Earl Warren: Number 253, Phil Whitus and Leon Davis, petitioners versus Georgia and number 650, the same parties. Mr. Morgan.
Charles Morgan, Jr.: Mr. Chief Justice and may it please the Court. This case involves two Negro criminal defendants from the State of Georgia, Phil Whitus and Leon Davis who in December 19, 1959 were accused of the crime of murder of a White man in Mitchell County, Georgia, a small South Georgia county. This case has been pending in one court or another since that time. After an initial conviction in which the trial -- which they questioned systematic exclusion of Negroes from the juries, was not raised. The case was appealed to the Supreme Court of the State of Georgia and I recall it came here by certiorari, certiorari denied and then a petition for a writ of writ of habeas corpus filed in the United States District Court in the Southern District of Georgia, denied there. It then went to the Fifth Circuit Court of Appeals, denied there on the grounds of non-exhaustion of remedies. That judgment is vacated by this Court and the case went back down to the Court of Appeals. The District Court again dismissed the petition for habeas corpus back to the Court of Appeals and then it was reversed and the jury box in Mitchell County, Georgia then was condemned, as being racially exclusive. Now, in that opinion by the United States Court of Appeals for the Fifth Circuit in which certiorari was denied by this Court, three years ago to this day, the State of Georgia was given eight months after the final judgment of that court in which to try and indict and try -- retry these petitioners before some constitutionally composed jury or tribunal in some place in the State of Georgia. The Fifth Circuit said that the state had eight months in which to do that and that any questions of course would come by regular appeal through the state process. We are now here alleging that the law of the State of Georgia which requires the selection of jurors from tax digest, which are by statute racially segregated, renders the jury system under which these petitioners were tried invalid and unconstitutional and we secondly allege that there was in fact systematic exclusion of Negroes from the grand and petit jury in Mitchell County, Georgia. Now under the facts of this case in Mitchell County, Georgia, we had initially and that the county population by the way, the population of, those who are eligible for jury duty, male citizens over 21 years of age is the figure we were taking here, even though females are eligible to serve in Georgia, very few do and I think it’s a proper statistics because the figures are greater for the total Negro population of the county than they are for Negro males over age 21. The percentage is 42% of the population of Mitchell County, Georgia and that is I think the most conservative racial figure that could be used here.
Potter Stewart: But in order to be qualified for jury service you have to be a taxpayer?
Charles Morgan, Jr.: Yes, your name comes from -- all jurors come from the tax digest and of necessity, you would have to be a taxpayer.
Potter Stewart: And the figures you gave us include the tax paying and the taxpayer?
Charles Morgan, Jr.: No sir, they do not. Those figures --
Potter Stewart: Well then that would be the more accurate statistic?
Charles Morgan, Jr.: That would be a more accurate statistic of the total number eligible. That is not disclosed by the record in this case, that figure is not. Now, according to the evidence in this case, prior to the indictment of these two petitioners, no Negro had ever served on a grand jury in Mitchell County, Georgia. One Negro did serve on this grand jury. On the trial jury, called at the same time as the grand jury was called, of 90 who were summoned, there were three of the April term report who were Negroes. The petitioner was not tried then. He was not tried into the fall following. At that time, 90 jurors were summoned, seven were Negroes. I think under the rulings of this case -- court including the Swain case a prima facie case was made out on the actual question of systematic exclusion. But beyond that, we have a far more important question I believe, of the appearance of racially segregated tax digest in the small Southern Courthouse and a system of justice that has been traditionally reserved or administration by White man.
Earl Warren: May I ask, what was the history as to trial jury? You told us that there has never been one grand jury. What has the history been in the trial juries in that county?
Charles Morgan, Jr.: Well, there's a little --
Earl Warren: Internal cases.
Charles Morgan, Jr.: -- little dispute about that and I can now -- I can give it to you directly from the record. At page 9 of the record in 253, a question of Mr. Frank Twitty is one of the senior lawyers, “let's eliminate the April term report with the exception of April term of court, have you ever seen a Negro sitting in a jury box in Mitchell County, Georgia? Answer, I don't think so. I've been thinking about it since I got your subpoena and it seems to me that a Negro by the name of Arch Diamond, a big Republican and Timothy Ketchum several years ago. I thought they served I'm not sure but I have the definite impression they did serve at one time, but I wouldn't be sure.
Earl Warren: Who was that --?
Charles Morgan, Jr.: That is Mr. Twitty who was a senior member of the Bar in Mitchell County, Georgia, a White member of the Bar.
Earl Warren: What page of the record is that?
Charles Morgan, Jr.: It's page 9 in the record of the case number 253. There are two records, two separate --
Byron R. White: Why aren't the two together? Are you in both cases?
Charles Morgan, Jr.: Yes sir, both cases are here. You granted certiorari in number 253 which was an appeal from the grand jury, the systematic exclusion of the grand jury question, and after that, this case was tried and an application for stay was made at that time denied and the case went on to trial and then the question of the trial jury was raised and you've granted certiorari now on the question raised from the trial jury.
Byron R. White: This still is not -- it doesn't have the conviction, does it?
