Warren E. Burger: We will hear arguments next in Rose against Mitchell. Mr. Leech you may -- Mr. Attorney General, you may proceed whenever you are ready.
William M. Leech: Thank you. Mr. Chief Justice and May it please the Court. This case had its origin, or its genesis in late October of 1972, when the respondents in this case were arrested for murder in Shelby County for a homicide committed in Tipton County, Tennessee. They were indicted on November of 1972, before the Grand Jury of Tipton County which was chaired by an acting foreman who had been appointed by the Trial Judge under Tennessee System of appointing the foreman of the Grand Jury. The acting foreman was accompanied on the Grand Jury by 12 other grand jurors selected from the general venire list of Tipton County. There was a pro se plea in abatement to that indictment. A hearing was held in the Trial Court and evidence was taken, the Trial Judge overruled the plea. It went on to trial and the conviction was had against both respondents and each was sentenced to 60 years. The respondents then perfected their appeal to the intermediate Court of Criminal Appeals, and the Court of Criminal Appeals considered the same assignments of error in their original plea which attacked the method of selecting the foreman of the Grand Jury and that the plea originally alleged systematic exclusion in the appointment of the acting Grand Jury by the Trial Judge. The Court of Appeals ruled favorable for the state and against the plea, it then was appealed to the Tennessee Supreme Court certiorari was denied and a per curium opinion. The Court found that the case had been adequately dealt with that the Court of Criminal Appeals. Thereafter in 1975 petitions were filed by respondents and the District Court at Memphis for petitions of habeas corpus, writ of habeas corpus. Thereafter the reference to the magistrate was had by Judge Bailey Brown on the bench and the magistrate did take proof, responses, the trial were filed, the trial record was filed and affidavits were submitted. Subsequently the case was dismissed by the District Court and that the District Court found that the foreman of the Grand Jury had been selected for other reasons than racial. In essence the proof before the Court at that time was the fact that the Trial Judge had selected the acting foreman of the Grand Jury because of his prior experience in the satisfactory manner in which he had performed that duty. Petition to rehear was filed before the District Court which was further considered and overruled and then the appeal of course was taken to the Sixth Circuit Court of Appeals and the action of the Federal District Court at Memphis was reversed and the Sixth Circuit did find that there was a systematic exclusion in the selection of foreman of the Grand Jury. Our arguments and contentions on behalf of the State of Tennessee basically are -- that Judge Brown’s finding was correct. And that the foreman was selected for reasons other than racial and that the foreman had been selected acting foreman to fill the vacancy of the normal foreman who was unavailable during that term of court and the Trial Judge affidavits of the Trial Judge and the foreman of that grand jury both indicated that it was for prior experience and satisfactory work well done. Further at that time it should be noted that the foreman of the Grand Jury did not vote in indictment. The indictment can -- the voting of the indictment was by 12 grand jurors who were selected from the general venire list, raised further that the record indicates that the raise of the defendants who're respondents here was unknown to them at that time and that there was no mention or there was no alluding to the race of the respondent defendants.
Lewis F. Powell, Jr.: Does the Grand Jury of vote have to unanimous in Tennessee?
William M. Leech: No sir it requires that 12 grand jurors indict.
Lewis F. Powell, Jr.: Otherwise it takes a vote of 12.
William M. Leech: Yes sir and the foreman is under Tennessee law the 13th Grand Juror and may vote.
Lewis F. Powell, Jr.: And under Tennessee law before a person can be tried for this kind of an offense must he be indicted by a grand jury or can there be an information?
William M. Leech: Must be Grand Jury Your Honor.
William H. Rehnquist: Are the Grand Juries statutorily regulated as to size that they all theoretically are 13?
William M. Leech: Yes sir, yes sir Mr. Justice Rehnquist.
Byron R. White: Mr. Attorney General, I may have missed your stating at -- but does the record show the race of the victims in this murder case?
William M. Leech: Yes sir. The record does show that the race of the victims was also Black, as was the race of the respondent defendants.
Byron R. White: Can you challenge incidentally the conclusions of the Court below that the respondents made out a prima facie case?
William M. Leech: No sir, Your Honor. The Court below did hold that a prima facie case was made out by the statement of the prior Grand Jury foreman -- some three to four in number, who said that their recollection, there had never been black foreman of the Grand Jury in Tipton County. And I think that did make -- we do not contest that, no sir.
Warren E. Burger: How about the judges of that Court, what's the history there, any Negroes ever been judges of that court? Is that in the record?
William M. Leech: Mr. Chief Justice, it's not in the record and I have no personal recollection.
Warren E. Burger: Have no personal collection either way?
William M. Leech: No sir, either way. Frankly I'm not that familiar with Tipton County it's in upper West Tennessee across the Mississippi River from Missouri Land. It's probably closer to the St. Louis than it is to Nashville. The other -- I would also add one witness testified before this Grand Jury panel, that witness was the arresting officer, after that a boat was taken without -- although there were some 20 other witnesses subpoenaed before the Grand Jury at that term. At the trial, there were some five eyewitnesses as to both defendants. We contend that the Trial Court was correct in finding that it was based on pragmatic reasons and neutralized or was neutral to the race issue. Second argument that we put forth is that even assuming that error existed and there was systematic exclusion in the selection of the foreman of the Grand Jury, that it would be harmless error beyond a reasonable doubt when the record is viewed on the whole with the evidence of guilt being overwhelming at trial, free of reversible constitutional error and free of any constitutional error as to the petit jury makeup or to the Grand Jury makeup as to the -- who were selected from the general venire list. The third argument in position which the state puts forth is that the Federal habeas corpus should be limited when the -- when we have an issue involving the selection of the foreman of a Grand Juror who is one of 13 with 12 voting members and an opportunity has been had for a full and fair litigation in the state system which Tennessee has a three tired court system from the trial, actual trial before the jury of a criminal offense and further an extensive Post Conviction Relief Act, that further that if the trial is free from constitutional reversible error and no assignments are made to the petit jury or to the petit jury -- in essence an extension of the Stone, the Stone versus Powell case. We say this knowing that this is the first time to our knowledge -- to my knowledge that squarely there's been any extension of the rationale in Neil from 1881 to extend to the foreman selection of a grand jury.
