because the facts in this case are entirely different. But I do not think so because you are giving the voter information as to the identity of the person.
Arthur J. Goldberg: (Inaudible)
Jack P. F. Gremillion: And -- and the State is in no way taking part in that election. No more than it is by providing the -- the number.
Arthur J. Goldberg: Perhaps the State is (Inaudible) is it not, General, that this particular type of information, (Inaudible) is important enough for the State to inquire (Inaudible) vote, isn't that correct? There's no (Voice Overlap) --
Jack P. F. Gremillion: No, I -- I don't of course -- I don't agree with that. If -- if -- if you say that that is correct, well, then I'm out of court, of course. And that's the question that we are here to decide.
Arthur J. Goldberg: (Inaudible)
Jack P. F. Gremillion: But as long as the State --
Arthur J. Goldberg: -- one of the purpose -- one of the purpose is served. (Inaudible)
Jack P. F. Gremillion: I am --
Arthur J. Goldberg: -- that the voters are entitled to this information.
Jack P. F. Gremillion: Correct. The voters are entitled to this information because he is entitled to know the identity of the candidate and who he's voting for.
Arthur J. Goldberg: On the basis of race.
Jack P. F. Gremillion: And that's the justification for it.
Arthur J. Goldberg: On the --
Jack P. F. Gremillion: The --
Arthur J. Goldberg: -- basis of race.
Jack P. F. Gremillion: On -- on the basis of race because certainly, all people have to be of some different race. And they certainly should be proud of it. And that -- I don't see where that's doing any -- any offense fostering prejudices of any nature or kind. The question was asked here yesterday, what about sex? I think that a State could require sex. We have several ladies running for office in Louisiana today. They are -- they are listed as Mrs. so and so. But we don't require sex because people generally know that if your name is Lillian, you're certainly going to be a female. I will admit that there are some coincidences where their names have similarity but they are so minute that it -- it would be probably one of no consequence whatsoever. Now, when this law was passed in 1960, saying that the race had to be spelled out by the candidate and put on the ballot, there was considerable discussion as to whether or not a photograph should be put on the ballot, as Justice Harlan asked yesterday. Now, suppose -- it was determined, however, that a photograph would be too cumbersome. And I suppose that the candidates for office or the members of the legislature probably had themselves in mind and they said, "No, we're not going to fool with photographs if we just put race on the ballot and that would sufficient identity." Now, the -- the whole question here, as I repeat, is not a question of morals, it's not a question of policy, it's not a question of whether this is a wrong risk legislation or right legislation, it's a question of whether or not, as long as all candidates are treated alike, a State may require a designation of race on the ballot. Now --
Earl Warren: General, doesn't your State have a statute saying that segregation is the policy of your State?
Jack P. F. Gremillion: I don't know whether -- I don't think we have a statute as such. But as you well know in this Court, well knows that that has been the policy. And of course, this Court has struck down quite a few of our statutes and I'm sure that you probably strike down some more. We've had as to more file recently in the State of Louisiana. Justice Douglas went into that quite thoroughly in one of the cases, I think (Inaudible) cases something like that. I don't know which one it was. But I come back to the same question that it -- it's immaterial. What the State is trying to do here is inform its electorate and that is the legal question that is before us. None of us can change our race. I'm sure as I've said before that all of us are proud of it. Every time we've had a case involving segregation, the complainants have always identified them or complained of a wrong was done. They've identified themselves as Negroes. And I think that this Court not to come up and say that it's wrong to identify a candidate on a ballot would have the reverse effect of putting a stigma on a particular race, which I don't think it would be proper to do. Now, of course, opposing counsel said that we had all kind of laws passed to this particular session but that's not the question here. We're only involved here with one particular statute. And the question, as I repeat, is whether or not a State can legally provide this information to the voter. Now, it maybe that you might be constrained to say that the State would be discriminating because of the fact that we have a large, large number of Negroes in our State, but that isn't the controlling point, gentlemen. And Justice, I believe Justice Stewart asked yesterday, "Would this law be legal in South Dakota where there are very, very few?" I certainly think it would be legal in South Dakota. It would be legal in South Dakota. It would be just as legal in Louisiana. In other words, the number of people or the number of the races is not the question. We have very few Chinamen or Mongols in Louisiana but -- and -- and that they've had several of them run for office and they've had to state their race. Is this proper, a proper exercise of state government, as long as everyone is treated alike? I emphasize that in this particular law, all of the candidates are treated alike. There is no discrimination according to race. And I humbly ask you to sustain the -- the judgment of the lower court. Thank you, sir.
Byron R. White: (Inaudible)
Jack P. F. Gremillion: Yes, sir?
Byron R. White: (Inaudible)
Jack P. F. Gremillion: How is that Judge -- Justice, I didn't hear you.