Charles Morgan, Jr.: Yes, now it does. Not 253 -- in 650, there is conviction.
Byron R. White: Is this an appeal -- a direct appeal from a -- or is this a habeas corpus?
Charles Morgan, Jr.: No, this is -- by certiorari, the Supreme Court of Georgia in number 650 and by certiorari to the Court of Appeals of Georgia in number 253.
Potter Stewart: Is there are respondent's brief in 650?
Byron R. White: Was there requirements of the conviction?
Charles Morgan, Jr.: There was -- yes.
Byron R. White: There's an appeal for the --
Charles Morgan, Jr.: Yes, yes it is and a death penalty. There is a -- the respondent did not file a brief. We came to the problem with clerk's office here of the reprinting of the record you know and this in the second case, what the respondent wanted to say with regard to the trial jury -- it's already pretty well argued in his first brief and with response -- with the questions there.
Potter Stewart: So there's just one brief here for the respondent in both cases?
Charles Morgan, Jr.: Yes sir and we filed a brief -- we filed a brief for petitioners in both cases but the second brief adopts most of the first brief. Now, further on in the record with respect to the question of the history of Negroes having served on trial juries, we have testimony elsewhere and I think I could find it in the moment one of these records regarding the fact that one Negro or some might have served in Mitchell County, but the great way to check on is as far as we can ascertain from the record is that Negroes did not serve on trial juries in Mitchell County. They were sometimes called, but they really began to be called along about 1965 when this case came back. And I do recall the record in the first case which went up in the Fifth Circuit Court of Appeals and came back now Negroes have never served up to that time.
Earl Warren: How many was called on this jury?
Charles Morgan, Jr.: Well sir, on the second jury, 7 of 90, 7.7% of the venire were Negro -- that's a trial jury.
Earl Warren: Seven out of 90?
Charles Morgan, Jr.: Yes.
Earl Warren: All stricken?
Charles Morgan, Jr.: As I recall it, none sir. I don't think that they were all stricken. I'm not really sure that they were -- I'm not sure if it appears from the record. We can find it of course but I don't believe that there was any question raised with respect to that and may well be that they didn't appear on the particular venire that the jury was stricken from. Mr. Jones applied the case and does know exact words.
Earl Warren: What was the size of the venire that the jury was stricken from?
Charles Morgan, Jr.: 90.
Earl Warren: 90.
Charles Morgan, Jr.: Yes sir.
Earl Warren: You say they may not appear on their name -- the name may have appeared on? Did you say their name --
Charles Morgan, Jr.: 48 were put upon the defendant as I understand it.
Earl Warren: 48 was put on the defendant, does this record show how many of them were colored, if any?
Charles Morgan, Jr.: Three of 48.
William J. Brennan, Jr.: Mr. Morgan.
Charles Morgan, Jr.: Yes sir.
William J. Brennan, Jr.: This grand jury, was at second indictment, was it?
Charles Morgan, Jr.: Yet --
William J. Brennan, Jr.: After the Fifth Circuit reversed.
Charles Morgan, Jr.: Yes.
William J. Brennan, Jr.: And then there was new indictment?
Charles Morgan, Jr.: Yes sir.
William J. Brennan, Jr.: Now would that by a grand jury drawn from the old grand jury list?
Charles Morgan, Jr.: They redid the list along in -- about 1965. And this grand jury contained a Negro member.
William J. Brennan, Jr.: But another -- the old grand jury list was found to be tainted with it?
Charles Morgan, Jr.: It was found to be tainted but it was used in the selection process according to the testimony that the jury commissioner, it's hazy beyond this but they say that they did have the old list and they went down it first and first, they checked off the names of those who were dead and those who have moved. And this testimony by jury commissioner saying, “But we didn't use that then. We then went on to the tax digest and went on the tax digest.”
William J. Brennan, Jr.: So we don't have an issue here then of the second grand jury being drawn from the old tainted list?
Charles Morgan, Jr.: Not directly from the old tainted list, but the old tainted list was used, I believe the record will dispose this [Voice Overlap]
Byron R. White: [Voice Overlap] to put it aside for one reason that the list was tainted?
Charles Morgan, Jr.: Yes.
Byron R. White: And then ordered a new indictment --
Charles Morgan, Jr.: Yes sir. The state may do that within eight months.
Byron R. White: Yes.
Charles Morgan, Jr.: Now, under Georgia law, the requirements for petit and grand jury duty are that a man be intelligent and experienced and upright. Now, the record discloses when the jury commissioners wrapped as to whether or not they give intelligence test or any other sources of test, of course the jury commissioners didn't do that. The opportunity for discretion, the same kind of discretion that was condemned generally in United States versus -- in Mississippi versus United States -- United States versus Mississippi and Louisiana versus United States. Same kind of discretion that was existed in Davis versus Schnell, Alabama, regarding voter cases exists pretty much in the jury statutes in Georgia and in other Southern jury statutes also. Here, we have an instance where there's a requirement by statute that came into existence in 1894 that racial data be included and really thrust under the noses of the jury commissioners. Beyond that, they then have subjective test which they must adopt and apply to these prospective jurors.
