William F. Thetford: -- getting into my argument as -- on the systematic exclusion of Negroes from the jury. I would like to answer Mr. Justice Frankfurter's question as to the confession. The State of Alabama introduced no confession in the case that we are now considering. It might be helpful to the Court if I went a little into the background. I think it will probably answer several questions. Jeremiah Reeves was arrested on November 12, 1952.He was carried for safekeeping, took care of the penitentiary which is a short distance form the City of Montgomery. He made a confession on -- the 12th was on Monday. He made a confession on Tuesday, Tuesday afternoon. He made the confession in my presence. That confession was recorded and I believe later reduced to writing and signed. On Wednesday morning, he was carried to the City Hall, the police headquarters of Montgomery as located in the City Hall. And there, he was identified by (Inaudible), who at that time was a 19-year-old white woman who identified him as the person who had raped her on July the 28th. He was subsequently -- now, according to -- we've got in kind of into both records in this case and I presume you'll let me maybe refer to the first record.
Earl Warren: Yes.
William F. Thetford: It's a -- here in Court. On the trial -- on his firs trial, both he and his mother testified that she had seen him on Wednesday which would be November the 12th.In the second trial that --
Felix Frankfurter: (Inaudible)
William F. Thetford: Well, the -- no, he was arrested on the 10th, Monday the 10th. On the 12th, he said that he -- that is in the first record. Both he and his mother testified that they saw each other on the -- on the 12th. Now, in the second trial which -- to where the trials go. They both testified that it was the 13th, rather than the 12th. He was arraigned on the -- I mean indicted on the 14th and arraigned on the 15th. Now, in the first trial, we had -- well now, we don't admit all that he says in his -- in his pleading as the way that confession was taken. We have never admitted that, but we had serious doubts as to whether it was taken in a manner that was legal. We did not introduce the written confession or the recorded confession in the first trial. We did introduce in the first trial certain remarks that he made to Mrs. Crowder at the police headquarters on the 12th. We also introduced testimony from his psychiatrist who had examined him some time later. And in the testimony of the psychiatrist, there was a confession involved. That was the basis on which this Court reversed in the first case. In the second case --
Felix Frankfurter: When -- may I interrupt?
William F. Thetford: Yes.
Felix Frankfurter: Refreshment or recollection. When were the so-called confessions which were introduced with -- on the record that came here? When was it made?
William F. Thetford: One was a conversation that he had with the complaining witness --
Felix Frankfurter: Yes.
William F. Thetford: -- on Wednesday morning.
Felix Frankfurter: Wednesday.
William F. Thetford: On Wednesday.
Felix Frankfurter: The crime on Monday.
William F. Thetford: Crime on Monday and on Wednesday. Now, in the second trial of this case, the --
Speaker: (Inaudible)
William F. Thetford: He was arrested on Monday.
Speaker: (Inaudible)
William F. Thetford: Several months, sir, yes.On the second trial, we --
Felix Frankfurter: Did he have a -- did he have a lawyer of record?
William F. Thetford: Yes, lawyer of his own choice and --
Felix Frankfurter: I mean at the time -- the Monday and Wednesday, the Wednesday that the statement was made to Mrs.-- whatever her name.
William F. Thetford: I'm sure he did not.
Felix Frankfurter: He didn't --
William F. Thetford: I think the lawyer was employed. Maybe, I don't -- the record, it doesn't show when the lawyer was employed and I -- I can't state definitely when he was employed or -- but I am sure that he was not employed on Wednesday. Now -- however, the confession is completely out of this case. We introduced no confession and this record contains no confession of any kind, nature or description on the second trial of this case.
William O. Douglas: The claims of course is relevant to the indictment.
William F. Thetford: No.
William O. Douglas: (Inaudible)
William F. Thetford: Well, he's -- he's claiming that. I -- I will get that. But what I wanted to clear up in the Court's mind before we got any further that there is no confession in this case. We introduced no confession of any kind.
William O. Douglas: At the trial?
William F. Thetford: At the trial. Now, what I think he possibly is referring to was introduced by the defendant, not by the State. Now, on cross-examination, you'll find this in page 237 of the record.On recross-examination of the -- of Ms. Crowder, Lawyer Hall, “Let me ask you a little something further with reference to your last identification of this defendant in November,” referring to November 1952. “Were you told on that occasion he had confessed before you looked at him?” “I was given a written statement, but it wasn't sanctioned.” Now, that is the first reference to any confession whatsoever in this case and that is in this -- I believe it's the only reference to it and it was brought out by the defendant, not by the State. “You are given a statement or a statement alleged made by this defendant”. “I suppose so.It had his name on it, but it wasn't signed.” “It did have his name on it?” “Yes.” “You were given that statement before you looked at him?” “That is right.” “You have read that statement before you looked at him?” “Did any of the officers down there tell you he had confessed or did they make any statement at all to you with reference to that confession?” “No.” Now certainly, the State cannot be held accountable to anything that was injected into this case by the defendant.
Felix Frankfurter: It was set for them.
William F. Thetford: Yes.
Felix Frankfurter: I would like to ask you a question that I would fairly understand if you would say if you prefer not to answer the question. Needless to say, I think the question is -- is not irrelevant or it's not inclusive, otherwise I wouldn't put it but it bears on -- not on this case or not on the present aspect of the case, but prior to the fact that it came here once before and we got a prosecution here. We've got a case here for a crime committed six -- merely six years ago. And I regard it as not a happy circumstance to the administration of the criminal law. I'm sure you don't either. And so I want to go back to the source of the difficulty, namely the confession. This is for my enlightenment and possibly for the future cases bearing on these confession cases that come here. Some years ago, we had a case coming here from another State. Unimportant but for all other state in which we reversed the conviction of a defendant who was probably guilty, but not tried according to what we found to be due process because of an illicit confession. And thereupon, it interested me greatly that the city from the State in which this case came here made it a practice and I assume it continues that no statement of an accused person was taken by the police, except in the presence of some disinterested witnesses. I don't mean picked by it, but -- but some people of -- of word in the community, ex officio people. First, I'd like to put to you which -- which takes care of conflict as to what the circumstances on which a confession was made and what was promised and what wasn't promised and whether the -- there was psychological, physical et cetera, et cetera. But I would like to ask an experienced prosecutor like yourself, if I may say so. What -- what -- whether you care to say, whether that would embarrass the point of view of those who have the responsibility of prosecuting the trial, whether such a practice which would take care of a lot of this business. If statements are made in the presence of this (Inaudible) as a regular thing, would you care to express their view whether that was hurtful or whether --
William F. Thetford: No, it would not be hurtful. We have done it in our -- our more important cases, whether there was a question involved. We have called in ministers and other decent --
Felix Frankfurter: Before you talk to him -- before you -- before you talked to him.
