Earl Warren: Number 550 -- State of Louisiana. Mr. Culligan.
Michael E. Culligan: Good morning Your Honors. Mr. Chief Justice, Associate Justices of the Court, before presenting argument on behalf of the State of Louisiana, permit me to first express the best wishes of our Attorney General, Jack Gremillion on his request to also thank Your Honors again because of the consideration which Your Honors extended to him on his last argument in this Court. Again, I am very honored and privileged to address Your Honors today on Law Day. This case is typical exactly of what Mr. Justice Clark said this morning in his telecast. This is an unfortunate defendant of the colored race without funds here before Your Honors in forma pauperis with both the record and the brief being paid for -- by the United States Government. His attorney being appointed by the State of Louisiana, former Assistant District Attorney, a high-minded, high-spirited young man of our city who is now the Assistant City Attorney of the City of New Orleans whose expenses are being paid, travel expenses by the City of New Orleans. In order to properly present this case, I think I should inform Your Honors this case concerns only the jury system in the Parish of Orleans. The case is properly stated by Mr. Garon yesterday. It comes before Your Honors on a writ of certiorari from Louisiana Supreme Court, the petitioner having been charged of the crime of murder, being a young college youth, and the victim in the case, being a white woman of the age of the approximately 70. The alleged motive being burglary and according to his counsel and his brief before for the Louisiana Supreme Court, she was brutally hacked to death by both blunt and sharp instruments and finally killed. His defense in the lower court simply being that he attempted to burglarize the place but denied any knowledge of the murder itself. There are no constitutional questions involved before this Court at this time, except that of an alleged discrimination before the grand juries in the Parish of Orleans. Mr. Justice Whittaker, yesterday morning, asked if there was specific specification of error by Mr. Eubanks' counsel and my desire to inform Justice Whittaker that on page 37 of the record, Mr. Garon in his motion, of course, does refer to a violation of both the Louisiana Constitution and the Fourteenth Amendment of the Federal Constitution. He further particularized in his brief, before the Louisiana Supreme Court in its specification of errors that it was a violation of not -- not only the Fourteenth Amendment of the United States Constitution but also a violation of Article 1, Section 2 of the Louisiana Constitution and of the Congressional Act of 1875 making in defense for anyone to deliberately, purposely exclude any person on account of race or color. The Parish of Orleans which is the only parish in our State that has a different jury selection system consists purely and simply of the City of New Orleans. The territorial limits of the Parish of Orleans and the territorial limits of the City of New Orleans are one and the same. Again, the Parish of Orleans differs entirely from the other parishes of the State.Our District judges in the Parish of Orleans are divided into a civil bench and a criminal bench. In other words, in the other parishes, the District judge is the same as the United States District Court judges, handle all types of law. Whereas, in the Parish of Orleans, the Criminal District Court is strictly a court exclusively of criminal jurisdiction, whereas, the civil court is civil and probate jurisdiction. Again, on a selection of the very jury commission itself and the parishes other than Orleans, the jury commission is appointed and selected by the District judge, the clerk of court being the ex officio Chairman of the Commission which is somewhat similar, if not entirely similar as to the juries as far as the United States Courts are concerned. In the Parish of Orleans, the jury commission is not selected by the District judge.The jury commission is appointed for a term of four years by the Governor or during or at the pleasure of Governor. In the parishes, the jury commission says at the pleasure of the District judge who has appointed him. Again, to draw distinctions and I'm doing this, sir, because, the cases become -- that have come before Your Honors have never arisen out of the Parish of Orleans. There is no case ever in this Court from the Parish of Orleans on this particular subject matter. The number of names that go into the -- what we call the jury wheel or the general venire is different, 300 in the country parishes minimum, 750 minimum in the City of New Orleans. The selection of the grand jury again is different in the country parishes than it is in the City of New Orleans. In the country parishes out of the 300 names that are in the general venire, 20 names are selected by the jury commission and placed in an envelope. It is sealed and then from that envelope -- I've gone a little ahead of myself The names of those 20 are placed on a list. The District judge and the parishes other than Orleans, selects one of those 20 names and appoint him as foreman of the grand jury. Out of the 19 remaining names, then 11 are drawn by a lot of chance and that constitutes the grand jury. In the Parish of Orleans, out of the 750 names, the jury commission takes and draws 700 -- put 750 names minimum in this jury wheel. Mechanically, it is a large very ornate brass drum that is about the size of a oil barrel drum that has a manually operated control handle in which the names are placed. The sheriff, the clerk of court and anybody else can be present at the time of the drawing. The wheel is simply turning around, the drum is rotated. The names are drawn out and then the names are placed on a list. That list does not show whether there are Black, White or Indian and we have Indians in New Orleans as well as Negroes, Chinese and whatnots. Now, the 75 names that are drawn or placed upon a list, again that list has no indication in any manner, shape or form of the color, of the particular perspective jury. The list goes to the District judge and I will, later on, in the course of this discourse show how each one of the judges does with that list after he receives it. We have in Orleans Parish at this time, eight sections of our criminal court and eight sections of our civil court. The jury is picked by rotation which makes today, a judge select a grand jury once every four years. At the time of this particular case there were only six judges. So, a grand jury was selected once by each judge every three years. Now, departing for a minute from the background history, I would like first to explain to Your Honors the similarity of our laws. In other words, the United States Constitutional -- Fourteenth Amendment to the Constitution which is the Equal Protection Clause and under which this case is -- comes up was ratified in the State of the Louisiana in 1868. In 1879, our Constitution which is Article 1, Section 2 repeats practically verbatim, the Fourteenth Amendment is part of the Louisiana Constitution. Again, on the question of -- there being no distinction as to race or color. We antedated the Congress of the United States on statutory law. I have quoted the exact statute in our brief.Our first statute was passed in the year 1868. The federal statute was not passed until the year 1875. I'm saying that to Your Honors for this reason that in the number of these cases this Court has commented on the fact that certain States have by innovations tried to let us say evade the jurisprudence of this Honorable Court. Our State has not done that. We've not only agree with the United States, we have been anticipated the United States on this particular Negro question in criminal law. Our Louisiana Supreme Court has followed every decision that Your Honors have ever written. We are very proud of the fact that we have never had a criminal case since 1938, remanded to our Louisiana Supreme Court. 1938 was the famous Pierre case written by Mr. Justice Black, if I remember correctly sir. And in 1939, immediately after that decision that was not from the Parish of Orleans, it was going to Parish of St. Charles where an entirely different system of jury selection was in effect. The jury system was immediately changed in that Parish. Pierre was retried and sentenced to death and hanged after again an appeal taken to this Court and Your Honors approved our change in jury system. So, we have followed and kept abreast of every case that has been spoken of in this Court. One New Orleans yesterday has the part of Cassell case. I forgot which one New Orleans made that comment. Cassell case was courted by the State in its brief in this particular case, the Eubanks case. The Cassell case was also used in the foundation by Louisiana Supreme Court and I think the case of State versus Allan. I will be sure about the name later in which, to one of our District Attorneys immediately upon the handing down of the Cassell case said that they were on the wrong track as far as the interpretation of the decision of this Honorable Court and immediately had a grand jury thrown out and a new grand jury empowered. That again was from Allan Parish or one of the north Louisiana Parishes. The legal situation here has been covered.
Earl Warren: Mr. Culligan, may I ask you? Are -- are all of your cases tried by -- are prosecuted through indictment in --
Michael E. Culligan: Yes, sir. In all --
Earl Warren: It is?
Michael E. Culligan: No, sir, not all the cases.
Earl Warren: Not all -- not all.
Michael E. Culligan: All capital cases under the constitution, Article 1, Section 9 sir must be by grand jury indictment.
Earl Warren: Yes.
Michael E. Culligan: Any other cases are just by, as the rule, direct votes of information in the City of New Orleans. In the parishes other than the City of New Orleans, the grand jury is used in practically every case, but in Orleans Parish due to the volume of business, that is practically used today for capital cases and for investigations of great public interest such as vote frauds, graft in police departments, mismanagement of public funds where it is in strictly an inquisitorial body, not just a case between the State and a particular defendant. That is one reason why and I will get to that in a few minutes, why that distinction in the Parish of Orleans is against the other parishes. In other words, our city is the largest city we believe in the south and (Inaudible) for its Chamber of Commerce. But we sincerely believe that we have the largest cosmopolitan seaport in the southern territory. We have been abreast not only to the decisions of this Court but abreast of the times as far as law is concerned. The decision to this that I might also say this inasmuch as Your Honor asked about that grand jury proposition. Both grand juries and petit juries in the Parish of Orleans received absolutely no pay, no mileage, no conversation of any character description. Therefore, there is a tendency, it might say psychologically speaking of escape by particularly our colored citizens because it would be very onerous to them to serve on either petit juries or particularly on grand juries without any type of compensation and I say particularly on grand juries because the grand juries are in employment for six months, 20 times to meet four and five times in one week, whereas the petit juries as rule is usually a maximum of about 12 days service in one month. Out of maybe a 150 names on a petit jury panel, the average man may only serve one case and then he's discharged for the statutory part to be recalled after six -- six months or a year.
Felix Frankfurter: Apart from the information that you -- which -- apart from drawing on your own experience, to what you just put to the Court. Is there anything in the record to indicate that when colored folks are drawn, they ask to be excused?
