Earl Warren: The City of Greenwood, Mississippi, Petitioner versus Willie Peacock et al and number 649, Willie Peacock et al., Petitioners versus City of Greenwood. Mr. Lott.
Hardy Lott: Mr. Chief Justice and may it please the Court. In this case, Peacock and 13 others filed a removal petition in the Federal District Court, alleging that they were being prosecuted in a police court of the City of Greenwood for blocking public streets. The District Court remanded the cases to the police court on the face of the petition. They appealed to the Court of Appeals for the Fifth Circuit which held that the allegations of the petition were sufficient, if proved, to make other case for removal under the first section of 28 U.S.C. 1443 and they reversed the case and remanded it to the District Court for the District Court to hear evidence to see if Peacock and those could prove the allegations of their petition. The Peacock petition alleges very little about the substance of the allegations are -- that Peacock -- the petitions are identical so only one is in the record. The allegations are that Peacock is a member of the Student Non-Violent Coordinating Committee which is associated with COFO and that they were engaged in civil rights work in assisting Negroes to register to vote. They then alleged that they were arrested for blocking public streets. They draw the conclusion and make the conclusionary allegation that because, well first, that the statute is being applied to them in support of a policy of segregation of the State of Mississippi and City of Greenwood. They then make the conclusionary allegation that because of their prosecution, because of the above that they are denied and cannot enforce in Court the equal rights of citizens under the Constitution in 42 U.S.C. 1971. Now the other cases were combined here. Those came along later, there were 15 defendants. They alleged prosecution in the police court of Greenwood for various offenses on different dates, assault and battery, driving a car with an improper license, reckless driving, matters of that kind. The District Court did the same thing with those cases, remanded them on the face of the petition. They came up in the Circuit Court of Appeals later in the Peacock case so that there was no briefing and no argument in that case. They sustained a summary motion to reverse on the ground that it was controlled by Peacock. Now what we were concerned with here in the Peacock case is the removal statute, 1443. Now it's settled law that this Court only has such jurisdiction in the removal case as Congress has conferred upon it, as conferred upon the federal courts and the question here is what jurisdiction Congress can put by the first section of 1443. Now that Section gives a person a right to remove in a civil or criminal prosecution, brought against any person who is denied or cannot enforce in the Courts of such state, a right on any law providing for the equal rights of citizens of United States. Now the point that I want to emphasize in that is what I think the Court of Appeals overlooked is the language in that statute “who is denied or cannot enforce in the courts of such statement.” Now the statute provides that in order to remove, you have to file your removal petition before the trial. So -- that this Court has held that being true and that's the statute, you have to allege facts in advance of a trial to show that in the state court, you will be denied or cannot enforce some equal civil right. This Court therefore held in eight cases mentioned in the previous argument beginning with Strauder versus West Virginia and Virginia versus Rives on the same date and going down through Kentucky versus Powers that since that is true that you have to file your petition and allege and show in advance that you're going to be denied or cannot enforce an equal civil right in court. That therefore, it was not the intention of Congress by that statute to take care of any deprivation of rights that might come up on the trial for the first time because you wouldn't know that until it happened. That you had to be able to point it in advance that you would be denied or can enforce in the courts of a state an equal civil right and that the only way you could do that is where there was a statute or constitutional provision of the State which if the state court followed would obligate it to deny use on the equal civil right. Now in the absence of that, this Court has held in those eight cases or in the last seven at least, that you can't remove underneath that statute. They specifically held that if a subordinate officer undertakes to deprive a defendant of his equal civil rights in advance of trial by a person who is stacking the grand jury, refusing to put anybody on the grand jury if it's colored defendant except White people, that doesn't show that he is going to be denied or can't enforce his equal civil rights in the state court because the presumption is that the Court will correct that. That if it's a matter of stacking the grand jury that the Court when the trial comes on will sustain a motion to quash the indictment. If it's a matter of petit jury, the same thing. So that this Court held and it seems to me they were obligated to do it under the statute, but in any event, they held it eight times that you couldn't remove underneath the statute without showing in advance that you're going to be denied or couldn't enforce your rights in state court and that the only way you could show that is if there was a constitutional provision or statute of the state which if followed by the state court would have that result. Now that -- those decisions have been criticized by those who want more removal on the ground that is a restrictive interpretation of the statute. Well it doesn't seem that way to me. It seems to me that this Court went pretty far when it held that they weren't go and presume that the state court would do what it should do and disregard an invalid state statute and follow the paramount federal law. But that they would indulge in the presumption that the state court being bound by state law if there was a state statute or constitutional provision that they would say the state court was going to follow it and give the defendant the benefit of that presumption and permit him to remove. Now the Circuit Court of Appeals in this case, we submit with difference, completely overlooked that portion of the statute in the Peacock case. That is the portion that the denial or inability enforced has got to be in court and they completely, in our opinion, disregarded the eight decisions of this Court to that effect. What they held in the Peacock case was that the very institution of the prosecution would enable you to remove on allegation that the prosecution was instituted for an improper motive to deprive use of civil rights. In other words, what the Circuit Court of Appeals held was this that in this case where the arrest and charges were made by a policemen and I believe the alleged policemen and officers of the county, the Circuit Court of Appeals held that that was sufficient if an allegation that they were made by them for an improper motive to arrest them and exercise of their civil rights. Now the statute doesn't allege -- I mean the removal petition doesn't contain such an allegation but the Circuit Court of Appeals applied this notice type pleading doctrine and said they would infer that that's what the Peacock and all of those would contend. So they held that the mere institution of the prosecution by a policemen was sufficient to remove. Now just as a matter of common sense and logic, we submit that the institution of a prosecution or the making of a charge or an improper charge, if you please, by a policemen, does not show that you're deprived or cannot enforce your rights in state court. As held by this Court, the presumption is if there's something improper in there, if he's brought a charge that he should not have brought, the presumption is that the state court will sustain you and as such there's no way to say that the charge by a policemen means, it's a proof that you're denied or can't enforce your rights in a state court. Now if you replace the thing. Suppose that some federal marshal may enforce arrest or arrest a man with safe and improper motive, that certainly no proof that you are denied or can enforce your equal civil rights in the federal court and the same thing is true in this case, in the case of a policeman, but in any event, whether it's true or not, this Court has so held. Now this Court so held in seven cases that where a subordinate state officer packed the grand jury by illegally excluding colored persons from the grand jury and also the petit jury that the case was not removed. Now in that case, a charge was brought by a grand jury that it was improperly selected in violation of federal law and packed and they brought the charge. This Court held in those seven cases that that case was not removal because that did not show that you were denied or couldn't enforce your rights in state court that the presumption was a state court would enforce your rights and would quash the indictment as a whole. Now the Circuit Court of Appeals in Peacock is no doubt about their holding. If you'll read their opinion carefully, it's hard to believe that they even realized that this denial and enforcement had to be in the state court. In any event, they came out with just a flat holding that a prosecution for an improper motive instituted to deprive you of your civil rights made out a case of removal.
Potter Stewart: Well, it is possible is it not to read Section 1 of 1443 to say something pretty much right along those lines and that is to read it the way Judge Sobeloff in the Fourth Circuit suggested and that it might be read.
Hardy Lott: Your Honor, I'll come to that in a moment but let me say this --
Potter Stewart: Come (Voice Overlap)
Hardy Lott: This Court in seven cases, in seven straight cases have held that statute the denial and inability to enforce relief to the state court.
Potter Stewart: (Voice Overlap) state court.
Hardy Lott: Yes sir.
Potter Stewart: Because as I say as a matter of reading it, it is possible to read it the other way, is it not?
Hardy Lott: Now in which one -- yes sir. Now in each one of those seven cases that I'm talking about, the man had been deprived of his equal civil rights by stacking the grand jury on and it didn't relate to a court, those cases, all seven of them would have been removed, but this Court held that that language and you can read it that way, applies to the Court. Now let me say this. I don't think that this Court should sustain the Court of Appeals in the Peacock case for these reasons. In the first place, if you do, you would have to overrule seven decisions. You have to overrule that part of the decision holding that under subsection (1) the denial or inability to enforce had to be shown by a state statute or constitutional provision. You would have to overrule that. You would have to overrule your own opinions in those seven cases that the acts of state officers in depriving you of your rights in advance of trial were not sufficient for removal because the presumption is the state court will correct it. Now those decisions of this Court have been in effect and have been a settled law since at least 1879. During that period of time, Congress has not made any significant changes in the wording of that statute that would affect those decisions and Congress having conferred the removal of jurisdiction and having acquiesced in that interpretation since at least 1879. I submit that it will be too late now to come in for this statute -- I mean for this Court to do what Congress has failed to do and that is to amend the statute and that's what he's arguing you should do. Now, in addition to that, I want to direct the Court's attention to this that in considering the Civil Rights Act of 1964, Congress had previously reenacted this statute a number of times without changing the word. In 1964, they have their specific attention directed to it in 1964. They amended the companion statute that enabled you to appeal from a remand order under 1443. Prior to that, you couldn't appeal so Congress had its particular attention directed to it and made the amendment permitting an appeal from a remand order in a civil rights case under 1443. Now in that same session of Congress, I found out that two of the lawyers whose names assigned to the brief of Peacock, appeared before Congress and advocated the amendment of that statute. And Mr. [Inaudible] introduced it and his citation is in the reply brief of Peacock. A statute before Congress to amend that statute and make it do precisely what the Court of Appeals and the Fifth Circuit held in Peacock it did do. And that is to make any denial of right whether by a court or administrative officer or whatnot removed. Now Congress didn't do that. Congress failed to pass that statute in 1964. So --
Byron R. White: [Inaudible]
Hardy Lott: I don't know sir. All I know it was introduced and I read it in the record and it didn't pass, it didn't come out.
Byron R. White: [Inaudible]
Hardy Lott: Yes sir.