William F. Thetford: No, we have never done it.
Felix Frankfurter: Well, when have you called him in?
William F. Thetford: When he's getting ready to make a confession or when -- when it's indicated that there is going to be a confession.
Felix Frankfurter: Well, but (Voice Overlap) --
William F. Thetford: You -- you find this, Mr. Justice --
Felix Frankfurter: That is the end of a process as it was of two or three days.
William F. Thetford: You'll find this, Mr. Justice Frankfurter, and I suppose it's true in -- in all places as moderately big as Montgomery is. We handle 500 felonies a year with the staff of one prosecutor and two part-time prosecutors.
Felix Frankfurter: Five-hundred felonies?
William F. Thetford: Five-hundred felonies a year.
Felix Frankfurter: The felony in your state means what in terms of punishment?
William F. Thetford: A year or more in the penitentiary. It's -- we would entirely have responsible people in Montgomery coming in to listen to these things if we did. I don't know whether that's going answer to your question or not, but it -- it would be very difficult to do it. It might -- it might be a very wise thing to do, I would say that. Now, I think I've answered the question as to the confession. There is no confession in this case. We're not dealing with a confession case. They don't -- they don't really reached that in their brief except in a kind of backward way where they say, “Well, the woman had seen something,” a statement, unsigned statement and thereby she -- her -- her identification of the defendant might in some way be affected. Of course, that really goes to the credibility of the witness and not to whether she can testify or not. They can ask that before a jury, but I don't think that it would preclude her from testifying if she seen a state -- unsigned statement, no -- no law that says that. I'd like now to get to the question of which I think is really the heart of this case. I -- I maybe wrong, but I think that after the question, a systematic exclusion of Negroes in the grand -- in the juries of Montgomery County really is the heart of -- of this case. The law I think is well-known to -- to us that we -- we have a board of jury supervisors composed of the two-circuit judges, the clerk of the Circuit Court, the sheriff and the probate judge who makeup the jury list in Montgomery County. It's done by local act. We're the only -- only County in the State that has that exact setup. And I think the law is -- is clearly established. They may not discriminate in any manner so far as race, all color is concerned. Also, that proportional representation as such is -- is not required by this Court. This Court simply requires that your juries, the names in the jury box be selected without discrimination. Now, the cases as I understand them also hold that findings of fact by a state court will have great weight with this Court, but of course I'm not binding on it and that this Court will look at the facts to determine whether the state court found them correctly and applied them correctly. The evidence on proportional -- I mean, on discrimination was set out at length in the opinion of the Alabama Supreme Court. I would like to set out the evidence at length and came to this conclusion. I'm reading from page 476 of the record. A careful consideration of the evidence satisfies us that the great weight of the evidence shows that there was no systematic exclusion of Negroes from the juries in Montgomery County. We consider that the Court reached a correct conclusion and acted properly in denying the motion to quash the binary. Now --
Speaker: (Inaudible)
William F. Thetford: To the petty jury to the trial jury. Now, the requirements for jurors in the State of Alabama is found in Section 21 of Title 30 of the 1940 Code of Alabama and I'll brief it just a little bit, but essentially all male citizens of the County who are generally reputed to be honest and intelligent men and are staying in the community for their integrity, good character and sound judgment. That is the requirement for a juror. Now, there are some exceptions to that such as they must be over 21. They cannot be suffering from a permanent disease. They're illiterate and even there on someone who cannot read, they say if they are a property holder that can -- maybe waived and there are a large number of exemptions from jury duty which is found in Section 3 of Tittle 30. I don't think they're immaterial so far as this case is concerned.Now, the requirement of Alabama law is that the Board of Jury Supervisors plays or make up a jury list of all citizens of the County which have the requirement, which I have just read. Then, they make -- found that jury list. I might say that on the jury list, there is contained the man's name, his occupation, his business address and his residence address and nothing else. From that jury role, the Clerk of the Board of Jury Supervisors prepares a small white card which contains the man's name, his business or profession, his residence address and his business address and nothing else. All cards are uniform. The only other thing on that would be a number which is keyed to the number in the jury role.
Earl Warren: Do you have all male jurors?
William F. Thetford: All male jurors in the State of Alabama. It's been a considerable agitation to have women, but it hadn't come about yet. Those cards are placed in a jury box or a jury wheel, whichever you want to call it. It's a large metal box. The judge and the clerk each have keys to that box and it's kept in a vault at all times. The juries in Montgomery County are all drawn from that box. Your petty juries are drawn in open court from that box. Your grand juries are drawn. The names are drawn from that box and both civil and criminal petty juries are drawn from that box. In other words, that's -- that's where we get our juries, the box is brought in open court and the judge will draw for an ordinary -- for a week, 50 names from that box.
Speaker: That concerns one division of the --
William F. Thetford: That's -- no. That says -- we -- we run an old kind of a time-court. In other words, we have several court, they will draw 50 names for that week. And we'll run civil court for three weeks and then criminal court for three weeks or a month.
Speaker: (Inaudible)
William F. Thetford: We have two judges, but we draw only one -- one -- 50-man jury.
Speaker: And they serve both courts?
William F. Thetford: They serve both courts, yes, sir
Speaker: Now, I would like to know as a matter of (Inaudible)
William F. Thetford: Eighteen.
Speaker: Does the Court draw more than that and then select from a --
William F. Thetford: Yes, it's a double lottery. I was going to get into the -- the method of selection of the grand jury. It -- it's -- you might refer to it as a double lottery. The judge will draw in open court 50 names. Now, they will be subpoenaed, say for two weeks from under two weeks from then to serve as the grand jury. When that day arrives, the -- those jurors who avail and who have not been excused, and I believe the record shows they're ordinarily 35 to 40 who are actually there in Court. Their names are placed on small white slips of paper, just the name. They're placed in a hat and the judge then draws with the handkerchief over it and the judge then draws in open court blind folded, as you might say, 18 names and that constitutes the grand jury. And we have actually four grand juries here. They ordinarily will be for a week and not more than 10 days at a time. Does -- does that answer your question?