Michael E. Culligan: Yes, sir. I was going in -- it -- direct me in the record sir, and what I intended to do sir if Your Honors please so that Your Honors will, I think be well satisfied. I intended reviewing the jurisprudence of this Court, the Louisiana Supreme Court, the effect of the jurisprudence as opposed to these courts has simply been this. Over 30 years since 1879 since the Virginia versus Rives case and Strauder versus West Virgina. The jurisprudence has been built up is as it were over 30 years it has been a continuous lack of the Negro either on a petit jury or a grand jury that that is a strong presumption that the exclusion has been quite slow, systematic and solely on account of race and color. The jurisprudence has also we think that that is rebuttable and that is why I stated to Mr. Justice Frankfurter just now, I will review the jurisprudence placed and then from the facts that I just gave you which will be from either the Whites of the jury commissioners, that's in the record and Whites of the former District Attorneys since my day back in 1928 up to present day, everyday District Attorney was called in this case. Every District judge it was alive was called and not only now, but way back in 1941, this same case was before the Louisiana Supreme Court the same factual situation in which these same judges testified. However, that case has never come up before Your Honors because it was replaced on a different point entirely of Louisiana law and not on the Constitutional Law of point. The case of Akins versus Texas, the majority opinion there was by Mr. Justice Reed all of these cases, sir, without going into detail or naturally capital cases. That was the Texas system at that time.This case was in 1945. And I'll give a more elaborate description when I hit the Cassell case, where the jury commission in the State of Texas in interpreting Your Honors' previous decisions in I think Pierre versus Texas and possibly the Smith versus Texas, one of the impression that they put one man on this jury panel, the grand jury panel, that that would be enough to satisfy the rulings of this Court. In other words, the jury system in Texas which the plan has been approved by this Court in Cassell versus Texas in which is a self -- I'll give a more full explanation of later. 16 men were selected by the jury commission out of which 12 were then taken by the judge. In that case, this Court said that one token representation was just as bad as none at all. Carter versus Texas was way back in 1900. In that case, under the then existing Texas Law, you had to challenge the grand jury before they took office. Carter committed a crime after the grand jury took office. Therefore, Carter had no opportunity of challenging the grand jury at all. The Court nicely replaced that case. Cassell versus Texas I'll place on the side at this minute for the reason that Cassell versus Texas as opposed to its approach to any jurisprudence either in the Louisiana Supreme Court or in Your Honor's Court. Although, there is no point, no case exactly in point in either court because nothing of this kind has ever come before this Court or before the Louisiana Supreme Court except in State versus Dorsey which never got before Your Honors. In Gibson versus Mississippi, that was a denial way back in 1896 by then Justice Harlan. I know that's not New Orleans but it was that Justice Harlan at that time, he wrote the majority opinion. The removal was denied on the basis that the State of Mississippi were not disqualifying the Negroes from the jury and the Court never did actually decide the question of the exclusion from the panel list and was never properly raised. In the case of Hernandez versus Texas, that again was an exclusion of Mexicans. In that case, the Court found a systematic exclusion of the Mexicans because at no time, Mexicans had ever been put on a jury list of any kind. The Court said that just from the time alone that they could tell from the name that that was a Mexican descent and the jury commissions themselves might have been unconscious of what they were doing, but they did it straight on. Hill versus Texas was in 1942 after the Texas law had been changed. The -- again, there was never a Negro on the grand jury list. The jury commission, however had to pick the petit jury and actually the general venire out of which the grand jury his place has been selected. The jury commission testified that they did not even know a single qualified Negro in the whole city of Dallas, Texas. The Court did not take that with a grain of salt. That means that they replaced the case. Martin versus Texas, the defendant in that case did not get any jurisprudence out of this Court from sufficient reason that all they did was file an affidavit and offered no evidence. Neal versus Delaware which was the case back in 1880. The Court -- the state court refused to allow the introduction of any evidence to prove exclusion. In 1935, Norris versus Alabama, that's one of the celebrated Scottsboro cases written by Chief Justice Hughes. There've never been any Negroes and there was a total exclusion, no attempt made, to ever put anybody, any Negroes or any type of jury, grand or petit.Patton versus Mississippi in 1947, the attack there was made on account of exclusion over a period of 30 years on the petit juries and the State made no defense. It failed to make out any -- give any evidence of exclusion. Pierre versus Louisiana was in 1938 in which as I stated before, Justice Black wrote that opinion. That's from the Parish of St. Charles which has this different system of jury selection. In that particular case, the District judge held that there was discrimination but along the lines of an opinion that had been written by Mr. Justice Jackson and then as much as the attack was levelled against the grand jury that it did not affect guilt or innocence and therefore could not be prejudicial so he refused to sustain the motion to quash. The Louisiana Supreme Court said he was wrong on the second premise, he was right on the second premise but he was wrong on the first premise that there was no exclusion. Our Chief Justice, our late, commended and beloved Charles O'Neil decided with the majority opinion of the court and said the District judge was absolutely correct. Justice Black agreed or I should say can claim the dissenting opinion of our Chief Justice in which Justice Black pointed out that Chief Justice O'Neil was correct for reason of the fact that the District judge was a competent lawyer before he went on the bench. He had been a District Attorney. He had been a judge from a number of years, and he certainly knew local conditions somewhat better than the other gentleman who had won our Louisiana Supreme Court. The second Pierre case was affirmed by this Court because as I say the jury system was changed. Reece versus Georgia was written I think by Justice Clark.Reece versus Georgia, we say with honorable pride is practically a restatement of our Louisiana Supreme Court in State versus Nichols. The same identical principle of the law is laid down 10 years before by the Louisiana Supreme Court in State versus Nichols on the basis that the -- the case actually did not turn in on the point. It was in our case of Sate versus Nichols. In other words, in our case it was token representation. The case was not decided here on that point but the logic of the case is exactly the same. Rogers versus Alabama, again, it was remanded because the District Court refused to permit any evidence to be introduced of the exclusion. Smith versus Texas in that case in 1940 the opinion was written by Justice Black. The commissioners in that case -- the jury commissioners said that they just choose to place the persons on the grand jury list from among their personal appointees. That they wanted to claim if there were any Negroes, therefore, they didn't worry upon it so they just didn't put any on the jury. The case was properly reversed. Strauder versus West Virginia was in 1879 in which the statutes of West Virginia absolutely excluded the Negro because they said that the men to serve on juries jury had to be White males. A number of the States later amended similar statutes, cut out the word “white” and the word “males” after the emancipation of women and also putting “females.” Now, as far as the very first case on the subject in this Court was Virginia versus Reece in 1879, 100 U.S. in which the Court stated that while the facts might have been stated that no Negroes were on the grand jury or on a petit jury have ever been put on there. And how did it -- the jury which indicted them and have found that summons to trial had been impartially selected that the test was not a mixed jury in any particular case that that was not a sanction to the Equal Protection Clause of the Federal Constitution and a right is not given for any law of Virginia or by any federal statute to have a mixed jury. Complaint in this case while theoretically might be said not to be exactly this. I say it's nothing more or less and exactly the same complaint that was made in Virginia versus Reece back in 1879.The complaint is that there was no Negroes on this panel although they could've been. The case State versus Green, I mention State versus Green here, this is a Louisiana case which is written by Mr. Justice McCaleb. That was the case where the District Attorney called the grand jury and he says “Gentlemen since the Cassell case, we've been doing things all wrong in this parish.” So the judge discharged the grand jury and immediately went to work and had new men the will open -- new men put in so that there would be representation by Negro race. In that case, the -- there was a claim inclusion made but not passed upon. Now, I mentioned already the words of Justice Black -- Mr. Justice Black in the Pierre case. Also, as I mentioned the case of State versus Nichols, a Louisiana case, Mr. Justice Morris out of Avoyelles Parish, where out of the panel of 300, only there was -- there was only three Negroes. The clerk of Court was the ex officio jury commissioner in that case testified that in his opinion no Negroes ought to serve on jury. So Justice Morris very promptly reversed the case, sent it back. And in that case again, showing you the consciousness of our Supreme Court of the impact of Your Honors on our jurisprudence. Justice Morris in that case placed, I might say somewhat poetic words said the United States Supreme Court is a planet into whose orbit, the vortex of all the judicial opinions of the entire United States must ultimately pass in order to give the law it stated. Our past --
Felix Frankfurter: Mr. Culligan.
Michael E. Culligan: Yes, sir.
Felix Frankfurter: Would it interrupt your argument if I ask you --
Michael E. Culligan: No, sir I'm --
Felix Frankfurter: -- what do you --
Michael E. Culligan: We're very pleased to answer any and all questions.
Felix Frankfurter: -- what -- how you would summarize the jurisprudence if you just canvassed in its bearing on this case?
Michael E. Culligan: I would say this sir that it gets back to what probably Your Honor will remember that Your Honors said in the concurring opinion in the Cassell case. The issue here is a constitutional issue. And in every case the constitutional issue can only be decided by an examination of the question of fact in each particular case and whether the inference or the presumption can or cannot be rebut. If it can be rebutted then has the State rebutted. If the State has not rebutted it, we are out of court. We must rebut to presumption. There's no doubt --
Felix Frankfurter: The presumption -- the presumption that's laid in, in this case is that over a period of time you will tell me what the period is there never once was a Negro on -- on your -- on the grand jury of the New Orleans Parish. Is that right?
Michael E. Culligan: That is generally correct sir with some dispute in the record. There was actually one Negro on a grand jury panel. Again, I say psychologically, with the escape proposition nobody knew the man Mr. Walker was a Negro. He was selected by the Late Justice Shabane. Mr. Walker called at the attention of Mr. Koch who was then District judge who was -- I mean, who was then the District Attorney who was now District judge. Mr. Koch called to the attention that Judge Shabane and the man continued to serve on the jury. There has never been as far as I know in my experience back to 19 -- I -- I didn't testify in the case if Your Honor please but I'm only answering Your Honor's questions. Since 1928, I personally don't know of any Negro ever having served --
Felix Frankfurter: Now that's a -- that --
Michael E. Culligan: Yes?
Felix Frankfurter: -- arises -- that would stir in anybody's mind a wiggly (Voice Overlap) --
Michael E. Culligan: A strong presumption. Yes, sir.
Felix Frankfurter: Now, what rebuts the strong presumption?
Michael E. Culligan: The testimony of each and every one of these judges plus the Louisiana law itself. In other words, under Article 172, the jury commission must qualify each and everyone of the men. The qualifications for a man to be a jury and it simply they must be 21 -- at least 21 years of age in accordance to that. That he must not have been interdicted, convicted of a felony and that particularly is the qualifications. Now --
Felix Frankfurter: It doesn't seem to be a very -- what shall I say -- a very esoteric or very onerous qualification.
Michael E. Culligan: No, sir. In other words, almost any man that -- that has gone through the first grader that becomes 21 years of age and has not been found insane or convicted of a felony is eligible for jury service.
Felix Frankfurter: A potential grand juror.
Michael E. Culligan: He's a potential the minute he goes in because the same law applies to both. The bottom paragraph of 172 does get in to what you might call rather than a qualification, a question of competence where it says in addition to the above qualifications, the man must be of well known good character and standing in a community. That, however, is from the jury commission's standpoint. Now, from the judge's standpoint in addition to that admonition to the judge that all juryman are a must be of well known good character in the first section of that article, the proviso, the authority as to the competency of each and every juryman whether he's a petit juryman or a grand juryman is left up to the Court.