Byron R. White: [Inaudible]
Hardy Lott: I don't know sir. I do know that there was a testimony before the House Committee because I read the hearings about this particular bill and two of the gentlemen here appeared and even mentioned --
Byron R. White: [Inaudible]
Hardy Lott: I don't know that either sir, but the fact that I'm getting at is that Congress since 1879 has not amended that statute, has reenacted it and therefore it appears to us, it certainly endorsed the opinions of this Court which have been settled law in the United States. Now, I would like to say this as a practical matter. In addition to that, I think the Peacock case lays down a bad rule and that the decisions of this Court in those seven cases are good rules. They're not only good because they follow the statute and after all, that's the question here. Is the jurisdiction --
Byron R. White: What would you do in case [Inaudible]
Hardy Lott: I think under the liberal interpretation given this statute by this Court in those seven cases, you would say that the state court would follow, you just presume the state court would follow that state statute and therefore you'd say that you could remove.
Byron R. White: [Inaudible]
Hardy Lott: Yes sir. That's what these seven cases hold. They say that that's the only time and I think that's the liberal interpretation of the statute.
Byron R. White: [Inaudible]
Hardy Lott: No sir, but they said this that in any case in which you could point to a state constitutional provision or statute as interpreted by the highest court of the State or as reasonably read which would cause -- if the state court followed it, would cause you to be denied or unable to enforce your equal civil right that then the case was removable.
Byron R. White: [Inaudible]
Hardy Lott: No sir, certainly not.
Byron R. White: [Inaudible]
Hardy Lott: And follow the state statute. That's the interpretation put on by this Court in those seven cases. Now in Peacock of course we don't have any such statute. There's no legislative denial. The statute against blocking public streets, applies to everyone alike. There's no -- nothing in Peacock to show that he can't get his rights so that he will be denied them in state court. Now as I was saying, one reason that that's the bad rule in Peacock is this. Underneath that rule, any defendant in a criminal case or almost any defendant can remove his case from police court to federal court by simply an allegation of this kind because that's all in Peacock that he is associated with some civil rights group or engaged in some civil rights work that he's been charged or arrested for something. It might be driving without a license or traffic ticket or over parking, it doesn't make any difference. He's been charged with that and that the motive of making the charge was to deter him in some equal civil right and that case is then removed to federal court. Now under the hearing in --
Byron R. White: What happens in the indictment? Perhaps [Inaudible] the case is removed [Inaudible]
Hardy Lott: Yes sir. Then --
Byron R. White: [Inaudible]
Hardy Lott: That's right. Then under the Circuit Court of Appeals rule in Peacock, the man would then go into court and you would have a hearing in federal court to determine the motive or to prosecute. Now --
Byron R. White: [Inaudible]
Hardy Lott: Well, his petition doesn't make out any case for removal. He can't point to any state constitutional provision, but that will prevent him from --
William O. Douglas: May I put a case to you if it may? We've had cases in the past involving state regulations of people engaged in religious activities. I'm thinking of some of our Jehovah's Witnesses cases where the municipalities required a license. And we held that proselytizing in a manner in which they proselytize was an exercise in religion and could not be licensed or taxed by the state government. Now on a case like that, if they were arrested, I suppose since they are -- were asserting a constitutional right that they couldn't be removed to a federal court even though they might get a fair trial in the state court. Isn't that true?
Hardy Lott: I would say they could be removed if he could point as this Court has held to a state constitutional provision or statute which he followed by the state court in his case, would result in the denial of some right conferred on him by some statute that the United States provided the equal civil rights.
William O. Douglas: Well, that maybe a gloss with some of our earlier decisions has put on the removal statute, but doesn't the removal statute speak in terms of the protection of a constitutionally guaranteed right like free exercise a religion in my case.
Hardy Lott: No sir. I would say this that the removal statute says, the point that I'm concerned with now Section 1, relates to just exactly what I read.
William O. Douglas: The mere fact of the arrest and the prosecution is unconstitutional taking at the face value of the allegation, is it an unconstitutional deprivation?
Hardy Lott: Yes sir, that is, but the Congress hasn't given you removal jurisdiction in such a case.
William O. Douglas: Well, that's a question in this case, I guess.
Hardy Lott: Yes sir. They have left that to the revisory power of the state court and then if they don't do it ultimately to this Court. But under the decisions of this Court in those seven cases, Congress hasn't given you a removal of jurisdiction in those. Now let me say this. In the beginning in 1866, they did when the statute was first enacted. In 1866, you could remove a case after the judgment. You could not only remove it before, but after the trial in a state court, if you had been denied of some equal civil right, then you could remove it to federal court and have a trial all over again. But the Congress repealed that in 1874 and they left the statute as it is now as interpreted by this Court that your only time for removal is in advance of the trial in showing these things. Now getting back to my point and I think this was important. Any defendant on the Peacock can remove that case to a federal court by a simple allegation he's engaged in civil rights and he's been arrested and that the prosecution was for an improper motive. Now, you then are going to have one trial and possibly two trials in federal court. Your first is going to be a trial to examine the motive of whoever brought the charge whether it's a grand jury or police officer or what not. Under the Peacock rule, the Court would have to decide that before it knew whether it had jurisdiction. It would hear the evidence as to the motive of whoever brought the charge. Now that could involve a quite of lengthy thing. And what I want to say is that the burden is not only on the Federal District Court to try all these police court cases from over parking and driving without a license, the burden on a municipality to enforce a law is just beyond its ability to reach in most towns. I don't know about Washington and Philadelphia, but they would have to do is this. You have to go to a federal court which is probably some distance from your town. You have to hire a lawyer of course to represent you in federal court and you have to take witnesses. Now, if there's a motive of the prosecutor like in these cases, you have to transport your witnesses, your policeman there. You'd probably have to have the mayor and police commissioner to testify about the policy of the city and so forth. You would have all of that hearing to decide the motive of the prosecutor or the motive of the grand jury or whoever brought the charge. Now suppose then that the Court decided that the motive was not bad to deter to exercise some civil rights then he would remand the case. But if he decided that the motive of the prosecutor was bad, then a removal jurisdiction would be established under the Peacock case and then you would have a trial on the merits to see whether he's guilty or not. Because after all, the motive of the policeman in charging this man who's blocking the street or was driving without a proper license on his automobile may have been as bad as can be but that doesn't mean he's not guilty of it.
Abe Fortas: Mr. Lott, I don't read Circuit Judge Bell's opinion that way and I'd like to get your help on this. As I read his opinion, he explains the way this Court's earlier cases under 1443 by emphasizing that they arose on the context of an alleged denial of rights with respect to the composition of the jury. He says that it was for that reason that the -- this Court articulated its decision in terms of the absence of any state statute or state constitutional provision. He says that as I read in this case the -- those cases -- our earlier cases don't apply because here, the difficulty does stem from the application of a state statute, namely the state statute that makes of a crime to obstruct the sidewalk and so on and as I read his opinion, what he says has to be tried out. It's not the motive of the prosecutor, but the question as to whether the state statute has been applied here so as to deprive the accused of his equal civil rights. In other words, he would try out the question as to whether this is -- whether the context of the prosecution here, context of the defendant's actions is such and that this is substantially speaking and therefore to interfere with their rights of free assembly or free speech or whatever. As I read it in one place here in discussing the Fifth Circuit's decision in Rachel, he says that the teaching of Rachel is that you're to construe the state statute as if there were a gloss on it saying that this statute may not be applied in peaceful city and demonstrations reading from page 26 of the record.
Hardy Lott: Your Honor --
Abe Fortas: And I don't -- the question I'm asking is whether you differ with that reading of this or whether your position is that that amounts to an inquiry into the motive of the prosecution.
Hardy Lott: My disagreement with that is on this basis. That in those seven cases of this Court that you are talking about that he referred to was bringing the charge. The charge was brought by a stacked grand jury. In each of those seven cases, they deliberately deprived the defendant of his equal civil rights by excluding Negroes from the grand jury and a charge was brought by the grand jury and he was arrested.
Abe Fortas: Yes.
Hardy Lott: And --
Abe Fortas: The Circuit Judge Bell's opinion says that that discrimination with respect to grand jury selection was not based on any state statute or constitution.
Hardy Lott: That's right. Now, in this case --
Abe Fortas: I'm not suggesting I agree with that course.
Hardy Lott: Now, in this case he's saying that when a police officer brings a charge and not a grand jury but a police officer brings a charge improperly that that is a distinction in which those seven cases don't apply to it that they only --
Abe Fortas: That's what he's saying.
Hardy Lott: Yes sir, but now--
Abe Fortas: He says that that is the application of a state statute in an invidious way.
Hardy Lott: Well now, in the seven cases that was decided by this Court Your Honor, those law of state statutes, one against murder, one against rape and the charge in that case in all of those seven cases was improperly brought by the grand jury in the sense that the court officers stacked that grand jury. So under any state statute, murder and rape and so forth, I don't see the distinction that he is attempting to make. I can't see why if the grand jury stacked on you and you indicted underneath a state statute, that's not removable but if a police officer comes in and does it and does it for an improper motive with no indictment that therefore that makes it removable and I just can't follow him on that. Now in substance, what we contend about Section 1 is that, as I've stated that the statute says “And I can't enforce him in the state court, this Court has so interpreted. All the courts in United States have followed that. Congress has not changed that rule. And what the gentlemen are asking you to do is to do what Congress had done. They're asking you now at this late date to amend that statute by striking out that part as I think the Circuit Court of Appeals did that your denial has to be in the state court. They've only disregarded that because if they said that the prosecution was to deprive you of a right that was sufficient and what I say, what we submit is that it is now much too late for this Court to do and this Court should not do what Congress has refused to do and that is to adopt their amendment of the statute.
Hugo L. Black: Mr. Lott, may I ask you? Did you cite the 1874 statute which you refer as having been repealed?
Hardy Lott: No sir.
Hugo L. Black: Repealed at 1874?