Speaker: (Inaudible)
Earl Warren: Approximately how -- approximately how many men names are in that box, the original box from which you draw the --
William F. Thetford: The clerk testified that there are approximately 3000 names.
Earl Warren: Three thousand names in a box?
William F. Thetford: No, that -- that's in the -- the -- that will be 3000 name serving on juries in Montgomery County.
Earl Warren: Yes.
William F. Thetford: Approximately 3000. Now, I've tried to -- to outline the -- the way we draw them because I think it will help -- helpful to you in -- when we get into the testimony as to whether there is -- I might mention this, too. We're talking about grand juries. Now, you're going to find if you read the testimony of all of the witnesses on -- we had a full hearing on systematic exclusion in this case and also in the first case. And you'll find a -- a kind of -- of a hesitation in any of them saying just exactly how many Negroes they've seen on a jury here. How many they've seen there? Now, there's a reason for that. We do not set out juries aside where you can look over here and see that's the jury. Our juries are scattered all over the court room, scattered in with witnesses, spectators and actually, when they draw a grand jury until you actually see the names pulled out of the box and they come up and sit in the box, you wouldn't know who was a juror. You would have no way of knowing it. Absolutely, no way of knowing how many Negroes you had -- who were there as jurors or how many you had spectators or witnesses. Now, we --
Speaker: We have that in your statement that the choice of a grand jury is truly a matter of -- of a lottery.
William F. Thetford: It is.
Speaker: There is less choice in the grand jury than there is in a petty jury but --
William F. Thetford: All together -- all together, a grand jury is drawn really by two lots. You draw first your -- your -- the names that are going to be the jury list and then you draw in open court by choice the 18 men who comprise a grand jury.
Charles E. Whittaker: Not by choice, but by lot?
William F. Thetford: By lot, by lot. Yes, the judge has no idea and you'll find in his testimony, he said that he never knows who he is going to draw until he actually opens up the slip and reads the name. Now, the three jury supervisors, three of them testified on the hearing on discrimination. Judge Carter testified. Let me -- let me explain one other thing possibly that might be confusing. We have two-judge Carter's in this case. We have a regular Circuit Judge, is Judge Eugene Carter. When he was subpoenaed as a witness, as he was by the defendant on the hearing on motion to quash the binary, he refused himself and James J.Carter who was a practicing attorney in Montgomery acted as special judge during the trial of this case.
Speaker: -- about that. There's no complaint of that here?
William F. Thetford: No, no, complaint here. We've done it on statutory authority. Now, Judge Eugene Carter who testified, testified this. We could hardly pick a jury now without having over four on the jury. I think he was referring that to the binary, not to the actual --
Speaker: Panel to try a case.
William F. Thetford: -- panel to try a case. He had -- he testified further that he had seen seven Negroes sitting on one case, trying a case. He testified that he had seen two Negroes serving on a jury, trying a white man for a robbery. He testified rather at length that he -- that there was no discrimination shown that they were trying to get jurors, not necessarily white jurors or Negro jurors.
Charles E. Whittaker: Is it the theory of how many were actually on the jury trying the case. This is a quick question. How many were on the panel?
William F. Thetford: That is -- that is true, but we -- but we -- we find that the only way we can show because there's -- there's no designation as Negro or white and about the only way we can show this Court how many -- that -- the Negroes are regular serving on Montgomery County juries. They're in the box in substantial numbers and --
Felix Frankfurter: Well, is it the question of how many are on the panel rather than the process by which there is a panel selected? Is it a question of numbers or process?
William F. Thetford: I don't -- I think counsel says that it is not a question of numbers. It's a question where they're discriminated against.
Felix Frankfurter: Well, it --
William F. Thetford: But the only we can -- we can get at that is kind of going in the backdoor to show you that they're on -- on the case. I --
Felix Frankfurter: I understand of course if no Negroes ever on the panel and you've got a sizeable Negro population, a potential body of jurors and if there never is a colored person on the panel, that's an awfully good piece of evidence that there's something that matter with the process. But the mere fact that there is one or two as against some other proportion of white, doesn't prove that there is discrimination, is it there?
William F. Thetford: Now we're trying to prove that it was not discrimination.
Felix Frankfurter: Well, but -- but is it -- I'll go back to my question. Is it a question of numbers if the fact there were three or four, does that settle it? And if there's only one, it settles it the other way? Do you concede that's to be the problem? Except there's evidentiary fact --
William F. Thetford: Except there's evidentiary fact, that would --
Felix Frankfurter: -- these numbers because this Court has held that it doesn't require to have a proportion.
William F. Thetford: That -- that's exactly what I'm arguing. I'm trying to get to this Court the fact that we have Negro serving as a matter of cause everyday and I think the record bears that statement after.
Charles E. Whittaker: Well, I don't think the observation that I had in mind quite clear is this (Inaudible) what you mean by panel. To me, the panel is the final 12 sworn to try a lawsuit. Now, the fact that there are no Negroes on that jury, doesn't mean that in the process of selection from the binary, there may not have been six restricken on each side for cause or peremptorily, isn't that true?
William F. Thetford: That's -- that's very true. But we feel that the -- a large measure -- the only way we can show you that they are on the binary which is the entire 50 men or 100 men group, is to show you that they're actually serving on juries which they are.
Felix Frankfurter: That's what?
William F. Thetford: That -- I say, we feel that the best way that we've got -- and as a matter of fact, the only way we've got because as I told you, your juries are so mixed-in with spectators and with witnesses that ordinarily no one knows who's the jury and who's not. We -- and we've got no designation on anything that would show a man was white or a man was colored.
Felix Frankfurter: But the fact that even on the panel, you are regularly always two Negroes wouldn't disprove discrimination.
William F. Thetford: Well, we don't -- we -- the evidence in this shows that we have varying numbers of Negroes.
Felix Frankfurter: Well, I'm not -- I'm not talking to the specific things. I'm trying to get the standard, the criteria, the basis on which judgment must be made, not the particular facts.
William F. Thetford: Well, the -- the evidence in this case, the evidence that was that is in this record shows this that we have as sometimes a fair large number of Negro serving on the juries, sometimes no Negroes at all. We have -- the evidence shows that the witness has testified they had seen as many as five serving on petty juries on several occasions.