Felix Frankfurter: But now in this -- in the record that we have, does it appear that this last question which you say is left up to the Court that there had been instances, sufficiently significant, in which the examining trial judge, in fact, examined or took steps to inquire whether any of the Negroes were competent with grand jury service? Was there, in fact, a rejection of potential grand jurors among the Negro population followed on specific ad hoc examination not to satisfy the criteria which bind United States, has to enforce?
Michael E. Culligan: I can only answer that, sir by saying that the different judges, those different five judges, some of them interviewed the entire 75 names. In other words, they sent to everybody who was on the jury list. Others did not do that. Others were sent to maybe 20 or 30 that were on the list and interviewed them and as long as they found 12 that were competent, they went right ahead and took those 12. So, each one of them did not choose the same system of -- of selection as to competence.
Felix Frankfurter: Well, would -- would the law of the candidates be such that invariably in the course of all the years in which you yourself bring your own experience that there never was a case whereby the sequence of examination there'd turn up a Negro who was competent?
Michael E. Culligan: I think that's very possible both mathematically and practically sir, for this reason. The testimony of the jury commissions will show that from 1938 on after the Pierre case that the jury commission became very conscious and had an awful time even finding enough Negroes to put in the general venire.
Felix Frankfurter: How many Negroes in your -- in the parish?
Michael E. Culligan: Roughly, above one-third. I'd say 200,000.
Felix Frankfurter: And have that -- but that's the total Negro population?
Michael E. Culligan: Oh, I'd say that roughly yes, sir.
Felix Frankfurter: Now, of the total Negro population, how many -- I don't -- are women eligible in -- in the parish?
Michael E. Culligan: For jury service?
Felix Frankfurter: Yes.
Michael E. Culligan: No, sir. They must volunteer --
Felix Frankfurter: Now how many --
Michael E. Culligan: -- first.
Felix Frankfurter: -- call them all out, how many males abstractly eligible of the 200 odd thousand on deck of the parish?
Michael E. Culligan: I couldn't say that, sir, except --
Felix Frankfurter: Approximately.
Michael E. Culligan: Well, I could only by approximation say this sir. It's about 42,000 Negroes are registered to vote in the City of New Orleans.
Felix Frankfurter: Well, now --
Michael E. Culligan: So taking that as a criterion sir, those in order to vote, they'd have to be over 21. They would not necessarily have to read and write because they can register in our State under an -- in a -- under an illiterate section of our constitution are entitled to register. And then it's, of course, some of them are over 65 and so --
Felix Frankfurter: Can we settle on let's say not less than 25,000 abstractly qualified potential Negro jurors?
Michael E. Culligan: Yes, sir.
Felix Frankfurter: All right. Now, no matter how gregarious and socially -- sociable -- characteristically sociable, your New Orleans judges, like New Orleans people generally are, it would be unusual to assume that they would know all of 25,000 Negroes.
Michael E. Culligan: They're humanly impossible, sir.
Felix Frankfurter: So, therefore, it gets down to a selection from a pool which couldn't be within the abstracted or particularized knowledge if the judge was examining these?
Michael E. Culligan: Except from the standpoint sir, that when you go to passing on competency exactly the same way as you take a civil service examination. They can pass on my competency without -- or seeing me and without -- and would have known whether I'm Black or White. In other words --
Felix Frankfurter: They would have your -- they would have your answer to the question --
Michael E. Culligan: Yes, sir.
Felix Frankfurter: -- or -- or they would have some question and answered by other people.
Michael E. Culligan: Yes, sir.
Felix Frankfurter: Now, was that true in this case?
Michael E. Culligan: No, but you have this situation that I think Justice Whittaker mentioned yesterday. On this list sir, you have the name, the address, the telephone number, the occupation and the previous service that these are a petit or a grand juryman. Now, I say that as Your Honor said I think in the Cassell case, that possibly that method of competency might be rough and ready and a pragmatic selection. Still, there's nothing evil about it and nothing that violates the Federal Constitution sir --
Felix Frankfurter: But what about --
Michael E. Culligan: -- in my opinion.
Felix Frankfurter: Since you were good enough to quote the (Inaudible) to further what I've said. I also said that if the guy told his father it as a seven and 11, it can't be act of nature.
Michael E. Culligan: That's correct sir. But we're not rolling dice in this case. We're --
Felix Frankfurter: Well, but -- but --
Michael E. Culligan: -- we're depending on the discretion of Your Honors --
Felix Frankfurter: But it will always happen that there is never of the Negroes selected and there are 25,000 people, at least, to choose from will potentially qualify and somehow rather no Negro ever turns up.
Michael E. Culligan: Now --
Felix Frankfurter: There must be considerations of human will but it takes a determination.
Michael E. Culligan: Well, that's possibly true and it has to be a determination, sir. In order to make a selection there must always be a determination. In order to have determination you must have a discretion. Now --
Felix Frankfurter: There's now this question --
Michael E. Culligan: -- our judge --
Felix Frankfurter: -- in reference to what?
Michael E. Culligan: Our judge does not have to pick out the 25,000 names, our -- our judge is only picking from a list of 75 names. Our jury commission, itself, do take out of that 25,000 names and there is no complaint about the selection of our jury commission. Now, the 75 names that come out of that will come out of the will by a lot of by chance, out of 750, not out of 25,000.
Felix Frankfurter: Would you be good enough to state in your own way, how it comes that somehow rather in a city that has as many Negroes and presumably one (Inaudible) many a Negroes were college graduates. Many a Negroes are substance -- a man of substance in New Orleans. Am I right about that?
Michael E. Culligan: Yes, sir. We have 13 millionaires in our city, sir.
Felix Frankfurter: 13 (Voice Overlap) --
Michael E. Culligan: We're very proud of the fact --
Felix Frankfurter: Do you believe (Voice Overlap) --
Michael E. Culligan: -- that we have a very good population.
Felix Frankfurter: -- that in 30 years, the (Inaudible) was so impersonally operating or without any -- without any -- with complete indifference to some pre-determining selective process so that no Negro will ever be (Inaudible)
Michael E. Culligan: Yes, sir.
Felix Frankfurter: Supposing that happened?
Michael E. Culligan: Yes, sir. That's shown by the testimony of Judge O'Hara in the Dorsey case. He testified in the Dorsey case way back in 1941. In the Dorsey case, we took -- put in there 1284 men whose names was in the panel and that each and everyone of them to be examined that was in the general venire. Judge O'Hara in that case testified that he had approximately six men on his grand jurors. One of them would support. Several of the others asked to be excluded or to be excused and the balance of all could not say. Now, when a judge --
Felix Frankfurter: But if they could not say, why?
Michael E. Culligan: He doesn't mention, sir and it's not mentioned in the report so I wouldn't want to give my personal opinion to that because I'm trying to stick as close as to the records Your Honor, if I can. I'm not trying to go out of the record but I do have to occasionally call on my own personal practical experience.
Felix Frankfurter: Well, let's say irrelevant to give us the local division.
Michael E. Culligan: Yes, sir. Now, in the -- to get to that exact analyzation, sir in the instant case of what Your Honor's speaking about. Mr. Dillon was our jury commissioner down after 1928 to 1940. Every jury commissioner besides Mr. Dillon testified. In other words, either by actual testimony or by stipulation between counsel and Mr. Dillon's testimony and has to be the same. That after the Pierre case in fact this is before the Pierre case when Mr. Dillon was first sworn as a jury commissioner back in 1928. He went to the then District Attorney, Eugene Stanley who was also a teacher of law and a writer of law books. And Mr. Stanley suggested to him to try to get this jury wills where there wouldn't be any possibility of any discrimination being and always before any of these courts. Mr. Dillon said he did that and that it -- he was complimented on for a wise move. Now, this again might answer partially what Your Honor just asked that the jury commissioner himself excused the white and colored attorneys. We have plenty of them. In fact, next week, one of our Assistant District Attorneys, a very fine colored gentleman named Mr. (Inaudible) will be on the staff for the New Orleans District Attorney's office. He also excused the colored positions of which we have hundreds of them. We have one of the largest hospitals in Louisiana, the Flint-Goodrich in which we have some very competent colored positions and surgeons. School teachers as Your Honor will read the record, we have as many Negro school teachers as we have white school teachers. The record is not broke down as to whether they are male or female. The school bus drivers. And our law itself does excuse as a matter of law, apothecaries, the paid fire departments, commercial travelers, commission merchants, manufactures, places over 65 in place of electrical light systems, and that there was never any exclusions on account of color. That the excuse is given where the jury commission excused and applied equally as well on the count of the economic situations to the whites as to the colored. In other words, a man who comes up before the jury commission, a barber would run his own business couldn't possibly afford from an economic standpoint. So, whether he's a white barber or a black barber it made no difference to the jury commission nor to our District judge when they will put on the grand jury panel if they got as far as the grand jury panel.
Felix Frankfurter: In short, every one of those -- everyone of those excluding or excusing consideration that you just indicated is offered -- is equally as to comparable professions and calling by White folks as by Colored folks.
Michael E. Culligan: Yes, sir in both races.
Felix Frankfurter: And yet, somehow have a void for if you get on the jury and the colored fellow doesn't.
Michael E. Culligan: Because there's a difference of almost two to one in the economic situation. It's not exactly equal. In other words, we have 2000 lawyers in the City of New Orleans and eventually to say not more than 40 Colored lawyers.
Felix Frankfurter: Well, I know. But no matter what the proportion of two to one, three to one, four to one here the proportion is -- is 100 and zero.
Michael E. Culligan: Well, that's possibly correct sir, I'd say 12 to one. In other words, six out of 75 in -- like in this case. We're going to six numbers -- only six Colored was or was selected by a lot of by chance to go on the list. So, that's a 12 to one shot. The judge has to take 12 out of 75. Now, the --
Felix Frankfurter: I don't suppose that is in the record testimony of mathematicians from Tulane University that the law of Kansas would operate in this way and so many -- and so many cases, would it?
Michael E. Culligan: No, sir. And I don't think that would be the duty of the State to put his testimony in.
Felix Frankfurter: I'm not suggesting duty. I've just I wondered what the evidence was.