Hardy Lott: I didn't know that Your Honor until I read the case which is not yet reported of the -- I forget the title of it – it is Raines versus the City of Danville from the Fourth Circuit -- Baines, I said Raines, it's Baines, B-A-I-N-E-S. Until after I filed my briefs and I read their opinion where they pointed that out and called attention to the fact that the restrictive, so-called restrictive interpretation of this Court, one interpretation of this Court told it was the act of Congress in repealing removal after judgment.
Earl Warren: Mr. Smith.
Benjamin E. Smith: Mr. Chief Justice and may it please the Court. What we're looking for in this case, Willie Peacock and the 13 people that were arrested with him is a fair trial. What we can't get in Mississippi state courts is a fair trial. That was what Congress had on its mind in 1866 when it passed this civil rights removal bill. This civil rights removal bill was the third part of the first Civil Rights Act and it simply said that colored people, Negroes and newly freed slaves are going to have to be brought up to the level of a White man. This was the intent of the 39th Congress. It was the intent of the Fourteenth, Thirteenth and Fifteenth Amendments. It was the philosophy of the age that the Negro was going to be brought up to the level of the White man and if the federal power was going to see to it that this happens. And what happened in this situation was they passed the Civil Rights Act of 1866 and it said, Negroes are going to have the same right as White people and the federal government is going to see to it that if any of these rights are deprived, people can be prosecuted, that was the second section of that Act. The third section said if there's going to be any prosecution of these Negroes and the unionists, there's going to be removal into the federal courts where they can get a fair trial. Everybody knew in 1866 that the Negroes, if they were going to be tried by these reconstructionists or obstructionists state governments, they were going to be tried by ex-confederate judges and that the Negroes weren't going to get a fair trial and that any White man in the South that took the union calls will never get a fair trial. That was true. They tried to rescue slavery in Mississippi in 1865 and they just barely missed it. They couldn't repeal it. The courts that Freedmen's courts that were set up in Mississippi phased themselves out in early 1865 so that there was no longer any control over how Negroes were going to be tried and there was no review of the method about which they were going to be tried. The same things that that Congress in 1866 was talking about, is in Mississippi today. It was in Mississippi in 1964. I was there. That's where these prosecutions came from. Negroes and civil rights workers in Mississippi are not going to get fair trials in those state courts and they don't get them because they don't have Negroes on juries. They have White judges, White prosecutors, White jurymen, White sheriff that are all elected by White electorates from which Negroes are eliminated. Negroes are gradually getting their right to vote under the new Act but they're long way from it. There are nearly 400,000 Negroes that I think are eligible to vote under the provisions of the new Act in Mississippi and there's not 85,000 registered yet. The whole idea of the Mississippi plan of 1890 was to keep Negroes off those juries by keeping them off the voting rolls. Now the only thing that we say is that the Congress said that this was not an Act passed in 1866 for the civil rights movement or for civil rights people just about themselves. I don't agree with that. I don't agree with the previous argument that this was an Act passed that would allow removal when somebody goes out and does something consistent with the Fourteenth Amendment or does something consistent with the Civil Rights Act of 1964. I say it was passed for the Negro who couldn't get a fair trial in the state court. That was one they passed. Now what that means is that they're going to send -- under this interpretation, their recent powers put on this thing, they can't get a fair trial and a fair federal tribunal unless the state so dumb that they passed an Act that says Negroes can't serve on the juries. And no state -- no southern court -- is that enough, there's no southern state government is going to do anything like that. They've learned their lesson. The whole philosophy here was that the legal machinery of the states, the reconstructive states, the ex-confederate state was that they're going to use the federal power, I mean the state power to prosecute the unionists in their midst and the Negroes. What happened after the Civil War was that the Negroes were freed. There were hundreds of thousands of them roaming the south without any education, without any money, without any jobs, without any homes and they passed these Black Codes. These Black Codes are just about like the Slave Codes. The only thing that it didn't have is it didn't say slavery. That was the only difference and the Negro had to register. He had to have a labor contract. He had to indenture his children. He had to pay a head tax. He couldn't move around without a travel permit. He was a class of indentured servants and when he was prosecuted for not doing these things, the federal law says he had the right to remove them. That's what that second section of 1443 means in addition to the fact that the prosecutor, the federal officers and the state officers are trying to do the job. What I'm saying here is that if we don't give some meaning to this federal removal statute then there's no use talking about equality. If a man is going to -- what they were going to do and what they did do and what they're doing in Mississippi now and what they're doing in parts of Louisiana now is they're prosecuting people for civil rights activity and they just go out and pick up a Negro who is not involved in the civil rights movement, he's got a prosecution against him. They can't get a fair trial because they're Black and civil rights people who are white can get a fair trial because they're coming down there from the north and all of that. So what they do is in trial within a state court where they've got a built-in decision and they know they're going to convict them. No lawyers in the community are going to represent them because it's not popular to do that. What happens is, they can't get a proper counsel and they get convicted and they get high bail. They get -- you've got two cases up here now asking for certiorari from this Court. One is Baines, that's the Danville case and one is Bowman out of Montgomery, out of [Inaudible]. If you read those cases, you'll find out the judge comes to court with a pistol, if a searcher by walks into the courtroom, search the brief cases, search the persons, there are policemen standing around with guns on, you can't get a fair trial in that kind of an atmosphere. That was what the whole removal statute was all about then. I would have been able to show you something like that too if the district judge below give me an opportunity to get a hearing. What I'm saying is that I want to be able to take deposition that I can show than in Leflore County, Negroes don't serve on juries. Negroes who are beat up and shot at the night, they were arrested when they try to register to vote, that was what they were doing here. They were -- what happened in these cases, I'll tell you what Willie Peacock was doing. He wasn't trying to violate the law. He was trying to see if the law was followed. He wasn't out just demonstrating to them to block the city sidewalks. They found that if they wanted Negroes to register so as to in an orderly fashion change the policy and the government of the State of Mississippi and bring it into the 20th Century where it belongs that you're going to have to have Negroes register and vote so that the voting processes that makes this country great. The democratic processes of a vote means something to people so that there is some participation in Government. That's what they were trying to do and they found that if they went to a Negro who lived on a farm and said, uncle or aunt, friend or brother, whoever it was miss so and so, mister so and so, come on down and vote and they're going to say, we're scared to go to that White man's courthouse. I'll tell you when I was getting into that. That's just a big white man's courthouse. That's all the law means to me. He just got a bad yawn and you better look out. Don't hang around there. That's just where you pay your taxes. So what the civil rights workers were saying was, okay if you're scared to go, we'll go with you and we'll be there with you and we'll show them that if we have the courage to go with you, maybe you'll have the courage to go down and vote. So what they do is they put on a freedom day and they marched around that courthouse with a sign which says “one man, one vote” or something about voting and the Negroes would trickle into that registrar's office. And the police would come down and say you're blocking the sidewalk and throw everybody in jail. That's what was going on. That's what was going on all over Mississippi. Throw them in jail and try them the next day. We have to file this removal petition in Peacock. Drew it up one night and went up to Mississippi the next day to stop the trials during that day because they were going to trial. So all I'm saying to you gentlemen is that that was what we were talking about when we passed this thing by the 39th Congress and there's no getting around it. If you're going to tell the Negro and asked what it was passed for, if you're going to tell and he's got equal civil rights, don't tell him and then kid him about it. Give him some opportunity to enforce these civil rights and to protect himself and to get a fair trial. Now in maybe four or five, ten years, when the Negro gets to vote in the south like I hopefully think he's going to get it, then maybe he'll be able to elect some judges and some sheriffs and maybe he'll be able to get on some jury rolls, but right now, he can't do it. Only in a very few areas do you find them serving on jury. So if you're going to give him the franchise and you know the Civil Rights Act of 1957, 1960, 1964 and 1965, you go out in these country parishes in Louisiana and these country counties in Mississippi, they don't know where it is. They haven't seen it. It hadn't changed their lives any. They still don't go to the courthouse and vote. They still don't get their roads pay. They still don't have any participation in the Government. They're still afraid of the sheriff because he's a White man's law. And the thing about it is, he doesn't know that there's a federal presence in the State of Mississippi. It doesn't touch him. Now it might touch somebody in Jackson, but that's it. What we got to do --
Earl Warren: Mr. Smith, why do we have to allege in your petition to remove this back to the -- or to get the federal court to think --
Benjamin E. Smith: Mr. Chief Justice, I think that what you have to do is like the statute says. It says a clear concise brief statement of what's going on and Peacock, I admit, I do this pretty hastily at night trying to get it up there and stop these things.
Earl Warren: I beg your pardon. I didn't get that last -- what you said --
Benjamin E. Smith: Short, brief, concise statement --
Earl Warren: Yes.
Benjamin E. Smith: -- of the grounds upon which you remove but I think if you track the language of the statute, I think if you simply make the allegation like I did in Peacock that you've been deprived of certain constitutional rights and I said, you've been deprived of the right -- is denied, I'm saying denied. I think that's the operative language, is denied equal protection of the laws, the privileges and immunities of the laws and the due process of the laws in as much as other things he was arrested, charged and he's to be tried under state statute that is unconstitutional and unconstitutionally applied. I think that's enough to show denial.
Earl Warren: What statute is unconstitutional here?
Benjamin E. Smith: Well, I was saying that the statute, to be frank with you in the Peacock case, I think that I had reference to the statute under which he was being charged this courthouse picketing statute, not courthouse picketing but the blocking the sidewalk statute.
Earl Warren: Alright.
Benjamin E. Smith: But I think that it can be reasonably inferred Mr. Chief Justice that I was also talking about the fact that he was going to be tried under a system of strict racial segregation because in that paragraph by saying this statute is vague and definitely unconstitutional on its face, it's unconstitutional and arbitrarily applied and used and is enforced in this instance as a part and parcel of the unconstitutional and strict policy of racial segregation of the State of Mississippi in the City of Greenwood. Now that's all I said and then I said, he was being -- I said he is not only not guilty but he cannot enforce in the courts of the State of Mississippi the rights he possesses providing for the equal rights of citizens of United States nor can he act under authority of the four mentioned provisions providing for equal protection of the rights and I cite the Voting Rights Act.
