Warren E. Burger: We will hear arguments first this morning in Hunter against Underwood, et al.-- Mr. Ward, I think you may proceed whenever you are ready.
James S. Ward: Mr. Chief Justice, and may it please the Court: In May of 1978, Carmen Edward, a Black female, was told that she could not register to vote because she had been convicted of the crime of issuing a worthless check which under state law is one involved moral turpitude. That decision to refuse her her vote was based upon the Constitution of 1901 and Section 182 which allows the disfranchisement of voters for conviction of a crime involving moral turpitude. That specific crime is not on the list. The statutory offense for which she was committed, issuing a worthless check, did not become a statutory crime until 1971. So, the justification for his disfranchisement would fit under the provision of the constitutional provision of 1901 which allows disfranchisement for those who commit any crime involving moral turpitude. A month later in June of 1978, Mrs. Edwards, along with a while male, Mr. Underwood, filed a complaint in the District Court alleging that Section 182 violated various rights guaranteed by the United States Constitution. That complaint was later amended to include five causes of action. Three of the causes of action were disposed of in pre-trial. The case was tried on the cause of action that specific crimes had been added to Section 182 with the intent to disfranchise blacks and that the statute has had that effect presently.
Harry A. Blackmun: Mr. Ward, do you know, does any other state than Alabama disinfranchise any category of non-felons?
James S. Ward: Presently?
Harry A. Blackmun: Yes.
James S. Ward: Your Honor, I do not know. There are non-felons disfranchised for commission of various election offenses which may or may not be a felony. But, I am not aware of any specific state that allows blanketly at least that. I am sure there are some states that allow disfranchisement for misdemeanors depending on how the statute is written. If the state court would define a misdemeanor as being an infamous crime and the provision of law in that state allowed for that to happen, then I think, yes. The District Court held that there was a failure on the part of the Appellees to show that 182 was passed with the intent to disfranchise blacks and also that even if that had been shown there was a permissible motive for Section 182 and, therefore, under Palmer and Michael M. the statute was allowed to stand. On Appeal the court below ruled as a matter of law that intent to disfranchise blacks have been shown by the inclusion of the certain crimes, those crimes being misdemeanors and crimes involving moral turpitude and that the Appellants here have failed to prove that there was a permissible motive. It is the Appellants' contention now before this Court that Section 182 must be viewed and analyzed as it exists now, not as it existed 84 years ago when it was passed. Today the effect of Section 182 is as follows: The only crimes for which one can be disfranchised in our state are ones involving moral turpitude or which are a felony. No one can be disfranchised for the conviction of a misdemeanor in and of itself. It has to be a misdemeanor involving moral turpitude or a felony. All crimes on the list which do not involve moral turpitude are no longer good crimes in our state. By various court decisions or decision of this Court, they have been stricken. So, you are dealing now with a statute which, as it presently works, includes within its proscriptions those who have been convicted of a felony or one convicted of a moral turpitude crime and makes no distinction as to whether it is a misdemeanor or not. If the crime involves moral turpitude, that is the disfranchising fractor. That is the occurrence that allows the state to disfranchise, not its punishment as opposed to a felony or a misdemeanor. We feel it is--
Sandra Day O'Connor: Mr. Ward--
James S. Ward: --Yes, Your Honor.
Sandra Day O'Connor: --do you concede that the statute presently has a discriminatory effect?
James S. Ward: No, ma'am. I would be very blind and naive and try to come up and stand before this Court and say that race was not a factor in the enactment of Section 182; that race did not play a part in the decisions of those people who were at the constitutional convention of 1901 and I won't do that. My point is that the effect of the statute today could be and probably is based on reasons that are legitimate reasons that the state can consider. If the difference in treatment is the result of those committing moral turpitude crimes or others or a certain class or group committing more felonies than others, then the answer to your question, Your Honor, is the effect or the numbers would not have anything to do with race. If crimes were selected because there was proof that more than one group committed those crimes as opposed to another group, the answer to your question may be different The point is those crimes now viable all involve moral turpitude and to us the issue is whether the state 84 years later can have in operation a provision of law that disfranchises felons and moral turpitude offenders regardless of what the punishment is. I believe that analysis is consistent with this Court's decisions in some such cases as Doyle, Arlington, and in Davis. The important factor there was to look at whether there could be a justification for the continued validity of a decision. In all those cases... In each one of those cases, there is an immediate decision. A decision was made, it was challenged, and the parties knew immediately that that decision would be allowed to continue or would have to stop. Therefore, the factors that were considered in trying to determine whether that decision was valid or not were all there presently. In this case, there is a difference. We have the inexorable problem of the passage of time. This Act was not challenged until some 77 years after it was passed and here it is 84 years later. And, I read nothing in any of those cases, in the Doyle case, in the Arlington case, or Washington versus Davis that says this Court or any court can't consider the present-day factors or the present-day justifications for something in trying to determine whether the state would have a legitimate or valid motive for the passage of the complained of Act. The Court allows--
Harry A. Blackmun: --Mr. Ward, I suppose your opposition could make this same argument. I am asking you, I guess. Could they make the same argument with respect to felons as to moral turpitude misdemeanors?
James S. Ward: Your Honor, they do not make it. They say that the state has a right to disfranchise those who commit crimes and are defining crime as a felony. The way I read this Court's opinion in the Richardson case, there is... the state would have the authority to disfranchise all felons which this statute does. The question becomes, well, does the fact that there was a racial motive involved in its passage, although it applies to all felons, would that make a difference. The way I read Richardson it would not; that the second section of the Fourteenth Amendment allows the states to disfranchise felons... and I am going to argue in a minute, if it please the Court, that it is not limited just to felons... but in the Richardson case that the section section of the Fourteenth Amendment could not be... Excuse me. That the first section of the Fourteenth Amendment could not limit what was affirmatively given to the states by the second. So, the answer to your question, Your Honor, is no, I don't think they could say that.
John Paul Stevens: Before you get too deeply into your argument, what is a crime of moral turpitude? I mean, where do you look for the definition of that in--
James S. Ward: In our state, Your Honor, you look at several places. The first place you look is to the afforded court decisions. Most crimes which involve moral turpitude in our state are the subject of a court opinion and Appellate Court opinion, either the Court of Criminal Appeals or the Supreme Court, or a subject of opinion from the State Attorney General's office. The testimony at trial showed that the registrars, in determining whether a crime involved moral turpitude or not, would either consult the Attorney General's opinions, the case law, or if that did not help them, they would seek the advice of the local district attorney or the state's attorney.
John Paul Stevens: --There is no one statutory frame of reference such as a list that is--
James S. Ward: No, sir, there is not, although there are cases which put out a list, but there is no list within the statute itself.
John Paul Stevens: --Nobody denies that this particular... that check offense was a moral turpitude crime?
James S. Ward: No, sir, that is agreed upon by everyone.
John Paul Stevens: What about drunken driving just out of curiosity?
James S. Ward: No, sir.
John Paul Stevens: It is not?
James S. Ward: Would not nor can you lose your right to vote for drunken driving. It is suggested then that if you look at the present state of affairs and the present justifications that Section 182 would be allowed to operate and should not be stricken down. In saying that I would point out to the Court that it has on other occasions, and I am referring now specifically to the Doyle case, which would involve the case of challenged conduct, First Amendment conduct, asks what is the cause and if the cause is not based on the unconstitutional problem but the cause was based on something else, then the decision should be allowed to stand. And, in Doyle this Court lists some of those things, where a confession is obtained which is invalid. Later on it can be cured by an intervening time, so the cause of the confession therefore is not what it was when it started. Or if an arrest is made and that arrest is bad and a confession given, things can occur in the meantime where a second confession would be valid and, therefore, the cause of the confession, therefore, would be not be the initial taint. If it is argued or assumed that there is some taint involved in the initial enactment of Section 182, we say that that taint, if any, has been cured because of, first of all, what the statute now says, and, secondly, because of the interest in the state pursuant to various... to the Tenth Amendment and to the Fourteenth Amendment to conduct their affairs in this area. Perhaps stated another way, if North Dakota today or Wyoming passed a law which said that we will disfranchise those that commit moral turpitude crimes, would that be lawful, would that be within the exercise of the Tenth Amendment power or would it not? The fact that Alabama, the start of Alabama's, the root of Alabama's provision was 84 years ago should not treat that state differently today whereas other states under the same circumstances today could pass it.
John Paul Stevens: Mr. Ward, doesn't that argument assume... this is sort of the same thought Justice Blackmun was asking you about... that there are other states which would pass a statute like this for a non-racial purpose and I don't know if there are any such states.
James S. Ward: Your Honor, I don't either but that is assuming that the state would not have that right. I would feel quite strong in saying that the state would have a right to pass a law, fair on its face, applied in a fair manner that made moral turpitude a difference in whether one would vote; that the Tenth Amendment would give the state that right and the Fourteenth Amendment would.