Michael E. Culligan: No, sir. There's no such mathematical testimony principally on account of the fact with Your Honors. And most your decisions have held that the question of percentage or ratio population has never been the intention of this Court in the selection of juries but only in the absence of other evidence that has been Your Honors ruling, Now --
Felix Frankfurter: I'm not suggesting you should have a proportionate representation.
Michael E. Culligan: No sir. I understand that and that's why I'm qualifying that and for more for saying it. I think Your Honor subscribes to that theory that the proportional representation was not necessary but could be used as Your Honor is doing right now in the absence of any other evidence, but we have all the evidence in this case, sir.
Felix Frankfurter: Tell me this, about the petit jury. You do get your colored people on the petit jury?
Michael E. Culligan: Yes sir, time after time.
Felix Frankfurter: How did they get on there?
Michael E. Culligan: They're 21 --
Felix Frankfurter: Like -- like in petit jury some are rather by a selective process to get on in that grand jury.
Michael E. Culligan: Because they come in under the qualification of 21 years of age, able to read and write. They get a notice from the jury commission and they walk up then. The jury commission says, "Can you read and write?" In one of the commissioners, "Yes sir.” “You're over 21 years of age?” “Yes.” “Have you ever been interdicted?” “No.” “Have you ever been charged with the felony?” Swear up all of your writing in. He's on his way and he's qualified.
Felix Frankfurter: Are you --
Michael E. Culligan: Now, when he gets -- when he gets -- if Your Honor, please excuse me if I interrupt you.
Felix Frankfurter: Pardon me.
Michael E. Culligan: When it gets before the Court itself, then you come in to the challenge system of both the State and defense. Then again, you get to the discretion after the preemptory challenges are exhausted on the challenge for cause. Then a judge gets to a question of discretion again and unless there's been an abuse of discretion in the selection.
Felix Frankfurter: Well, do they actually serve on petit jury?
Michael E. Culligan: Yes, sir. I've seen them serve on petit juries.
Felix Frankfurter: Well then some are rather did have selective chance system, doesn't exclude Negroes for the petit jury but some other way, it operates or is operating by the ruthless laws of mathematics and the Law of Kansas, the law of probability that they get off, but they do not get on the grand jury.
Michael E. Culligan: No, sir. I say there's a difference between competency in one case whether it's being passed upon in qualification. I --
Felix Frankfurter: You mean -- you mean that in the selective process before grand jury there are standards of competence or fitness or qualifications --
Michael E. Culligan: Yes sir.
Felix Frankfurter: -- tie up and do not operate to get to the petit jury is that it?
Michael E. Culligan: No, sir. Because in the petit jury system the -- the District Attorney on the one side goes into the question of competency so there's a defense lawyer on the other side. Now, when it comes to the judge on the grand jury he hasn't got two counsels one on each side. He has to make the decision.
Felix Frankfurter: That is he may have stiffer status than the opposing lawyers.
Michael E. Culligan: He could have, yes, sir. And plenty of cases I think they're referring to.
Speaker: Is it not true that in the selection of petit juries there's nothing comparable in the stages selection to what your have in grand juries namely, that the judge picks out 12 men? In other words, their names are put in the box, the panel comes in and then the rest of it is between the lawyers, isn't that it?
Michael E. Culligan: That's correct, sir. It's --
Speaker: So there's -- is that very distinct difference between the two methods of selection isn't it?
Michael E. Culligan: There's no question about that the judge in the petit jury proposition is never antecedent to the picture until the preemptory challenges are exhausted by both sides.
Speaker: That might account with the difference between the fact that you have Negroes and your petit juries and not in your grand jury.
Michael E. Culligan: It not only counts for the fact that way but it also -- and there's another way that's accountable which I think I tried. And if I didn't make myself clear in answering Mr. Justice Frankfurter the Negro himself excludes himself from the grand juries.
Felix Frankfurter: What is the evidence on that point Mr. Culligan?
Michael E. Culligan: I say the --
Felix Frankfurter: What is the evidence --
Michael E. Culligan: -- the test --
Felix Frankfurter: -- as to the -- now, I'm --
Michael E. Culligan: I'm just --
Felix Frankfurter: I'm very sympathetic to giving broad -- so far as sympathy has anything to do with this thing. As a matter of constitutional of law, I think your State and every State has broad leeway in the selection of it's juror both petit and grand so long as the generalization which you have made are not violative. And therefore, it give that a situation taking from myself where a particular class constantly will asked to be relieved from service for reasons of -- economic reasons you surely avoid the other reasons, that's an important thing. Now, what's the evidence that -- that judges say it would be futile to call a colored fellow for a grand jury because he'll asked to be excused and the judge would think it desired for the exclusion.
Michael E. Culligan: No, sir. Don't misunderstand me. Our judges have never refused to call a colored person. They don't know whether they're white, black or Indian from that list.
Earl Warren: I thought you said that some of the judges interviewed everyone of them?
Michael E. Culligan: Yes, sir. One judge said that he interviewed all of them. Judge --
Earl Warren: Well, he would know certainly (Voice Overlap) --
Michael E. Culligan: He would know (Inaudible) because he -- well, no, not necessarily this. We have a number of our citizens that are octoroons, quadroons, and that you can't tell them apart and the names don't indicate. They have black Sullivans and they have white Sullivans. They have Mr. White which just as black as the ace of spades and Mr. Black is one of the most trustable white gentleman in our city. You can't tell him by name and you can't tell them, white parents. It would all going to be intrinsically impossible like it's testified right in this case. Mr. Walker is a contractor, as my recollection is, and Mr. Walker looks like a white man. We have it everyday in a week. Now, generally speaking, no, you would be able to tell nationally just like up here, sir. You'd be able to tell a black man from a white man, of course. No question to that. Now, where those judges do send a form they can't tell by color whether their white or black.
Hugo L. Black: Turning now and this is in the record from which one could infer that there are no colored people, competent (Inaudible)
Michael E. Culligan: There is a stipulation in the record between the State and defense that if a hundred particular colored persons were called that they would have been qualified for a grand jury service would be also the stipulation by the State that the State could also dictate a thousand other names besides those hundreds who are also qualified and also were never called.
Hugo L. Black: Now, you -- if this statement made in the -- one of our opinions is to read, how would you answer in this case? One of your selection plans, whatever it is, operates in such a way as always to result and speak and long convenient exclusion of any representative at all from a large group of Negroes or any other racial group indictment and verdict (Inaudible) by a jury thus selected (Inaudible) How would you answer that in this case?
Michael E. Culligan: I'd say that --
Hugo L. Black: If that is correct.
Michael E. Culligan: I'd say that that's exactly what I've said to the jurisprudence of this Court was there would be a strong presumption.
Hugo L. Black: Is this --
Michael E. Culligan: Now --
Hugo L. Black: -- not a strong -- strong presumption after all of this length of time in the admission that there are people who are competent. What we said was, maybe it was too strong and maybe you (Voice Overlap) --
Michael E. Culligan: I say that -- no, sir, if Your Honor please, I --
Hugo L. Black: Made a plan whatever it is, operated in such ways as always the result of free and long continued exclusions of any representatives at all from a large group of Negroes or any other races with indictments and verdict returned against them by juries (Inaudible)
Michael E. Culligan: Yes, but --
Hugo L. Black: How would you answer that?
Michael E. Culligan: I'd answer that by Your Honors decision in the Cassell case which is a later case if I'm correct, I think the Cassell case is in 1950.
Hugo L. Black: Do you think it modified that statement?
Michael E. Culligan: Yes, sir. I certainly think the Cassell case modified it in a big way. The Cassell case was written by Justice Reed Your Honor. And Mr. Justice Black concurred with Justice Reed and the late Chief Justice Mr. Vinson.
Hugo L. Black: And he concurred in --
Michael E. Culligan: Concurred --
Hugo L. Black: -- the opinion from which I've just read.
Michael E. Culligan: Yes, sir.
Hugo L. Black: (Inaudible)
Michael E. Culligan: Yes, sir. That's right. Now, that was the first opinion or the majority opinion written by Justice Reed. Justice Frankfurter brought a concurring opinion which was concurred in by Justice Burton and Justice Murphy. I think that Justice Frankfurter will recall and he started his opinion off in that case since 1880 that all of the States were bound by the jurisprudence of this Court and I think I've pointed that out as we have been bound and we're trying to live up and we believe we have lift up within the statutory limitations in the selection of our grand juries. In other words, if I understood Justice Reed's opinion in that case, there was a deliberate limitation or a failure to acquaint themselves with available Negroes. Now, this is no deliberate limitation by our judges. This is no failure to acquaint themselves with available Negroes. The list that they have in front of them is exactly a list of citizens, not first class or second class citizens of Louisiana. And it said duly under the law to pick 12 competent citizens. In other words, it could be mathematically possible as Justice Frankfurter mentioned, it could be mathematically possible that the 75 names going out would be all called and our judges would have to pick 12 Negroes or vice versa. There might be a -- a situation where you've had 60 against 75. That is simply the law of chances as to who gets on to the list. The matter of competency though is what our Supreme Court says and I think that is Your Honor's jurisprudence. This is of --
Earl Warren: Mr. Culligan, if -- if the judges want to be fair with this group and wanted to give the -- see that they were not excluded from grand jury service, why shouldn't they see them? Why shouldn't they see them and make their selection when they do know that they are not discriminating against any group?
Michael E. Culligan: My reason for that would be this and then you would run into a situation of token inclusion which is just as bad as token exclusion.
Earl Warren: I beg your pardon?
Michael E. Culligan: I say then we could be -- and that with the proposition of token inclusion just as much and total exclusion. In other words, if our judges want to wait it takes nine out of 12 on our grand jury to bring in an indictment. Our judges, if they were trying to be hypocritical about this matter could be very easy. Take one or two or three and put them on a grand jury if they were trying to be hypocritical. Our judges are not doing that, so they're honest gentleman.
Earl Warren: Do you mean --
Michael E. Culligan: They don't --
Earl Warren: -- they won't have to be -- there'd have to be the danger of arbitrary inclusion if --
Michael E. Culligan: Yes, and you would have --
Earl Warren: -- if the judge merely take a look at all of them and -- and asked some questions to find out whether they were competent --
Michael E. Culligan: Yes, if we took three --
Earl Warren: -- in terms of services.