Earl Warren: Well, now assume that the State comes in and denies that in these general terms as you have alleged here.
Benjamin E. Smith: Yes sir.
Earl Warren: Now what is the procedure? What is required?
Benjamin E. Smith: My thoughts on the procedure would be that if I have to defend that, if I was the removing petitioner, I'd sit down and institute a hearing on the jury selection process in that county and I'd also call in the sheriff and I'd call in the law enforcement official. We did this in the retrial of the Cameron case which this Court sent back to us to retrial. We tried it over Biloxi in last October. You also said he wanted a better record in that case and so we retried it and what we did was we put the prosecutor on the stand and I said to the prosecutor for example, here, you're arresting people for parading around the county courthouse in Forrest County, Mississippi. I said, what about the football parade that you have in town. You know, it's just as bad to block the courthouse for those football parade as it is to blocking with the sign that says “one man one vote”. He said, “Well, that's a football parade. You know, we don't have to worry about that.” I said, “Well these people are just as serious of what they're talking about as you are with your football parades and you admit that it blocks the courthouse, this is selective enforcement of the statute which was condemned in Cox versus Louisiana.” So as to the kind of hearing that I would undertake Mr. Chief Justice, I would show that kind of selective enforcement. I would show that Negroes don't serve on the jury and I'd show to the federal court by these experiences of useful -- using the federal rules to develop a record, I'll show that he could not enforce in the courts of that state equal civil right of having a fair trial. And once I've done that, I would say, “Okay, now we try the case in the federal court where you'll get a fair trial” which is what this thing is all about anyway.
Earl Warren: The reason I ask that was because I understood counsel in the case just before yours --
Benjamin E. Smith: Yes sir.
Earl Warren: -- to say that he didn't think that was necessary that this applied not because of discrimination but because it applied now to all states because Congress had made an irrebuttable presumption that it was necessary to do that. Do you feel that way?
Benjamin E. Smith: No sir. I don't agree with you about that. I think this Act was passed to cover the prosecution of Negroes in an unfair atmosphere. That's what the Congress in 1866 had in their mind. Justice Black mentioned something about prosecuting Negroes in Watson, New York and I think that's where it came up. I think that if they're denied a fair trial, if they can't enforce in those courts, if the arrest is racially motivated, if the trial is going to be stacked in the deck against them as Mr. Lott says, I don't care if you live in Watson, New York. I still think they're entitled to removal. It just so happens at the time the statute was passed and we're talking about the states of the rebellion and so I don't agree with that previous counsel about that point.
Byron R. White: [Inaudible]
Benjamin E. Smith: Yes sir.
Byron R. White: For example, we say that we do it in a petit jury.
Benjamin E. Smith: Right.
Byron R. White: Or I suppose you would also say [Inaudible]
Benjamin E. Smith: Yes sir. We've got that problem in Louisiana where it's probably a racial crime. We don't --
Byron R. White: [Inaudible]
Benjamin E. Smith: I think it could arguably. Yes sir, I really do. I think that that was what we've talked about Mr. Justice White.
Byron R. White: [Inaudible]
Benjamin E. Smith: Yes sir and it might work out. That is a matter of judicial administration too because --
Byron R. White: [Inaudible]
Benjamin E. Smith: Well, that's right. We -- I just can't see in a situation like where we're really talking about the development of the judicial administration why we can't remove these cases and get this question of discrimination on jury as a trial to go over with on the first level when -- rather than this habeas corpus up and down like a yo-yo thing.
William J. Brennan, Jr.: Mr. Smith, do I gather correctly, you're asking this you have it said so, overrule the Rives-Powers claim?
Benjamin E. Smith: Yes, I don't see the basis for those cases.
William J. Brennan, Jr.: You don't suggest that can be distinguished, you just think we have to overrule it.
Benjamin E. Smith: I don't think so. I think you've got to -- I think those are the same kind of cases you overruled when you overruled Plessy. I think they have a same indication when they still didn't compromise came out that sold out the Negro in the south by removing those reconstruction governments and putting the Texas Pacific Railway through the country. That was sealing the faith of the Negro. Plessy versus Ferguson was just an aspect of it just as in these cases it's an aspect of it too.
William J. Brennan, Jr.: May I ask one other question Mr. Smith. Did I understand you to say that you'd have this hearing in the federal court on the issue of whether or not this is being unfair to the Negro defendants?
Benjamin E. Smith: Yes sir.
William J. Brennan, Jr.: And that's been concluded that it is affirmatively that state courts would be unfair then what did you say what happened to Plessy.
Benjamin E. Smith: I'd try the case in the federal court.
William J. Brennan, Jr.: Try them on the merits?
Benjamin E. Smith: Yes sir.
William J. Brennan, Jr.: You wouldn't dismiss the prosecutions?
Benjamin E. Smith: Well after a man is charged for example with rape or murder and he is indicted. Now the only real question is whether he is going to get a fair trial that he is involved -- not involved in any civil rights work. But if it's a civil rights case and for example in the Rachel case, if I would --
William J. Brennan, Jr.: Well, take that case for example. As I understand it your position is that all the Peacock and the others were engaged in doing was legitimate civil rights activities.
Benjamin E. Smith: Yes in this case --
William J. Brennan, Jr.: And that they were not engaged actually in obstructing any sidewalks in any manner that would not be privilege, is that it?
Benjamin E. Smith: No more than you'd be doing it by walking down the sidewalk yourself.
William J. Brennan, Jr.: Yes. So that if on the trial of that issue might be before the judge without a jury, if you were to prevail, I gather that that's what would the result be.
Benjamin E. Smith: Well, I think that will be a dismissal there.
William J. Brennan, Jr.: Dismissal --
Benjamin E. Smith: I think it would be a dismissal there.
Byron R. White: But if it was a petty jury question or a punishment question, you are to go ahead and you help the court try the case. And then you will just say -- you just couldn't get a fair trial in the state court.
Benjamin E. Smith: Yes, I can't understand the previous counsel talking about sending it back for trial in the state court when that's the --
Byron R. White: He doesn't mean to send it back. He is only to send it back if it was determined that -- if it was determined that there was a proper application of the statute.
Benjamin E. Smith: Oh! Yes. Well, if it was a proper application.
Byron R. White: You would also say there should be a remand if you -- the fact you put on a case about discrimination in the petit jury and the judge ruled against you and he was affirmed on appeal. He would still -- he would say that -- wouldn't you remand the case out of the state court?
Benjamin E. Smith: You mean if the judge found there was no state discrimination and he was affirmed --
Byron R. White: Yes.
Benjamin E. Smith: Then I think the state court would be the proper forum.
Potter Stewart: There's jurisdictional issue.
Benjamin E. Smith: That's right, but all we're looking for is a fair trial.
Abe Fortas: Is that -- may I ask you this question? Suppose -- would you consider it relevant or pertinent to the removal issue to offer evidence with respect to bias and prejudice on the part of the prosecutor or the judge? Or do you think that that evidence of that sort might properly be excluded? Let me put it this way. Is it your position that the only thing that would be relevant to support removal of the case from the state to the federal court would be evidence going to the general system of the administration of justice as distinguished to what has been referred to here as putting the state court itself on trial.
Benjamin E. Smith: I wouldn't put the state court on trial anymore than the recusation statute to do now. In other words, I think we call them recusation statutes in Louisiana where the judge can be recused for prejudice and interest in the case. If you have to show that that prejudice is racial then I think that you have the right to do it but I would not put the state court on trial anymore than that recusation statute does. And as far as the prosecutor is concerned, unless there is a statute that relates to that, I don't know that I want to go into the motivation of the prosecutor. Now I might want to go under the motivation of the arresting officer because that would indicate what was going on at the scene, but segregation as prosecutor theoretically can prosecute impartially. I assume the -- if he operates it under his oath with the judge.
Abe Fortas: Is there anything --
Benjamin E. Smith: Go ahead, I'm sorry.
Abe Fortas: Alright, sorry. Is there anything else that you could foresee as being a matter that you might go into at trial under the pleadings in this case? You now mention the jury systematically excluded Negroes from the jury, the possibility of attacking or testing a motivation on the prosecutor and the qualifications or suitability of the state judge under the recusation statute. Is there anything else that you can help me with --?
Benjamin E. Smith: Yes sir. I think if you -- you have to -- if you have a chance to read the application in Baines versus the City of Danville and Forman versus the City of Montgomery which is up before you I think for some decision, you're going to find that the atmosphere created in the Baines courtroom, if the allegations in the application are correct, was such that anyone looking at it could tell in a minute you weren't going to get a fair trial. Now I think that if you look at that, you can avoid doing something about that. Now I don't want to try to crawl inside a man's mind and find out how he feels about race, but where you've got external objected manifestations of a reign of terror and the absolute absence of justice or the possibility of justice, I think you ought have to be able to inquire into that.
Abe Fortas: So was it -- would you limit removal of possibility under 1443 to situations in which the action for which a person is being prosecuted in the state court where that action takes place in a civil rights context. I take it that you would not so limit it. Let's take just a case of rape.
Benjamin E. Smith: Yes sir.
Abe Fortas: Or a case of murder with no civil rights connection at all. I suppose your response to a previous question means that you would think that 1443 is available for removal to a federal court there upon a proper showing.
Benjamin E. Smith: I think it's just as important because if you take a Negro in the south is charged and one of this country parishes or counties where no Negroes have ever served and we held a hearing in the Fifth Circuit in December, but we have five or seven cases Button case and a whole bunch of others. I have that Button case and we showed every one of these country parishes where no Negroes would ever serve on the jury.
Abe Fortas: Either you --
Benjamin E. Smith: And we know about it.
Abe Fortas: Yes. You continue talking about Negroes here and I suppose that that would also apply to a White person let's say who was a civil rights worker.