Potter Stewart: Is by subjective test you mean these have to be outstanding citizens or whatever it is?
Charles Morgan, Jr.: That's right and perhaps the word experience, that's the additional word for grand juror but you don't have -- the amount of the experience would be a problem.
Potter Stewart: You have to for a petit jury?
Charles Morgan, Jr.: And then you've got the question of experience in what or you know just what does this mean?
Abe Fortas: Do you know how many states have this so called subjective tests?
Charles Morgan, Jr.: I'm really not certain, but it is -- we didn't go into that question and make pending of the law so I do not know the answer to that, quite a few in the South.
Abe Fortas: Quite a few of the Southern states have that --
Charles Morgan, Jr.: Yes sir. They test like or akin to that, they do. Good character, in Alabama for instance, you have to be able to -- you have to be able to read, write or understanding which language or there's an exception that you can be a freeholder or a householder, which under the state definition, a householder is almost anybody. You have to have a good character in most of the states, but there is an ordinary character requirement in the states. Now in light of this Court's decisions and the decisions of the lower courts and especially the Fifth Circuit Court of Appeals, those of us who talk constantly, -- let me phrase it this way, two thirds of the Negro people in the United States who live outside of the south were born and reared in the south. Their conception of justice came from the courthouse and the county where they were born and reared. And many of the complaints and plenty of crimes that we hear today, I think come from a background of experience that says when somebody like me for instance might say, take your struggle out of the streets into the courts and the answer comes up, “that's where the sheriff was. That's where I saw someone convicted and go off to jail.” In this particular instance, we have a statute which is as condemnable as in the Hamilton case coming out of Alabama, a contempt conviction. The use of monolithic titles, we've got the same sort of case. You've got the Johnson case on segregation in the courtroom. You've got the same sort of case that existed in Ham with respect to the use of racial records and racial designations. And much of what I'm talking about now has very little to do with a particular fairness of the particular trials of these two petitioners. But what it does have to do with is as under map, the basic appearance of fairness of the system of justice. And whenever we do have racial designations and racial restrictions on the face of relating to the system of justice that we have, we automatically bring that system into question.
Abe Fortas: But those racially designations do disappear very quickly in the process, don't they? I think we were told yesterday and they are the case where the names were put into the box I believe without any racial designation by the [Inaudible]
Charles Morgan, Jr.: There's not in this case either. There is no racial designation in this case on the cards that are drawn. The cards are not different colors as they were in Avery. I would point out to the court that in Avery, the slips were yellow and white slips that were drawn out by the judge.
Abe Fortas: I know but --
Charles Morgan, Jr.: In this sense, they're yellow and white tax returns.
Abe Fortas: But here --
Charles Morgan, Jr.: It doesn't exist on the cards.
Abe Fortas: What happens here is -- is this correct? What happens here is that the text digest themselves make the racial distinction then from those text digest, names are drawn for the array and those names are then put in a box without any designation or anyway just by looking at the names or the paper determining which are White and which are Negro and then the drawing is made from that box. Now, are you suggesting that there is discrimination in the selection of the names from these two lists for the array?
Charles Morgan, Jr.: Yes.
Abe Fortas: That's a stage on which you say the discrimination --
Charles Morgan, Jr.: In this case, the only place where you could have discrimination based on the segregation at tax digest would be at the first instance where the names are selected by the jury commissioners.
Abe Fortas: Now, do we have anything in this record with respect to the number of Negroes and Whites that are in the array?
Charles Morgan, Jr.: Well, we have some varied estimates. We have a reasonable guess of 25% by a jury commissioner. He also testified that he could go as high as 80% or 90%, I guess that high, 80% I think was stable. We have a total estimate and again, estimate and not the exact figures of names of the box. It ranges from 500 to 600 names there.
Abe Fortas: That's the total number in the array.
Charles Morgan, Jr.: Total number in the array but as far as a racial breakdown of the array --
Abe Fortas: But the only thing this record contains is perhaps below 25% of the total array of Negroes, is that right?
Charles Morgan, Jr.: A reasonable or rough estimate of that. I think from the record, they--
Abe Fortas: Now suppose that that were the fact, and suppose that the consequence of the taxes in this county were that 25% of the names in the array were the names of Negroes what -- what Negro conclusion would you draw from that?
Charles Morgan, Jr.: Well, I would take the Swain case and draw from that the legal conclusion that the petitioners here made out of prima facie case of systematic exclusion of Negroes from the petit and grand jury.
Abe Fortas: On the basis of 25% figure?
Charles Morgan, Jr.: I suppose to. The 42% figure of eligibility which is the lowest figure we have even if Negroes are lesser on the tax digest, we would contend that that burden of proof fell to the state on the percentage figure.
Abe Fortas: Now suppose that the state then says, “Well, alright, we accept that but we are buried by showing that 25% of the names in the array are the names Negroes?” You think that that is between 25% in the population percentage or 42% or whatever it is, is so great that it's constitutionally objectionable?