Michael E. Culligan: -- if our judges would take three, then the next time we'll be apt to arguing on the other situation. They would claim that our judges were deliberately including and therefore excluding whites. So we're between the horns of a dilemma. In other words --
Hugo L. Black: There must be a movement however in -- in the direction of the importance to prove that Cassell case that if they took some -- if they got (Inaudible) I cannot understand how it is possible to attribute to execute the standing of physical practice of 50 years and always reserve to the exclusion of one group. I -- I don't mean by that if you are right in saying that the judges are honest in what they view and makes this right whatever it is.But how can you attribute to the tax?
Michael E. Culligan: I don't -- I do not attribute it to tax. We never have.
Hugo L. Black: While, you do not attribute it to the fact that they are not competent colored people.
Michael E. Culligan: I attribute to the fact that the judge has wide discretion when he faced 12 competent men that is his duty under law and he does not violate any constitutional provision --
Felix Frankfurter: But discretion --
Michael E. Culligan: -- the state of that.
Felix Frankfurter: -- discretion implied judgment after jury got with all the relevant factors --
Michael E. Culligan: That's right.
Felix Frankfurter: And if the inclusion the -- of potential Negro jurors is also a factor that should -- on the basis of which discretion choice should be exercised and there is a problem that is raised by Justice Black's question. Namely, how is it -- how is it that the raw materials on which he had although it has this large Negro population never prevents himself with the choice of picking a colored fellow.
Michael E. Culligan: Very simply sir, for the reason I stated a while ago. He does not have that large 25,000 peoples to select from. He only has once it come out and a lot of chance from a general venire.
Felix Frankfurter: Well, then there may be -- then there may be -- that brings me to the question that I was anticipating in my mind whether it just carried me to ask of you and I would totally understand because I'm doubtful in my own mind, I don't mean to tell you it's you it's non-trick question but I don't know. If you would say it was very hard to answer it I would totally understand. My question is this. Assume -- assume we reversed this case and say that that was Justice Black had been saying the last minute or so. Namely, that a system that operates -- that a system that gives the result that this system has given for a period of 50 years whereby the potential colored ingredient in the grand jury that two out of which selection is made never brings forth the colored grand jury and there's something the matter with it at some stage wherein some aspects or through the working of somebody whereby they used the only 12 people come before the judge who will select but they're all white people. That there's some defect to the machinery somewhere in the process --
Michael E. Culligan: Unless --
Felix Frankfurter: -- I suppose this Court reversed on that ground. What would your judiciary or the Attorney General if he has any jurisdiction to the matter do about such a decision? Or would they say we can't do anything because these are the operations of nature i.e., mathematics shows that.
Michael E. Culligan: I would say, very -- very honestly to -- to Your Honors I have not been in a criminal court of the Parish of Orleans in a number of years. And this is only hearsay, but I do understand that one of our judges -- Judge O'Hara has adopted some kind of a theory now were he's trying to compare the competency of the white man against the competency of the Negro man. To try to prosper -- eliminate just what Your Honor has said. That anybody would say that our judges must be doing that either consciously or unconsciously. Part of my point in this case does not claim that because, exactly the words I think of Justice Black and says that he admits that our judges did not either ingeniously or ingeniously through that that the only thing that he's standing on is the fact.
Felix Frankfurter: Or maybe the list he gets from somebody else.
Michael E. Culligan: Yes, sir.
Felix Frankfurter: That's why I put my question.
Michael E. Culligan: Yes, sir.
Felix Frankfurter: If the process is of which ends up in the selection of 12 people to be your grand jury. And summing it out of that process over a period of 50 years has always resulted in the absence of a colored person in a community that has the colored resources in which you take just pride. So, that there may be some defect -- somewhere along the line which it would be the duty of somebody to -- to correct.
Michael E. Culligan: All right, sir. Then I'd say that that would be a -- not matter of judicial correction but of correction by our legislature, because we have exactly the same thing in the federal judiciary. In other words, I say they wouldn't claim, it's because the President of our United States has never appointed a Negro judge in the Eastern District of Louisiana or the Western District of Louisiana that he has discriminated against the Negroes in Louisiana.
Felix Frankfurter: No, but the pool out of which the President selects judges whether in a court or any other court is a very small pool.
Michael E. Culligan: That's exactly why I say that. So, this also is a very small pool of 75 men out of which the judge has to take 12 out of that very small pool of 75. Not out of our total population --
Felix Frankfurter: But, the 75 when he comes out of the -- what you and I agreed are not less than 25, 000.
Michael E. Culligan: Yes, sir. And a -- the counsel has agreed and it's a matter of known fact over 30 years that since 1938, we cannot possibly be criticized because we've done everything that's known to guard a man to put as many Negroes competent, qualified Negroes and that will as can possibly be done. The testimony of Mr. Dillon shows that, that we got the Negro list of all of the different Negro organizations in our city the better class and the lower class, the laboring organization. We are doing everything down there gentlemen, to try to give the Negro the proper representation. We are not bearing down on them on a contrary. Their economy is our economy. We'll hope to see them progress. We're trying to make them progress. But it's not our fault if they won't come up to the competency of the white man at this time. Maybe in 10, 20 years they will. But we hope that they do. We're trying to do that.
Hugo L. Black: I understood you to say however --
Michael E. Culligan: Yes Mr. --
Hugo L. Black: -- and particularly if they're competency is (Inaudible)
Michael E. Culligan: Yes, sir they're qualified. I think the term used is “qualified”.
Hugo L. Black: Well, what about competency, do you -- do you -- is there any reason to suggest that they're not competent?
Michael E. Culligan: Yes sir. There's a big difference between qualification and competence.
Hugo L. Black: I -- I understand your difference (Inaudible) But, do I understand now that you were saying that out of that 25,000 they are no substantial number that needs to be competent in the qualification of competency.
Michael E. Culligan: No sir, positively not. I'd say that there's thousands not a hundred, thousands of colored people in New Orleans that would be perfectly competent if they got --
Hugo L. Black: -- (Voice Overlap)
Michael E. Culligan: -- into the jury wheel, then by a lot of by chance were taken out and came over to the judge. But until such a time as that situation exists for a lot of chance the District judge can't go out and find them. It's not his duty to go out and find them.
Felix Frankfurter: Well, this -- may I suggest this. This is not a proceeding to mandamus?
Michael E. Culligan: No, sir.
Felix Frankfurter: Your District judges to put Negroes on the grand jury. This is a specific situation. Brought to the attention of this Court in an orderly way which says, “As a result a system -- as a result a system of which this particular petitioner is the -- I don't mean to be derogatory -- being a victim” which involved this particular petitioner. It so happened through this system that a result is achieved to which the Constitution if it's achieved not the man who's designing to protect him again. And therefore, he's complaining about this verdict. This judgment, dissent, is this the thing -- your judges should do this or that. It says your State should do something about it.
Michael E. Culligan: All right so my answer to that, sir, is simply this. It's jurisprudence of this Court, sir. That the taking of a result and then reasoning backwards, forwards that if the result is this, then it must necessarily follow that it must be an evil proposition. I can't agree with that as a matter of --
Charles E. Whittaker: Mr. -- Mr. Culligan.
Michael E. Culligan: -- that's important.
Charles E. Whittaker: I -- I have if I'm asked. I've had some experience with this kind of attrition rate that called for jurors in jurisdictions where they're reasonably paid mileage. I know that if you have some problem in getting even public jurors who will serve for a two week period and I've had greater difficultly in getting grand jurors who were to serve from nine year -- or nine month period or a year. And in your jurisdiction I understand that they are not paid.
Michael E. Culligan: Correct, sir.
Charles E. Whittaker: Now, after the 75 are drawn from the field, out of which the 12 who will constitute the grand jury are selected. When is the -- the juror drawn advised of the fact that he has been gone and thereby giving an opportunity to come in and make his hard enough plea to the judge for excuse?
Michael E. Culligan: He's notified to come in sir on the first morning of the commencement of the jury trial. For instance, our jury is at September and March. He's notified to appear the first Monday in September. He comes in at the same time the petit jury felony sits up in the courtroom with the -- with the petit jury panel. The judge that tells them the system is that gentlemen you all have been -- received the notice to appear in this Court this morning. All right, hold up your right hand and then he re-qualifies. Now, have any of you gentlemen any reason that you would care to offer at this time? Come up to the bench.
Charles E. Whittaker: Clear up now you gentlemen. Is there -- why they would not wish to serve on a grand jury?
Michael E. Culligan: Grand jury or petit jury, sir.
Charles E. Whittaker: And does -- or do they know that the grand jury service under your system will be at least six months?
Michael E. Culligan: Yes, sir. Now, in addition to that I might say this for the benefit of -- of what Justice Frankfurter mentioned to me a while ago about the pool. In the federal courts in our city, we have two grand juries that sit two terms a year. As Your Honors know, the federal grand jury is a 23-man. The testimony in this record by Mr. Donald O'Brien who's been the in the court of our United States District Court with a personal friend, a high class gentleman and born and raised in the City New Orleans is the same as I am. That he has had great difficulty getting any kind of a jury. Now, we have one parish to draw from. The Eastern District of Louisiana has 32 parishes and, of course, we have a New Orleans Division. He draws from Orleans according to his testimony, Orleans, St. Charles, St. Bernard and occasionally from Franklin Parish. And again, over his experience, he only gets one out of 23 on his balance. So, he has a very small pool because in his court, 50 names are drawn out. Now, as Your Honors know on the federal system the minimum is 16 and the maximum is 23. So, they have to go straight on down the line to 23, at least, before they could even get one Negro. Our system is no more unfair than the federal system.
Earl Warren: Well, I know, but Mr. -- Mr. Culligan, I understood counsel. There have been from six to 10 Negroes in this group of 75 over a period of a good many years.
Michael E. Culligan: Yes, sir.
Earl Warren: All right. Now, those -- you don't have to worry about whether those people will serve or not. They -- the -- the jury commissioner has picked them. Now, as I understand it, there's nothing in this record to show that any of those men were asked to serve by the judge and beg off because of economic or other reasons.
Michael E. Culligan: No, sir. There's nothing to show one way or the other.
Earl Warren: Yes.
Michael E. Culligan: Either by the defense and again, that would be the burden of proof on the part of defendant not on the part of the State.
Earl Warren: Yes. Well then, let's get back to the question as to whether they were ever considered or not.