Benjamin E. Smith: I think so. I think that you just have to face facts that he is not going to get a fair trial either. There was a Georgia case that came out on that. I forget the name of it but it was a case in which they said that there would be -- the civil rights worker was White and he said he was being deprived of this Fourteenth Amendment right's equal protection I think --
Abe Fortas: I think I maybe wrong but I thought that in Rachel, there were a couple of White persons, civil rights workers.
Benjamin E. Smith: Well, it might have been. Actually two in this case are White.
Abe Fortas: Two in here.
Benjamin E. Smith: Two in Peacock case are White.
Abe Fortas: And I suppose also that this would apply -- let me just assume this situation in which a White man was arrested for some racial business, miscegenation or whatever it might be or some crime involving a person of the opposite race.
Benjamin E. Smith: Right.
Abe Fortas: That 1443 would theoretically be available there.
Benjamin E. Smith: I think so. I think where you find that the atmosphere in these areas, rural areas particularly just forbids a fair trial because of a racial bias, regardless of whether the defendants colored or white, then you've got to recognize that that was what this thing was talking about. I think the Act is going to phase itself out as the society becomes more homogenous where the Negroes participate in this political life of the south which is what we're all been looking for, for years and then the emergency necessity of such an interruption of a state judicial process will pass out the picture and I don't -- I don't see any reason why the federal government ought to interpose itself into the State's affairs if the State can give people fair trials and that's what we're after. These fair trial rights are federal rights and if the state government has the right -- has the obligation under the Supremacy Clause to enforce these federal rights and they're given the first opportunity to do it. If they don't want to do it, if they refuse to do it, if they want to use the machinery of the state to suppress people that are trying to exercise these rights then they forfeited the right to claim states rights and they're going to forfeit it until they bring the state governments into order so that they can say that on the state level, we obey the Supremacy Clause of the Constitution and people in our state colored and white get a fair trial.
Potter Stewart: Are you relying on any particular part of 1443 or any particular language or just on this general history in purpose as you understand?
Benjamin E. Smith: Well, the language is pretty broad Mr. Justice Stewart and I'm relying upon a lot of the history. I think you can find a lot of this in the brief but you say in it -- you see, I'm relying on -- I can't just judge Sobeloff reading of the first section as he has it in the Baines dissent. I say where the prosecution is against any person who is denied a right and I skip there as a right under any law providing for the equal civil rights of citizens and if he is denied it, I think he's denied it by a racially motivated arrest and that's what justice --
Potter Stewart: How would it be true even in a rape or a murder case you think?
Benjamin E. Smith: Sir?
Potter Stewart: If you could show that the arrest was -- the arresting officer was segregationist, do you think that would be true in a rape case or a murder case (Voice Overlap) --
Benjamin E. Smith: No, I don't think that apply in that kind of a case. I really don't. No.
Potter Stewart: Well --
Benjamin E. Smith: I don't think that a (Voice Overlap)
Potter Stewart: -- on what language (Voice Overlap). On what language of the removal statute do you depend for your position in such cases as rape cases, murder cases?
Benjamin E. Smith: I rely upon the second part there that says, “Cannot enforce in the courts of such state against any person who cannot enforce in the courts of such state, a right under any law providing for the equal civil rights of citizens.” Now an accused rapist or an accused murderer who is not arrested because he's a civil rights worker but because he may have committed a crime, I think if he can't get a fair trial before nondiscriminatory to select a jury then he ought to be able to remove it. That's the only grounds I think he'd have.
Potter Stewart: You don't then rely on Section 2 of 1443 at all or do you also rely on that?
Benjamin E. Smith: Well, I think that Willie Peacock and his group, I say in the second part of my brief that they were possibly commentators too. But we found there was that the 1964 Civil Rights Act had been -- well, it hadn't been passed but two Voting Rights Acts so one of 1957 and the one of 1960 had been passed and these would have encouraged Negro registration and that's what Peacock was out there trying to do. And I say if he was out there -- as a matter of fact, there was an interview with Mr. Katzenbach the other day by Mr. Kanues and they talked about, I think Mr. Kanues said to Mr. Katzenbach, “Isn't there some obligation on the federal government to incur the registration and not just make certain that facilities are available,” says Kanues and this is what Mr. Katzenbach said. He said, “No. It is the obligation of the federal government to uphold the law. My interpretation of the law is that civil rights groups in this case have to put on the drive to get people to register.” Now if he is going to say that then these civil rights workers have some protection coming to them and I think they have the protection of this removal statute. It says they can remove.
Potter Stewart: Are you talking about Section 2?
Benjamin E. Smith: Yes sir, you've asked me about it.
Potter Stewart: Yes, I did and how do you -- do I understand then that you would agree that the language of Section 2 applies only to those who are officers of the federal government or acting under the authority or as officers?
Benjamin E. Smith: No sir. I don't disassociate.
Potter Stewart: Posse comitatus -- members of a posse comitatus as you say?
Benjamin E. Smith: Well, I think I make a pretty good argument on that posse comitatus -- comitatus.
Potter Stewart: Comitatus, if you will. [Laughter]
Benjamin E. Smith: But I don't disassociate myself from the Solicitor General's position in this case which I think is a very well reasoned argument which Mr. Claiborne will bring out after I finish about how it applies to everybody. Now I do have one little argument at the end of my brief about the fact that this last language for refusing to do any act on the ground that it would be inconsistent with such law, they want to restrict the Act there to just apply to the state officer who for example is supposed to be fair to Negroes being prosecuted. I say it applies to all the Negroes who are being prosecuted for failing to do so -- actually in 1866, failing to do something on those Black Codes. Because the Black Codes were enacted in Mississippi in November of 1865, this Act was passed in April of 1866 and the Black Codes were effective January 29th, 1866 and the Black Codes -- the Negro just have to sit around in his living room and do nothing then he's violating about ten of them. So he'd be prosecuted for it and he had, I think, under this last paragraph, last sent -- phrase of the last paragraph the right to remove those prosecution. That's my theory. Now I don't find a whole lot of history behind that but that's -- at least that's my feeling of what was happening inside.
William J. Brennan, Jr.: Mr. Smith [Inaudible] situations where Negro is indeed out, drumming up registration.
Benjamin E. Smith: Yes sir.
William J. Brennan, Jr.: But he is guilty of some violence. What would be your position -- what will happen then in the District Court?
Benjamin E. Smith: I've got a case right now where a civil rights worker registered to vote in Forrest County, Mississippi and he filled out his registration form and only that it says “Have you ever been convicted of any crime?” He said no he's been convicted about four of them. Now that posed a heck of a problem to me. He had pleaded guilty without a counsel to three or four of them and it was just a mess, but I removed that case and I think I removed it not because he was arrested for doing something in the civil rights field and that is even trying to register to vote. I removed it because Negroes don't serve on juries in Forrest County, Mississippi and he couldn't get a fair trial of a perjury charge that carried a long sentence with it in Forrest County, Mississippi and that's why I removed it. That's the only reason I removed it.
William J. Brennan, Jr.: Well, that -- that's a situation as I understood you earlier that would be a trial on new merits in the federal court.
Benjamin E. Smith: Yes sir.
William J. Brennan, Jr.: I'm trying to think of a situation in which as I understand your petition here, it is that you've established in the federal court that the activity was all protected activity.
Benjamin E. Smith: Yes sir.
William J. Brennan, Jr.: Even in that circumstance --
Benjamin E. Smith: Yes.
William J. Brennan, Jr.: The result would have to be a dismissal of the prosecution.
Benjamin E. Smith: That's right.
William J. Brennan, Jr.: And suppose in carrying on protected activity, some overstepped the violence then what happens in the Federal District Court?
Benjamin E. Smith: Well, I think that -- you mean if they've act -- they may have actually committed a crime in the process of protected activity.
William J. Brennan, Jr.: (Voice Overlap) with someone for example.
Benjamin E. Smith: Well, I don't think that just because they're doing civil rights work makes them immune from the prosecution (Voice Overlap) I think they'd be prosecuted.
Byron R. White: They actually block the streets or block the sidewalk.
Benjamin E. Smith: I think under those circumstances, they would have to be prosecuted.
William J. Brennan, Jr.: In the state court.
Benjamin E. Smith: Well, it depends if they're going to go to -- I don't want to one of those state juries now. I want to be prosecuted before a jury this fair.
Byron R. White: That's for a different reason, but you think any criminal case in the federal court would come down in putting any difference on what the charge was, wouldn't you?
Benjamin E. Smith: I'm afraid I'd have to. Some of them don't have jury just to worth the name. You don't -- I don't know. It sounds rather extreme Mr. Justice White but some of the problems you face and some of those counties are pretty extreme too.
William J. Brennan, Jr.: Well, this is only a Mississippi case, but this is I suggest not merely a Mississippi decision that would come out your way and I'm trying to figure out what would happened let's say in the Watson situation where there were some legitimate protected conduct of some kind but it was in response to a violence --
Abe Fortas: Mr. Smith --
William J. Brennan, Jr.: -- that there was a removal.
Benjamin E. Smith: Well, I would say that -- I would say that it have to be tried. I don't think you could dismiss it. I think it have to be tried.
William J. Brennan, Jr.: Tried where?
Benjamin E. Smith: In the federal court to get a fair forum unless there was a fair state forum but not just because they were involved in protected activities and then overstepped the boundaries is not going to -- I don't think that you can protect them any further.
Abe Fortas: Mr. Smith, am I correct in understanding that your position makes it rather irrelevant what the particular charge is whether the person is arrested for an ordinary everyday murder or an ordinary everyday rape or for violence and breach of peace or what not? The question that you're going to raise is whether he will get a fair trial on the basis of factors relating to the administration of justice in that particular jurisdiction in the state courts. That is to say jury selection and so on and then the evidence that you have presented in support of removal will go to that question not to the question, although it may be the part of the evidence. But the focus of your evidence will not be whether he engaged in violence from them and peaceful picketing or whether he violated the law or didn't violate the law below but the focus of your evidence in support of removal will be whether he can get a fair trial or not, is that right?
Benjamin E. Smith: Yes sir, it would be.