Byron R. White: How many -- how many races do you recognize in putting the race on the ballot? One or two or you say --
Jack P. F. Gremillion: Whatever --
Byron R. White: -- you treat everybody alike, I know, but --
Jack P. F. Gremillion: What -- whatever -- whatever the candidate would put down if you had -- if you had, let's -- let's say there's Caucasians, I think in the three general breakdowns as Caucasians, as Negroids and there's Mongoloids. But of course, there are other races within those races that --
Byron R. White: Do you have only two races -- do you think they have only two races in Louisiana? Have you ever seen one -- either -- anything more than --
Jack P. F. Gremillion: We have --
Byron R. White: --white or Negro on the ballot?
Jack P. F. Gremillion: We have -- how is that Judge?
Byron R. White: Have you ever seen any identification of a person other than white or Negro?
Jack P. F. Gremillion: I've seen Chinaman. We had a Chinaman running in Louisiana and he put down Mongol.
Byron R. White: Are there three, is that it?
Jack P. F. Gremillion: We don't use the name of "white". We use the name of "Caucasians".
Byron R. White: Caucasians.
Jack P. F. Gremillion: So that that would take care of the Irish, the Frenchman, Jewish and so forth. We -- we don't use the name of "white" at all, it's Caucasian. Caucasian, Negro, Mongol.
Potter Stewart: What would happen if --
Jack P. F. Gremillion: What's that, sir?
Potter Stewart: -- there is -- if a person who is a Negro put in Caucasian what would happen to him if the --
Jack P. F. Gremillion: Well --
Potter Stewart: Is -- is this kind of --
Jack P. F. Gremillion: If it got -- if got by the --
Potter Stewart: (Voice Overlap)
Jack P. F. Gremillion: -- if got by this committee, it would certainly get on the ballot and that -- the committee or the Republican Committee or the Democratic Committee could challenge it or someone could challenge it. Do you understand?
Potter Stewart: No, I don't understand. I -- I wanted -- as -- as you explained it to us in argument, you said that the blank that the candidate draws in is controlling it and that goes on the ballot and I wondered what, if any, sanctions or penalties or punishments --
Jack P. F. Gremillion: Well, I didn't go in --
Potter Stewart: -- in other words, to prevent him from just putting down the --
Jack P. F. Gremillion: There is no punishment.
Potter Stewart: -- the truth.
Jack P. F. Gremillion: There's no punishment, Mr. Justice. But I didn't go into all of the details of qualifying, I just stated those --
Potter Stewart: Yes.
Jack P. F. Gremillion: -- generally. Now, let me -- after a candidate fills out his qualification papers and he states his race, those qualifying papers, as I stated, go back to the committee. The committee reviews them.
Potter Stewart: What committee is this?
Jack P. F. Gremillion: That -- well, in this case, the Democratic Committee reviews them. You see, the Democratic Committee, the party committee, sends the names to the Secretary of State. That's where the Secretary of State gets them from. Now, there is a provision in Louisiana law that provides that any candidate, who has filed qualification papers, can be challenged before the committee and the whole committee can meet and hear that particular challenge. Suppose that -- say in the case of Attorney General adopt to try to qualify and someone found it out and he -- he has, I think, 48 hours within which to challenge, he's got to send his protest in a form of a registered letter. The committee's got to meet within 48 hours and render this decision within 24. But if a doctor say would try to run for attorney general because our Constitution says you got to be a lawyer with so many years of service. If the Committee said, "Well, we're not going to accept your qualification papers because you're not qualified", well then, the only thing would happen, there'd be no reprisal, there'd be no punishment, there's no crime committed. The only thing would happen was the committee would fail to certify him to the Secretary of State.
Potter Stewart: Couldn't it happen in this case. You -- there's nothing here that says that a Negro is not qualified to be a candidate, is there?
Jack P. F. Gremillion: Oh, absolutely not.
Potter Stewart: Well then, what would --
Jack P. F. Gremillion: And I'm not trying to say that he's not. All I'm trying to say is that if a Negro wrote down Caucasian --
Potter Stewart: Yes.
Jack P. F. Gremillion: -- it could possibly go through the committee and be printed on the ballot that way. There'd be nothing to stop that unless someone challenged it or the committee found it out itself.
William O. Douglas: Could -- could the --
Jack P. F. Gremillion: He has to have his address on the qualification papers too, of certain wards, the precinct, you see --
William O. Douglas: Could he -- could he instead of putting down Caucasian, put down Norwegian or Irish, those things sometimes mean a difference in popularity at -- at the polls. I noticed in Panama for example that the Jamaican Negro is sometimes more popular than African Negro, could those distinctions be carried out in your Louisiana system?