Michael E. Culligan: No, sir. I can't say whether they were considered because Judge Echezabal in his testimony, simply says that he don't know whether they were white or black. That he want --
Hugo L. Black: They don't get held several times, maybe I'm wrong, where the evidence showed over a long (Inaudible) years that there have been no (Inaudible) served on the jury, that a very (Inaudible) --
Michael E. Culligan: Yes, sir.
Hugo L. Black: -- to show why they didn't do it.
Michael E. Culligan: Yes, sir. That the strong presumption will arise then a State must rebut that presumption. Then I say that once we have rebutted that presumption which we have and the only means it's possible for the jury commission and the judges that then the defendant has to go forward something else which would be actual proof rather than the inferences. You got inference against inference, presumption against presumption. And I don't think that that comes within then a violation to the Fourteenth Amendment or the Federal Congressional Statute.
Hugo L. Black: Does your evidence show that there have been grand juries of a federal court that has no Negroes for the last 25 years?
Michael E. Culligan: No, sir. On the -- Mr. Dillon's testimony there is an average of one every six months on a panel of 23, sir. That is what the evidence shows, one.
Hugo L. Black: Have there ever been an absence within it?
Michael E. Culligan: Not according to the record. I wouldn't know that, sir and I --
Hugo L. Black: Not within on this the record, is that it?
Michael E. Culligan: No, sir. According to the record, that Mr. O'Brien's testimony and I have no reason, in any manner, shape or form to doubt.
Charles E. Whittaker: Mr. Culligan.
Michael E. Culligan: Yes, sir.
Charles E. Whittaker: Might I ask you one last question?
Michael E. Culligan: Yes, sir.
Charles E. Whittaker: Do you know -- is there anything in the record or do you know from your experience why they're going to that -- people who are selected on this panel of potential grand jury and are thus to serve its actually sworn and accepted for at least six months come in to the judges and say, “Judge, I cannot do this, because I'll leave my job”. And then the employers intervene and say to the judge, “This is the man we can't spare for that length of time.” You know if that happens if you're not down there?
Michael E. Culligan: Judge that has happened to my experience since at first I was in the District Attorney's office and when I started off by saying, “an escape tendency.” A man who have one-man business don't want to serve on grand juries. They don't want to lose --
Charles E. Whittaker: I'm talking more about the employees, as well.
Michael E. Culligan: Yes, sir. Plenty of the employees and the employers will call you up. And ask you, “Would you kindly see the judge? Because, they can't get in touch with me.” And the answer of the judge, “Kindly excuse this man, because, he's the most valuable employee. He's the head of the Accounting Department or he's the head of the Sales Department.”
Charles E. Whittaker: I've had them, too (Voice Overlap)
Michael E. Culligan: The judges do usually cooperate, sir. Right or wrong the judges do usually cooperate to excuse those men.
Earl Warren: But, Mr. Culligan --
Michael E. Culligan: And that's the system over the entire United States and the system also in the federal courts.
Earl Warren: But Mr. Culligan in the -- in this case where the judges all testified as why there were not Negroes on the grand jury with their -- any testimony to the effect that one of the reasons there were not Negroes on the grand jury was because after being drawn in this group of 75 they implored the judge to let them off.
Michael E. Culligan: Judge, I'm again to argue from there. I mean I don't know whether it's in this actual transcript of testimony.
Earl Warren: The counsel shakes his head and he says, “There was -- there is nothing in there.”
Michael E. Culligan: Well, I was going to say I don't know in this Eubanks record if there is. But definitely, you will find in State places, Dorsey where Judge O'Hara who was one of the judges and one of the judges in this case. But Judge O'Hara made that statement. You will also find a statement by Judge Platt that in his opinion after sending from and he's one of the judges that send for. That 99 and nine-tenths percent weren't confident to say, I think Mr. Garon admits it. That's in his record by Judge Platt.
Felix Frankfurter: Mr. Culligan, I should think for you to take almost we've had. I was -- I was so honored. I think we should take judicial notice of the experience. In other words, we've left not that lower court narrate by Mr. Justice Whittaker. If that happens and we have records in this Court that leads us to -- leads one to refer as a matter of judicial notice. That happens, namely, that people want to get off jury duty for good reasons and bad reasons and the different reasons they do. That's almost an American -- that's one of the charges to begin in my point of view, collect charges. One aspect of American justice come with that. But, that still doesn't get to the point that it shouldn't be able to happen by a mere -- of the law of probability always, so as to exclude a Negro.
Michael E. Culligan: Well, that's just what I say, sir. I don't contend that this is done by chance. I say it is deliberately done on a question of competency and the exercise of the discretion by a District judge within the balance of Your Honors' jurisprudence. Thank you --
Earl Warren: Mr. Culligan, one more -- one more thing I'd like to ask. In the other parishes which operate differently.
Michael E. Culligan: Yes, sir.
Earl Warren: Do you have any Negro grand jurors?
Michael E. Culligan: Negro grand Jurors in the other parishes?
Earl Warren: Yes.
Michael E. Culligan: We've had them in Parish of Orleans since this case sir, I know. I think Mr. Garon will tell say that. And I know --
Earl Warren: I beg your pardon?
Michael E. Culligan: I say since this case we've also had them in the Parish of Orleans.
Earl Warren: What I mean prior to this -- prior to this case, have -- have they been having grand jurors in the other parishes?
Michael E. Culligan: I -- no, sir. Not that I know of, sir. And again it would probably be for another reason. If you have a smaller -- we have 300 names in the wheel out of which only 20 names are drawn. In some of the northern parishes you might have that where the Negro population might be 60% against the white population of 40%. In some of the parishes, the Negro population while almost 50%, 50%. They can't -- they can read and write in French but not read and write English. So, they just --
Earl Warren: Well, apparently -- apparently whether -- whether your system leaves it to chance as you do in the other parishes or whether you put the human equation into it in -- in Orleans Parish, they failed to get on the grand jury under either system is that correct?
Michael E. Culligan: I'd say that yes, sir.Because, frankly I don't know in every parish of our State, sir, I wouldn't want to make that is so.
Felix Frankfurter: Did you say that -- do you say that -- didn't this case -- Negroes has been on grand jury to the parish?
Michael E. Culligan: Yes, sir. I've been informed that --
Felix Frankfurter: Well now that you say, since this case you mean since the trial since 1954 or since the decision of the Supreme Court?
Michael E. Culligan: No, sir. I mean it. I think it's right after 1952, Mr. Garon, correct me if I'm wrong. And right after 1952, which was prior to this case sir, that Judge O'Hara handed down a decision in the case of State versus Dallas. Mr. Garon had not made that part of his record and I believe that Your Honors you should know that. So, I agree to a stipulation to permit Mr. Garon to put Judge O'Hara's entire opinion in this record. In 1952, as I'm sure that that's the date sir, October I think of 1952 which is part of the trial of this case. Judge O'Hara reevaluated.
Felix Frankfurter: Did the case -- this case is the -- June 14. The arraignment was June 14, 1954.
Michael E. Culligan: Well, this was prior to that sir. Where the Negroes were placed on grand juries by Judge O'Hara but we've always been worried about that for the reason as I just said. That Judge O'Hara might then be charged with deliberately including the Negro, and therefore, deliberately excluding the white man. In other --
Felix Frankfurter: Take the worry off your mind and just tell us the concrete facts. [Laughter] Since 1952 -- since 1952, there had been grand -- Negroes on grand juries in the Parish of Orleans, is that right?
Michael E. Culligan: I'd say as far as Judge O'Hara's selections, yes. Since --
Felix Frankfurter: But now, was it competent?
Michael E. Culligan: I wouldn't know, sir.
Felix Frankfurter: Has the competence of Negroes risen since 1952 in New Orleans?
Michael E. Culligan: No, sir because this is the only case --
Felix Frankfurter: Or merely the discovery of their competence was written.
Michael E. Culligan: No, sir. Since -- since this is the only case that's up here, I don't think it's ever been questioned before. And as Judge O'Hara says in the Delaware case, it's been traditional and I think that's just exactly what Judge -- Justice Whittaker has said. It's been traditional for the judges to pick who they thought were the best, competent men to handle the affairs of a grand jury who do not just pass on guilty or innocent but they also constantly pass on other affairs --
Felix Frankfurter: Well, they did (Voice Overlap) --
Michael E. Culligan: -- throughout.
Felix Frankfurter: -- they did that in my view, when I was the youngest U.S. Attorney. But, it didn't happen that somehow or the other that the selection they made always excluded the Negro. It just didn't happen.
Charles E. Whittaker: If the discretion to some extent is not there and to be exercised. Then answer me why draw more than 12?
Michael E. Culligan: I didn't get -- quite that part sir.
Charles E. Whittaker: I say if the judge is not to exercise a discretion in the selection of the 12 out of the 75, why draw more than 12?
Michael E. Culligan: It wouldn't be any incessant so they could pick out 12 and say, “This is it. Period.” So, they do allow in our State and Your Honors have approved the system or selection of this kind in the Cassell case. In other words, the only difference in the Cassell case was that those jury commissioners just deliberately said that they didn't put any Negroes in. So, you couldn't pull them out. Our jury commission pulls them in, but Your Honors said that the selection of 12 out of 16 in Texas that voids identical in -- in Judge Reed's opinion. We have approved of this up, on the top page on left hand side of page 3 of the opinion. We have approved of this plan. Now, we have the same plan. Ours is 12 out of 75 against 12 out 16. I think we'd given that quite a margin.
Earl Warren: I think your time is -- your time is up (Voice Overlap)
Michael E. Culligan: Yes, sir I thought so. (Voice Overlap) -- appreciate very much your kindness and consideration and may I express again my thanks to Your Honors support.
Earl Warren: Thank you.
Michael E. Culligan: Maybe you've been listening a little longer to need what I should have spoken.
Earl Warren: No, no you didn't talk to you once you were answering our questions --
Michael E. Culligan: Well, thank you.
Earl Warren: -- but I think they have been answered. Mr. Garon.