Abe Fortas: And it doesn't matter what the basic charge is.
Benjamin E. Smith: Yes, I will say again Mr. Justice Fortas. I don't think this Act was tailor-made for a civil rights movement. I think it was tailor-made for the -- to raise the Negro up to the level of the White man giving them a fair forum.
Abe Fortas: Right.
Benjamin E. Smith: Now maybe Congress shouldn't have done it. Maybe they shouldn't have passed it in 1866. Maybe this will burden the federal courts but that's what they did.
Hugo L. Black: May I ask what you mean by that? These were White people who are doing this, they couldn't get it removed?
Benjamin E. Smith: I think --
Hugo L. Black: All White people, all in the labor unions. Labor union is composed of White people.
Benjamin E. Smith: Mr. Justice Black, I think that the history -- I'd like to be able to see it removed if you had due process as the question but I don't think that's historically correct. I think that White people involved in this thing, you've got to use the injunction like we used in Dombrowski. I think that that's really the answer there as we try to use in Cameron.
Hugo L. Black: So you don't think that a labor union is arrested under the same circumstances, made the same allegations, would he have a right to remove it or not, labor union?
Benjamin E. Smith: Yes. I'll be -- I've tried it to labor union, I didn't get anywhere. I did it long time ago and I didn't get anywhere. I don't think historically that they're entitled to use it. I wish they were.
Hugo L. Black: Your argument seems to me to be in that forceful argument that this was -- this is always said for the protection of the colored people and because of the situation which existed and then it applies to them so that they should have a right to have a case removed whenever they can -- whenever they allege, they can't get a fair trial in that place.
Benjamin E. Smith: Yes sir.
Hugo L. Black: Or any reason whatever.
Benjamin E. Smith: And they ought to be entitle -- in addition to that -- yes sir, in answer your question then in addition to that, they're ought to be entitled to keep that case in the federal court if they can prove their allegations. If they can't prove the allegations, they're ought to bounce them back to the state court.
William O. Douglas: Of course that's putting a gloss on the statute because the statute reads in terms as you know against any person who is denied the right of equal protection.
Benjamin E. Smith: Well, Mr. Justice Douglas, I'm getting a lot of opposition from lawyers generally and from this Court. I can see on this question of how widespread is going to be the effect of this Act. If I started telling you that it was going to go to equal -- due process of law then somebody is going to start saying, you're going to institute a federal system with courts for the whole 50 states. Now I don't want to get involved in that morass because I'm up here trying to give it some historical meaning. It could be interpreted that way sir but I just don't think that in all practicality, I'd be doing my case any good to argue that. I think if there's no question, that's all I have Mr. Chief Justice. Mr. Claiborne.
Louis F. Claiborne: Mr. Chief Justice, may it please the Court. I will turn immediately to the statute and to the several sections of it as we analyze it. As we see it, the statute states four separate distinct grounds for removal. They are incorporated in the four operative clauses of the statute which we label, first, the Denial Clause, secondly, the Inability to Enforce Clause; thirdly, both of those in the first paragraph, in the second paragraph, the Color of Authority Clause and finally the Refusal Clause. As we view this case, it turns on only two of those clauses, the first one, the Denial Clause and the third one, the Color of Authority Clause. Now counsel for Peacock also invoked the other two clauses in this case, Inability to Enforce Clause and the Refusal Clause. I should say something about our view of the scope of those provisions as well. But first, let me distinguish between the clauses in the first paragraph as a group and the clauses in the second paragraph. The first paragraph very clearly deals with all kinds of cases in which the defendant is denied or unable to enforce in the courts of the states procedural -- primarily procedural rights. It makes no difference out of what context the case arises. In the language of the 1866 Act, it was for any cause whatsoever. The problem dealt with in that clause is, as Mr. Smith says, the unfairness which is anticipated at the trial because of procedural or other rules which may put the defendant to the disadvantage at trial that is at least the primary thrust of the first paragraph as we see it. The second paragraph on the contrary is not concerned with what happens at Court or what will happen, but is concerned solely with the context out of which the case arises that is the activity for which legal proceeding by the state or by private individual for that matter since this applies as well to civil actions, seeks to interfere or deter and those are the rights provided by the substantive laws providing for equal rights. Some of them already outlined in the 1966 Act, others outlined in the Acts of 1870 and 1871 and of course subsequently by laws like the Public Accommodations Act of 1964. Now as I say, we argue only under the Denial Clause and under the Color of Authority Clause. Within the first paragraph, we do distinguish between the Denial Clause and the Inability to Enforce Clause. The Inability to Enforce Clause, it seems to us, deals with an apprehension as to the future deprivation of rights at the trial. That presents the question of prediction. It presents a very delicate problem of as Mr. Justice Fortas put it I believe in trying the state court in advance. It's something which one is reluctant to do and it is in our view in large part an explanation of the line of decisions cited here beginning with Virginia versus Rives in which this Court indicated that it was unwilling to make that prediction in advance that the state judge would be unfaithful to his constitutional oath unless there was a strong indication in that direction which this Court found, could only be supplied by a legislative directive to him to deny equal protection in the sense of equal procedural right. Now the Denial Clause has a different scope only because it deals with a different time. It is denied as we read it means, since we're talking about removal before trial, the other type of removal is now authorized, is at that moment or has already been denied rights. We're no longer dealing with the prediction of future events with the fact that the trail judge may not allow the defendant to testify as he would other with other defendants that he may deny some other courtroom privilege to the defendant.
Byron R. White: Mr. Claiborne, haven't some to those cases -- didn't some of those cases involve these provisionary findings about the grand jury where anything that happened to the grand jury had already occurred in denying the petition for removal?
Louis F. Claiborne: That is true Mr. Justice White. The --
Byron R. White: And the court -- the state court relies on the absence of the statute to rule properly in a motion to dismiss the indictment.
Louis F. Claiborne: But the attitude or the approach this Court took even though a motion to quash in some of those cases are actually been denied with reference to the discriminatory selection of the grand jury was that this was still a correctable error and that the prediction that we justify removal was a prediction that the Court at some later stage of the proceeding or that the Appellate State Court would decline to correct the error.
Byron R. White: Yes, but all the time that amounted to the alleged deprivation had already taken place and was adjudicated -- it was adjudicable right then.
Louis F. Claiborne: But Mr. Justice White, this --
Byron R. White: Isn't that true or not?
Louis F. Claiborne: Not all of the conduct because this Court viewed the conduct which were justified removal as a final refusal to quash as it were. And this Court said the fact that the motion to quash has already been denied is not final. It is still correctable by the trial court and by the Appellate Court. And it is only if those events take place, if the Court persist in its refusal to vacate --
Byron R. White: That could be true in the cases you have here.
Louis F. Claiborne: That is true. We speak of the Denial Clause as applicable to that sort of case, the sort of case this Court has recognized particularly in the First Amendment area. And most recently in Dombrowski versus Pfister where the institution of the prosecution of a formal court proceeding is itself so great a denial that even if acquittal results, even if conviction is accomplished and ultimately, the conviction is reversed in some higher court, even this Court, that will be too little or too late. The deterrent effect of the Court proceeding has already denied rights in a very immediate real sense.
William J. Brennan, Jr.: That was in the First Amendment area, was it?
Louis F. Claiborne: If those cases --
William J. Brennan, Jr.: In Dombrowski?
Louis F. Claiborne: If those cases have been --I think largely, if not, entirely confined to the First Amendment area.
William J. Brennan, Jr.: Well, do you suggest this is First Amendment (Voice Overlap)?
Louis F. Claiborne: No. But we do think that this area is in every respect, perhaps not every respect, in many respects quite comparable to the First Amendment area. These prosecutions do deter the exercise of rights and I think it has been recognized in the voting area.
William J. Brennan, Jr.: What exercise of what right?
Louis F. Claiborne: Well, here, we're talking about as far as the petition is alleged, registration for voting primarily. Certainly, a prosecution of a prospective registrant tends to deter at least in a community --
Byron R. White: Are all of these people [Inaudible]
Louis F. Claiborne: I don't know that they were all prospective registrants, Mr. Justice White. I think some of them were sympathizers, helpers. They were aiding and abetting the registration by Negroes in Leflore County or at least by merely judging from the face of the petitions, petitions for removal. But the allegation is that this was primarily a voting drive that the activity was halted by this prosecution that was indeed one of the purposes of the prosecution and it is not unreal to suppose that in the community involved, they will be a repressive, deterrent effect from such prosecutions. Let me turn however to the Color of Authority Clause in the second section. There in one sense we deal with a much more restrictive category of cases. Here we do not include cases in which the defendant is engaged in any activity other than or is prosecuted because it's engaging in any activity other than those specified in laws, in terms providing for equal rights and that is to say federal laws.
Potter Stewart: Your version of Section 2 or I suppose under any version of Section 2 of 1443, a person charged with murder or with rape or with burglary just could not make a case for removal, could he?
Louis F. Claiborne: Certainly not in the latter two instances but it's conceivable --
Potter Stewart: Well I suppose there could be such a thing as rape in the furtherance of somebody's -- in line with the civil rights but it's rather difficult to imagine.
Louis F. Claiborne: I would have difficulty with the -
Potter Stewart: Or murder of burglary.
Louis F. Claiborne: But in the case of murder, it could conceivably be a case of self-defense.
Potter Stewart: That's --
Louis F. Claiborne: The charge would be murder, the petition was denied that it was murder but would admit it was homicide. One can imagine circumstances where a murder case would arise out of the exercise of protected rights. One can hardly imagine a rape or burglary case arising out of the same activity. Now as I say the --
Potter Stewart: Now, I suppose -- just to finish this. I suppose under your reading of both sections of this law, an ordinary burglary case could not be removed, could it, simply on a claim that there wouldn't be a fair trial in the state court?
Louis F. Claiborne: Not on either of the clauses that I've mentioned.
Potter Stewart: Not under either of the clauses as you now read them, is that right?