Thurgood Marshall: Is there anything in the record as to what the foreman does?
William M. Leech: I am sorry Mr. Justice Marshall.
Thurgood Marshall: Is there anything in the record or any place else to tell you what the foreman does?
William M. Leech: Yes the statutory prescription of the foreman's duty is in the record further the--
Thurgood Marshall: Is there anything beyond the statute?
William M. Leech: Yes, the foreman of the grand jury did submit an affidavit before the federal magistrate at the District Court level in which he stated in this case that he did not vote and that he did preside basically we contend that the foreman's chore is basically ministerial and administrative and that it assists in the organizing of the grand jury scheduling of witnesses. He stated that since he had been serving his former, the grand jury which had been many years under Tennessee system, they are usually reappointed as for statement of trial, he had never voted except in one case.
Thurgood Marshall: Well I am not asking his reporting, what does he do? Does he just sit there?
William M. Leech: No sir, he schedules the witnesses, he schedules the witnesses who are to appear, he asks them questions and then he turns to the other members of the grand jury and ask them if they have any questions of the witness.
Thurgood Marshall: So he does have something to do with.
William M. Leech: Yes sir.
Potter Stewart: He sits out as a Chairman or the President?
William M. Leech: Yes sir, he is Chairman of the grand jury.
Thurgood Marshall: Can the juror A call a witness that he does more? Does he determine who can testify and who does not?
William M. Leech: No sir, under Tennessee law --
Thurgood Marshall: You said he calls the witnesses.
William M. Leech: He schedules them or does the ministerial function of calling them.
Thurgood Marshall: Well I mean if the -- formally the grand jury decides who will testify and who will not testify then that's just not a perfunctory position?
William M. Leech: Mr. Justice Marshall he does not make the -- he is not the solo arbiter of who testify -- any grand juror can insist on or ask to hear from a witness, as a practical matter, I think most District Attorney's General who have charge of the grand jury schedule and report on the indictment form who the witnesses are as a result of the investigation from the law enforcement officer. The foreman does work closely with the District Attorney General during the, when the grand jury is not in session. In many of Tennessee's counties the grand juries are not in continuous session. Of course in the metropolitan areas such as Nashville, and Memphis, and Chattanooga, they are in continuous session and there are usually two grand juries operating continuously.
Byron R. White: Mr. Attorney General, you are saying there hasn't been any extension -- to a foreman. But wouldn't your position on the Stone against Powell issue be the same with respect to challenging the composition of the entire grand jury?
William M. Leech: Yes sir on the grand jury, on the grand jury, we would on to the rationale encompassed in Stone and that Tennessee has a full and fair trial and appellate practice and is more --
Byron R. White: So that issue on the grand jury just wouldn't be open in federal collateral relief.
William M. Leech: Under habeas corpus, there is a collateral tag, yes.
Byron R. White: So your position does encompass that, that and so it really -- well I take it you are saying that even if Stone against Powell would pick up challenges to the grand jury in general, it shouldn't pick up challenges to the foreman is that it or --?
William M. Leech: Yes sir.
Byron R. White: Or should they both be treated the same?
William M. Leech: I would say of course there is a line at some point in which we, there is a breaking point, obviously we haven't gone to the arresting officer, we haven't gone to the committing magistrate in the manner in which that individual is selected. There must be a breaking point, our position is that that breaking point should be after the petit jury, for that relief. I am candid to say that if the matter was brought before the Tennessee Appellate court and systematic exclusion was shown, systematic exclusions of Blacks to be, to serve as grand jurors, it should -- I maintain should be reversed by the court, but as a collateral attachment there is –
Byron R. White: A federal habeas corpuses has been available on the grand jury for a long time, isn't it?
William M. Leech: Yes sir.
William H. Rehnquist: Well as understood your position to be with respect to singling out the foreman of the grand jury, that not necessarily just under federal habeas but as a matter of federal constitutional law, in this particular case where the foreman does invoke the general rule applying in the presumption of prima facie case that grand jury shouldn't apply just because of this particular foreman.
William M. Leech: In this particular case, yes.
Byron R. White: I understand your position to be that too.
Lewis F. Powell, Jr.: Mr. Attorney General just, so I'll be sure I understand your position, I had understood it to be that quite without regard to the foreman, let's assume that you didn't have any foreman, you had a 12-man jury that on, a grand jury that indicted the defendant and there after the defendant was tried before a petit jury, the composition of which was not questioned and the defendant was found guilty, and then the case went its way through direct review and ends up in federal habeas corpus. And I understand your position to be that federal habeas corpus, the federal habeas corpus does not apply to that type situation, it cannot be invoked to review the question whether or not the grand jury was properly composed, is that your position?