Herbert J. Garon: Mr. Chief Justice, Associate Justices. It is so seldom that anyone has the opportunity of correcting statements of the eminent Assistant Attorney General that it is with a great deal of pride that I am a position now and certainly I will not take advantage of the fact but it is a -- an unusually unique experience to be able to be here and to correct the statement by someone so capable and competent in our State as the Assistant Attorney General, Mr. Culligan. But it necessarily because of my representation of the petitioner in this case to point out the fact that in the State of Louisiana, outside of the Parish of Orleans, grand -- Negro grand jurors are serving everyday. It is only in the Parish of Orleans to my knowledge and to the knowledge of this record that Negroes are not serving and that is not a mystery. It is because the judges in the Parish of Orleans have been by system, by method, by design, by device or scheme excluding Negroes from service on the grand jury.
Speaker: Is that in --
Felix Frankfurter: Would you mind stating what the design -- what the design is?
Herbert J. Garon: Yes, sir.
Felix Frankfurter: What is the design? The design means some conscious plan to terminate which tends to test consciously on and consciously carried out.
Herbert J. Garon: Yes, sir.
Felix Frankfurter: Do you agree to that?
Herbert J. Garon: Yes, of course, sir.
Felix Frankfurter: All right, now (Voice Overlap) --
Herbert J. Garon: It must be consciously carried out.
Felix Frankfurter: Pardon me?
Herbert J. Garon: It must be consciously carried out.
Felix Frankfurter: And what is the design?
Herbert J. Garon: The design is to select those persons by traditional New Orleans standards who are men of great prominence and who are well acquainted to the courts themselves, to the judges themselves.
Speaker: And are white?
Herbert J. Garon: And or white.
Felix Frankfurter: Or? Or and -- ?
Herbert J. Garon: And or white. They --
Felix Frankfurter: Why don't you -- why don't you make broad -- why did you not make then a broader and if I may say so, easier attack on to select on the jury system? Namely, that there wasn't a fair representation of the different categories to the population. You just said that they -- the system is to select merely men of substance, broadly speaking, is that right?
Herbert J. Garon: That is correct sir.
Felix Frankfurter: Well, then -- then the defect I should think is deeper than merely excluding or not including colored people. And indeed, it doesn't -- it can't be in that line, it must be men of substance who are white (Inaudible) Now (Voice Overlap) --
Herbert J. Garon: That -- that's true sir.
Felix Frankfurter: -- and that is -- is that true of your jury system?
Herbert J. Garon: That's true of our jury system in Orleans Parish.
Felix Frankfurter: That he thought everybody except people who are well-known in the community, the relatively few people from among whom they select?
Herbert J. Garon: That is correct.
Felix Frankfurter: Including -- excluding perfectly worthy and competent, otherwise competent except they have no substance. And -- and or colored people or men who are intrinsically competent, is that right? Now, what's the evidence for that apart from the fact that no colored person have served?
Herbert J. Garon: The evidence in this case is taken --
Felix Frankfurter: Apart from that fact, apart from the objective fact.
Herbert J. Garon: Is the fact that the -- that the testimony of the judges themselves point out that they do not even consider Negroes. And the reason that they do not consider Negroes is because they are under the mistaken belief that simply by choosing the elite, that they do not have to consider those who are not elite and Judge Echezabal testifies that for 33 years, he has not changed his system of jury selection, but has always looked at his list of 75 found that the -- that the facts contained on that list was sufficient to tell him who -- who were the -- who were the presidents of the banks --
Felix Frankfurter: Do you mean (Voice Overlap) --
Herbert J. Garon: -- who were the vice presidents of the --
Felix Frankfurter: He knew who they were by name? Is that --
Herbert J. Garon: He knew them by name.
Felix Frankfurter: They don't give a curriculum vitae, do they?
Herbert J. Garon: They give an occupation and they give the location of their business address and they give the name of their business, and they give the past history of grand and petit jury service. And this, according to the very testimony of the Judge Echezabal was sufficient. But Judge Echezabal goes one step further and he says, “In my 77 years on the bench, I know most of the people that are on the -- the panels of 75, time and time again. And I know 10 or 12 of these. I don't have to go beyond that.”
Speaker: He grew up with the city.
Herbert J. Garon: He grew up with the city, yes sir. [Laughter] And this is his testimony and may I point out to Your Honors that we have two avenues of attack on the constitutionality of the grand jury system in Orleans Parish. Not only are we relying upon the past history which has been complete, constant, continuous exclusion of Negroes on the grand jury but we are also pointing out the fact that even if all of the other five judges were perfectly constitutional in their -- their evasion of a -- of a system of selection, that Judge Echezabal himself and we've primarily considered -- primarily interest in Judge Echezabal because it's his grand jury that has brought in the indictment herein. Judge Echezabal himself has pointed out his own failure to abide by the Fourteenth Amendment of the constitution.
Felix Frankfurter: May I ask you whether the District judge in sitting in the Parish of Orleans are localized there through the existence of a parish?
Herbert J. Garon: Just in the Parish of Orleans --
Felix Frankfurter: Yes.
Herbert J. Garon: -- and only for criminal jurisdiction. And isn't it -- isn't it strange to Your Honors that in the last 50 years that from the Parish of Orleans, year after year, grand jury after grand jury and that would be two a year, there were 100 grand juries in the federal court systems selecting systems, selecting persons from Orleans Parish to sit on the grand jury and there were at least two every year in the federal grand jury system and none in Orleans Parish? And the testimony of Mr. O'Brien at page 81 of Your Honor's record is “I would say I don't recall a Negro ever being on the grand jury who was a resident of another parish other than Orleans.” So, the reason I point that out is because while the -- while it's true that the federal system calls upon four distinct parishes including Orleans, as a matter of practice, because of the large size and convenience of Orleans Parish residents being near the Orleans Parish courthouse, so that is the federal district courthouse. Invariably, the selection is from Orleans Parish residents. So, therefore, we have on one side for 50 years, two jurors selected from Orleans Parish every year to serve on the federal grand jury system and none for the last 50 years serving in Orleans Parish.
Charles E. Whittaker: May I ask you that you mentioned that the federal government pays jurors to date, per diem and mileage?
Herbert J. Garon: Of pittance, a very small pittance.
Charles E. Whittaker: The State pays them nothing?
Herbert J. Garon: The State pays them nothing.
Charles E. Whittaker: When you say a pittance, do you not get (Inaudible)
Herbert J. Garon: I think that is correct, sir.
Charles E. Whittaker: Each way? And then you do not get the per diem in addition?
Herbert J. Garon: Three or four dollars per day.
Charles E. Whittaker: In federal court?
Herbert J. Garon: I'm -- I think that's correct, sir.
Charles E. Whittaker: Well, I believe it's more. But, one who would possibly live over the period of six months and served on the grand jury and the federal court whereas in the state court, he would have starved to death wouldn't he?
Herbert J. Garon: He would, yes sir. However, there is no testimony, whatsoever, in this record, not a bit, to show that anyone of the many Negroes that have been on our panels for the last 30, 40, or 50 years, not one has asked to be excluded because they could not survive by serving for six months on the grand jury.
William J. Brennan, Jr.: Do you say there isn't -- I -- I don't if I've quite understood. You say there is no evidence on that point.
Herbert J. Garon: There is no evidence on that point at all.
William J. Brennan, Jr.: Upon whom was the burden to show that fact?
Herbert J. Garon: I think it is the burden of the defendant and petitioner to show that there has been systematic exclusion on -- by the same rule that has been established by this Court in Patton versus Mississippi to show that there are large numbers of Negroes, available and qualified to serve and that they have not served over time immemorial. And after establishing that, we have established the prima facie of case and it is then the burden of the State to show that the reason why there are no Negro serving or no Negroes called by the judges or selected by them is because they would starve to death if they were to serve. And the State has failed to establish any of that evidence and has failed to meet the burden of proof. There --
William J. Brennan, Jr.: Mr. Garon, do I -- do I correctly understand that you concede that the selection process gives the selecting judge a broad discretion to determine competency?
Herbert J. Garon: If Your Honors believe that the expression in our statute, judges of the several District Courts shall have the right to decide upon the competency of jurors as granting to them wide discretion, I must agree with you.
William J. Brennan, Jr.: Well I -- I -- what -- what strikes me is this statutory provision if I'm looking at the right one. It seems to use competency and the discussion in the judge competency in a very limited sense, more as a disqualification. The way it reads is, “Shall have discussion that decide upon the competency of jurors in particular cases where from physical infirmity or from relationship or other causes the person may be in the opinion of the judge, incompetent to sit upon the trial of any particular case.” Now, that doesn't strike me as competency in the sense that you and Mr. Culligan have been debating but rather competency in the sense of a disqualification from physical and fitness or relationship to the parties or something else. Am I wrong in that?
Herbert J. Garon: No Mr. Justice Brennan, we spoke of that yesterday when you asked me --
William J. Brennan, Jr.: Yes.
Herbert J. Garon: -- the question to -- to supply you the reference of our statute and we talked about this being a very particularized situation. However, I asked you at that time if you would please read that with the other statute if you will --
William J. Brennan, Jr.: Well, then -- then you are telling me that there isn't any such limitations as I thought might be implicit in the language, is that it?
Herbert J. Garon: Well, we must be fair and we must recognize that there there's besides Section 172 of our Title 15, also Section 192. I don't -- I -- I don't feel I'm risking anything by being fair because I think by -- by -- looking at 190 --
Felix Frankfurter: And that is the only reason why you are here. [Laughter]
Herbert J. Garon: Pardon sir?
Felix Frankfurter: I hope that isn't the only reason that you are here.
Herbert J. Garon: No. [Laughter] I -- I trust that Your Honors will -- will acknowledge the fact that I -- I would only represent the -- the fairness of the situation. But --
Felix Frankfurter: I thought you ought to be fair to yourself and your statement.
Herbert J. Garon: Yes sir, thank you. [Laughter].
William J. Brennan, Jr.: So, you're suggesting then a competency in 192 is used in a different sense perhaps in competency in 172?
Herbert J. Garon: Well, I'm saying -- I'm saying this that if I were to argue to Your Honors that Mr. Culligan has been wrong all of this time that we must consider that the competency or the discretion as to selecting full competency is limited to Article 172. I think he would have a right to say but what about 192? Do not the judges of Orleans Parish have the final say with regard to competency?
William J. Brennan, Jr.: Yes, but the question is the definition of competency.
Herbert J. Garon: Yes sir. I --
William J. Brennan, Jr.: And it seems to me a definition in 192 or 172 which is rather more limited than in the sense you and Mr. Culligan have been debating.