Felix Frankfurter: We're here on the grand -- aren't we concerned with the grand jury panel?
William F. Thetford: Well, I don't know if we or not but the evidence in the State's contention that we are not, but the --
Felix Frankfurter: Yes, but the claim is --
William F. Thetford: The claim -- well --
Felix Frankfurter: -- man compared because --
William F. Thetford: Now you -- you --
Felix Frankfurter: -- it's issued from a discriminating jury.
William F. Thetford: You will -- you will find in the record. In the testimony, I testified in the case, a -- and my testimony was to the effect that in over half of the grand jury since 1951, there had been one or more Negro serving actually on the grand jury. Now, that --
Felix Frankfurter: Did Mr. Hall -- did I hear Mr. Hall correct me to say that it is Judge Carter's testimony that in -- I forget what. In the course of 20, 19 years whatever it was, he'd seen only one colored man on the grand jury or during that whole period.
William F. Thetford: As I read it.
Felix Frankfurter: Isn't that what Mr. Hall said?
William F. Thetford: That -- that's what he said, but as I read --
Felix Frankfurter: Now is that true?
William F. Thetford: No, it's not -- that's not true. You will find a testimony of a good many of the witnesses in there that they have seen varying numbers of Negroes, actually serving on the grand jury of one, two, three and four. There's no testimony of all the four in there.
Felix Frankfurter: Well, did Judge Carter testify --
William F. Thetford: Judge Carter said that he couldn't remember. He wouldn't -- he would not commit himself. He said he could remember one man -- one Negro serving. He remembered his name, but he would not testify further.
Felix Frankfurter: Are you -- are you saying that he did not testified that in those 20 years, whatever it was, there was only one?
William F. Thetford: I'm saying he did not testify that.
Charles E. Whittaker: Well, let me ask you on that. How would one know who was on the grand jury in the -- as a general proposition cannot convene privately? They're not in -- they're only in court when they're selected and when they returned indictment.
William F. Thetford: That is true, but the grand jury in Montgomery County ordinarily, the makeup of the grand jury as published in the paper and because you would see them as they're convinced.You would see him going back and forward. Now, the judge would see him only when he charges him and when they report in, because I was in a little better position to testify on that because I work with the grand jury as long as I have ever been.
Speaker: Only one judge is there?
William F. Thetford: Two.
Speaker: (Inaudible)
William F. Thetford: He is the presiding judge of the Criminal Court and would have seem, Judge Jones occasionally charges the grand jury, but not all of them. Actually, I will get through the grand jury. As I say, we had -- I had a -- I pointed out that we get our grand jury list and now petty jury list from the same box. There's no -- no distinction. They would come from the same box. And whatever the evidence is as to -- the petty jury would also be as to the grand jury, because it comes from the same box. I think that the State showed in the hearing in 1955 that we will not discriminate against anybody, that they were looking for jurors. There were certainly no evidence and no jurors (Inaudible) token service by Negroes in Montgomery County.
William J. Brennan, Jr.: What's the evidence as to the sources from which the names are examined?
William F. Thetford: They -- the Board of Jury Supervisors testified that they consulted -- are you speaking of Negro or Negro and white?
William J. Brennan, Jr.: Well, just generally, I --
William F. Thetford: Just generally, they -- they consulted civic clubs. They testified. They had consulted NAACP, the old Civic (Inaudible) Association of a Negro organization that they had consulted a good many of the Negro leaders in Montgomery asking for a list of -- of Negroes who met the qualifications for jury duty that are have good -- good, honest, intelligent --
William J. Brennan, Jr.: And is it a -- a similar procedure including white names?
William F. Thetford: Similar procedure -- similar procedure with the white. They consult -- now, you have to understand this. In Montgomery, we have a good many white organizations that have no comparable Negro. In other words, as Montgomery Kiwanis Club, it's white. There is no Negro Kiwanis Club. We have to go to possibly other sources, but they would be equal sources and that was their testimony that they consulted these both individuals and societies and associations --
William J. Brennan, Jr.: Was there any reliance on voting lists or other public lists of that kind?
William F. Thetford: Yes. I believe there is testimony from one of the jury commissioners that he had gotten the -- the voting -- well, of course they'll probably look at the voting list anyhow, that he had gotten Negroes to go down the whole list and pick out before him people that they could say, were honest and straight to -- to place in the jury box.
William J. Brennan, Jr.: How often are those lists assembled? Are they done periodically or annually or something?
William F. Thetford: They are revised once a year --
William J. Brennan, Jr.: Once a year.
William F. Thetford: -- by law.
Felix Frankfurter: Mr. Thetford, what educational institutions other -- other than primary schools are there in Montgomery to which Negroes have access?
William F. Thetford: We have the Alabama State Normal College in Montgomery.
Felix Frankfurter: In Montgomery.
William F. Thetford: In Montgomery. It's a Negro college.
Felix Frankfurter: And that has sizeable Negro faculties?
William F. Thetford: Yes, it does. And we also have -- well, Kostowski is not in Montgomery County.
Felix Frankfurter: Well, I'm -- it's a principal question, but I would call in the State (Inaudible) is he consulted as one of the people who -- he would know --
William F. Thetford: You will find in the record that a teacher by the name of (Inaudible) at State Normal, furnished Mr. Mathews who is Clerk of the Board, a list of -- from 30 to 50 names which Mr. Mathews said all of them were placed in the box.
Felix Frankfurter: How many Negro lawyers in Montgomery?
William F. Thetford: Two.
Felix Frankfurter: Two, Negro doctors?
William F. Thetford: Several.
Felix Frankfurter: Dentist?
William F. Thetford: There's more than one.
Felix Frankfurter: There is a professional --
William F. Thetford: There is a professional group of -- of course we are possibly tied down because your better educated Negro almost always is a professional man in Montgomery.
Felix Frankfurter: So -- and he's excused.
William F. Thetford: And he is excused. So, we have that problem.
Felix Frankfurter: Businessmen?
William F. Thetford: We have businessmen, we --
Felix Frankfurter: How many of -- some inside?
William F. Thetford: Yes, we -- we have businessmen of importance in Montgomery and they serve on juries too.
Felix Frankfurter: Do they got a Negro architect by any chance?
William F. Thetford: No, no, sir.
Speaker: Referring to your list of 3000 that are in the box, is there any testimony of any kind that indicates the proportion of those of white or colored?