William M. Leech: Yes sir.
Lewis F. Powell, Jr.: Well I wonder, why you talk so much about the foreman, I take it that's an alternative position.
William M. Leech: Yes we just simply say that since it has never been extended to the foreman it has been extended as has been pointed out to grand jury composition--
Lewis F. Powell, Jr.: But in how many cases was it extended to the grand jury and habeas corpus while the composition of the petit jury also had not been attacked.
William M. Leech: A number of --
Lewis F. Powell, Jr.: Well how many?
William M. Leech: I really don't know --
Lewis F. Powell, Jr.: This question ever raised in any of those cases. Perhaps it was, I don't know, I am asking for information.
William M. Leech: I really don't know as to the numerical breakdown.
Warren E. Burger: But your point I take it is that whatever maybe the law with respect to the membership of, the voting members of the grand jury that has no bearing on the selection of the foreman.
William M. Leech: Yes, Mr. Chief Justice that's correct. We are saying first that federal habeas corpus should not be the writ available for a collateral attack on the grand jury composition itself in the absence of -- the other fact is that, that we discussed in Stone versus Powell or more particularly where there has been a full and fair and impartial trial and appellate review and we first say that but then we also say that we certainly assuming this certainly we should not depart an extended to include even the selection of a foreman.
Byron R. White: Now but that's on the basis and a constitutional issue, it isn't on the applicability of Stone against Powell.
William M. Leech: On the basis of constitutional issue.
Potter Stewart: Well it's and on the basis of, it was harmless error beyond a reasonable doubt.
William M. Leech: Yes sir. Also that's other in addition to the federal district judge being correct in finding that the prima facie case was rebutted by neutral evidence, the decision was made for other reasons other than racial.
Potter Stewart: And harmless beyond a reasonable doubt argument would it not always be true that's any defect in the grand jury proceeding will be harmless beyond a reasonable doubt if you got a finding of guilt beyond a reasonable doubt at the trial by the petit jury.
William M. Leech: Yes sir in the absence of an actual showing of prejudice which I cannot --
Potter Stewart: How could there ever be one on the man that's proved beyond a reasonable doubt that'll be guilty. So doesn't that position -- wouldn't that position effectively give the state a free hand in doing whatever it want to do with grand juries?
William M. Leech: In the absence of an actual showing of prejudice.
Potter Stewart: Well even if there was prejudice would then still be harmless beyond a reasonable doubt, that is prejudice at the grand jury stage because -- if the man had a fair trial, if we assume the man had a fair trial was found guilty.
Warren E. Burger: In other words, isn't the petit jury that determines guilt beyond a reasonable doubt, doesn't that wash out any possible error in selection of the grand jury?
Potter Stewart: Yes Mr. Chief Justice, although I would hesitate saying it possible because I could envision some Grand Jury participation beyond their regular role or --.
Warren E. Burger: Well, if that turned out that there are only ten grand jurors and the Tennessee Law requires 12, then maybe there wouldn't be any indictment, that's possible right?
Byron R. White: Wouldn't that even be harmless beyond reasonable doubt because you've been proven guilty at a fair trial? I don't see how you're ever going to have any error under your rationale. Maybe that's right, but it seems to me we just eliminate the review of Grand Jury proceedings.
William M. Leech: Well, if indictment itself is faulty in Tennessee Law, whatever occurred in the trial is void because a defendant cannot stand trial in Tennessee without first being indicted and so if the indictment is faulty and it is shown that it is defective even in State Court.
Warren E. Burger: That's a matter of state law is it not essentially?
William M. Leech: Yes, it's a matter of state --
Byron R. White: I would think then that Grand Jury could never be harmless error.
William M. Leech: No sir, not in State Court. In State Court, if you could show that the defendant on trial --
Byron R. White: Wasn't validly indicted, then his entire conviction must fall under Tennessee Law.
William M. Leech: Yes sir.
Byron R. White: And no one in federal habeas could say that harmless error.
William M. Leech: I request to reserve few moments in rebuttal.
Warren E. Burger: Very well Mr. Attorney General. Mr. Kurtz you may proceed whenever you are ready.
Walter C. Kurtz: Yes, Mr. Chief Justice and May it please the court. This case involves simply I feel the enforcement of the Fourteenth Amendment in Federal Courts. The Court of Appeals found discrimination in the selection of the Grand Jury foreman of the Grand Jury that indicted the respondents and reversed their convictions. The respondents are asking you to affirm that judgment. I see the issues as being three. One whether there was discrimination in the selection of the Grand Jury foreman. If so, what is the proper remedy? And then the third issue the Stone versus Powell issue is federal habeas corpus available in this kind of issue? Now the Attorney General has conceived --
Byron R. White: Which one of those do you read first?
Walter C. Kurtz: Well, I had planned to begin with the discrimination issue in my argument, but of course logically if Your Honors were to expand Stone versus Powell.
Byron R. White: That's sort of non-constitutional isn't it?
Walter C. Kurtz: The jurisdiction -- No, the habeas --
Byron R. White: Yes, the Stone against Powell issue is a -- if Stone against Powell bars any review here we never reached our constitutional issue I take it.
Walter C. Kurtz: That's correct Your Honor. I had planned to begin with the discrimination issue and I'll do so, but I do concede that point of course. The Attorney General has conceded that there was a prima facie case proven in the District Court. The District Court judge found it to be a prima facie case and of course obviously the Court of Appeals agreed. The District Court and the Court of Appeals however disagreed on whether the prima facie case was rebutted. Now what did the state produce in the District Court in an effort to rebut the prima facie case?