Charles Morgan, Jr.: That's not the question here but I would think so in another case but --
Abe Fortas: Why isn't it a question here?
Charles Morgan, Jr.: Well, because in the first place the record doesn't disclose that the state didn't come back with any figures of that.
Abe Fortas: The state -- the only evidence on this record is 25%?
Charles Morgan, Jr.: No, we don't really think that that's the evidence and certainly under the Fifth Circuit case, the Scott versus Walker, the recent cases. This -- the state has within its control, racial figures regarding everybody in that county just about that pays taxes. Just a rough guesses or estimates of this nature just don't jive with the whole history of the county and in fact the first Negroes served in our grand jury with this.
Abe Fortas: Did you make any effort to obtain more specific or more accurate figures as to the percentage of Negroes who were represented by the array? I did at a later time. I was not present at this hearing where this reason --
Abe Fortas: I didn't mean you personally --
Charles Morgan, Jr.: I think that Jones might go into that more as to what they went through down in the county and he'll speak right now if that's alright and I'll reserve a little time for rebuttal.
Earl Warren: Mr. Jones.
Walter Jones: Mr. Chief Justice and may it please the Court. I've been in this case since 1959. This case was sent back to the State of Georgia by the Fifth Circuit Court of Appeals with the express mandate to try it before a constitutionally composed jury. We have submitted to this Court the record which we obtained in our first challenge to the array of grand jurors and in our first challenge to the array of petit jurors. Our state of last night and read that record myself and --
Potter Stewart: That is the -- your challenge after the remand by the Court of Appeals?
Walter Jones: Yes sir, my challenge after the--
Potter Stewart: You said your first challenge after it was remanded?
Walter Jones: Yes, after it was remanded. This was first remanded and they said that I did not raise the point and the Fifth Circuit said that I did not have to -- I would make a (Inaudible) if I did.
Potter Stewart: Okay.
Walter Jones: I have never read such a shameful record in my life and the solicitor had is on my right by six jury commissioners appointed by a judge in the State of Georgia. One of them didn't remember where they met. One didn't remember where he was appointed. One didn't remember what year he was appointed. One did remember what (Inaudible) met and what (Inaudible) met and we attempted and we had to call the witnesses to get all the facts possible but I ask and petition this Court for ten minutes just to point out this one fact. In 1962, the State of Georgia filed a brief with the Fifth Circuit Court of Appeals which although they did not make an admission in judicio, they did not dispute that the jury or jurors in Mitchell County were unconstitutionally composed. That was in August of 1962 and yet no attempt was made by Mitchell County to correct that situation down to February of 1965. How many men have been tried and how many convicted by unconstitutionally composed juries, grand juries during that interim, I do not know and I'm glad I don't because I can sleep better at night. But nevertheless, I think it shows more or less that this attempt in February of 1965 was a deliberate inclusion by the jury commissioners to satisfy in some remote manner, the mandates of this Court or the requirements of this Court as to the constitutional requirements, as to grand and petit juries. And I see that our lunch hour draws near, but I will say this. I will lay the strength of my case and the strength of everything that I have done on a court appointed case on the record that we sent to this Court on the challenge to the array of the grand jury in April of 1965. In the vow of Mitchell County, I believe I will have at point destroyed or in some way give it up. I thank you for giving me your attention.
Earl Warren: Mr. Hand.
Fred B. Hand, Jr.: Mr. Chief Justice and may it please the Court. Again, I would like to point out certain erroneous statement that I believe they are predecessors pertaining to these cases. In relation to the testimony of Mr. Twitty and before going into that, I would hasten to say what transpired over the years doesn't really having a thing to do with this case. This case is the rise and fall upon the grand jury selection and the crown jury selection that tried these two men. But be that as it may, I call your attention to the record in the cross-examination of Mr. Twitty and he was asked the following question -- question, “Did you ever make it your --”
Hugo L. Black: What did he say?
Fred B. Hand, Jr.: Your Honor, I do not have a printed copy of your record, this is a transcript of the original trial.
Speaker: Mr. Twitty did you say?
Fred B. Hand, Jr.: Twitty, yes sir -- cross-examination -- it is only cross-examination question asked by me.
Byron R. White: Pointing this on the grand jury or --
Fred B. Hand, Jr.: This is only a grand jury.
Potter Stewart: I guess it's on page 13.
Fred B. Hand, Jr.: Thirteen, I'm sorry.
Potter Stewart: Thirteen of the record in 253. Did you ever make it your policy?
Fred B. Hand, Jr.: Yes sir. Did you ever make it your policy to determine whether or not there were in fact Negroes on either the petit jury or grand jury? Mr. Twitty answered as follows, “I paid no particular attention to that. I might say or at least didn't say who were Negroes and who were White people even this time.” Another thing that --
Potter Stewart: Even this time, he means after the remand by the Court of Appeals --
Fred B. Hand, Jr.: That is correct.
Potter Stewart: -- have changed the system.
Fred B. Hand, Jr.: That is absolutely correct Your Honor.
Abe Fortas: But did you change the system?