William F. Thetford: No, sir. There isn't and it would be impossible to tell because there is no designation as to white or designation as to colored.
Speaker: It will be better if there were, wasn't it? We -- it's indicated --
William F. Thetford: This -- this Court has said we can so designate them.
Earl Warren: Mr. Thetford, about what is the population of that County, Montgomery County?
William F. Thetford: 140,000, I believe. It's in that neighborhood.
Charles E. Whittaker: (Inaudible) that were called for service (Voice Overlap) on the panel and subjected to the Board for examination.
William F. Thetford: We have very little examination. You're speaking of petty juries now?
Charles E. Whittaker: Yes, you've (Inaudible) haven't you?
William F. Thetford: No, sir. We don't get our jurist on that -- on that basis. The jury -- our juries are selected in this manner. If they are, say a 35 --
William J. Brennan, Jr.: Present.
William F. Thetford: Present. The defendant -- no, state strikes first. The defendant strikes two. The State strikes one. The defendant strikes two until we have 12 names left and that is the jurist revocation.
Speaker: Out of the whole 35?
William F. Thetford: Out of the whole 35. The whole 35 might well be used. The law requires -- Alabama procedure requires at least 24. The jurors will be there for a non-capital case and 30, a capital case.
Charles E. Whittaker: There is no board wide examination?
William F. Thetford: We -- we have the right.Both state of all parties have the right to examine jurors on any particular thing if they so desire.
Speaker: (Inaudible) not the judge.
William F. Thetford: The judge does it at the request of the lawyers. It's done on supervision of the Court and ordinarily the judge -- we ask him to ask the questions and he asked the questions of the jurors.
Charles E. Whittaker: That's of the whole 35 or more -- if there are more present.
William F. Thetford: That's correct, sir.
Speaker: (Inaudible)
William F. Thetford: Yes, sir. I want to make one more observation then I'm -- I'm leaving this. In 1954, when the first Jeremiah Reeves case came before this Court, this same proposition of systematic exclusion of Negroes from grand juries of Montgomery County was both briefed and argued before this Court. The Court at that time seems satisfied with our method of selecting jurors and seems satisfied that there was no discrimination being shown, Negroes, in Montgomery County. The case was not reversed on systematic exclusion. It was reversed on the remarks and the nature of a confession. And I submit to the Court that it -- just as you are pointing out, Mr. Justice Frankfurter, it -- cases should not be and they have the right to do it, and you have the right to do it, but cases -- criminal cases should not be reversed piecemeal. We of course are bound by it and will follow the dictates of this Court, but when the case comes up here and it's reversed on a confession, obviously, we think the jury's proposition has been argued, briefed to, and no mention of it, is made in this Court's opinion.
Felix Frankfurter: What is the difference in the record on this discrimination question and the present record as to -- as compared with the one we had before us in 1954?
William F. Thetford: We have a much fuller record on this case than we did in the 1954. The --
Felix Frankfurter: And the full of means what is bearing on wether there is a reason of discrimination.
William F. Thetford: Well, I think it's directed from the State's standpoint. It -- a great many more people testified. We haven't in there a large number of lawyers testified that they had tried cases with Negro jurors. Now, this is in the -- the present record. In the first record, we have only the three witnesses testified and they testified simply that Negroes were serving on the juries, both grand jury and petty jury. The next question that I would like to talk about is the reindictment and rearraignment of the defendant in -- the defendant was neither reindicted nor rearraigned after the first reversal. That is standard -- that is Alabama procedure. There is no requirement for a reindictment. No requirement for a rearraignment. The -- as a matter of fact, Alabama, I think follows a majority of the states in that. There are number of various jurisdictions which are cited where Alabama has a limitation on that if your indictment is amended or the man is acquitted of a higher offense by being convicted of a law then better practices to reindict, but we don't require it. And the --
Felix Frankfurter: Are you saying -- are you saying that if cases go up from the trial court to your Supreme Court, and your Supreme Court reverses for error in the admission of evidence for erroneous charge or anyone of the grounds on which a state court can and your Supreme Court does reversed, you've got a good many reversals over the years unfortunately. When it goes back, you -- you continue it as what -- as though -- as those what, still part of the original indictment and arraignment, is that right?
William F. Thetford: Yes, sir. That as I say is done in -- in most jurisdictions, I believe.
Speaker: Can I ask you a question about the 1952 challenge with the grand jury? Did he have a hearing as I read the Court's opinion here? There was a hearing at that time.
William F. Thetford: There was not -- Judge (Inaudible) in his opinion, I'll have to admit was in error. There was no hearing on the motion on the --
Speaker: 1952 challenge
William F. Thetford: In 1952 challenge.
Speaker: That statement is raised.
William F. Thetford: I won't cover that. I simply point out to the Court that petitioner makes a point that -- that he should have been reindicted and rearraigned in -- in this case because there was no mandate from this Court. It was simply reversed. That of course is not correct. The waiting of this Court's judgment reversed the case to the Supreme Court of Alabama for proceedings not inconsistent with the opinion of this Court. See, Kennedy versus Alabama and (Inaudible) versus Alabama.
William J. Brennan, Jr.: Mr. Thetford, is there a statute of limitations on this crime?
William F. Thetford: On the Alabama practice, there is no statute of limitation on any capital offense. Now, the defendant in getting to the grand -- to the challenge to the grand jury in 1952, the defendant was arrested on November 10th. He was arraigned on November 4th -- indicted on November the 14th. He was arraigned on November the 15th. At the time of he -- his arraignment, he was represented by counsel of his own choice, counsel that petitioner now freely admits was competent and capable and exerted every effort in his behalf. On the 15th when he was arraigned, the -- Mr. (Inaudible) who then represented petitioner asked for a continuance of the arraignment. He stated no grounds for that continuance. He simply -- as we find in the practice of criminal law, a great many continuances are requested. He subsequently requested a continuance of the trial. It's -- when -- then on -- now, Alabama practice requires that a -- requires that an indictment be attacked by plea in abatement which must be filed before a plea to the merits. Now, on the 15th, when he was arraigned, there was no plea made to the merits.
Speaker: None was made that day?
William F. Thetford: None was made that day. The plea -- wait a minute. I'm misstating that. There was no objection taken to the indictment. There was no motion filed to quash on arraignment. He would simply --
Charles E. Whittaker: But he -- but he did pleaded.