Louis F. Claiborne: No, of course, under the Inability to Enforce Clause if they were the kind of demonstration of racial discrimination in the selection of the jury that satisfied the cases in this Court to Rives. And we don't say that those cases should not be relaxed for the purpose of the Inability to Enforce Clause. We do not think that is the necessary point of the decision here. But you're quite right Mr. Justice Stewart that as to the two clauses I've mentioned, those cases you hypothesize would not be removed.
Potter Stewart: Right.
Louis F. Claiborne: Now it seems to us that what we contend for under the Color of Authority Clause presents the classical case for removal. It follows all of the prior removal statutes in committing removal on the theory that a federal defense is involved and that the issue at trial will turn on the existence of a federal defense based on a federal right. Indeed the constitutional basis for Section 2, as opposed to Section 1 of 1443, seems to us as directly in Article 3 and does not depend at least on the Fourteenth Amendment except insofar as the Fourteenth Amendment authorizes the laws providing for equal rights which -- on which in one sense it turns. This is an exercise of the power which Congress had from the beginning to provide a federal court trial of all the cases arising under the constitution and laws of the United States. That has always been construed. Constitutional Provision has allowing been construed as allowing removal to federal courts of cases in which the federal question was interpose by way of defense rather than by way of complaint. Congress has this matter of policy chosen not to exercise that jurisdiction generally. Here, for a good reason, it chose to exercise it in this area of the attempted decision of civil rights. Also, this Color of Authority Clause seems to us deals with the real problem of today and a problem that was also real in 1866 when the statute was passed. Although at that time, there were other problems. There was the problem of procedural rules that did not permit Negroes to testify or permit them to serve on the juries. And that problem is the risk of an imperceptible and therefore unreviewable as a practical matter, prejudice that may well confront the Negro or those who sympathize and aid with him when he is prosecuted for conduct arising out of his effort to assert his claim to equal rights especially so when that decision is made against an existing White supremacist establishment. In so saying, we do not mean to confine the scope of the statute to south rather than north but it is certainly true that the practical operation of the statute maybe far greater in some areas than in others. Now the defendant may have transgressed the bounds of his federal privilege. He may or may not have violated the local law with which he is charged, but in any event he is entitled to removal so long as his petition for removal alleges a case which on its face would require dismissal or acquittal if the allegations are true. It seems to us that the question whether the allegations are true should be determined as in any other case by the trial jury and not by the judge preliminarily. And so, it seems to us the removal remedy was designed as distinguished from the habeas corpus remedy as distinguished from the injunctive remedy to simply transfer the trial to the federal court. Now that it seems to us is entirely comparable to the diversity removal situation and it is based on a judgment made by Congress as I say an unreasonably that these kinds of cases though not always often might result in unfairness to the defendant in exercising his general jurisdiction to this area. The Congress determined as a matter of precaution to avoid what is viewed as the serious risk of injustice to provide for removal of all such cases on proper pleading to the federal court for a trial there.
Abe Fortas: Excuse me Mr. Claiborne but are you saying that the allegations allege an equal protection right and then the case in the federal court want to go ahead and try it. In other words the question as to the propriety of the removal determines based on the pleadings?
Louis F. Claiborne: I think that it --
Abe Fortas: Because I don't -- is that what you're saying?
Louis F. Claiborne: That is largely what I was saying.
Abe Fortas: Because you said then you go ahead with the jury trial. I assume you don't mean to have two jury trials.
Louis F. Claiborne: No sir. I'm not --
Abe Fortas: So that -- well, are the allegations of the petition for removal to be taken as conclusive? Suppose a state comes in and contests and what happens then?
Louis F. Claiborne: Well, I think there are probably several distinguishable situations Mr. Justice Fortas. First, I would require a very much more detailed pleading than perhaps we have in these cases. And if the conclusory allegation if that's all there is, is contested, I would require that the petitioner by amendment or in some other way is closed with particularity exactly what conduct he claimed he was engaged in at the time that makes his activity protected. And secondly, in what way in his view of the facts he did or did not violate the local law or others. But once he has fully detailed the facts, it seems to me that the matter is ready for trial provided that his particularized version of the facts if sustained would authorize or require his acquittal.
Abe Fortas: You are then saying that if the petition for removal adequately sets forth a case for removal regardless of the contest -- of contesting allegations by the State and then the -- there would be no remand to the state court and the trial won't go ahead on the merits in the federal court.
Louis F. Claiborne: Yes Mr. Justice Fortas. I would apply the same rule that applies in all other removal cases which is to that effect when an officer is -- claims removal or the revenue officer claims removal and alleges either that he did not commit the murder which is charged against him or that he did so, but he did so in discharge of his duty as a revenue officer no matter how strongly that is denied, he is entitled to trial in the federal court.
Abe Fortas: And then in this delightful a la carte menu that you and Mr. Smith and Mr. Amsterdam have presented to us this day and I suppose your position is substantially closer to Mr. Amsterdam's and Mr. Smith's.
Louis F. Claiborne: Except perhaps on this one point Mr. Justice Fortas. Mr. Amsterdam never sees a trial in the federal court. And it seems to me that that's what removal is all about. It is the removal of the case for a trial.
Byron R. White: Mr. Claiborne, what about the case where it's intended to the removal is justified because otherwise a valid state law, a trespass or something else has been applied in a discriminatory manner and that's the allegation in the removal petition. Now you wouldn't -- are you suggesting that you're not only to try it out in the federal court not by the judge but by the jury? You do not only try out the allegations of discriminatory enforcement or do you try out the entire case.
Louis F. Claiborne: In --
Byron R. White: -- from what you said in your brief that you would try out merely the additional question someway either by the judge or the jury and if the allegations were proved, you would dismiss the case entirely.
Louis F. Claiborne: That is under the --
Byron R. White: If they have to prove them you have to remand it to the state court.
Louis F. Claiborne: I may have misstated. I was speaking in answer to Mr. Justice Fortas' question to removal under Section 2 as we see it. Our argument with respect to discriminatory prosecutions is based on the Denial Clause of Section 1.
Byron R. White: And those --
Louis F. Claiborne: And there, we would have a preliminary hearing or --
Byron R. White: By the judge or the jury.
Louis F. Claiborne: By the judge in which the issue is not guilt or innocence.
Byron R. White: Right.
Louis F. Claiborne: The issue is unequal application of the law.
William J. Brennan, Jr.: And that issue would all -- would be determined I gather under your brief, by the judge without a jury is that right?
Louis F. Claiborne: I think that is correct.
Byron R. White: And you would say also that you -- that where the issue is whether a conduct is protected by a federal statute as in Rachel that the allegation is that -- that this could never be a Section 1 case. A Section with removal --
Louis F. Claiborne: Well, I don't think it makes any difference Mr. Justice White if --
Byron R. White: It's not a difference on how it's tried out in the federal court under your theory.
Louis F. Claiborne: Even in a case under Section 2 if the prosecution's version of the facts makes out albeit a violation of the trespass law but at the same time conduct which is clearly privileged by the --
Byron R. White: Sure.
Louis F. Claiborne: -- federal law, there would be no decision by a jury. There would either be a preliminary dismissal or there would be a directed verdict of acquittal.
Byron R. White: How does this consent us? What if there's a factual dispute between the two.
William J. Brennan, Jr.: Whether it was violence.
Louis F. Claiborne: I should think that this is the preferable solution in such a case is to leave that issue to the judge.
Byron R. White: So that -- so that --
William J. Brennan, Jr.: In the federal court.
Louis F. Claiborne: In the federal court.
Byron R. White: Whether you view it under one or two.
Louis F. Claiborne: Well, I would not view that case as being sufficiently clear to fall within the denial clause under one and therefore we would bring under two.
Earl Warren: Mr. Claiborne, would you mind telling me what the procedure would be in this situation now. As I understand it in these cases, two of these people at least were charged with operating motor vehicles in an improper manner. They have sought the removal to the federal court. What would they have to allege and what would they have to prove to bring that under the Civil Rights Act so that the case would be tried in the federal court?
Louis F. Claiborne: Mr. Chief Justice, insofar as they sought removal under the theory which was upheld by the court below, it would not matter what they were doing and they would simply have to show that they were prosecuted whereas others engaged in similar conduct that is Whites engaged in similar conduct would not have been prosecuted. Therefore, there was an unequal application of the law as to them and that would justify their removal under the Denial Clause. Under the second clause --
Earl Warren: This as I understand it is for operating vehicles with improper license tags.
Louis F. Claiborne: I didn't (Voice Overlap) answer.
Earl Warren: Just what would you have to prove as a practical matter there that there were other licensed people with improper license tags running around the community or what?
Louis F. Claiborne: I assume that they would have to either show -- either deny the guilt of the charge that is denied that they failed to have the proper license tag.
Earl Warren: Well, is that sufficient to raise civil rights question for the Court to pass on?
Louis F. Claiborne: No, that alone would not. If I may, on the one side under the Denial Clause, it seems to me that their only claim would have to be that this is this local ordinance or statute which is in practice not applied to others or at least not invoked against out of state if that's their situation or those from out of the county if that's their situation with the rigor that it has been in their case. Now how then this goes about proving that, it may be very difficult. I really can't visualize the testimony that would go into it. Their claim under the Color of Authority Clause, it seems to me, is quite difficult though it may be that while they were arrested in a car, they were in fact in approximate way engaged in voter registration activity. It may have been that they were taking people to and from the polls. Now I don't say that that privilege is to --
Earl Warren: Would that give them any right to have unregistered license?
Louis F. Claiborne: No, that I think would have to be combined with the denial of guilt under the local ordinance, but all I'm showing is --
Earl Warren: But would you try the question of guilt on the -- in determining whether they're entitled to the remand?
Louis F. Claiborne: Not --
Earl Warren: Or removal?
Louis F. Claiborne: Under Section 2, Mr. Chief Justice, I would have the entire question determined at trial that is to say by a jury in the federal court.