Byron R. White: Mr. Kurtz before you get to that, would you tell me what period of time your evidence covered with respect to no black ever serving as foremen on the grand jury?
Walter C. Kurtz: Yes, Your Honor it covered a period of time from the early ‘50s to 1972, I say the early --
Byron R. White: Continuously?
Walter C. Kurtz: That's what the Court of Appeal found Your Honor.
Byron R. White: Well, what does the record show? Aren't there gaps in that evidence?
Walter C. Kurtz: Nobody has found there to be gaps, but I -- but there were three grand -- prior Grand Jury foreman testifying, one who would served in early ‘50s, all of them testified that it was in their memory they could not recall a black grand jury foreman. I suppose it's possible that there was a Grand Jury foreman who served in that period of time not called and in that respect there maybe a gap, but I don't --
Byron R. White: One of the three testified he didn't know at all. So you are down to two.
Walter C. Kurtz: I don't recall that Your Honor. As I recall the record all three said that they could not -- they did not believe there had ever been a black Grand Jury foreman.
Warren E. Burger: While we're in that area and since I take it you are a practitioner in that area, do you know as an officer the Court whether any judge of that Court has -- since 1900 let us say.
Walter C. Kurtz: No your Honor, I do not. I am from Nashville, which is approximately 180 miles from Tipton County and have no personal knowledge as the Attorney General, it's a good deal geographically remote from where I am.
Thurgood Marshall: What's the city near that?
Walter C. Kurtz: Covington, Tennessee is the county seat Your Honor and I would correct the Attorney General on one thing, Tipton County does border on Shelby County and rather being in Northwest corner it is in the Southwest corner of the state.
Thurgood Marshall: At least one Negro judge in Memphis.
Walter C. Kurtz: Yes, Your Honor. Some Republicans there. I will return to the state's efforts to rebut the prima facie case in the Federal District Court. They submitted an affidavit from the State Trial Judge in which the State Trial Judge says that he had chosen the Grand Jury foreman that indicted the respondents because this individual had served before and his regular foreman was going to be out of the county. Then he sums up in last sentence of his affidavit, quote, this in the appendix of page 113. “I don't think I have really given any thought to appointing a black foreman, but I have no feeling against doing so.” He'd never given any thought to the appointing of a black Grand Jury foreman. The state also submitted the affidavit of the Grand Jury foreman who tells us that he did not vote on the indictment. Now once a prima facie case is shown, I say the state has a much greater obligation then to just come into Court with an affidavit of the selecting officer saying that he didn't choose this person because of race. As a matter of fact, the affidavit is much stronger than that because the affidavit indicates that he did not even consider blacks, but what didn't they show? There was no proof that a black had ever been considered. No proof that a black had ever served. No proof as to what criteria was used. No proof of any rational selection procedure like personal interviews etcetera, and there are absolutely certainly no proof that the Blacks in Tipton County were unqualified to serve.
Warren E. Burger: What if you had a case, this is hypothetical now, where since Tennessee was admitted to the union, the records show that the judge of this courts that we are dealing with had always been a White male. Would you be making the same arguments you make here in this case?
Walter C. Kurtz: I don't think so Your Honor, because --
Warren E. Burger: Why not, why not?
Walter C. Kurtz: In Tennessee judges are elected.
Warren E. Burger: Yes. People -- the electorate can be biased and discriminatory, as well as individualist, isn't that so?
Walter C. Kurtz: Well, that's certainly true Your Honor, but I don't think that this Court has ever involved itself in the motivation of individual voters that comprise an electorate.
Warren E. Burger: That shouldn't stop you. We have never decided what the Sixth Circuit decided here either.
Walter C. Kurtz: It may not stop me Mr. Chief Justice, but of course I'm not here to argue that point.
Warren E. Burger: No, but we often explore with hypothetical questions the reach of an argument that's presumptuous.
Walter C. Kurtz: But I do think that selection process there is certainly different. Certainly susceptible to the exercise of racial prejudice, but nothing to which this court has ever entered into, and I don't believe that it would be proper for the court to enter into that to sort of political, almost a political judgment as to why voters are motivated to elect who they do. Now the prima facie case is important and what the state failed to prove is important because the prima facie case shifts the burden of proof. Now the judge did tell us that he did not consider blacks. He gave them no thought. A person who selects members of the grand jury has a duty to become familiar with persons eligible for duty, for jury service, a duty to refrain from a course of conduct that naturally gives –
Thurgood Marshall: Even when he selected the members of grand jury, he didn't select the members of the grand jury, did he?
Walter C. Kurtz: No I guess I used that and it's sort of generic term Your Honor. I am talking about the grand jury foreman. But a duty to refrain from a course of conduct, and this court's cases had never allowed a simple protestation that I didn't mean to discriminate to be sufficient to over come a prima facie case. And in this case we have far more than a simple protestation that I didn't mean to discriminate, we have a statement that I did not consider Blacks, I didn't give them any thought although I don't have anything against it. I think we clearly proved a case of discrimination.
Warren E. Burger: In the process of the petit jury that tries criminal case, who does the selecting there?
Walter C. Kurtz: The petit jury is chosen from the master jury list or venire Your Honor and it comes from the same basic path of jurors that the grand jurors are drawn from.