William F. Thetford: He pled not guilty and not guilty by reason of insanity. Now --
Earl Warren: Is that the day on which he asked for a continuance?
William F. Thetford: He asked for a continuance without stating grounds for it and he subsequently -- and then when that was overruled, he pled not guilty and not guilty by reason of insanity. On --
William J. Brennan, Jr.: Mr. Thetford, did I misunderstand Mr. Hall? I thought I heard him say that he asked the continuance in order that he might make a motion to attack the indictment.
William F. Thetford: That -- you will not find that in the record.
William J. Brennan, Jr.: There is a record of what occurred at --
William F. Thetford: There is a record. He simply made a motion for a continuance. He stated no grounds for it. On the 26th, when this case came for trial, he then filed a motion to quash the indictment alleging systematic exclusion of Negroes from the grand jury. Now, that was 11 days after he was arraigned. That motion was overruled and then he filed a motion to quash the binary which really gave him exactly the same thing because our -- our grand jury and trial binary are taken from the same box. Now, he abandoned the motion to quash the indictment. He did not argue that before the Supreme Court of Alabama on his subsequent appeal. He -- it was neither briefed it and argued before this case in 1954. We meet again in 1955 when we again go to trial with this defendant, and they then asked that they'd be allowed to withdraw their pleas to the merits filed on November the 15th, 1952. The State asked grounds that they've got different lawyers and that they would like to test the constitutionality of the -- of constitutional questions in regard to grand jury which the -- actually, the motion that we are now considering was filed two and a half years after arraignment. Now, the -- he had his opportunity. I -- I will point this out to the Court that there is a relatively short time between the time Mr. (Inaudible) was hired. I don't know when he was hired, but it was a day or so before the arraignment of Jeremiah Reeves. Now, on the Alabama practice, a one paragraph pleading would have been sufficient on a motion to quash the indictment. He could have. There was no insuperable barrier to keep him as -- as in (Inaudible) case. There was nothing to keep him if he had wanted to from filing that plea in abatement.
Earl Warren: Well, would he have been obliged to proceed there at that -- at that moment?
William F. Thetford: No, sir. No, no, Mr. Chief Justice. What would have happened then was witnesses would have been -- the -- the whole idea is an orderly carrying forward of justice. They -- the law tries to get these preliminary matters out of the way before you actually, your juries and your witnesses are subpoenaed to -- to try the case. It would have been set in the usual course of our procedure some time during the next week or so. We had 11 days before the case was actually tried.
Earl Warren: In which time he would have enough to litigate his witnesses on his motion to quash?
William F. Thetford: Yes. Now, that's what as I say was not filed under the case. Actually, it was called for a trial on the 26.
Felix Frankfurter: When the -- when did the case get back to you for trial after we got (Inaudible)?
William F. Thetford: This case was reversed in December 1955 and we tried him again in May.
Felix Frankfurter: Oh, that's 1954?
William F. Thetford: 1954.
Felix Frankfurter: And you tried him in May? Did you try him in May 1955?
William F. Thetford: Yes, sir.
Felix Frankfurter: And you got a verdict in May?
William F. Thetford: That's -- yes, sir.
Felix Frankfurter: And when did it get to the Supreme Court of Alabama? The next year, isn't it?
William F. Thetford: The next year, yes, sir.
Felix Frankfurter: Is that because of the (Inaudible), I mean, the business of your course?
William F. Thetford: Mr. Justice Frankfurter, we find the Supreme Court of Alabama is -- is pretty slow in deciding cases for sometimes a year or so.
Felix Frankfurter: After it's submitted.
William F. Thetford: After it's -- after the trial.
Felix Frankfurter: They have a heavy (Inaudible) about it --
William F. Thetford: Yes, sir, they have.
Felix Frankfurter: My question is derived from my greatest (Inaudible) delayed does not meant criticism to you. This is true to our country.
William F. Thetford: I'm -- I'm going to take no more time. We have one other problem of the refusal of the trial court to let the -- as to evidence before the -- as to where there was evidence before the grand -- grand jury, legally before the grand jury. I don't think that's much of a problem. I think that Costello answers it as far as the Federal Court is concerned and certainly our cases, hold that they have no right to inquire into what evidence was submitted to the grand jury and I'm not going to argue that, and I want to give Mr. Stewart --
Speaker: Could I ask you one question to clear my mind?
William F. Thetford: Yes, sir.
Speaker: Did you say that he did not press in the Alabama Supreme Court his denial of his motion to quash the grand jury?
William F. Thetford: That is correct. That was apparently abandoned. It was not --
Speaker: But then did he press -- did he seek to press it up here (Voice Overlap)?
William F. Thetford: No, sir. It was neither briefed nor argued nor urged on this Court in 19 -- in 1954,
Speaker: It was not?
William F. Thetford: No, sir. It was completely abandoned and did not come back again until the new trial in May of 1955.
Speaker: Well, I misunderstood something that you said earlier then because I thought you would argue that although the Court here did not pass on the grand jury question in 1954 and they had an opportunity to do so and therefore, you could assume that the (Inaudible) --
William F. Thetford: What I said was that the same exact proposition was submitted in the attack on the petty jury, because the juries are drawn out of the same box.
Speaker: What petty jury?
William F. Thetford: It would be the same jury.
Speaker: Yes.
Earl Warren: Mr. Stewart.
Robert B. Stewart: Mr. Chief Justice, may it please the Court. I have planned about 20 plus -- 30-minute talk. I'll see if I could compress that into five minutes that I have remaining. There were several points briefed which I would like to talk to, but I would try to limit it to one point only in the time that I have and that is the oral examination of the jurors. The defendant has raised a point about a question as to all jurors. The Solicitor asked the Court to qualify the jurors as to membership in the NAACP. Now, the defendant at that time objected to that question being asked to jurors. The Solicitor then stated that it was his information that the NAACP was financing this case and he would like that information to be helpful to him in striking the jury. Of course --
Charles E. Whittaker: Is that --
Robert B. Stewart: Sir?
Charles E. Whittaker: That said is openly in the presence of hearing of all (Inaudible)?
Robert B. Stewart: Openly in the presence of all jurors, yes sir, because all jurors are sitting in the court room.