Fred B. Hand, Jr.: We completely revised the grand jury box and petit jury box as I will refer it later in my argument --
Abe Fortas: You better tell us whether you change the system or you just changed what you did within the system?
Fred B. Hand, Jr.: We change what we did within the system with one exception and one very important exception I think and that is certain directives which were given by the trial judge which I will deal with later. The other exception that I would like to call to counsel's presentation of the case, the record will reflect that there were “at least seven Negroes on the petit jury panel not a finality of seven.” I think this is an important difference.
Potter Stewart: Seven out of how many?
Fred B. Hand, Jr.: Seven out of nine Your Honor.
Potter Stewart: 99 or 9?
Fred B. Hand, Jr.: Nine.
Earl Warren: We'll recess now Mr. Hand. [Recess] Mr. Hand, you may continue your argument.
Fred B. Hand, Jr.: Mr. Chief Justice and may it please the Court. Before the lunch and recess, I was pointing out certain discrepancies that I believe was brought to the Court's attention. I would like to call out several others. An additional a bit of confusion seem have been that whether or not there were 500 to 600 names in the array. The correct thing is, there were 500 to 600 names in the panel, I mean, in the jury boxes and not in the array, that is your distinction. The testimony will reveal that there are 90 jurors in the array which tried these particular cases.
Potter Stewart: By the array, you mean the what sometimes called a venire?
Fred B. Hand, Jr.: That is correct.
Potter Stewart: The panel of people called as potential juries for this particular case?
Fred B. Hand, Jr.: That is correct Your Honor. That is correct. Another--
Speaker: Where is these 48?
Fred B. Hand, Jr.: Those are the particular 48 that are what we call cast upon the defendants from whence, 12 are eventually stricken -- I mean 12 remain to try the particular case that the state having 10 strikes, the defense having 20 strikes. That is a provision under your Georgia law. Another --
Earl Warren: How do you select this -- these that are put upon the defendant?
Fred B. Hand, Jr.: You mean the 48 Mr. Chief Justice?
Earl Warren: 48, yes.
Fred B. Hand, Jr.: You have a list of jurors which comprises your panel.
Earl Warren: Yes.
Fred B. Hand, Jr.: That list of course was 90, they're in order. The first qualified 48 that I'm not disqualified you -- by way of illustration opposing death penalty or by relation or by blood or marriage. The first 48 are chosen with the state having 10 strikes of that indicated and the defense 20 and from that 48, you will then of course have 12 qualified jurors to try a particular case.
Earl Warren: Now, how are they -- how are they arranged -- how are the names arranged on this list of 90?
Fred B. Hand, Jr.: I'm not certain whether the clerk arranges them in alphabetical order or not. I'm not inclined to believe that they are in alphabetical order though. I'm not fair to make a statement in this particular case, but I'm inclined to believe that it is in alphabetical order Your Honor.
Speaker: How many are left [Inaudible]
Fred B. Hand, Jr.: We have some leftover obviously.
Speaker: [Inaudible]
Fred B. Hand, Jr.: What you do is you start out with this 48 of course and then the way we do it in this particular county and in this particular Circuit, the each individual jurors is asked to stand then the state either accepts or rejects that juror. If the state accepts and then it is cast upon the defense, the defense either accepts or rejecting -- rejects the particular juror.
Speaker: It gets filed or --
Fred B. Hand, Jr.: As soon as 12 and then you have like trial jury.
Byron R. White: How will you get the --
Fred B. Hand, Jr.: This is chosen by the trial judge Mr. Justice White. Depending upon the nature of the case of whether or not it figures that quite a number of jurors maybe disqualified because of relationship by which in fact --
Byron R. White: What does he chose from [Inaudible]
Fred B. Hand, Jr.: He draws from the jury box, that is correct. And as has been previously indicated --
Byron R. White: [Inaudible]
Fred B. Hand, Jr.: That is what I --
Byron R. White: [Inaudible]
Fred B. Hand, Jr.: No sir. Between 500 and 600 was the best estimate that the record reflects.
Byron R. White: Did somebody touch another --
Fred B. Hand, Jr.: Yes sir. This drawing takes place in open court in the court room and the sheriff and the clerk of the court are present when the judge draws this, as well as anyone else that might care to be there.
Speaker: [Inaudible]
Fred B. Hand, Jr.: That is correct. For the entire panel of jurors that were seated in a particular term of court, that is correct.
Byron R. White: 90?
Fred B. Hand, Jr.: 90, that is correct.
Hugo L. Black: Are the attorneys for the defendants are there when their jurors are selected?
Fred B. Hand, Jr.: Mr. Justice Black, anyone that cares to be present --
Hugo L. Black: I mean --
Fred B. Hand, Jr.: In this particular instance --
Hugo L. Black: That's merely, are they --
Fred B. Hand, Jr.: No sir.
Hugo L. Black: Are they notified or --
Fred B. Hand, Jr.: Not to my knowledge. There was a recent case in the Supreme Court of Georgia wherein the selection was done in the clerk side. The Georgia law very clearly says that it should be done in an open court and that particular case was reversed on that ground that it was not held in open court. The drawing was not held in open court. We do not have that in this particular case.