Warren E. Burger: Who -- what's the mechanics of actually bringing 40, or 50, or a 100 people in at a given time -- Does it require a commissioner or jury commissioner or what?
Walter C. Kurtz: Commissioners chose the master jury list, but then as I recall the clerk administers a system by which names are put in a pot and until recently a 10 year old child was brought in and drew out names at random. They went to serve the grand jury, they went to serve the criminal court juries, the civil court juries. But then completely outside of that is the judges' personal sort of selection procedure where he can reach out into the general population and choose anybody he or she wants as a foreman or a fore person of the grand jury.
William H. Rehnquist: Mr. Kurtz I am little bit concerned about the same point that Mr. Justice Blackmun raised with you earlier about the actual existence of a prima facie case. As I understand the magistrate to whom the district court referred this matter decided that you had made out a prima facie case. The district court then without opinion denied relief and the Court of Appeals reversed the district court. Now what standard does the Court of Appeals review that sort of a, is that a clearly erroneous test?
Walter C. Kurtz: Well I don't believe it's a clearly erroneous test Your Honor, because for one thing there is no evidentiary hearing in the district court, none whatsoever it was based solely upon the statistical information available that there hadn't been any blacks, the judge, and the judges' affidavit. So I don't think a clearly erroneous rule applies for an additional reason. Also in that we have mixed questions of law in fact here obviously and clearly erroneous rule does not apply to that. And also district --
William H. Rehnquist: The Court of Appeals didn't send it back for an evidentiary hearing, it simply, it said the habeas writ issue, didn't it?
Walter C. Kurtz: Yes Your Honor, because I think that they felt confident that the district judge had applied the facts or the law improperly to the facts.
William H. Rehnquist: Did the state ever have an opportunity to rebut if the prima facie case even if the district court had agreed with the magistrate that a prima facie case has been made out.
Walter C. Kurtz: Yes Your Honor and I do disagree with you that the district court did not find a prima facie case. I would refer Your Honor to the district courts decision on page 99 of the appendix the first paragraph, this is a district court judge saying it would appear that a prima facie case has been made with respect to discrimination in the selection of a foreman of the grand jury. Only then that the district judge allowed the state an opportunity to file affidavits and only then did the state file the affidavit of the district court judge or excuse me, the affidavit of the state court judge and the affidavit of the foreman of the grand jury.
William H. Rehnquist: So you said the district court said, gave the state an opportunity to respond?
Walter C. Kurtz: Yes Your Honor. Now let me turn quickly to the issue of relief, which I think is one of the key issues in this case, obviously and I suppose what legitimately, the legitimate questions about the fact that the foreman did not vote in this matter. The traditional remedy has always been avoiding the indictment for discrimination in grand jury cases as well as petit jury. But many of this court's cases have involved solely grand juries. Bush versus Kentucky the first one that involved solely a grand jury 1883 and then through more recent cases Alexander versus Louisiana, Peters versus Kiff and then Castaneda. What are the importances of the grand, the foremen in this case? The record in that regard does not contain many facts, the only thing we know on page 23 of the Appendix is the foreman who served at the -- at this particular grand jury panel is -- I usually question the witness first to get basic information to the attention of the members of the grand jury and then I ask each witness has been examined if there is anyone in the room that wants to ask further question to the witness. They are -- each and everyone given an opportunity to question the witness, so he controls the availability of the witness and when to break off the giving of evidence. But what more does he or she do? Under Tennessee law, the grand jury is an entity made up of 13 members the foreman is the presiding officer and leader of the grand jury. Small group studies and small group dynamics would certainly indicate the force that a leader of such a small group can exercise and all of us who practiced criminal law and have some knowledge of grand juries and petit juries realize that the tremendous influence of the foreman --
Warren E. Burger: Are you suggesting that --
Thurgood Marshall: We all practice law and I don't know what happens in the grand jury room that -- you don't happen to go in -- I don't know, I thought all lawyers were provided -- Is that true in Tennessee?
Walter C. Kurtz: That is also true in Tennessee.
Thurgood Marshall: Well how do you know what goes on in there?
Walter C. Kurtz: Well we don't know exactly what goes on but I think that we are well aware of certainly the power of the foreman of the petit jury, the power of any chairman or leader of a small group and we can extrapolate from that as to the power of the foreman. Yes Mr. Chief Justice.
Warren E. Burger: Are you suggesting that a member of the grand jury, any member of the grand jury, any member of the grand jury can call any witness he or she wants to call?
Walter C. Kurtz: No Your Honor, I don't suggest that and I don't disagree with what the attorney general said about that.
Warren E. Burger: Well, you implied in your statement that the foreman dictated what witnesses were going to be heard and that's not so at, all is it?
Walter C. Kurtz: That is the matter of law but I think as a matter of just controlling --
Warren E. Burger: They are satisfied with what's presented to them but that's one thing but is not the prosecuting attorney some factor in what witnesses are going to be presented to a grand jury.
Walter C. Kurtz: Well absolutely.
Warren E. Burger: He is the dominant factor, isn't he?
Walter C. Kurtz: That is --
Warren E. Burger: Unless Tennessee is different from all the other states of the union.
Walter C. Kurtz: Tennessee is not different in that regard Your Honor, and I didn't mean to create an impression of -- but I wanted to impart the information that the foreman does occupy most important role. In this particular case, the foreman interviewed the witnesses ahead of time and brought them in. But I don't suggest that the foreman is more powerful in that regard than say the District Attorney General.