Charles E. Whittaker: (Inaudible)
Robert B. Stewart: Yes, sir. Now that was not said until objection was made to the question that they'd be qualified as to membership. Now, that -- that belief of course comes to us from the fact that the name of the chief counsel, general counsel of NAACP appears on the last brief in this Court. That's our understanding from the record. And to prove that it was a useful question, I point out to you that the record shows three of the jurors when they were so qualified, stated that they were members of the NAACP. Now --
Charles E. Whittaker: -- practice even in the civil case, I assume we have issues arising as to whether or not jurors made to examine the negligence cases as to whether the defendant has or doesn't have insurance.
Robert B. Stewart: Yes, sir.
Charles E. Whittaker: Are you permitted to ask such broader questions upon an understanding or do you not have to have some admission if you use such insurance before you're permitted to ask the question?
Robert B. Stewart: No, sir. You may -- you may ask the question upon your own understanding. You're trying to find out what the man's connections are.
Charles E. Whittaker: Wouldn't it --
Robert B. Stewart: Let me --
Charles E. Whittaker: -- wouldn't it be justice prejudicial in a civil case to say Mr. Juror or General, ladies and gentlemen of the jury or (Inaudible) stockholders, policy holders of et cetera, the traveler's insurance company?
Robert B. Stewart: That is asked on all negligence cases.
Charles E. Whittaker: As it would be to tell them that that so was to not first have some admission that it is the fact. Can you do it just on your standing?
Robert B. Stewart: Well, in negligence cases to -- to answer that that is a stock question. We -- we generally can find out from the counsel on the other side the name of his insurance company and we qualify the jury as to that company.
Charles E. Whittaker: And you have that shown in the record before you ask questions, don't you?
Robert B. Stewart: No, sir. Generally, you ask that question privately of the attorney on the other side.
Charles E. Whittaker: Yes and then have that shown in the record do you not? That he admits that he (Voice Overlap) --
Robert B. Stewart: No, no.
Charles E. Whittaker: You don't?
Robert B. Stewart: No, sir. Now, let me -- let me read to the Court the -- the statute under which we examine our -- our jurors. Title 30 of Section 52 of our code provides that in all civil and criminal cases, either parties shall have the right to examine jurors as to their qualifications, interest or bias that would affect the trial of the case and shall have the right under the direction of the Court to examine said jurors as to any matter that might tend to affect their verdict. Now, there seemed to be two -- there seemed to be two different rules and different jurisdiction. Some courts limit questions to what may affect the qualification of a juror. We do not. Our cases say that we may examine on anything that will help determine a man's interest by his prejudice or whatsoever.
Speaker: Now, these questions were asked through the judge.
Robert B. Stewart: Through the judge.
Speaker: He asked this question whether there are members in a --
Robert B. Stewart: He -- he qualified every juror. That way, they called up in groups of five and qualified generally and the judge does of course. We don't do it ourselves. Now, such type of -- of question has been approved by our courts. The question is briefed. The second and last question is the matter of excluding the public from the trial. We have constitutional and statutory provisions allowing the court and the judge to clear the court in rape cases. That was done in this case, except for the man's families, counsel, the press, his preacher and so forth. Now, that question was before when argued the case last time also and it was very thoroughly briefed and argued. It is briefed this time, but I do not have time to argue. I -- I had hoped to talk a little bit about the facts in this case, but time is -- is running out.
Speaker: Can I go back to the jury point a minute?
Robert B. Stewart: Yes, sir.
Speaker: Was there a change in your procedures in Alabama between the 1952 motion to quash and 1955 motion to quash?
Robert B. Stewart: No, sir.
Speaker: None?
Robert B. Stewart: No, sir. When you say change and preceded, do you mean some kind of statutory change?
Speaker: No, I mean Mr. Thetford described the procedure, wasn't that obtained in 1952 as well as in 1955?
Robert B. Stewart: Yes, sir, it did.
Earl Warren: Mr. Billingsley.
Orzell Billingsley, Jr.: Mr. Chief Justice, may it please the Court. The case of Jeremiah Reeves versus State of Alabama as reported at 340 U.S. 891, 75 Supreme Court 214 cites two cases in the season of this Court. There was no direction given by this Court and the case was not remanded. As a matter of fact, it's just a reversal and however we take the position that this reversal, unqualified reversal amounted to a plea of not guilty so far as defendant is -- was concerned and that the defendant should have been discharged. We -- this case was decided upon by this Court in December 1954 and the defendant was held in jail until May of 1955 at which time he was again found guilty and sentenced to death. We feel that any discussion of our motions relative to the indictment in the grand jury should have been considered by the Court. On November the 14th as we've already said, the defendant was indicted and he was arraigned on November 15th which I'm sure was less than the indictment -- the arraignment followed the indictment less than 24 hours. The -- the juries of the honorable court of Montgomery has this -- has this discretion to allow the defendant in such cases to withdraw his plea of not guilty and in this case, a plea of not guilty and not guilty by reason of insanity. And it seems to me that where a man is being tried before a court and his life is in jeopardy that it would not have been any trap at all for the Court to allow counsel for the defendant or petitioner to go into the indictment in the grand jury. An interesting thing about the jury commission of Montgomery County is that it is composed of the two Circuit Judges, the sheriff of the County, the judge of the probate court and the clerk of the court. The record will show that the Honorable Judge Carter has been a judge of Montgomery County for 21 years. The record will show that the Honorable Judge Walter B. Jones has been a judge of Montgomery County for 20 years. The record will show that Mr. John R. Mathews who is clerk of the court had been clerk for 20 years. And all during that time, these men have served as jury commissioners. Mr. John R. Mathews is also the Clerk of the jury commission. Montgomery is somewhat different from most of the counties in Alabama and that any qualified citizen might be appointed as a member of the jury commission. But in Montgomery, under the local law, they have to be either judge, sheriff, probate judge, or clerk of the court to be a member of the jury commission. Now, concerning the fact that these three men mentioned have been commissioners or jury supervisors, whatever you call, for 20 years in a county where the population is 60% white, 40% colored, that they could held during that time very easily to familiarize themselves of the people of that county. It's different from other counties and that the commissioners might serve a year or two years or whatnot and then they have to come in and adjust themselves to the situation, but we find that even the Honorable Jurist Eugene Carter being asked about the grand juries in Montgomery County. This question is put to him. “Do you know of any occasions when two or more Negroes sit on a grand jury?" He answers. "I recall one said." He further states on page 55 of the printed record and asked this. Now, the question, “Do you recall the largest number of Negroes you saw serving on a jury at one time?" Answer: "No, I wouldn't know." Question: "Have you ever seen as many as four?" Answer: "It is impossible for me to tell you as many as four or how many. I don't know; "We hardly pick a jury now without -- now, listen to this. "We would hardly pick a jury now about having over four." Question:"Four Negro jurors?" Answer: "I remember at one time there were very few. In fact, we were not able to get them until the last year or two." Now, this is in 1955 of making. Jeremiah Reeves was indicted on November 14, 1952. That is the mission on the part of the witness here that during that time, they had very few Negroes on the jury list. Now, in 1955, when he's being tried and we asked the Court to let us withdraw the pleas of the defendant and file our motion to quash the indictment, the Court refused. And certainly, it seems that the type of testimony which we have in the case of this kind that there is discrimination or there was in 1952, discrimination in Montgomery County, Alabama. Now, we are not alleging before this Court the proposition as put to you in the respondent's brief on proportional representation. We are not arguing that, but we are saying as your decision -- decisions hold that the selection of jurors should be done according to the Court of Alabama. That is considering all the qualifications out there that they will include men, just men between the ages of 21 and 65. That's all we asked, but the testimony will show that the witnesses in their anxiety to be fair to testify that they deliberately went out and got Negroes and put them on the list. Well, I don't think that is the law either. I don't think it should be a matter of inclusion or exclusion, just a fair system of operation. That's all we asked and in order to try this defendant before their Court.