Earl Warren: Are there any -- are there any restrictions on the manner on which the judge draws this book?
Fred B. Hand, Jr.: I don't believe I follow your question.
Earl Warren: I mean, does he have to do it by lot or --
Fred B. Hand, Jr.: He just reaches in to the box. In other words, there is a jury box that he just merely puts his hand down and then draws out a slip and flips the slip and says Joe Jones, the clerk writes down Joe Jones' name and that is only the method.
Earl Warren: I know but does – would he have the right for instance to reach in the box and draw out Joe Jones and say, “Well, I'll take another one instead of him and draw somebody else” until he gets who he wants or--
Fred B. Hand, Jr.: I think any -- I think that the law requires it. He draw them one at a time and not rejecting unless for some – just deceased, way of illustration, he knows that someone is deceased, I think he could very obviously cast him aside, but I think that the law requires and contemplates he shall draw them as he comes to them.
Earl Warren: Is that in the record -- that law in the record?
Fred B. Hand, Jr.: I don't believe it's in the brief of the respondent.
Earl Warren: But do all counties have the same method of drawing --
Fred B. Hand, Jr.: Yes sir.
Earl Warren: They all do it in accordance with a statute?
Fred B. Hand, Jr.: That is correct and neither I should say that they're supposed to do it in accordance with the Georgia law --
Hugo L. Black: Have you seen the judge picked up the box, shake in that way around before he does it?
Fred B. Hand, Jr.: Well, whether this happened in this case Mr. Justice Black, I'm not prepared to say.
Abe Fortas: That's the tax digest?
Fred B. Hand, Jr.: Pardon?
Abe Fortas: The tax digest suggests that names are put in the box, is that designating the --
Fred B. Hand, Jr.: That is segregated Your Honor and it was at a time this one was selected and I propose to go into that very briefly -- little further down my presentation.
Abe Fortas: [Inaudible]
Fred B. Hand, Jr.: The Georgia law has been changed since that time I believe that would prohibit it in view of this Court's decisions. Now, there's one other very important on observation that I would like to make concerning the remarks made by my brother at the Bar and that is, they referred to the fact that although the mandate of the Fifth Circuit Court of Appeals said to the jury commissioner of Mitchell County, Georgia, that your juries are unconstitutionally selected and the council made great ado over the fact that we did not see fit to revise until February, 1965. I might bring to the Court's attention that the final mandate of this Court was not handed down until January, 1965. In the month proceeding that there was a revision, there were no intervening trials, not intervening cases that any jury of Mitchell County would have had to pay its own between the time of the final mandate of this Court actually was on appeal to this Court and when we received the final notice of certiorari in demand then we immediately revised the next month. And now if I may in the very brief time that I have remaining go into my argument. The respondent is well aware of the many decisions of this Court which hold and of course whether it's been prior discrimination that -- in the selection of juries and grand juries that a man cannot be properly tried by constitutionally selected jury where people have been systematically excluded. However, the respondent would respectfully called to the Court's attention that whereas here, prior discrimination was laid there and then bring to the court's attention that that is the very crux of the Fifth Circuit Court of Appeals' decision that you have prior discrimination. That is admitted and it's not denied. And a revision takes place -- what transpired before the revision is irrelevant, Cassell versus Texas. So while this prior discrimination which has already been adjudicated may or may not had been, the court say that it did. I say to you that this has nothing to do with this case. Now, what do we have that has a fair amount importance to this Court? What do we have? We have a Fifth Circuit mandate that says, that we have a bad jury system, pursue it to that mandate and the record will so reflect, the trial judge of Mitchell Superior Court, called his three commissioners together and says in effect, “Look, the Fifth Circuit says you've got to change. You have to revise these boxes in which nobody is systematically included or excluded because of their race, color, creed and national origin, this took place. Now why did I say so affirmatively that this takes place, because the fact remains, the record reflects it. The record affirmatively shows that there were at least three Negroes called for grand jury service.
Abe Fortas: I know but was there any change made with respect to the tax digest -- the local designation on the tax digest or the practice of selecting names for the jury box from those racially designated tax digest, was that changed?
Fred B. Hand, Jr.: That was not changed Your Honor, but I would like to point out two specific things in that relation. Now--
Abe Fortas: You're saying -- what you're saying is that after the mandate of the Fifth Circuit came down and you said it came down in January of 1965.
Fred B. Hand, Jr.: That's correct.
Abe Fortas: What you then proceeded and do is to select the names of some Negroes and put them in the box, is that what you're telling us?
Fred B. Hand, Jr.: No prior to the contrary Your Honor. We have to have some basis to go by, the jury commissioners do.
Abe Fortas: What basis -- what kind of basis? Where the people are Negroes or Whites?
Fred B. Hand, Jr.: No, I say that this -- this is actually in a small rural county such as you're dealing with here -- really, whether they select from a segregated tax digest or what have you s really in material for this one recently for no other and that is by their own admissions in the record. They personally knew each individual juror who was selected and whose name was put into this jury box. So if they personally knew this individual of necessity, they would have to know his race.