Jack P. F. Gremillion: No, he would have to state one of the three -- one of the -- the three branches, Caucasian, Negro or Mongol. Now, he wouldn't -- now --
Speaker: (Inaudible)
Jack P. F. Gremillion: Well, I suppose that he would be classified as a Mongoloid because as I understand it, the Indians have Mongoloid traces and they are classified, as I understand it, ethnically as Mongoloids. And we do have some Indians in the State of Louisiana, we have quite a few. As a matter of fact, we have a school down in -- and I'm not trying to get into Brown versus Topeka but I do want to tell you this. We have a Indian tribe down in Homer, Louisiana near the gulf. They maintained their own school which is State-supported which is completely segregated and they won't let anybody come in that school regardless of whether they're Caucasians, as Negroes, they want it for themselves. And --
Earl Warren: Could an Indian say he was Native American?
Jack P. F. Gremillion: Mr. Justice -- Mr. Chief Justice, I would say that the Indian is the true original American, but they have certainly been discriminated against an awful, awful lot.
William O. Douglas: Not only in Louisiana?
Jack P. F. Gremillion: Sir?
William O. Douglas: Not only in Louisiana?
Jack P. F. Gremillion: Oh, no, no, we -- we don't -- it's a matter of choice so far as they are concerned. Well, I've certainly enjoyed my discussion which you -- with you gentlemen and I thank you for your kind attention.
Earl Warren: Mr. Greenberg.
Jack Greenberg: Please the Court, the appellant has nothing further to add unless the Court had some questions. I do have this qualifying form here which indicates that it must subscribed to under oath and I assume the sanction would be perjury if someone had stated that he was member of some race and it was held he was not a member. If the Court would like to see this, I can hand it up but we have no additional argument as I've stated unless the Court have some questions.
Earl Warren: You might submit it to the clerk (Inaudible).
Jack P. F. Gremillion: May I say one thing?
Earl Warren: I beg your pardon?
Jack P. F. Gremillion: One -- may I say one more --
Earl Warren: Yes, yes you may --
Jack P. F. Gremillion: Let me say this.
Earl Warren: You have finished, had you Mr. Greenberg?
Jack Greenberg: Yes, yes.
Jack P. F. Gremillion: There could be no punishment for perjury in this particular instance, but even though it is required to be under oath, because perjury in Louisiana can only be committed before a court of record or before a grand jury so there would be no perjury whatsoever. There would be no punishment for filling out this form erroneously, none whatsoever. And there's no dispute about the facts in this case and there's no dispute as to the form that was used. But I don't believe that that form was in the record was it Mr. Greenberg?
Jack Greenberg: No, I don't believe it was.
Jack P. F. Gremillion: It was not in the record. But I -- I don't -- I'm sure that opposing counsel didn't mean to give the Court the idea that he could be punished for perjury because perjury can only be committed in a court of record. A witness has taken an oath, testifying either before a grand jury or in a court of records so there can be no punishment for an erroneous filling out of that application.
Earl Warren: Do you -- General, do you have a false swearing statute as distinguished from perjury?
Jack P. F. Gremillion: Yes, we do have a false swearing statute.
Earl Warren: Now, would that apply?
Jack P. F. Gremillion: But I -- I don't -- I don't -- I could -- I can't answer you whether that would constitute false swearing or not because I don't remember the details of the false swearing statute.
Earl Warren: Usually the penalty is the same as for perjury in most states I think.
Jack P. F. Gremillion: No, perjury is a capital offence in Louisiana.
Earl Warren: Capital offence, yes.
Jack P. F. Gremillion: I -- I don't mean but punishment at hard labor not capital as a felony --
Earl Warren: Oh, I see.
Jack P. F. Gremillion: -- that was what I meant to say. And false swearing is a misdemeanor. But we've never had --
Earl Warren: I beg your pardon?
Speaker: (Inaudible)
Earl Warren: Yes. Well, could you -- could you, General, supply us with information as to what if anything he could be prosecuted for -- for falsifying this oath.
Jack P. F. Gremillion: Would Your Honor care for me to give that to you in the form of a letter or --
Earl Warren: Yes, just a -- just a memo and serve it on -- on counsel.
Jack P. F. Gremillion: Alright. We'll certainly do that.
Earl Warren: Thank you.
Arthur J. Goldberg: General (Inaudible) is there a definition (Inaudible)?
Jack P. F. Gremillion: No, we have no -- we have no statute that says what a Negro is specifically. We have no statute that specifically says what a Caucasian is. We've had several court decisions that have defined a Negro.
Arthur J. Goldberg: (Inaudible)
Jack P. F. Gremillion: Those court decisions are in the plaintiff's brief -- I mean the complainants' brief at page 14. It says, "Neither the statute challenged in this case by any other Louisiana statute defines the term "Negro" or any similar to it." In this case, citing here the Supreme Court of Louisiana defined the word "color" as a term specifically applied in the United States to Negroes or persons having an admixture of Negro blood. The same word is often applied to black people, Africans or that (Inaudible) mixed or unmixed and to persons who have any appreciable mixture of African blood.
Arthur J. Goldberg: (Inaudible)
Jack P. F. Gremillion: Yes.
Arthur J. Goldberg: (Inaudible)
Jack P. F. Gremillion: Yes, yes.