Lewis F. Powell, Jr.: Mr. Kurtz--
Walter C. Kurtz: Yes.
Lewis F. Powell, Jr.: Coming back to the Stone v. Powell issue because I like to ask you some questions whenever it's appropriate.
Walter C. Kurtz: Yes Your Honor I will reach that, but of course I'd be glad to address it --
Lewis F. Powell, Jr.: Now if you arguing another point but you mentioned Castaneda and some other cases a little while ago and I thought you are going to continue with the Stone v. Powell argument. Alright carry on and let me know when you get to it.
Walter C. Kurtz: I will definitely get to it Your Honor.
Lewis F. Powell, Jr.: Alright.
Walter C. Kurtz: I just -- further more the grand jury foreman must sign indictment in Tennessee or the indictment is void even if the Grand Jury foreman does not vote and of course the Grand Jury foreman has certain statutory duties even out of term. I think all these things are outlined in great detail in the briefs of this case. Why the voiding of the indictment?
William H. Rehnquist: But you say the Grand Jury foreman signed the indictment, the indictment need be returned by only 12 of the 13 Grand Jurors?
Walter C. Kurtz: Yes, Your Honor.
William H. Rehnquist: So if the foreman were the 13th and he disagreed with the action of that 12th, he would nonetheless be require to sign it, is that correct?
Walter C. Kurtz: Yes Your Honor. That the foreman is the spokesperson of the Grand Jury. The Grand Jury can only act vis-à-vis the Court through the foreman, but I don't suggest that the foreman could somehow refuse to sign. He would have to sign or I assume he'd subject to mandamus. This Court has always supported the remedy of the voiding of indictments by two theories, both used I think, the presumption of prejudice. Certain circumstances are so susceptible to abuse that the Court will assume prejudice. I think it is the recognition of the evidentiary problems that are present and if you had to prove actual discriminations in Court. Grand Jury secrecy, most difficult. In the Castaneda case for instance, I don't believe that there is proof of actual prejudice. This Court has always assumed that to be a legitimate rationale in support of that rule. Then the rule of judicial integrity. While the rationale of judicial integrity has fallen in -- well bad times in the Fourth Amendment area, it has not fallen in bad times in this area. For instance, in Your Honor's case Peters versus Kiff, you allowed a White defendant standing to challenge Grand Jury discrimination because Blacks have been excluded. I think that, that is a strong statement that this Court adheres to the rationale of judicial integrity. Chief Justice Stone said in an older case Hill versus Texas, the conviction cannot stand because the constitution prohibits the procedure by which it was obtained. Equal protection of the law is something more than an abstract right, it is a command which the state must respect the benefits of which every person may demand. Not the least of our constitutional system is that its safeguards extent to all, the lease deserving as well as the most virtuous. And Mr. Justice Powell I will turn to the Stone argument, which I think is --
Lewis F. Powell, Jr.: May we start out by my asking you, who was injured in this case by the foreman of the Grand Jury having been selected in a discriminatory manner?
Walter C. Kurtz: I think the defendants.
Lewis F. Powell, Jr.: How was he injured?
Walter C. Kurtz: Both of them were injured Your Honor because --
Lewis F. Powell, Jr.: How were they?
Walter C. Kurtz: Their personal Fourteenth Amendment rights were violated.
Lewis F. Powell, Jr.: Well, in what respect? Are you challenging the composition of the petty jury?
Walter C. Kurtz: No Your Honor.
Lewis F. Powell, Jr.: Is any error before us today in the trial that you are citing?
Walter C. Kurtz: No Your Honor.
Lewis F. Powell, Jr.: So you stand here today challenging only the validity of the Grand Jury that indicted here.
Walter C. Kurtz: Yes Your Honor.
Lewis F. Powell, Jr.: And again I ask you how was your client injured if he was tried and convicted by a jury properly selected?
Walter C. Kurtz: Well, again I must say because their personal Fourteenth Amendments rights were violated.
Lewis F. Powell, Jr.: Were your clients rights violated in terms of judicial integrity as you use that term anymore than the public generally?
Walter C. Kurtz: Well, I think they were both violated Your Honor.
Lewis F. Powell, Jr.: You concede your client had fair trial and he was found guilty, that guilt has been affirmed by at least three courts.
Walter C. Kurtz: For purposes --
Lewis F. Powell, Jr.: You're not challenging that?
Walter C. Kurtz: For purpose of this hearing I do not challenge that Your Honor.
Lewis F. Powell, Jr.: And what is the purpose, the historical purpose of habeas corpus?
Walter C. Kurtz: Well, I believe the historical purpose of habeas corpus prior --
Lewis F. Powell, Jr.: It had something to do with innocence, didn't it?
Walter C. Kurtz: Yes Your Honor, it had something to do with innocence and --
Lewis F. Powell, Jr.: Is innocence involved in this case at all?
Walter C. Kurtz: No Your Honor.
Lewis F. Powell, Jr.: Alright.
Walter C. Kurtz: But habeas corpus law has changed considerably since it had something to do with the innocence as you say and also it has to do with the jurisdiction of the Court.
Potter Stewart: Well habeas corpus has to do with release from unlawful confinement that may or may not have something to do with innocence in your case?
Walter C. Kurtz: Yes, Your Honor.
Potter Stewart: It's released from unlawful confinement isn't it?
Walter C. Kurtz: Yes, and Congress is --
Potter Stewart: Sometime it has to do with the innocence, sometimes it doesn't.