John Paul Stevens: Do you think they could do it if they defined moral turpitude to include all traffic offenses?
James S. Ward: No, sir. I think--
John Paul Stevens: Why not? You just think they want to insist on obedience of the law, traffic laws are important too.
James S. Ward: --Well, they are--
John Paul Stevens: A lot of people are killed on the highways.
James S. Ward: --Well, perhaps if that specific finding was made. That, again, is perhaps a decision best left to the states. The point I am making is that should this state in this case be denuded of the ability to impose restrictions on the franchise. The way the statute operates today other states would have the right to make those kinds of decisions. I can't predict that if North Dakota did that and if it reached this Court what this Court would do, but it may could and if it could, then I would think that this state, Alabama, would have that same right. Assuming that, and you must that the state has a right to disfranchise those who commit moral turpitude crimes, one wonders where that authority comes from. It comes first from the Tenth Amendment, that the state has the right and a wide discretion of the rights to set qualifications for voters and to determine who is eligible to vote. As a matter of fact, in the Lassiter case, which was cited by this Court in the Richardson case, it states specifically that previous criminal record is a fact the state may take into account in determining whether someone is qualified to vote. We would submit to the Court that that kind of a previous criminal record which included a conviction of a crime involving a moral turpitude type crime would be a factor that the state could take into account and should be able to take into account pursuant to those powers and duties left to it by the Constitution. If the Court is to say that per se a state does not have the right to disfranchise those who commit moral turpitude crimes without a showing that there is some other violation of the federal Constitution, they would be destroying in my opinion what the Tenth Amendment says and if the Tenth Amendment allows the states to control these types of matters and they can do so, then the states should be allowed to. Secondly, this Court's opinion in the Richardson case, as is well know, the second section of the Fourteenth Amendment allows the state to disfranchise for participation in rebellion or other crime. It affirmatively sanctions that and does not put the penalty provision of the rest of the provision on the state if disfranchisement is based on participation of rebellion or other crime. This Court in reviewing the legislative history of Section 2, I feel, was careful to point out that there was little debate on what this section meant, that the interest of everyone was on another provision and that section means what it says, other crime. Therefore, other crime could include the conviction of crimes other than a felony. I again turn to Lassiter because the Court in discussing the eventual holding of Richardson was cited Lassiter and specifically cited the language from Lassiter that allows the state to take into account in determining qualifications of voters previous criminal record. The analysis then is that the Fourteenth Amendment either, one, would allow disfranchisement for other crime and escape the penalties of the first section or that because the Fourteenth Amendment, the second section of the Fourteenth Amendment talks about other crimes, there has been created to the state a special area, a unique area, if you will, in dealing with voting. The importance of saying rebellion or other crime in an amendment that was passed to help protect that very right, that is voting, seems to me to suggest that there is a special area of protection for the states and if the Court was not to accept that other crime means all crimes of any kind, then I would suggest that it would mean that in judging a statute based on the disfranchisement of crimes other than a felony, a lesser standard, a less strict standard that is used in voting cases on a general basis be used; that a strict scrutiny test not be used, but a rational basis test be used. Now, there are some Appellate Court decision that adopt that view. I could not find any decision from this Court that adopted that view. We would urge that it would be consistent if the language of Section 2 and the citation to cases which talk about the states being able to decide what the qualifications are for voters and cite a Tenth Amendment case that at least this area, this area of voting has left a little more special special impact, a little more uniqueness to the states, a little broader latitude, if you will, in dealing with these problems. That is not to say that the first section of the Fourteenth Amendment doesn't apply at all, but it would apply on a less level than a strict scrutiny will.
Thurgood Marshall: Why isn't it that you haven't mentioned the Fifteenth Amendment?
James S. Ward: Why, Your Honor?
Thurgood Marshall: Yes.
James S. Ward: Well--
Thurgood Marshall: It is alleged. It is in the complaint.
James S. Ward: --Yes, sir.
Thurgood Marshall: It is in the case. Why do you say the First and Fourteenth?
James S. Ward: Well, the argument, Your Honor, would be the same if now the effect of what is happening with Section 182 is on a basis other than race, is on a basis of any other bad attention. I do not see that as being a prohibition of that Amendment.
Thurgood Marshall: The Fifteenth Amendment says no discrimination of any kind by anybody. Isn't that what the Fifteenth says?
James S. Ward: I believe it says based on race, does it not, Your Honor?
Thurgood Marshall: That is what I mean.
James S. Ward: Okay. But, there could be a discrimination based on something other than race and not be any problems with that amendment. What I am saying is that if the difference in treatment here is because of a classification involved with moral turpitude crimes as opposed to race, then the Fifteenth Amendment would not apply. I agree with Your Honor that if it is shown that the vote is abridged because of race--
Thurgood Marshall: I haven't taken any position on that. I just want to know why you have left it out of the argument. Do you agree that the Fifteenth Amendment applies?
James S. Ward: --Do I agree that the Fifteenth Amendment--
Thurgood Marshall: Yes.
James S. Ward: --I didn't hear the last part of your question, sir.
Thurgood Marshall: Do you agree that the Fifteenth Amendment controls this case?
James S. Ward: No, sir.
Thurgood Marshall: Well, why don't you argue it?
James S. Ward: Well, I argued it, I thought, in that the arguments I do make... that is if there is a permissible reason for what is happening now with the section that would pass constitutional muster under the Fourteenth or the Fifteenth. That because, if you will, of what is happening now is not race, it is something else. It is the interest of the state in disfranchising those who are convicted of moral turpitude crime and, therefore, the Fifteenth Amendment would not be involved.
John Paul Stevens: May I ask you one other question about your approach... looking at just today's... what if the evidence showed for the first 30 years or whatever period it might be that the statute or the constitutional provision did abridge the right to vote on account of race and flatly violated the Fifteenth Amendment for the first 20 or 30 years of this effect. Would it be your view that it was invalid during that period and then by reason of passage of time it kind of blossomed into something that became valid? Is that how it goes?
James S. Ward: Your Honor, both the passage of time and changes in the Amendment itself. Section 182 today does not read the same way as it did then. It reads the same way, but there have been crimes taken out of its sphere. Therefore, the crimes that have been taken out of its sphere, plus the passage of time, yes, sir, would allow it to have some effect to that.
John Paul Stevens: Does your analysis in effect acknowledge that it was invalid for a short... during its original effective period or you say we just don't even have to consider that at all?
James S. Ward: Well, my analysis is I cannot get up here and say race did not play a part in it.
John Paul Stevens: I understand that. But, in your brief you took a little different position. You said that it wasn't invalid originally because it had an additional purpose, to disinfranchise poor whites as well as blacks. I am just wondering whether you... what is your present position with respect to the validity of this constitutional provision during the first 10 or 15 years of its life? What do you say about that? In your brief you argue it was always constitutional. I don't know whether you are still arguing that or not.
James S. Ward: I would still have to argue that, but I would have to say that again, because of the passage of time, that argument loses some of its strength. If I may, I would like to reserve... unless there are questions from the Court... reserve what time I have left.
Sandra Day O'Connor: Mr. Ward, I did have one more question. The Court of Appeals also indicated, I think in a footnote, that the statute was under-inclusive because sometimes that apparently it would be characterized at least by the Court of Appeals as crimes of moral turpitude are not included such as mailing pornography and so forth. Is that accurate?
James S. Ward: No, ma'am, it is not accurate for two reasons, Your Honor. First of all, that mailing by... I can't remember, whatever it is, was not even a crime then. It became a crime in 1967. Secondly, the argument goes we weren't trying to disfranchise all misdemeanors. We are just trying to disfranchise felons and moral turpitude offenders, misdemeanors or not. So, the under-inclusive argument, to me, does not apply and misunderstands what we are trying to say. We aren't trying to say that the state can select 18 misdemeanors and not select 18 others. And, the 18 they did not select were more serious than the ones that they did not. What we are saying is the threshold question is conviction of a felony or a crime involving moral turpitude and then it is that, the moral part of it which is important, not if the penalty is one day or ten days. And, I think that analysis for that reason... the felonies... if you were to say a statute that disqualifies all felonies, there are some of those which is some states are not serious at all and in some states, of course, are. I think some states, if you pick some wool or something, you can be sent off as a felon. So, the fact that it is all felons, that same argument could apply there, that some felons... or crimes which are felons are just so unserious as compared to others it is an under-inclusiveness type thing there.
Byron R. White: Could I ask you one other question. You suggest that we should look at the law at it presently stands and that the past is largely irrelevant. What about the finding or the statement, observation of the Court of Appeals, that this discriminatory effect persists today?