Herbert J. Garon: Yes, I must embrace that argument as being -- being a -- a very good one for our position.
William J. Brennan, Jr.: But you're not -- you're not making it?
Herbert J. Garon: I'm -- I'm not -- I'm not making it, I'm -- I'm embracing it now, of course, because Your Honor considers that it's a -- it's a significant one. [Laughter] But --
William J. Brennan, Jr.: Well, I don't suppose that's important what -- how significant I consider it if your Supreme Court has passed upon it.
Herbert J. Garon: Well, again, I'm shame-faced in saying that our Supreme Court I think has -- has lost a complete concept of -- of what is the law in this field. I -- I certainly do not want to give the impression that I am leaning over backwards to offend my Supreme Court which is not the case at all. But I must say that when I read the opinion of Justice (Inaudible) of our Supreme Court, the very same justice who spoke of -- of the United States Supreme Court being a judicial planet in whose orbit the decisions of the state courts are drawn through it's vortex and that sort of language, in order -- as he says to maintain the law and -- and the majesty of final decision. When I read that decision and then read his decision in the Eubanks case in which he says, “There's been no discrimination in Orleans Parish because Judge Echezabal selected the white men who are better qualified than the Negroes then I am saying that I must attack the Supreme Court as having lost sight of the law (Voice Overlap) --
William J. Brennan, Jr.: Can you tell me this Mr. Garon? Has there ever been any explicit construction of competency in 192 in relation to the more limited -- seemingly more limited definition of it in 172?
Herbert J. Garon: No sir. There has not -- there has not been. It is true that the Supreme Court of our State has been cognizant in the past of the interpretation in this field that Your Honors have placed upon this body of law. But it is equally true that they have completely gone astray in the -- in this instance by not interpreting it at all. The Supreme Court of the State of Louisiana according to its opinion was satisfied that the State simply rebutted our case by saying -- by pointing out the testimony of Judge (Inaudible) who made an assertion that he has never discriminated against Negroes. And they were satisfied with that without going beyond that.
Hugo L. Black: Would you mind stating what your (Inaudible)
Herbert J. Garon: Well, my attitude is simply this Mr. Justice Black, there is a constitutional inhibition. We -- we all recognize that it's an inhibition and yet at the same time, there -- there has been a -- a disobedience, if you will, to that inhibition on the grounds that we have wide discretion. We are the judges of the Orleans Parish Court and our statute says that we may decide on the competency of jurors and we need not consider that we are inhibited by the United States Constitution. And that's why I say and say seriously that there is a serious constitutional violation in this case.
Hugo L. Black: (Inaudible)
Herbert J. Garon: Now, how could I -- I say that in -- in advancing the argument of the petitioner in this case of Mr. Justice Black and say it meaningfully? Obviously, I must say that if the judges go astray as the jury commissioners in the past have gone astray, they must be stricken down just as quickly and -- and just as deliberately by the majesty of -- of the United States supreme law as -- as though they were one and the same. And it is not necessarily true, may it please Your Honor that it -- these cases that have come before you have always been as a result of discrimination by the jury commissioners. There are instances such as in Texas where at least the judges select 12 out of the 16. So although they limit -- although they're limited to 16 to begin with and not 75, there is still judicial discretion that has been abused and Your Honors have deliberately and forcefully stricken them down.
Felix Frankfurter: But may I ask whether you to turn to page 142 of the record in Judge O'Hara's opinion, one of whom the third whole parish where he says in the selections of our grand jury, this Court approaches the selection of that grand jury to the determination (Inaudible) grand jury. It's feasible for the purpose of destroying (Inaudible) record, the grand jury is the only and legally (Inaudible) of that record as well as in regards to the Fourteenth Amendment. However, the final result was no Negroes on the grand jury. Now, I do no more than that, perhaps the lack of English words, what means to me that (Inaudible) exceptional colored men under this, the white man and by the choice of his own testimony is to select people fit for grand jury service, he did imply among those Negroes who aren't so fit. But didn't begin to exclude them on the theory that no Negro could be fit and therefore there's no point of making examinations, is that right? Is that what it means?
Herbert J. Garon: I -- I don't -- if this paragraph is read with the entire opinion --
Felix Frankfurter: But I -- and that is precisely what I don't want.
Herbert J. Garon: Oh, I see.
Felix Frankfurter: I just want that paragraph, what does that paragraph mean?
Herbert J. Garon: The paragraph in my opinion means that Judge O'Hara, one of the six judges of whom we're speaking, is a self-confessed sinner. And as a sinner, he has now come to the realization that he and his colleagues in the Orleans Parish bench have not recognized the United States Constitution, the Fourteenth Amendment, thereof. And that he has now for the very first time, realized his duty to consider Negroes for selection on the grand jury.
Felix Frankfurter: And if he says, there are as a final result there's no Negroes on this grand jury.
Herbert J. Garon: And the reason for that and he goes in more detail at another time.
Felix Frankfurter: Yes. But am I right in inferring from that parish that he recognized it would be wrong for him to exclude Negroes at a class where he makes -- must make an individualized judgment of the Negroes on the list and exercise that individualized judgment if he found no Negro qualified. Is that right, is that what it means?
Herbert J. Garon: We -- we must talk about what he means by qualified for me to answer that correctly, Your Honor.
Felix Frankfurter: Well, definitely (Inaudible) only as to that paragraph, (Inaudible)
Herbert J. Garon: It means qualified but in certain significance that only Judge O'Hara has -- has shown because Judge O'Hara found three competent Negroes on his previous grand jury in 1952. Mr. Culligan referred to that instance.
Felix Frankfurter: And he didn't throw them off?
Herbert J. Garon: He did throw them off. He threw them off because his explanation was that we were in the throes at that time of a police investigation. The police system was under attack for the first time in -- in many, many years in Orleans Parish and he felt that it would be an inopportune time to select these three most qualified Negroes on the grand jury and he did not. He purposely excluded them. He -- he tried to justify it by saying it was for their own protection --
Felix Frankfurter: Well, he probably excluded some white folks at the same time, did he?
Herbert J. Garon: But he -- but he found -- he did, of course.
Felix Frankfurter: Did he give reasons other than the fact that they were Negroes?
Herbert J. Garon: Yes, he gave reasons for --
Felix Frankfurter: Now --
Herbert J. Garon: -- the first time. That is correct, sir.
Felix Frankfurter: Now, when you come to what he says on the next page, the reason (Inaudible) was that paragraph in the context. And on the next page, on page 143, paragraph 4, my reading of it is he contradicts what he said on page 142. Namely, that he's just nominating anyone with the exercise of discretion was the traditional standard of selection which traditional standards would ordinarily eliminate the colored denying them as a grand jury selectee as it has to the fact that the system would eliminate it, the colored denied. There he says, that they're just following the tradition of this parish to keep Negroes off. But in the paragraph which I first called your attention to, he says that, let's do our best to come within the Fourteenth Amendment and put an end to the legal individual consequences of our past records and try to select them on their respective (Inaudible) Is that right?
Herbert J. Garon: Yes, that's correct, sir. Is that -- not a confession of the Court and I --
Felix Frankfurter: But I'd like --
Herbert J. Garon: To the fact that --
Felix Frankfurter: (Inaudible) try to understand it before I condemn or praise.
Herbert J. Garon: No, sir. I -- I mean that that -- that is -- is -- it is revealing for the first time that the judges of the Orleans Parish court --
Felix Frankfurter: If I get out of it, it's -- if I may so, much could be (Inaudible)
Herbert J. Garon: Well, I think that -- of course, I'm not here to defend that mind, sir, and -- and I speak seriously with you but --
Felix Frankfurter: What I'm -- I'm trying to find out what it is that they did? What did they do? And why they did it and why they didn't? Whether you can overcome all the facts that it just so happened that they couldn't give whatever it is, no Negro happened to turn up in the selective process.
Herbert J. Garon: By just a reading of the testimony of the judges themselves, Your Honor would show that -- that they themselves have not considered Negroes. When they send letters out, they have 75 names. When they send letters out to 20, invariably, those 20 are white. When -- another judge will send letters out to 35, invariably, they will be white. Now, since this question was raised in Eubanks versus the State of Louisiana, it is quite a fact that while 50 years before, there have been no Negroes on the grand jury that since the Eubanks case, there have been six. Judge O'Hara has broken the unbroken record up to that time by selecting two after the Eubanks case, Judge --
Felix Frankfurter: This is after what? After Eubanks' trial or after the decision, which?
Herbert J. Garon: After the Eubanks trial and as late as the case having gone to the Supreme Court or in between the -- the case going from the --
Felix Frankfurter: And in fact, would you say that that's the current contemporary practice?
Herbert J. Garon: I -- I must say that it -- it is the practice although all of the judges don't practice it in our parish.
Felix Frankfurter: So, what you are really saying to this Court's -- it's your tradition -- is saying to this Court should give constitutional confirmation of the reforms that were set in.
Herbert J. Garon: If Your Honor would sanction it otherwise why we would probably revert to a system where we had no Negroes for some 50 years.
Felix Frankfurter: In other words, it's done.
Herbert J. Garon: Yes, sir.
Felix Frankfurter: You say this system, your breeding point is in part at least, the momentum makes for its adoption.
Herbert J. Garon: That's correct.
Felix Frankfurter: Is that right?
Herbert J. Garon: That's right. Thank you very much.
Earl Warren: Well, Mr. Garon, before you sit down, I just like to say that the -- the Court notes from the transcript that you were appointed to represent this indigent defendant in the outset of this proceeding and carried it through all of the state courts, and carried it through to -- to this Court. I -- I would have you know that we're all grateful to you for doing this because we -- we had a great consolation from the fact that lawyers will give their time and attention to cases of indigent appellants for this matter. It seems to me that the fact that you are here in this -- in this way, on this day which we call Law Day makes the day more significant for us as well as the people of the -- of the nation. And we thank you for -- for what you have done and I say that regardless of the way this case will turn out here.
Herbert J. Garon: Thank you very much.
Earl Warren: And, of course, Mr. Culligan, I -- I would thank you for the -- for the ardent way in which you represented the interest of your State and for your frankness with this -- with this Court, and very, very frank with us and everything you have done. Well, gentlemen, I thank both of you. (Voice Overlap) --
Michael E. Culligan: Thank you very much. It's been a great honor, sir.