Walter C. Kurtz: Yes.
Lewis F. Powell, Jr.: But is there any unlawful confinement in this case?
Walter C. Kurtz: Yes, Your Honor. If you -- if we look back over 100 years of this Court's decisions enforcing the Fourteenth Amendment, I think there is no doubt that this conviction was obtained in violation of the Fourteenth Amendment and therefore under the Federal habeas statute --
Lewis F. Powell, Jr.: The indictment.
Walter C. Kurtz: Well, there would be --
Lewis F. Powell, Jr.: Which is the first case you rely upon?
Walter C. Kurtz: I would start with Strauder versus West Virginia Your Honor.
Lewis F. Powell, Jr.: The attack that was on the petty jury as well as the Grand Jury.
Walter C. Kurtz: That's correct Your Honor.
Lewis F. Powell, Jr.: What was the next case?
Walter C. Kurtz: Bush versus Kentucky, which as an 1883 case, in which the attack was solely on the Grand Jury.
Lewis F. Powell, Jr.: Was the issue you're arguing here today argued in that case?
Walter C. Kurtz: No, Your Honor but there is a case in which the issue that interests Your Honor was argued.
Lewis F. Powell, Jr.: Which case was that?
Walter C. Kurtz: And that is Cassell versus Texas. A 1950 case.
Lewis F. Powell, Jr.: Was that a habeas corpus case?
Walter C. Kurtz: No, it is not Your Honor.
Lewis F. Powell, Jr.: Well, that's a very different case then.
Walter C. Kurtz: The issue on habeas corpus has never been addressed by Your Honor.
Lewis F. Powell, Jr.: Well, this is a novel case in that respect.
Walter C. Kurtz: It is Your Honor.
Lewis F. Powell, Jr.: That's my point.
Walter C. Kurtz: But I would like to submit that there are tremendous differences in this case and Stone versus Powell, which should not lead to the same result. They are the differences between the exclusionary rule and the remedy in this case. The rationales are different. The rationale of voiding the indictment in this case is supported by presumed prejudice, judicial integrity and maybe deterrence, but only maybe possibly deterrence. Now, this Court's decisions have never rested on that. The exclusionary rule is based on deterrence alone and the recognition that deterrence -- the deterrent effect is attenuated so greatly on Federal habeas corpus that in a balancing procedure, this Court recognizes that there are certain interests more important than the deterrent effects in enforcement --
William H. Rehnquist: Your read Mr. Justice Stewart's opinions for the Court in Elkins against United States?
Walter C. Kurtz: No, Your Honor.
William H. Rehnquist: That came out a number of years ago. I think it spoke quite substantially about judicial integrity in connection with the Fourth Amendment.
Walter C. Kurtz: Yes, but as I read Stone versus Powell, Your Honor's have rejected such irrational in the area of the Fourth Amendment or if not rejecting it certainly entered into a balancing test, a balancing test that has never been used by this Court in Grand Jury discrimination cases.
Potter Stewart: Well, that had to do with the exclusionary rule and it did as my brother Rehnquist correctly recollects, emphasize the interest of juridical integrity in connection with the exclusionary rule.
Walter C. Kurtz: Yes, Your Honor.
Potter Stewart: Which is, I would corollary to the Fourth Amendment.
Walter C. Kurtz: Well I certainly recognize that and support it, but I don't think that, that rationale is supported by this Court's decision in Stone versus Powell.
Warren E. Burger: What did -- you said in response to question from Mr. Justice Stewart early that indictment can be only 12 votes of a Grand Jury and not by information as in some states.
Walter C. Kurtz: Yes, Your Honor.
Warren E. Burger: Suppose Tennessee law allowed a charge to be instituted in -- even on a homicide case by information from the prosecutor and it appeared the prosecutors for -- ever since Tennessee had been member of the union had been white males appointed by the governor since you don't want to get into the election process, by appointed by the governor. Your arguments would be same, if the uncharged had been instituted by that particular prosecutor.
Walter C. Kurtz: I think that that could raise substantial questions as to the validity of the charges if it was shown that the racial discrimination had been exercised in the selection of the prosecutors. I would admit that that would raise tremendous difficulties in our system of justice, that obviously would not be as easy to administer as this rule is in the grand jury.
Warren E. Burger: First you try out the prosecutor before you can try the defendant. As here you want to try out the grand jury before you try the defendant.
Walter C. Kurtz: That's possible.
Lewis F. Powell, Jr.: Mr. Kurtz.
Walter C. Kurtz: Yes sir.
Lewis F. Powell, Jr.: May I ask a question, obviously the integrity of the grand jury is important to society no one questions that, what other ways may the grand jury integrity be protected legally apart from the type of action that you have here today?
Walter C. Kurtz: Well of course the grand jury integrity could be protected by federal criminal statute, there is such statute 18 U.S. code 243.
Lewis F. Powell, Jr.: That's right.
Walter C. Kurtz: Class action law suits as used in Carter versus the Jury Commissioner.
Lewis F. Powell, Jr.: And Turner against Fouche.
Walter C. Kurtz: Yes Your Honor, the Canyon case.
Lewis F. Powell, Jr.: Right and of course they can be direct attack on direct appeal.
Walter C. Kurtz: In the state court.
Lewis F. Powell, Jr.: In the state courts and this court also.
Walter C. Kurtz: Yes Your Honor.
Lewis F. Powell, Jr.: So at least three other ways without resorting to habeas corpus.