James S. Ward: Well, sir, that was based on a finding which was challenged at trial. That finding was based on statistics--
Byron R. White: Well, what if I accept it though?
James S. Ward: --Sir?
Byron R. White: What if that observation of the Court of Appeals is to be accepted?
James S. Ward: That--
Byron R. White: Yes. That the law which was passed was a discriminatory intent, had a discriminatory effect and that it still does? What if we accept that? What happens to your argument?
James S. Ward: --Well, if you accept that, if it still does have that effect, then I would suggest that there could be shown that there are reasons other than the selection of the crime that causes the effect.
Byron R. White: Well, that is a different argument. That is a different argument. I thought your argument had been that as of today this statute should be accepted as having a neutral non-discriminatory purpose and impact.
James S. Ward: Purpose.
Warren E. Burger: You said if North Dakota or Wyoming or some states who were not involved in those days passed this same statute now, you think it would be sustained.
James S. Ward: Yes, sir.
Byron R. White: Well, you think Alabama may continue it if it has a discriminatory impact today?
James S. Ward: Your Honor, if it was passed again in the same manner, if this Court strikes it down and it is passed again in the same manner and it shows it still impacts against blacks, then proof would have to be adduced as to why and I think some things could be shown as to perhaps why. But, that--
Byron R. White: Well, should we judge the case on the basis that this observation of the Court of Appeals is correct? Is it supported by the record?
James S. Ward: --I don't believe it is, no, sir.
Byron R. White: You don't believe it is, but--
James S. Ward: If the state would have the right to disfranchise those who commit crimes involving moral turpitude and that is the reason why there is an impact, then, yes, you could. --Thank you.
Warren E. Burger: Mr. Still?
Wilson Edward Still, Jr.: Mr. Chief Justice, and may it please the Court: When John Knox opened the 1901 Constitutional Convention, he stated its purpose very clearly. He said, and what is it we want to do while it is within the limits imposed by the federal Constitution to establish white supremacy in this state. He went on to say that they wanted to establish white supremacy by law rather than by force and violence. Historians, including the two who testified in this case, one for the Plaintiffs and one for the Defendant, are unanimous that the 1901 Alabama Constitution succeeded in meeting this goal of establishing white supremacy by law. The Appellants' brief even said that the entire Suffrage Article had the intention to disfranchise poor whites as well as blacks. Suffrage was one of the principal issues of the 1901 Constitutional Convention. Every time the issue came up, the debate centered on the relative effects of a particular provision on blacks and whites or among different groups of whites. There were no delegates at that convention. All of the delegates were white by the way. There were delegates at that convention who stood up and suggested that blacks should be given a full, free, and equal franchise with whites. Instead, the debate was over how far to take the disfranchisement of blacks and how far to take the disfranchisement of others. Now--
Sandra Day O'Connor: Mr. Still, do you think that the state is forever bound by that original discriminatory purpose or can the passage of time and circumstances ultimately change that?
Wilson Edward Still, Jr.: --I believe they are bound. In this Court's decision in City of Richmond versus the United States just two years ago the Court said an official action taken for the purposes of discriminating against Negros on account of their race has no legitimacy at all under our Constitution. And, in the Arlington Heights case, the Court said that racial discrimination is not just another competing consideration. When you find racial discrimination, that should be the judicial deference that goes along with state laws evaporates.
Sandra Day O'Connor: Well, in your view then is the felony disinfrancishement provision equally invalid?
Wilson Edward Still, Jr.: That whole provision, Section 182, would probably have to be rewritten, but I think we would have to--
Sandra Day O'Connor: Your answer is yes--
Wilson Edward Still, Jr.: --No.
Sandra Day O'Connor: --that it is also invalid?
Wilson Edward Still, Jr.: No, because the 1875 Constitution disfranchised the felons, so we would have to compare it against what they had before and go back to the provision that they had previously which would disfranchise felons only and not misdemeanors.
Warren E. Burger: Suppose, Mr. Still, that the 1901 attitudes were a continuation of the Jefferson point of view that only the property class should vote. Is that not a matter of history?
Wilson Edward Still, Jr.: I believe that was Jefferson's view. But, the 1901 Constitutional Convention had, of course, many view points in it but they were primarily interested in disfranchising blacks. In fact, the Democratic Party had agreed to have the Constitutional Convention on a pledge that they would disfranchise blacks and not whites and they were elected to the Convention on that basis.
Warren E. Burger: The provision with respect to whites in the 1901 Constitution would violate... Do you think it would violate the Fourteenth Amendment even if it didn't violate the Fifteenth?
Wilson Edward Still, Jr.: Some of the provisions of the 1901 Constitution as applied to whites have been struck and as applied to all people. For instance, the poll tax was struck down in Alabama in 1966 in U.S. versus Alabama. So, there are many provisions of this Constitution that have been struck down on general equal protection, non-racial grounds over the years. The grandfather clause, for instance, which this Court struck down in Keoun versus Oklahoma. There was never any particular case about it in Alabama, but it is invalid under Keoun versus Oklahoma.
Thurgood Marshall: Mr. Still, what worries me is suppose the legislature of Alabama tomorrow adopts this same law.
Wilson Edward Still, Jr.: Well, first of all, I do not believe that the legislature of Alabama would adopt this law. As a matter of fact, they adopted a different constitutional provision.
Thurgood Marshall: Would you mind assuming that hypothetical.
Wilson Edward Still, Jr.: All right. If they adopted this same provision--
Thurgood Marshall: That is what worries me in this case.
Wilson Edward Still, Jr.: --Well, the Plaintiffs would still have to show in that kind of situation that the... whether or not the provision had been adopted for a racially discriminatory purpose and then also they would still be allowed to show whether or not it had a racially discriminatory effect.
Thurgood Marshall: I said enact.
Wilson Edward Still, Jr.: Well, my answer would be same whether they enact it for the first time or they re-enact it.
Thurgood Marshall: You would say that tomorrow Alabama would do it on racial grounds?
Wilson Edward Still, Jr.: I am saying the Plantiffs would have to prove that.
Thurgood Marshall: I am talking about tomorrow.
Wilson Edward Still, Jr.: I am saying the Plantiffs would have to prove that. It would depend upon the evidence in the case.
Thurgood Marshall: What evidence do you have to Alabama doing it today?
Wilson Edward Still, Jr.: I am not suggesting that Alabama would adopt this provision today. As I said, two years ago they adopted a whole new Constitution or proposed one which did not include this provision.
Thurgood Marshall: All I asked is if Alabama does it tomorrow it still will be unconstitutional, is that your answer?
Wilson Edward Still, Jr.: No, sir, no Your Honor. My answer is if Alabama does it tomorrow the Plaintiffs will have to prove the same thing they proved in this case, but I am not predicting what the proof will be because I do not believe that Alabama will adopt this provision based on what they did two years ago. There was a whole new Constitution proposed two years ago which did not include this particular provision and that Constitution has not yet come to a vote of the people of Alabama because of a technicality with the Alabama Supreme Court who said you can't propose a whole constitution in the way they did.
Thurgood Marshall: So it would be valid?
Wilson Edward Still, Jr.: --No, this--
Thurgood Marshall: If it was adopted tomorrow, it would be... You said they couldn't show it was invalid.
Wilson Edward Still, Jr.: --No, sir.
Thurgood Marshall: So, wouldn't that be--
Wilson Edward Still, Jr.: Your Honor, I have not said that they could not show it was invalid. I have said the Plaintiffs would have to prove that it would be invalid. It is my contention--
Thurgood Marshall: --Well, they can't prove it is invalid or can they?
Wilson Edward Still, Jr.: --I believe they can prove that it is invalid because of its present continuing effect. Now whether they would be able to prove it still had that intent tomorrow I don't know. It depends on what the evidence shows in the case. Turning back to 1901 though we know that that had a discriminatory purpose. The author of the provision said I have written this to have a discriminatory purpose. Everyone at the Convention assumed that it did and all historians have agreed that no one disputed that point. In fact, the Defendants' own expert, the Appellants' own expert testified that 90 percent of the people who were disfranchised in the first year after the passage of the Constitution for commission of a misdemeanor were black.
William H. Rehnquist: Mr. Still, just how much evidence do you think a Plaintiff has to have to make the sort of showing that the Court of Appeals found you have made here? You say that the proponent stated, this was his motive, he wanted to disinfranchise blacks. Now, you know, I don't know how many people there were in the Constitutional Convention, but how much showing do you have to have as to the motivation, say, of at least a majority of the people who voted?
Wilson Edward Still, Jr.: I think in any type of test that you apply that this situation in Alabama is going to be held to be discriminatory because the racial--
William H. Rehnquist: I think that is probably true but that wasn't the question I asked you.