Felix Frankfurter: You -- does your view -- does your view leave any room for any kind of selective process other than an automatic process of -- I'm not sure I know how that would be. If you have to have a panel of -- of binary of 50, how would you go about getting 50 -- a process that simply involves some kind of selection which is capable of potential -- potentially capable of the exercise of some kind of real bias in New York City or in Montgomery? How would you get 50? Would you -- I suppose you could have a list of -- an alphabetical list of all the male between 21 and 65 in Montgomery and then taking down the line, but sure of that wouldn't -- isn't there necessarily -- does necessarily some selective element in there?
Orzell Billingsley, Jr.: Well, the selective element, Your Honor --
Felix Frankfurter: I'm not talking about this case, but just generally. Wouldn't --
Orzell Billingsley, Jr.: Well, just generally -- just generally, there should be a selective method --
Felix Frankfurter: But it --
Orzell Billingsley, Jr.: -- but it should not be one where you do it in our argument on the basis of race.
Felix Frankfurter: I couldn't agree with you more. I agree with you as much as you agree with yourself. What I want to know is in selecting people, wouldn't there be some -- wouldn't some question of -- I should think I'm at the brink of the word discretion -- some question of judgment.
Orzell Billingsley, Jr.: Yes, sir. I think that would be --
Felix Frankfurter: It would have to (Voice Overlap) --
Orzell Billingsley, Jr.: Yes, sir.
Felix Frankfurter: -- wouldn't it?
Orzell Billingsley, Jr.: Yes, sir.
Felix Frankfurter: If you got standard (Inaudible) of people who are fit for the -- for the grand jury, the grand jury service, the determination where the (Inaudible) involved some choice.
Orzell Billingsley, Jr.: Yes, sir. I agree to that and -- and on this (Voice Overlap) --
Felix Frankfurter: It can't be automatic, can it?
Orzell Billingsley, Jr.: Sir?
Felix Frankfurter: You can't have an automatic system, except in the way in which I have indicated that you've got a list of everybody in the particular community and then go down the line automatically.
Orzell Billingsley, Jr.: Yes, sir, but that's -- that's my belief, as a matter of fact, a type of selection which will be a selective method, you might have a grand jury concerned of population in Montgomery County of all Negroes, all white. You may have all Negroes of five or six. But now, this is a pretty peculiar situation that even the Solicitor on cross-examination, I asked him about the grand jury which indicted Jeremiah Reeves. I asked him, question: "Were there any Negroes on the grand jury that indicted Jeremiah Reeves, Jr.?" He answers, “I do not know for sure. My best judgment states, I wouldn't know. My best judgment would be no. It will be no.” Now, it is -- it -- it could be peculiar for you have 18 men on the grand jury and all of them are white men. Every one of them is white men. Now, that could happen, but it's peculiar. It makes me suspicious. I just -- I can't explain it.
Felix Frankfurter: Does -- does your jury requirement include literacy?
Orzell Billingsley, Jr.: Yes, sir. It does.
Felix Frankfurter: Well, if you had -- if you had a community -- I'm not saying Montgomery of course. If you had a community in which for one reason or another, there was a portion of the population although citizens predominantly couldn't write. We have known countries that are now in some foreign countries like India in which I don't know what the percentage of literacy there the other day. It's rapidly being cut down in literacy. You might get a situation where an allowable standard of selection would exclude a certain group. Wouldn't it?
Orzell Billingsley, Jr.: Yes, sir. It -- it possibly would.Of course in Montgomery County, it's different from most of the county. You have a highly intelligent --
Felix Frankfurter: Yes, but I --
Orzell Billingsley, Jr.: -- selection of Negroes in that county.
Felix Frankfurter: But, I'm not -- it's remote to mean to suggest not (Voice Overlap) --
Orzell Billingsley, Jr.: Yes, sir.
Felix Frankfurter: But I was thinking of Judge Carter with the interesting statement about the change that is taking place to meet the gratifying things to read that, I hope.
Orzell Billingsley, Jr.: Yes, sir, but the change --
Felix Frankfurter: -- impliedly that if he said there are good to offer and bad to offer, good wives and bad wives, so he could say also good husband and bad husband.
Orzell Billingsley, Jr.: Yes, sir. Well, it seems that's referred to by the Honorable Judge Carter that is also gratifying to me, but the change referred to by him came about after Jeremiah Reeves was arraigned and indicted and convicted. And of course, our -- our question that changed according to the evidence. Our time is short and I would like to make just one statement concerning the demurrers made by the Solicitor in this case regarding the NAACP. I think it -- it tended to prejudice the minds of the jurors or as far as the statement is concerned in which he mentioned that this case was being financed by the NAACP. He could have easily asked me and I would have told him who spend for the case of Jeremiah Reeves, but I think we know very well the status of the NAACP in the State of Alabama, cases before you now of the case of NAACP, but we submit that this case should be reversed (Inaudible).