Walter C. Kurtz: That's correct, there are alternatives available but I think that there are legitimate differences between the exclusionary rule and the rule in this case it does not appear that we are going to be able to get and my time is up now, thank you very much.
Warren E. Burger: Do you have anything further Mr. Attorney General.
William M. Leech: Mr. Chief Justice and may it please court. Just very briefly I would conclude that the Fourteenth Amendment rights have not always universally, uniformly been protected by vehicle of habeas corpus such as where a state law requires that the plea be filed in advance and if it isn't done, then the individual will be barred from raising it for not having raised it timely. Another is in a case where there is a guilty plea as in Pollock (ph) and where guilty plea some 20 years later the defendant could not come back to be heard and I would simply say that there are other means for attacking discrimination in the systematic exclusions of members of recognized classes from participation in society whether it be the appointee, whether or not it's a school board appointment or whether it affects the judiciary, if it affects the judiciary, then the Supreme Court of the state involved may by its inherent rule making power promulgate guidelines and procedures to follow for the trial bench and the functioning through its appointed powers. In addition to the class action in the traditional legal note--
Potter Stewart: Mr. Attorney General, you are not suggesting this court to promulgate rules for the Tennessee courts to follow, are you?
William M. Leech: Oh no sir I said the state court, if the Supreme Court of the State of Tennessee perceives that, this is a state wide system we have, and perceives that there have been numerous violations or its not working as a system because the --
Potter Stewart: What if as in this case where the Supreme Court of Tennessee perceived there was no problem and federal judges thought there was a problem. Then would, doesn't that -- the heart of the matter?
William M. Leech: That's the heart of the matter, yes sir I would say that as opposes the deterrent factor under which the rationale of federal habeas corpus has been used here for in Fourteenth Amendment question. We are simply saying in modern context today that ample remedy is available and that -- in this kind of case where a full and fair, impartial hearing has already transpired that should be limited.
Potter Stewart: Well is it, it is generally considered a full fair and impartial hearing when the judge who's conduct in under review is the judge who is reviewing that conduct, which is what we had here. The trial judge was passing on the sufficiency of his own handling of the matter, wasn't he?
William M. Leech: He was passing on the plea in abatement which went to the selection of the foreman juror --
Potter Stewart: Which he had --
William M. Leech: -- which would be his appointment, yes sir.
Potter Stewart: Is that normally that a fair and adequate -- full and fair hearing of the issue when you have this -- the judge trying himself in effect?
William M. Leech: Your Honor, he would be trying the issue presented to him as to whether or not there was, and he did submit --
Potter Stewart: The challenge was that he had not followed a proper procedure, that was the challenge and then he is the one who decided whether or not he followed a proper procedure?
William M. Leech: Once much -- if Your Honor please once it might fall in the proper procedures so much it was the charge of being discriminating by intentionally and excluding black and I don't think that when his affidavit is read as a whole submitted into the record is what he said, simply said he seldom ever appointed people and when he did he simply reappointed those who had been there and then he had to consider.
Potter Stewart: And then he reviewed his own affidavit and decided that that didn't show discrimination?
William M. Leech: Yes sir and then he also presided to go further as a trial judge for the petit jury but then that was reviewed by Criminal Court of Appeals in reviewing the entire record and the Supreme Court in reviewing the record.
Lewis F. Powell, Jr.: But the issue as to full and fair trail as I have understood it didn't relate to whether or not foreman of the grand jury had been properly selected, the issue so far has habeas corpus being a proper remedy it relates to whether or not there was a full and fair trial of the defendant by the petit jury and the judge who presided over it.
William M. Leech: On the merits of the indictment --
Potter Stewart: Well that's a different test in the Stone against Powell test, on the Stone against Powell, the issue on the full and fair hearing isn't just a trial it's whether there was a hearing on the issue whether or not the evidence had been illegally seized, isn't that right?
William M. Leech: Yes sir and I think it --
Potter Stewart: Is that what you are asking for or you are just saying whenever there is a fair trial that's the end of the matter, it's kind of an extension as Stone against Powell?
William M. Leech: No sir, I am not saying that at all. I am saying that it does involve. We say there was a full and fair hearing on the plea in abatement itself, but that did not go to the trial of the case.
Potter Stewart: Yeah, but in order for your theory of Stone against Powell to apply, we would have to decide if there was a full and fair hearing by the judge on the issue of discrimination in picking the grand jury foreman. Isn't that right?
William M. Leech: I don't know maybe I missed it but I was under the impression that we were -- that our theory is that there was a full and fair hearing on every aspect of the -- in the accusatory spectrum including a full appellate review and post conviction --
Potter Stewart: Well let's make it precise.
William M. Leech: -- as a system.
Potter Stewart: If there was a not a full and fair hearing at the trial court level in the state system on the question whether the grand jury foreman had been picked improperly. If there was not a full and fair hearing by the trial judge in Tennessee, would or would not Stone against Powell bar review, in your view?
William M. Leech: Yes sir it would be reviewable in the state court, if the state court felt that he, that --
Potter Stewart: No, no, I say would it be reviewed on the federal court on that hypothesis?
William M. Leech: No sir under our, under our contention that that it should be expanded to include this as a --
Potter Stewart: And you would say Stone against Powell would bar it even if there was not a fair hearing by the State trial judge on the issue raised in the federal habeas corpus proceeding?
William M. Leech: Yes sir.
Warren E. Burger: Thank you gentlemen. The case is submitted.