Wilson Edward Still, Jr.: --Well, I do not know how much is necessary. I am simply saying that under any test that has been proposed by any of the Justices of this Court in any of their opinions over the last ten years or so, that this meets the test because there was such a pervasive racial attitude in that Convention that everyone wanted to discriminate against blacks in terms of voting.
William H. Rehnquist: But, you wouldn't offer any more general test than just whatever the test is of this passage which is certainly a permissible point of view.
Wilson Edward Still, Jr.: I would suggest that. I would suggest that the tests that have been enunciated in Arlington Heights and in Rogers versus Lodge are tests that have been adopted by the majority of this Court and that this would be proven to be discriminatory under either one of those tests. Actually what we have in this situation though is this Court has identified over the years three different kinds of discriminatory laws. There are the ones that overtly discriminate, say race is a factor such as Brown versus Board of education. Then there is the kind that have been described as an obvious pretext towards discrimination such Yick Wo versus Hopkins or Gomillion versus Lightfoot. And the third type is disproportionate impact on minorities such as Washington versus Davis and Arlington Heights. This case falls into that second category. This is a Yick Wo type case. Yick Wo was a pretty transparent provision passed by the San Francisco City Council. This is a--
Thurgood Marshall: Still I say that there is nothing wrong with the ordinance in Yick Wo.
Wilson Edward Still, Jr.: --Well--
Thurgood Marshall: Yick Wo said it was enforced with a discriminatory purpose.
Wilson Edward Still, Jr.: --It was--
Thurgood Marshall: And it didn't knock the statute out, it knocked its enforcement out.
Wilson Edward Still, Jr.: --That is right. Well, perhaps I should depend upon Gomillion then which we know was in the statute itself.
Thurgood Marshall: Right.
Wilson Edward Still, Jr.: And, Gomillion is another example of a pretty transparent law. It eliminated practically every black person from the City of Tuskegee and left practically every white person in the City of Tuskegee. So, this is that same type of obvious pretext for discrimination. In that kind of case, you don't have to spend a lot of time worrying about what test you are going to apply because all you have to do is cut through the pretext and say we know what the decision is.
William H. Rehnquist: I know, but can you be sure without the sort of evidence of actual discriminatory intent that you adduce on the part of the sponsor that it is necessarily a pretext? Supposing they had a lot of people getting up on the convention floor and saying I realize the sponsor says this is to disinfranchise blacks. I don't want to disinfranchise blacks but I will regretfully go along with this because I think it is a sound principle to disinfranchise these kinds of misdemeanors.
Wilson Edward Still, Jr.: If you had that kind of evidence in this case, that would be a contraindication to the evidence that we have, but as one of the expert witnesses said, while the evidence may be circumstantial it all points in the same direction and that is the kind of situation we have here. All of the circumstantial evidence points in the same direction. Now, the question was asked earlier, what do other states do? Alabama is the only state that disfranchises misdemeanors on the basis of committing a crime of moral turpitude. There are seven states that disfranchise everybody convicted of any crime while they are serving their sentence and, of course, with a misdemeanor that is going to be less than a year. There are five states that disfranchise people convicted of felonies and election laws. There is one state that disfranchises people convicted of election laws only. Now, Alabama and Mississippi are the only two states that have lists in their Constitution and the lists say here are the crimes that are to be disfranchised. Mississippi's list does not say and crimes of moral turpitude. Now, the question was also asked, what is a crime of moral turpitude in Alabama? I wish I knew the answer to that. The Supreme Court of Alabama has said it is a crime that is inherently evil and the Attorney General of the State of Alabama, in giving one of his opinions to a board of registrars, listing all the crimes that had been found to be crimes of moral turpitude, said, well, there may be some other crimes that are moral turpitude, it all depends on the moral standards of the judges who happen to be hearing particular cases. So, moral turpitude in Alabama is a somewhat fluid concept and I suppose drunk driving offenses could become a crime of moral turpitude if the Alabama Supreme Court decides that they are crimes of moral turpitude. Mr. Ward and the Appellants have claimed that the affirmative sanction of Section 2 of the Fourteenth Amendment allows them to disfranchise on the basis of misdemeanors of moral turpitude. What the Fourteenth Amendment says is that the state may disfranchise on the basis of participation in rebellion or other crime. It doesn't say you get to pick and choose among the other crimes or among the people who participate in rebellion.
John Paul Stevens: May I ask one other question about the moral turpitude and the particular offense here which I guess was passing a worthless check. What are the contours of the particular offense here? Is it if you overdraw your bank account, is that--
Wilson Edward Still, Jr.: If you overdraw your bank account, if you have a non-sufficient funds check and the merchant sends you the check or sends you a certified letter that says I have got your check for $25, come in here within ten days and clear this up, and you don't respond to the letter, that is considered to be prima facie evidence that you intended to defraud the person, that you intended to give him a worthless check. If you go and clear it up, the case is dropped. Then, of course, you are able to rebut that presumption. The offense that the two Plaintiffs in this case were convicted of was a first offense. It carries a $100 fine. Even with repeated offenses in Alabama, you can only get, I think, a $400 fine for passing a bad check. You can't even get any jail time under the particular law that they were convicted of.
John Paul Stevens: --Is it the opinion of the Attorney General? How do we know it is moral turpitude?
Wilson Edward Still, Jr.: I believe there is an opinion of the Alabama Supreme Court in this particular case. Usually cases get... crimes get defined as being crimes of moral turpitude because it comes up in a question about whether a witness is credible or not, so it comes up that way, and it is a collateral attack in effect on the original conviction of the person. But, most of the time, if a persons seeks to be registered to vote and the Board of Registrars has some question about it, they will hold the person's registration certificate and write to the Attorney General for an opinion. There are some interesting anomalies in Alabama's decisions about what is a crime of moral turpitude. For instance, selling untaxed, illegal liquor is not a crime of moral turpitude but selling narcotics is a crime of moral turpitude in Alabama. And, as I said, driving while intoxicated may become a crime of moral turpitude in Alabama some time soon. But, the affirmative sanction of Section 2 of the Fourteenth Amendment that the Appellants rely on, as I say, does not allow a state to pick and choose among those crimes and say, well, we are going to disfranchise some people within this category and not others. The Fourteenth Amendment cannot provide a shield to the State of Alabama any more than the Twenty-First Amendment can provide a shield to a state that says we are going to set one drinking age for boys and another drinking age for girls. This Court--
Byron R. White: I take it the import of your argument, present argument is that without any consideration of race this statute is invalid.
Wilson Edward Still, Jr.: --Yes. That is another claim that we made.
Byron R. White: Because it picks and chooses among almost identical kind.
Wilson Edward Still, Jr.: That is correct and that particular argument that we made has not yet been ruled upon by the Court of Appeals. That is one of the issues that they have not yet ruled upon.
Byron R. White: Are you relying upon it here?
Wilson Edward Still, Jr.: I rely upon it to the extent that I believe that it may assist the Court in making--
Byron R. White: As another ground for affirmance?
Wilson Edward Still, Jr.: --Yes, as another ground for affirmance. But, I also believe that if this Court remanded to the Court of Appeals, they would then have to decide that particular issue. Now, the Court of Appeals also analyzed the state's reasons for adopting Section 182, the reasons they proffered. They found that those reasons were not supported in the record as being reasons that had actually been considered at the 1901 Convention and they also found them to be insufficient as a matter of law. Now, the state said we have got a right to disfranchise people who were convicted of crimes of moral turpitude or any type of crime that we want to use and they cite the case of Washington versus State which was decided about a decade and a half before the Constitutional Convention. They were unable to show the Court of Appeals or the District Court any citation in the records... We have a verbatim record of the Constitutional Convention... any place anybody debated the existence, even mentioned the existence of the Washington versus State case. And then also because of this picking and choosing feature the Court held that the state was not using the best means available to meet its particular end. For instance, in Alabama it is not a crime of moral turpitude to assault a police officer. It is not a crime of moral turpitude to be convicted of second degree manslaughter. Each one of those is a relatively serious offense that is going to get you a lengthy jail term but still a misdemeanor, much more than you can get for passing a bad check for which you can get no jail time at all and yet neither one of those offenses is an offense that will disfranchise one. The Court of Appeals found that because of that that the state's argument about picking and choosing or wanting to disfranchise people who had been convicted of violating the state's laws was not legally valid.
Byron R. White: Was it credible?
Wilson Edward Still, Jr.: Pardon?
Byron R. White: Did they say not legally valid?
Wilson Edward Still, Jr.: I believe they--
Byron R. White: On the grounds of discrimination on the equal protection--
Wilson Edward Still, Jr.: --They rejected it as being an insufficient grounds because they said... You say you want to disfranchise people who have been convicted of violating your laws, but you leave out a lot of serious offenses and reach down and get people--
Byron R. White: --So they just said their explanation was not credible?