Abe Fortas: How many people are there in this county?
Fred B. Hand, Jr.: There are between 18,000 and 20,000 Your Honor. The jury commissioners --
Abe Fortas: That's a lot of people to know. Are these adults?
Fred B. Hand, Jr.: These are -- no. They are -- there are -- in this relation, I'll give you a two statistics. With respect to the statistics, a census figures, show that there are -- according to the 1960 census, 10,206 persons in Mitchell County over the age of 21 years or older as follows, 4,480 Negro and 5,726 White. Of these, White and Negro adults over 21 years of age, there are 2,124 functionally illiterate non-White in the county. So --
Hugo L. Black: How many?
Fred B. Hand, Jr.: 2,124 functionally, illiterate non-White in the county.
Hugo L. Black: What do you mean by functionally illiterate?
Abe Fortas: Your law prohibits functionally illiterate people?
Fred B. Hand, Jr.: Neither read nor write, understand the zero to four years of age with educational requirements coming within that area.
Abe Fortas: Where does it say functionally illiterate.
Fred B. Hand, Jr.: That is -- I'll take this from the census bureau Your Honor. Why they do it? I don't know. I'm not prepared to say it.
Earl Warren: That 2,200 includes men, women and children?
Fred B. Hand, Jr.: You mean the 2,124.
Earl Warren: Well, 2,124, yes.
Fred B. Hand, Jr.: I would presume that it did not --
Hugo L. Black: Over 21?
Fred B. Hand, Jr.: Over 21, that's correct.
Earl Warren: You said over 21--
Fred B. Hand, Jr.: Yes sir.
Earl Warren: Excuse me. I didn't hear that.
Fred B. Hand, Jr.: Yes sir, that is correct.
Abe Fortas: What's the relevance then? You mean that the jury commissioners knew everybody who is functionally illiterate?
Fred B. Hand, Jr.: No, I think the--what I was --
Abe Fortas: They wouldn't be disclosed on the tax digest anyway, wouldn't they?
Fred B. Hand, Jr.: No. What I was leading up to Your Honor, Mr. Justice was that these jury commissioners come from widely, divergent sections of the county. One of them was a city clerk of the City of Ellen, Georgia which was one of the small towns in the county and the other one was a city clerk of Camila, Georgia which was another small town. All other areas in the county are rule in nature. Now, I think it is also significant to point out as far as this goes that the defense shows to examine only three of the six jury commissioners. And in the examination, they didn't show that they have any prejudice bias.
Abe Fortas: I know. But now, why -- what purpose do the tax digest serve?
Fred B. Hand, Jr.: That is that Georgia law requires that the jury commissioners draw from the tax digest to the -- with perspective jurors from this tax digest. Now, in that relation, I might point out to the Court that of the total people on these tax digests that only 27.1% of the total people on the tax digest are of the Negro race.
Abe Fortas: Well, the point is that the State of Georgia must have construed the mandate as a Fifth Circuit either disregard the mandate of the Fifth Circuit or you construed it as being satisfied by putting some Negroes, the names of some Negroes in the jury box, isn't it?
Fred B. Hand, Jr.: Well, I think --
Abe Fortas: Is that right?
Fred B. Hand, Jr.: If I may say so. I don't think this Court would look to the proposition that --
Abe Fortas: I'm not asking of that. You make -- you asserted here that the State of Georgia of this county, complied with the mandate of the Fifth Circuit --
Fred B. Hand, Jr.: That is correct.
Abe Fortas: And if I correctly understand you, this is what I want you to tell me, if I correctly understand you, you say that they complied with and not by abandoning -- getting the law change or abandoning this on the text digest. They complied with it by putting the names of some Negroes in the jury box -- in the jury box and then drawing some for the various panels, is that right?
Fred B. Hand, Jr.: Well, let me answer you in this way if I may very briefly. The Fifth Circuit Court of Appeals didn't say the method of selection of jurors was bad. They said, the fact that there had been prior discrimination was bad, it was not what was in the jury box but what was not in the jury box, namely that there were no Negroes apparently in the jury boxes when this case was first tried in 1960. To correct that, you obviously have to have a change of the contents of that box. This --
Abe Fortas: And then they changed it by putting the names of some Negroes in there?
Fred B. Hand, Jr.: They changed it by going down the list and not systematically excluding anyone.
Hugo L. Black: This tax digest, is that approved?
Fred B. Hand, Jr.: Yes it is Your Honor.
Hugo L. Black: Then perhaps the designation has to be provided.
Fred B. Hand, Jr.: At this time, I believe that it did. Since that time, the Georgia law as I previously indicated has been changed with remaining time --
Hugo L. Black: The beauty is not on the people who select the jury -- the investigator will not -- know who they are and where they are and what's their character.
Fred B. Hand, Jr.: That is correct. The record affirmatively shows that each one of this jurors or jury commissioners personally knew the person whom he recommended to serve as a prospective juror.
Hugo L. Black: It would be his duty, would it not --
Fred B. Hand, Jr.: It would be his affirmative duty.