Earl Warren: I know --
Louis F. Claiborne: This is assuming that they could particularize which I find difficult to visualize, to particularize the claim of exercising the right -- advocacy of voting while driving a car, but they might be inheriting respective voters back and forth or in some other way engaged in civil rights activity albeit driving a car.
Earl Warren: But would there have to be a preliminary hearing before the judge to determine whether this charge was within the civil rights of these people or would you go ahead and let them try it and determine it on -- before the jury.
Louis F. Claiborne: Provided that their allegations were sufficient to on its face make out a claim of privilege in judge's mind now, because the judge views the petition and he there -- by allowing it or disallowing it, he makes a ruling as to the scope of the federal privilege. He says, assuming the facts alleged, is this or is this not federally protected activity. Now that may be subject to argument but I don't think it's subject to lay a testimony. And as in that sense, there maybe a hearing, there maybe some preliminary proceeding but once the judge has determined that if true, those allegations state cases of protected federal activity then it seems to me the case goes to trial before a jury in the federal court.
Earl Warren: Well, would they say before the question of remand was determined that there was a prosecutor down there who is prejudiced against Negroes and he prosecutes us more vigorously than others and there's a judge down there who is unfair in his decisions so far as Negroes are concerned or the sheriff is unfair and so forth. Would that kind of proof be available to them to show that a motor vehicle -- a charge of the motor vehicle violation would come under this Act as a violation of their civil rights?
Louis F. Claiborne: I would suppose that that sort of evidence Mr. Chief Justice would be relevant in the removal under the Denial Clause, however, I would think it -- I would think any judge should properly be reluctant to remove a case on this testing out of personalities which is a delicate matter and which it should be avoided it seems to me if it all possible.
Earl Warren: Yes. Well if he wasn't attacking the statute and that that was only relevant but not conclusive, what would you add to it to make it conclusive?
Louis F. Claiborne: If your -- if I understand correctly Your Honor's question of -- I take it to be what would show the discriminatory application of the statutes to such an extent as to justify the federal judge in halting the prosecution after removal is sustained.
Earl Warren: Whatever you have to -- whatever you have to allege and prove in order to keep it in the federal courts?
Louis F. Claiborne: I would think that the defendant would have to show that this is a statute which show that some period of time, has not been invoked in the same circumstances with respect to a different class of persons much as this Court found with respect to this grading statute involving Cox versus Louisiana in which the Court found, as I remember it, that on the evidence -- in the record from that case that no prosecution for violation of the parade ordinance had been known in that community in Louisiana where the parade was not by Negroes or their sympathizers. That sort of evidence I should suppose would be sufficient to justify a removal and dismissal of the prosecution.
Earl Warren: Suppose it was a crime where they do normally prosecute people for that kind of a crime.
Louis F. Claiborne: In that case, Your Honor, there would be no basis in my view for removal under the Denial Clause and as I say, only a basis for removal under the other clause if the defendant denied that he had violated the local law and showed that he was at the time engaged in protected civil rights activity by which I mean activity protected by law providing for equal rights in terms.
Earl Warren: I'm just thinking of the ramifications of these things. Suppose a man was caught driving the car down the street and was going to civil rights meeting and he ran over for that civilian and killed him and was prosecuted for manslaughter. Could he go to the federal courts and allege that he's going to a civil rights meeting and was in the exercise of those rights as a result of which he was being prosecuted for this crime?
Louis F. Claiborne: Mr. Chief Justice, I would say that that's too remotely related to the concern of the statute to justify removal at all. I would not think that case --
Earl Warren: It's pretty hard to draw a line of this between one and another.
Louis F. Claiborne: Well, these matters, I suggest to the Court which need exploration which need to be articulated in the lower federal courts which need in this case to be articulated. Here, the district judge dismissed or remanded the case without adverting to any of the relevant considerations, but simply on the law as he viewed it which would not have allowed removal no matter what the allegation is short of an unconstitutional state statute and the Court of Appeals itself did not discuss removal under subsection (2) and therefore we would urge the Court to accept our argument not to attempt to draw these lines because they are matters to be forged through judicial experience which fittingly belongs first in the lower courts.
Hugo L. Black: Mr. Claiborne, I just read the facts alleged in this petition for removal. Coming to it in your judgment, does it show and allege enough facts to justify a removal and to prevent a remand?
Louis F. Claiborne: I think not Your Honor. I think the paucity of these petitions is excusable here at this initial stage of the rediscovery of the removal statute. And in any event it needs --
Hugo L. Black: What fact you need to be headed to us.
Louis F. Claiborne: Well, if Your Honor is speaking of the Peacock --
Hugo L. Black: That's what I'm speaking of.
Louis F. Claiborne: -- petition, I would want to know, was the judge when -- or the question of removal was before me in what way, in what numbers these people were picketing. I would want to know for what purpose they were picketing insofar as removal under Section 2 is concerned and I would want to know whether they admit or deny violation of the statute with which they're charged. And if they -- and precisely what conduct they were engaged in. I wouldn't care so much about the allegation of the right that they were exercising. I would be more interested in the particularized statement of the facts so that the trial judge could determine to myself whether they --
Hugo L. Black: What is that?
Louis F. Claiborne: So that I as the judge could determine whether assuming these facts could be true which the jury will later test if federally protected activity is stated or rather a violation of state law which -- as to which there is no immunity.
Hugo L. Black: I guess I misunderstood you. Your position is that if it alleges these facts, that's all, alleges these facts, the judge has to assume they're true. He does not try it enough.
Louis F. Claiborne: That is as to our position under subsection (2) that is the position, yes Mr. Justice Black.
Hugo L. Black: In other words, anyone by alleging the facts, the facts enough to bring them under the statute whether they are true or not, gets a removal and is tried in the federal court.
Louis F. Claiborne: Yes, subject to it because it's a verified petition subject to the penalties of perjury for alleging --
Hugo L. Black: What I'm talking about is right at the trial in the federal court.
Louis F. Claiborne: His right to trial in federal court.
Hugo L. Black: It depends all together on allegation.
Louis F. Claiborne: In the same way that removal and diversity jurisdiction --
Hugo L. Black: How could the court --
Louis F. Claiborne: -- depends on allegations.
Hugo L. Black: How could the courts be protected if that is the purpose of it and that's the interpretation from having hundreds and hundreds of cases imposed on them filed every year when there's really no justification for it in fact.
Louis F. Claiborne: Well, Mr. Justice Black, defendants --
Hugo L. Black: That would be no excuse if Congress has said, I agree to that.
Louis F. Claiborne: But more than that Mr. Justice Black, the defendants will remove to the federal court only if they do have basis for thinking their trial in the state court will be unfair to them.
Hugo L. Black: You say they will do that?
Louis F. Claiborne: There's no advantage to removal.
Hugo L. Black: (Voice Overlap) pretty active. I represented the purpose that if anything accused delay -- considerable delay particularly is just the [Inaudible] or defendant.
Louis F. Claiborne: I would think --
Hugo L. Black: If all they have to do is allege it.
Louis F. Claiborne: Well, there are some defendants who take seriously their constitutional right to a speedy trial Mr. Justice Black and who want acquittal and to who inordinate delays and inconveniences are not an attraction if they feel secured in the local court they will get justice.
Hugo L. Black: You're going on the assumption the defendants wouldn't take advantage of that.
Louis F. Claiborne: I'm sure that Your Honor is correct in assuming that many defendants will take advantage of it. I don't know that it will reach such unmanageable numbers.
Hugo L. Black: It's an action I think. It has been in many places that the best defense a defendant has is delay.
Louis F. Claiborne: Guilty defendants Mr. Justice Black.
Hugo L. Black: Any defendant.[Laughter]
Earl Warren: Mr. Claiborne, do you agree with Mr. Alexander that this applies all over the country to every state in the union or do you think that it's restrictive to a certain number of states where Congress has felt that these rights have been abused.
Louis F. Claiborne: No, Mr. Chief Justice, I do not think it is sectional legislation. I think it is permanent and national legislation good for the whole country. There is no disguising that what motivated statute was a concern for the civil rights of Negroes in the states involved in the rebellion, but that does not mean that it should not and cannot be applied in other parts of the union when the same circumstances arise.
Earl Warren: That manner of proof would be the same for the country.
Louis F. Claiborne: Exactly.
Earl Warren: Yes.
Byron R. White: Mr. Claiborne, do you suggest that all of these cases in the Peacock case, in this proceeding are sustainable under Section 1 like the Fifth Circuit said it was or do you think you must resort to Section 2 for any of these cases?
Louis F. Claiborne: I think that, Mr. Justice White, must abide the hearing which the Fifth Circuit has --
Byron R. White: So you think we could treat this case in the abstract and set down some ground rules and remand.
Louis F. Claiborne: Mr. Justice White, let me emphasize that the remand makes a big difference, the terms of the remand makes a big difference. The Fifth Circuit has remanded the case for a hearing on the question whether these were discriminatory prosecutions and that is all.
Byron R. White: You have to think that they didn't say that -- they didn't say that if discriminatory prosecutions were shown, they were all sustainable they're all removal under Section 1.
Louis F. Claiborne: But it may well turn out Mr. Justice White that some of the defendants will be unable to prove the discriminatory application of these statutes as to them in which event they, in our view, should have available to them not a dismissal which would be the result of that remand order but a trial in the federal court if on the more particularized petition which I would require, they can show that they were engaged in protected activity -- activity protected federal law.
Byron R. White: And by the way, on removal in diversity cases, you certainly don't just hear the case on federal court on allegations insofar as the jurisdiction of the Court is concerned. You have a trial on a remand motion that isn't a trial and somewhere in -- and in this particular removal statute, you have allegations that would have to do on jurisdiction that go to the merits. The jurisdiction in the merits overlapped and I would think there's quite a distinction between the removal of sections in this regard.
Louis F. Claiborne: Well, I suppose I should say that in the criminal case, it seems over more fitting that the facts should be tried by the jury at least those facts which do go to the merits.
Earl Warren: Very well. We'll recess this time for --