Wilson Edward Still, Jr.: --They said the explanation was not credible. They said there also was no evidence to support that anybody had even discussed that idea. Instead, all of this discussion, I reiterate, in the 1901 Convention about the suffrage article was about the racial effect of those provisions. There were discussions about how many blacks and how many whites it would disfranchise. They ended up with a package of laws which were obviously to disfranchise as many blacks as possible and to leave as many whites as possible on the voting rolls. They put this provision, Section 182, in specifically because the list of crimes was a list of crimes that the sponsor had determined to be ones that blacks committed more often than whites. For these reasons we believe that the Court of Appeals' judgment ought to be affirmed in this case. I would point out that the remand of the case from the Court of Appeals has already taken place to the District Court and the District Court has already entered a final order. And, the class of Plaintiffs in this case, many of them have already gone down and sought to be reinfranchised. I believe that this Court should not interfere with the judgment of the Court of Appeals and should affirm it.
Byron R. White: What was the effect of the Court of Appeals' judgment, that this particular provision is just invalid on its face?
Wilson Edward Still, Jr.: They declared it to be invalid as applied to misdemeanors.
Byron R. White: Both blacks and whites?
Wilson Edward Still, Jr.: Yes, as to both blacks and whites.
Byron R. White: Why do the whites get the benefit of it?
Wilson Edward Still, Jr.: Well, because the provision is--
Byron R. White: You say what you are relying on is that the purpose of it was to discriminate against blacks.
Wilson Edward Still, Jr.: --In all other cases that I know of where a court has invalidated a law on the basis that it was infected with a racially discriminatory purpose and it also had some effect on whites as well as on blacks. They have just struck down the law. They have not said let's have different laws for whites and blacks. So, I think what they did in this case was consistent with what this Court and other courts have done in the past. The effect of the Court's decision was to remand the case to the District Court with instructions to enter a judgment and the District Court did so within a couple of months. Thank you.
Warren E. Burger: Do you have anything further, Mr. Ward? You have three minutes remaining.
James S. Ward: Justice Stevens, I have the citation to that case if you would like it, sir, to the state decision that defines this offense as one involving moral turpitude.
John Paul Stevens: Yes.
James S. Ward: If you would like it, I have it. It is Irwin versus the State, 203 Southern Second, 283.
John Paul Stevens: Thank you.
James S. Ward: Yes, sir. Unless there are any questions, I... Thank you.
Warren E. Burger: Thank you, gentlemen, the case is submitted.


Earl Warren: Number 561, James M. Bushnell, Petitioner, versus O. B. Ellis, Director, Texas Department of Corrections. Mr. Williams, you may proceed.
Percy D. Williams: Thank you very much, Your Honor. May it please the Court. I want to talk to the Court about a prisoner of the State of Texas, the petitioner in this case who is serving a term of 5 to 35 years on a robbery conviction. His claim is that he was denied due process when he was tried and convicted without assistance of counsel. His application for writ of habeas corpus was originally filed with the Court of Criminal Appeals of Texas. That Court denied his application without ordering the State to answer and without ordering any development of the record of the facts. I don't know why the Court of Criminal Appeals proceed to handle it in that way because in other cases of this type in recent years that Court has proceeded to order the trial court to develop the facts as a basis for consideration of such an application. I think that if the Court of Criminal Appeals had had before it the record, which is now before this Court, it would have granted the writ. After this case was docketed in -- in this Court, the notes of testimony which were taken at the trial in 1944 by the reporter, who since was deceased, were transcribed by another reporter and put into this record. And the charge to the jury at the petitioner's trial in 1944 was also located and is now included in this record. This record reflects that when he was tried on this robbery charge, the petitioner had no attorney.
Charles E. Whittaker: May I ask you in that connection please, Mr. Williams, under your law, was that testimony, and in the event of a new trial, re-admissible against him?
Percy D. Williams: It is my understanding, Your Honor, that it is. The record reflects that at his trial, the petitioner pleaded not guilty. He testified to his own innocence. And he attempted in a brief and in article way to examine several cross-examines, several of the State's witnesses, but that was as much as he was able to do in his own defense. Under the Texas statute, Code of Criminal Procedure, which was in effect in 1944 when this case was tried, there was no duty under Texas law on the Court to appoint counsel for an indigent defendant in a non-capital case.
William O. Douglas: Has that been changed since --
Percy D. Williams: Yes, Your Honor, a couple of years ago. The statute now provides that, as I read it, although it has not been construed judicially, that in all cases, all felony cases, the Court is under a duty to appoint counsel for an indigent accused.
William O. Douglas: What is the felony under Texas law, is that --
Percy D. Williams: Penitentiary offense, Your Honor.
William O. Douglas: Penitentiary. It doesn't matter if the length of this --
Percy D. Williams: I believe --
William O. Douglas: -- the date --
Percy D. Williams: -- I believe that's correct.
William O. Douglas: -- the date of entry of the felony?
Percy D. Williams: Now --
Charles E. Whittaker: They imposed that the sentences for (Inaudible) let's say a years, are to not (Inaudible)
Percy D. Williams: I believe, and I'm no expert in criminal matters, Your Honor, not experienced, but I believe that the offenses in our penal code where the penalty is prescribed read more or less uniformly like the provision under which this man was convicted. If Your Honor will look on page 3 of my brief for the petitioner, at the very bottom of that page, you will notice that the prescribing portion with respect to punishment states that he shall be punished by confinement in the penitentiary for life or for a term of not less than five years. And in the case of the other offense, it's included in the same article, robbery by firearms, again, the portion, similar portion says punishment shall be death or confinement in the penitentiary for any term. And it's my understanding that that is the basis of the distinction between a felony and a misdemeanor whether that portion of the statute authorizes confinement in the penitentiary.
William J. Brennan, Jr.: I understand you to say that the new Texas statute --
Percy D. Williams: Yes, Your Honor.
William J. Brennan, Jr.: -- (Voice Overlap) the appointment requirement to appoint a counsel to felony.That's (Voice Overlap) --
Percy D. Williams: To clarify the situation, if I may, on page 5 of my brief, I call your attention to the statutes which were in effect at the time of this petitioner's trial which was 1944, Article 491 and 494. 491 stated that there would be no arraignment of a defendant expect on indictment for a capital offense, and 494 provided that when the accused is brought into court for the purpose of being arraigned, if it appeared that he have no counsel, too poor to employ counsel, the court shall appoint one. Now, on the next page, coming to the point raised by Mr. Justice Douglas, in 1959, the legislature amended Article 494. And just for your information, though it has no materiality to this case that I'm aware of, at the top of page 6, I give you the text of the law that it's presently in effect that whenever it's made known to the court in an arraignment or any other time that an accused charged with the felony is too poor to employ counsel, the court shall appoint one or more practicing attorneys to defend him. And although some question is to the construction of that is raised in the brief for the respondent, it seems to me all together clear that that means that in any felony prosecution, if the defendant is too poor to employ his own lawyer, the court is obligated to appoint him one. But the trial with respect to which we are here concern occurred in 1944, 15 years before the adoption of the preferable statute. And it is the contention of the petitioner that any of his trial, he was not treated fair by the judge or by the prosecutor. It's my contention that had he had a lawyer, the abuses to which he was subjected could have been avoided, the sentence which was imposed upon him might have been less severe and possibly, he might have been acquitted.
William J. Brennan, Jr.: Well, this much is clear, Mr. Williams, that had he been tried within the last couple of years on the offense for which he was convicted, the revised 494 would have required the appointment of counsel, is that so?
Percy D. Williams: That's my understanding, Your Honor. And if he is tried again, if this Court reverses this case and the Court of Criminal Appeals of Texas remands the man after granting the writ of habeas corpus, remands him to the sheriff of Orange County for another trial, I understand that under that article, he would be entitled to the appointment of counsel by the Court. Now, what was it that happened to this man at his trial? In the first place, the State introduced without objection in the hearing of the jury and the Court allowed the jury to consider assigned written statement that included a complete confession by this prisoner which he repudiated at the time of trial. As I read the record, the undisputed uncontradicted testimony of the petitioner and the State's own evidence, taken together, established beyond any question that this confession which was introduced and considered against him was coerced and was involuntarily. Let me give you briefly, if I may, the circumstances that led to his confession. The robbery, and I'm referring here only to the undisputed evidence given by the petitioner in testifying for himself for -- on cross-examination and the evidence presented by the State, the robbery was committed late one Saturday night, the petitioner was arrested the following Sunday morning or early in the morning. He signed his confession the following day, a Monday in the Office of the County Attorney of Orange County. He was arrested by a constable, a local county peace officer of Orange County across the Louisiana line in Louisiana after a close pursuit, as they call it in Louisiana law, from Texas to Louisiana. And at that point, where the prisoner was arrested in Louisiana instead of being taken under -- in accordance with Louisiana law to a local magistrate for an examining trial which was this petitioner's right at that moment promptly to be bound over to await the issuance of a writ of extradition which was also his right, he came back to Texas after having been given the choice by the arresting constable from Orange County of either coming back with him or being run back across the river by Louisiana law. When the man was -- when the petitioner was brought back to Texas, he was not promptly taken before a magistrate of Texas either on that Sunday of his arrest or when he, at latest, should have been under our law on the following Monday before he was taken in to sign the confession. Now, I don't claim that the confession was involuntary by reason of anything that I have said per se, but I think that these are factors of illegal conduct on the part of the arresting officer and the County Attorney that this Court is entitled to consider as part of the background and fabric of coercion that seems to me to exist in this case. Now, what happened between the time of his being returned to Orange, Texas on Sunday morning when he was put in jail and the time of his confession in the County Attorney's Office on Monday? The testimony in this connection is -- is almost unbelievable. The -- the -- in short, the man was beat, they throw water on him, they stamped on him, they -- they threw him on the floor, they were trying to get a confession. And I want -- this is the most important part of my case, and I want to direct the Court's attention to what was said at the trial. He was arrested by constable named Williamson and some of Williamson's testimony is in the record at the bottom of page 12.
Earl Warren: On your brief?
Percy D. Williams: There were six witnesses produced by this --
Earl Warren: On your brief?
Percy D. Williams: I beg your pardon. Of the record, Your Honor.
Earl Warren: Of the record.
Percy D. Williams: The record. My client was trying to cross-examine Williamson and in the last three or four lines on page 12 he said to Williamson, "Will you beat me up across in Louisiana?" Which the interesting answer was, "I never touched you over there. I have scars to prove it on my back," top of page 13 to which the answer was, "I ain't touched you but once, and then you jerk me out of my car on Louisiana highway, beat me up without mercy," to which the answer was, "It wasn't over in Louisiana." And unbelievably, the prosecuting attorney excused that witness at that point without making any effort to show that he did not beat this man during the short interim between the arrest early Sunday morning and the confession on Monday. Also, I would call to the attention to the Court that when this prisoner was brought into the County Attorney's Office for his -- to sign his confession at the -- in the middle of page 17 of the record, again, the petitioner cross-examining the County Attorney, he says "At the time they brought me inside your office, I was threatened about the statement, is that right?" And the County Attorney gave him what seems to me to be an evasive reply. Another question, "You didn't tell me anything about it, did you?" And then later on that page, near the very bottom, "When the constable threatened to take me out and tie and wipe me unless they got a confession, is that right?" The County Attorney merely said, "I didn't hear it." But the County Attorney, at the top of page 18, on redirect examination, referring to the time when this prisoner was brought in to his office the day following the arrest, he was asked by the prosecutor, "Did he look like he had been abused?" And the County Attorney said, "He was. He had a bandage on his head, yes, sir." And there, in the next four or five questions that were asked by the prosecutor, the County Attorney was never really asked whether the petitioner was threaten immediately before he signed the confession. The questions simply were, "Did the petitioner tell you about being mistreated? Did he tell you the statement he was making this true? Did he tell you he was being forced to make the statement? And it -- it seems to me that if I had been the prosecutor and had wanted to establish that there had not been any coercion of that confession, I would've ask a direct question requiring a direct answer. But this prosecutor seems to have had no qualms about the coercion that proceeded this confession or over in the course of his examination of the petitioner on page 27 of the record, he asked an unbelievably brutal line of questions of the petitioner that condoned in the hearing of the jury, the brutality which have been meted out to this petitioner. Down at the bottom of 26 and through most of page 27 of the record, the District Attorney was asking this petitioner and said, "Officers have to get a little bit rough with you, you don't like it after you've done everything you did to this poor old man. And -- and what kind of treatment would you be in favor of giving a man that would beat up old man Myers as he said he was beaten up. What kind of treatment would you be in favor of for such a man?" And when my client said, "I beg for mercy," the smart question of the prosecutor was, "Just like you meted out to Mr. Myers or would have to anybody else."
Felix Frankfurter: Mr. Williams, may I ask you whether if he had the (Inaudible) defense lawyer in Texas, could those questions be subject to objection if it's inadmissible or improper?
Percy D. Williams: In -- in my opinion, Your Honor, they would have been excludable under decisions of the Court of Criminal Appeals. In that, they tended to condone what had been admitted by the officer who gave the punishment to be physical abuse. And they brought into issue the question of whether this man was merciful or would've beaten up just anybody, and that was an issue of going to his character and reputation that I do not believe had been raised by his appearance on the stand. I think they --
Felix Frankfurter: Do they care if they came and say excludable? Would they -- do you think it would've been error on -- error by your Court (Inaudible)
Percy D. Williams: I think that the Court of Criminal Appeals would have said that it was the duty of the trial court to prevent that line of questioning, and I think I have one or two cases cited in my brief, though the exact name of them escapes me, in which that type of interrogation by the Court was -- was held to have been excludable and should have been excludable on the Court's own motion.
Felix Frankfurter: Before you (Inaudible)
Percy D. Williams: Now, what could a lawyer have done with regard to this confession? First, he could've seen to it that it was heard in the preliminary way outside the hearing of the jury. Second, if I am correct in my evaluation of the import of this testimony, he could've had excluded on objection under both the decisions of this Court and the Texas cases. There were at least six of them from the Court of Criminal Appeals prior to 1944.
William J. Brennan, Jr.: Did I understand your suggestion, Mr. Williams, the whole proceeding governing the admissibility of the confession was in the presence of the jury, there was it?
Percy D. Williams: It was indeed, sir.
William J. Brennan, Jr.: And may have -- may --
Percy D. Williams: Under the decisions of the Court of Criminal Appeals, it should have been -- should heard, it should have been heard initially outside the jury's hearing.
William J. Brennan, Jr.: This requires a request of it, of the trial judge?
Percy D. Williams: Yes, it does, Your Honor.
William J. Brennan, Jr.: But -- but there must be one otherwise may be heard in the presence of the jury?
Percy D. Williams: I believe that's correct, Your Honor.
William J. Brennan, Jr.: And your point is that had he had counsel --
Percy D. Williams: First --
William J. Brennan, Jr.: -- it might suppose the request would've been made for a hearing on the presence of the jury.
Percy D. Williams: Indeed. And since reading the more recent opinion of this case in McNeal and Culver hastened to add one point, which I did not have in my brief, and that is that the -- although the burden is on the State on the defendant to show that he was under arrest at the -- at the time he made this confession. The burden is on the State of Texas under our Code of Criminal Procedure to show that it was a voluntary confession. And a recent case to that effect is the Harris case out of the Court of Criminal Appeals, 286 S. W. 2d 936. Now, I want to point, if I may, two other serious errors, prejudicial occurrences at this trial which counsel could have prevented. There were a couple of oral confessions that were introduced against this prisoner. I don't know whether they were voluntary or not. It doesn't make any difference whether they were voluntary under the Texas statute. They were not made before a magistrate, they were not warned, and they were not signed.One of them was a testimony by a deputy sheriff appearing in this case to the effect that prior to trial, petitioner had offered himself as wanting to plead guilty. And Texas cases squarely hold that oral evidence of a prior offer or agreement to plead guilty amounts to an unwarned confession, and it's not admissible on objection.
John M. Harlan II: What is the explanation of the long delay 15 years before this proceeding was brought (Inaudible)
Percy D. Williams: Well, Your Honor, I do not honestly know. I understand that from the petition filed in this Court by the petitioner that he has filed numerous applications for habeas corpus in the Court of Criminal Appeals. None of them have ever been applications. This is the first time that any court has ever cared about this man. I'm the first lawyer he's ever had. And --
Felix Frankfurter: Lucky color.
Percy D. Williams: I don't know [Laughs] I don't why it's taking him so long. He is just poor frogman of a person. And I feel that he needs for you to say that he was mistreated and treated unfairly here. Now, it was reversible error for those hearsay statements of oral -- oral confessions to be admitted. There was also an admission in the confession, signed confession of his prior Louisiana felony conviction. Now, under Texas law that should not have been admitted at the time it was. His character was not -- his character for reputation for credibility was not in issue at that point. It could've been excluded at that point. Later, when the petitioner went on the stand in his own defense, he put his reputation and character for veracity, credibility in issue. And that evidence of his prior Louisiana felony conviction was then admissible for that limited purpose. And although the respondent in his brief says it was limited for the purpose of consideration on the issue of credibility, I have not been able to find that in the record, in the charge, the jury or any where in the record, anything limiting the jury's consideration of that prior conviction to the single question of credibility. And the Texas Court of Criminal Appeals has held that whether or not such limitation in the jury charge is requesting its reversible error not to so limit the purpose for which that kind of evidence maybe considered. There was a lot of miscellaneous hearsay. There were questions which a prosecutor under our Texas case is -- cannot ask, "Why didn't you have witnesses here?" That is an improper comment for a prosecutor in Texas. Those are the things that actually happened at this trial. In looking over the record, it seems to me entirely possible that a good lawyer might have been able to take this petitioner's testimony with respect to his condition immediately before the offense and make out of it, a well-founded issue of temporary insanity because he testified without contradiction and the State's evidence also showed that he had been drinking rum and beer and taking something called either "fematol" or "amatol", it's variously referred to in this record, immediately before this robbery that he was delirious, that he had passed out and there is some confusion in the Texas authorities on this point. We have a statute that says that evidence of temporary insanity resulting from combined use of whiskey and narcotics, it doesn't excuse the crime but it can be taken into account and mitigation of punishment. But at the same time, there is one decision of the Court of Criminal Appeals in which it was held that the Court properly charged the jury that under those circumstances, there was a -- an issue of excuse for the crime justifying an acquittal. Now, what was the circumstance or the condition of this man at the time that these things happened to him at his trial? He was 25 years of age, according to undisputed testimony. He was referred to as a boy, young man. He'd been in jail continuously for almost four months from the time of his arrest. When he was arrested, the constable testified, they took from him all the money that was on the man's person. The jailer testified deputy sheriff that he had advanced money to this man to send out telegrams from the jail to his relatives. The boy testified that he had no friends present at the trial. His mother was sick, his father, he could not depend on. He'd been given a medical discharge from the army. The State's witness testified that he had been badly shook up in the army. He was suffering from moods. He was taking nerve medicine on doctor's prescriptions. And under those circumstances, I'm asking you to -- to hold that on the undisputed facts of this record, no further development of these facts by the Texas Court of Criminal Appeals is necessary before it grants the writ. The undisputed evidence shows that this man was denied due process, and that he was entitled to the writ. Of course, the matter of request is unimportant. He alleges that he requested counsel, and the counsel was not provided. Under your recent reaffirmation in McNeal and Culver, that's unimportant.
Charles E. Whittaker: Mr. Williams --
Percy D. Williams: Sir?
Charles E. Whittaker: -- suppose that should happen on hearing that there was evidence that the Court believed that at trial is petitioner refused counsel, would that make any difference?
Percy D. Williams: Yes, Your Honor, I think that would -- would amount to a waiver of his federal right.
Charles E. Whittaker: How do we know what the facts are in that respect from this record?
Percy D. Williams: Well, I believe we have concessions from the respondent that didn't -- didn't make any difference whether the man asked for counsel or not. However, that doesn't go quite to your inquiry. Perhaps, you have a good point Your Honor. I -- I don't believe there is anything in the record that amounts to a concession by the State that he refused -- that he did not refused counsel. That may be an open question of fact.
Earl Warren: Mr. Timmins.
Percy D. Williams: Thank you.
B. H. Timmins, Jr.: Mr. Chief Justice, may it please the Court. Initially, I'd like to begin by referring to the question just asked by Mr. Justice Whittaker regarding the import of development regarding the possibility of petitioner not asking for counsel or refusing counsel, I believe it was. To begin with, the record begins with a question and answer examination of witnesses. And there is nothing, of course, in the record pertaining to whether he asked for a counsel or whether he was denied counsel or whether he refused counsel. The statement was made in our brief. And we really admit that the -- the basic question here is the fundamental fairness and justice of the trial. As accorded petitioner by the trial court whether -- whether or not he was offered counsel and refused counsel is not reflected, and I -- I know of no way that it can be developed under the circumstances since we have made a very careful inquiry into the facts of the case by going into Orange County and trying to find witnesses who remember this case. We -- we learned that the trial judge is dead. The District Attorney who tried the case did not have an independent recollection of the case and neither did Mr. Sexton, the County Attorney. Many of the other witnesses are dead. This was one of the -- this was one of the principle problems that we encountered in this case as well as other similar cases where there has been a long passage of time as there was here. We found that it was quite difficult, and in many instances, possible to find witnesses who could make affidavits to support the contentions to include as exhibit with the responses to the applications because witnesses either had passed away, they did not remember the cases, and we have encountered this time and time again as we did here. Now, the -- the Texas law that we're concern with here is Article 494. I want to refer to the questions which were put to Mr. Williams regarding the amendment to the statute. It was amended in 1959. The Texas courts did not construe the statute. And we do not know whether or not counsel is required in every case. My information is that the practice is not uniform in Texas courts under this amended statute. Some courts appoint counsel in every felony case, some do not. And so we -- we simply do not know. However, of course, we're concern with the statute as it existed in 1944. Again, we think it is not significant how the statute read because the -- the real question that we're faced with is whether the trial court accorded the petitioner a fundamentally fair and just trial under the facts of the case. We have to look to the facts in each individual case. That is established. Now, under the Texas law, and there have been a number of cases as -- as Article 494 read at that time, counsel was not required in non-capital felony cases unless the failure to appoint counsel by the trial court resulted in a trial which was not fundamentally fair and just to the petitioner. Now, petitioner has asserted a great number of grounds here on which he claims there was a denial of due process. We believe that he's read meanings into the record which are not justified from the testimony. He has referred to the testimony of the arresting officer, Mr. Williamson, on page 12 of the record and at the top of page 13. Mr. Williamson testified that he had not put the scars on his body. He testified that he did not jerked him out of the car over in Louisiana and beat him up. The question was raised with regard to whether he jerked him out of the car in Louisiana and beat him up. He stated that he did not, in reply to the question.
John M. Harlan II: First, we're -- we're not concern here with the ultimate question as to whether there was lack of due process or not, we're concern with is whether the context of this record, the situation was such that he was prejudiced by not having him a counsel.
B. H. Timmins, Jr.: I think we are concerned with -- with that --
John M. Harlan II: (Voice Overlap) --
B. H. Timmins, Jr.: -- question whether he was prejudiced and as a result of his prejudice whether he was denied due process.
John M. Harlan II: Yes.
B. H. Timmins, Jr.: I -- I think it follows the -- the second question, yes, sir. Now, over on page --
Earl Warren: Well, would you -- you wouldn't consider that a denial that he had beat him without mercy, would you? What you just read on 13 or the question by the defendant was, "You jerk me out of my car over on a Louisiana state highway, no Louisiana law, just you and two kids had beat me up without mercy," and the answer was, "It wasn't over in Louisiana." That -- that's hardly a denial of -- of beating him up without mercy, is it?
B. H. Timmins, Jr.: It -- I would -- I would say that in the context of the question, Your Honor, it was -- it was a denial that he jerked him out of the car in Louisiana. It -- I -- I admit that it was not developed there as to whether he may jerked him out of the car or in some other place. That was not developed.
Earl Warren: Well, but -- but just before that, the petitioner said, "Well, you beat me up across in Louisiana," and the answer was, "I never touched you over there."
B. H. Timmins, Jr.: Yes, sir.
Earl Warren: And -- and the next question was, "I have scars to prove it on my back," and the answer is, "I ain't touched you but once," and then we get to that question, "You jerked me out of my car over Louisiana state highway, no Louisiana law, just you and two kids and beat me up without mercy." Answer, he wasn't over in Louisiana. This is hardly a denial, is it?
B. H. Timmins, Jr.: It is -- it is not a denial that -- I would say that -- that replaying to the question, as I asked, it was a denial that he jerked him out of the car over in Louisiana. I -- I do not know -- I do not know what might have been. It was not developed further whether he jerked him out of the car or not. He -- he did say he had touched him once. We do not know whether he touched him and arresting him just what. But I refer the Court to --
Earl Warren: But the question was, "I have scars on -- that -- to prove it on my back," and the answer says, "I ain't touched you but once," is that -- would you consider that a denial or any?
B. H. Timmins, Jr.: A denial of the beating?
Earl Warren: Yes.
B. H. Timmins, Jr.: I would consider -- I would consider -- I can't -- I can't import an absolute denial to that answer. I would -- I would simply say that he testified there that he did not jerk him out of a car over in Louisiana, and that he did not touch him over in Louisiana. And then in later testimony, on page 31 of the record, his -- the same man testifying, the same officer testifying said that he -- in -- in reply to a direct question from the District Attorney said that he did not put the scars on -- on the man's body. The question, "Did you or Officer Thompson put those scars on his body?" "No, sir." "Did you hit him or beat him in any way to make those scars?" "No." And then he said he went on and told that he was shook up in the army in taking "amatol". I would say that -- that reading his testimony in full, he has denied that he beat him up or put the scars on his body in the full context of -- of the question then answers. Now, respondent takes the position that after the long passage of time here, the State is in a position that it cannot find witnesses who were on the scene at the time of the trial or at the time of the arrest who can make affidavits bearing on the central question here, that is, whether he was mistreated in -- at -- at the time of his arrest or during his trial. We feel that the trial judge knows the elements of a fair trial. And that his wisdom in judgment should be respected unless it's patently erroneous. The trial judge heard the testimony with regard to the arrest. He heard the testimony relating to the confession. He admitted the confession in the evidence after hearing the repudiation of it by petitioner from the witness stand. We feel that petition -- that the trial judge's wisdom in his judgment in these matters must be given varied weight. We do not feel that the testimony of the arresting officers are the repudiation of the confession by the petitioner justifies a finding that he was denied due process at the time of the trial. Now, we do really admit that a representation by counsel better than no representation at all and that under our adversary system that justice is more likely to resolve. But at the same time, we must examine the record, and we cannot read into the record certain assumptions with regard to mistreatment. When there is no opportunity for a reputation of those ex parte and self-serving declarations by the petitioner.
Earl Warren: Well, didn't -- didn't they have a full opportunity? I notice after this page 13 when he said it wasn't over in Louisiana, the District Attorney excused the witness. He never asked him another -- another question to clear that up although he did have real opportunity to do so.
B. H. Timmins, Jr.: Your Honor, I was not speaking of the time of trial. I was talking about the time that the application for writ of habeas corpus is made.
Earl Warren: I see.
B. H. Timmins, Jr.: At -- at a much later time that habeas corpus is -- is sought, not at the time of trial --
Earl Warren: Oh, I see.
B. H. Timmins, Jr.: -- was --
Earl Warren: I see.
B. H. Timmins, Jr.: -- was my reference there.
Earl Warren: I see.
Tom C. Clark: Is Hop Williams the same as (Inaudible)
B. H. Timmins, Jr.: Sir?
Tom C. Clark: Is the man named Hop Williams, is he same (Inaudible) witness, Clyde --
B. H. Timmins, Jr.: Clyde Williams. And I think Hop must have been a nickname of some sort.
Tom C. Clark: The same man.
B. H. Timmins, Jr.: Apparently, it's the same man, yes, sir.
Tom C. Clark: Your contention is on the later testimony when he (Inaudible) back on the stand that he claimed the -- the details of what he did (Inaudible)
B. H. Timmins, Jr.: Yes, sir, that -- his -- his earlier testimony and later testimony must be read together. Respondent also appeals that this case is help subvert the -- the traditional in the proper remedy of the writ. We have encountered many of these cases, and we feel that -- that this is -- this is one in which due to the passage of time that we are placed in a great disadvantage in being able to refute any contentions made by the petitioner. We feel that granting a reversal of the case could have very significant policy implications in this whole area.
Earl Warren: Did the man -- did this man try to get into the federal court, I mean into the state courts to have this matter heard before this proceeding?
B. H. Timmins, Jr.: Before this proceeding?
Earl Warren: Yes.
B. H. Timmins, Jr.: I find no record of it in the Court of Criminal Appeals, Your Honor. I have examined their record.
Earl Warren: Well, is that the place for him to go?
B. H. Timmins, Jr.: That is -- that is the place that he would go. He would -- he would apply to the Texas Court of Criminal Appeals for an application for writ of habeas corpus. He did not appeal his case here.
Felix Frankfurter: Of the -- in the writ -- is the writ tried in the Court of -- in your Court of Criminal Appeals or do they sent it back to a lower court?
B. H. Timmins, Jr.: The Texas Court of Criminal Appeals would order the trial court to send the record up, and they would then examine the record in the case to ascertain whether there had been a denial in -- in the trial court.
Felix Frankfurter: And if they have to -- they wouldn't -- they would act on the record of the trial court rather than it's too substantially as I believe, whereby the appellate court is asked to leave to send the case for determination of their claims so far as their contested facts at lower court.
B. H. Timmins, Jr.: They would -- my understanding, Your Honor, is that they would act on the record of the lower court. Now, after the conviction, an application for writ of habeas corpus can be made to the trial court as a predicate to appeal.
Felix Frankfurter: Yes, well, I -- I misunderstood your answer to the Chief Justice. I thought you said -- I -- if I understood the Chief Justice's question was whether there was any application by way of habeas corpus in the courts of Texas, and I understood your reply to be that that must be lodged with the Court of Criminal Appeals, is that correct?
B. H. Timmins, Jr.: After the conviction, the application for writ of habeas corpus may be lodged with the trial court and then an appeal may be made and then an application may be lodged with the Court of Criminal Appeals. We have several alternative remedies. He -- he can go either anyway that he chooses.
Earl Warren: But can you say that he made no effort to bring this to the attention of any court in Texas for this long period of time?
B. H. Timmins, Jr.: So far as I was able to discover from the record of the Texas Court of Criminal Appeals, his -- his first -- his first application was made last year.
Felix Frankfurter: (Inaudible)
Earl Warren: Yes, go ahead.
Felix Frankfurter: I -- I think the Chief Justice, may I ask question after that.
Earl Warren: Well, there -- what other courts in the State would have had jurisdiction over habeas corpus or coram nobis or whatever it might -- might be?
B. H. Timmins, Jr.: The trial --
Earl Warren: After he -- after he's convicted and was in the penitentiary, what other courts --
B. H. Timmins, Jr.: No other --
Earl Warren: --- than the Court of -- of Appeals?
B. H. Timmins, Jr.: No other court, Your Honor.
Earl Warren: But you just told us that --
B. H. Timmins, Jr.: The trial court --
Earl Warren: -- the trial court.
B. H. Timmins, Jr.: -- after conviction, immediately after conviction before sentencing, immediately after conviction, there could have been an application for habeas corpus to the trial court. When he went to the penitentiary subsequent to sentencing, the only court that has jurisdiction in an appeal or in habeas corpus is the Texas Court of Criminal Appeals.
Earl Warren: Yes. That's what I did not understand.
B. H. Timmins, Jr.: Yes, sir. I'm -- I'm sorry. The --
Tom C. Clark: (Inaudible)
B. H. Timmins, Jr.: The trial judge would consider it in either granted or denied at that time, as I understand it, Your Honor, and then -- and then after sentencing, after sentencing and -- and the man was in the penitentiary, then the application would be lodged directly with the Court of Criminal Appeals.
Felix Frankfurter: And only that.
B. H. Timmins, Jr.: And only that.
Felix Frankfurter: And only that.
B. H. Timmins, Jr.: Yes, sir.
Earl Warren: I would think -- I would think that would give him a terrible burden to the Court of Appeals to -- to have all those writs from all the prisoners and all your penitentiaries go direct to the Court of Appeals.
B. H. Timmins, Jr.: It does, Your Honor.
Earl Warren: It does.
B. H. Timmins, Jr.: It does. It does, Your Honor.
Felix Frankfurter: You say in your brief, and my Brother Clark has pointed out, you say in your brief that implied within -- whatever the figures are 300 odd, in your brief some (Voice Overlap) --
B. H. Timmins, Jr.: During the past four years, we have encountered in -- in the Texas Attorney General's Office about 375 applications for writ of habeas corpus.
Felix Frankfurter: Actually filed in your Court of Criminal Appeals?
B. H. Timmins, Jr.: Either filed in -- no, sir. In the Court of Criminal Appeals, those matters are not even handled by our office. The -- the writs which I -- to which I refer or the applications for certiorari in this Court are applications in the United States District Courts.
Felix Frankfurter: Federal courts?
B. H. Timmins, Jr.: Yes, sir, and the federal courts.
Felix Frankfurter: And then --
B. H. Timmins, Jr.: Those are the ones which -- to which I refer.
Felix Frankfurter: And when you say you are not, do you think the General's Office doesn't have to deal with those, that means the district prosecutors deal with it?
B. H. Timmins, Jr.: We do not deal with the ones in the state courts, the district prosecutors to handle those.
Tom C. Clark: You have a state's attorney?
B. H. Timmins, Jr.: We have a state's attorney. And he works with the -- he works --
Tom C. Clark: Court of Criminal Appeals.
B. H. Timmins, Jr.: -- with the -- with the District Attorney in presenting those to the Court of Criminal Appeals. The only ones which we handle are those which reach the federal courts. And we have --
Tom C. Clark: And the state's attorney would handle matter for the State in the Court of Criminal Appeals, wouldn't he (Voice Overlap) --
B. H. Timmins, Jr.: In conjunction with the District Attorney.
Felix Frankfurter: He's competent to statewide?
B. H. Timmins, Jr.: Yes, sir.
Felix Frankfurter: But you call him state's --
B. H. Timmins, Jr.: State's attorney.
Felix Frankfurter: -- state's attorney.
B. H. Timmins, Jr.: He -- he represents the State before the Texas Court of Criminal Appeals. Yes, sir, that's correct.
Earl Warren: We'll recess now, Mr. --