Hugo L. Black: And I assume that he would -- during the course of that investigation [Inaudible]
Fred B. Hand, Jr.: Of necessity if he personally knew him. That is correct Your Honor.
Hugo L. Black: That he'd know it just as well as he did if he got it out of the box.
Fred B. Hand, Jr.: That is the exact point that I've pushed and pressed upon the Court.
Earl Warren: I understand you put great reliance on the fact that this was a small county --
Fred B. Hand, Jr.: That is correct Your Honor.
Earl Warren: -- and these commissioners could be presumed to know the people they recommended because one would know most of the people in the county. I suppose the same system works this way in Atlanta which is a big city. Would you say that the constitutionality of the system there would be different than any of your little county?
Fred B. Hand, Jr.: I think in a place such as -- I don't think the constitutionality would be any different, but I do think that the jury commissioners in a metropolitan area such as Atlanta would have to have a staff or themselves go out into the field and acquaint themselves with the people that they find only tax digest.
Earl Warren: Do they have that?
Fred B. Hand, Jr.: I'm informed in Fulton County, Georgia that they do have a staff that are -- maybe in there but I believe that that could be a true statement of fact.
Earl Warren: I understood you to say that the statute had been changed in some respects. Are they -- are the tax records still segregated?
Fred B. Hand, Jr.: They are not Your Honor according to my --
Earl Warren: When was that changed?
Fred B. Hand, Jr.: I believe it was 1966, I believe.
Earl Warren: 1966.
Fred B. Hand, Jr.: Yes sir.
Earl Warren: I see, but they weren't at the time this --
Fred B. Hand, Jr.: Under Georgia law, they were required to be segregated at the time that this jury was --
Earl Warren: This jury was drawn.
Fred B. Hand, Jr.: That is correct.
E. Freeman Leverett: Mr. Chief Justice and may it please the Court. One or two things --Mr. Justice Fortas, the Fifth Circuit Court of Appeals did not condemn the use of the tax digest in its decision. Its decision was based upon the traditional showing that was made, the fact that the Negroes constituted a substantial portion of the population and the fact that none had ever served. Primarily, the Fifth Circuit's determination was based upon a concession or what was tantamount to a concession in the brief of the state which said, “We do n to dispute the issue of discrimination but we rely upon the doctrine of waiver." The Fifth Circuit said, “Construing Fay versus Noia taking judicial notice of the situation on the Southern community, we would say that there is no waiver under these circumstances. Well actually, one point that was brought out by Mr. Morgan that Southern states are not the only jurisdictions that have these subjective jury selection statutes. This horrible statute of Alabama that he referred to, United States has one almost identical if his reading of it was correct. That's 28 U.S.C. A-1861 which says, you must be able to read, write and understand the English language. There is some other language further on in the statute in dealing with an exemption or something about experience. So southern states are not the only jurisdictions I'm sure that have subjective standards in their jury selection statutes. There are --
Earl Warren: May I ask Mr. Leverett, why these tax records were segregated?
E. Freeman Leverett: I'm coming to that Your Honor. There are two stages to jury selection. The first is selecting that is the process of the jury commissioners meeting every two or three years as the court may direct. Taking the tax digest, getting the names from the tax digest of those people that own property and pay taxes and that are thereby qualified, making up the jury boxes as we call them. Each jury -- there are two jury boxes, there's one for the grand jury and there's one for the petit jury. Each jury box is divided into two compartments, compartments numbers one and two. The jury commissioners select the petit or the traverse jury box first. They take the names of the tax digest. They consider whether these particular people have the qualifications that suit them for jury service. They then prepare tickets and they put the name of a juror on that ticket. They put it in compartment number one of the grand jury box. From the grand jury box, they then select two-fifths, not more than two-fifths of those names who will also serve as or rather from the traverse jury box, they select a list of group of names of not more than two-fifths to serve as grand jurors and they are the most experienced and upright and intelligent. To be a traverse jury, you only have to be upright and intelligent but to be a grand jury, you have to be the most experienced, upright and intelligent. These names are placed in the box. The names are also given to the clerk of the superior court who records them on the minutes of the court so that there is a permanent record of who is in the jury box and who is not. At the end of each term of court, the judge, the trial judge in open court, draws the names from the jury boxes for the grand and petit juries for the term of court that will follow in that particular circuit or that particular county. This is a chance process. He puts his hand down in the box, he pulls it out, he has not discretion to discard it, he has to put the name on the list. And the panels, the panels are made up of 12 each. There are 36 for several juries, 24 of these are used in criminal case plus such additional other panels as the court maybe necessary to make up a traverse jury panel. Now, the Georgia statute that's in question here, we have two positions with regard to that statute which is 59106 which says that you go to the tax digest on 926307 which says that the names of Negroes will be listed separately on the tax digest. We say that that statute is not unconstitutional as applied to jury selection because of the fact that this digests are used at the deliberative stage of the jury selection process. When the jury commissioners presumably and in fact if they follow the decisions of this Court and most particularly of the Fifth Circuit Court of Appeals, they have to investigate the background of all the jurors including their race. That's set out very clearly in the recent decision in Brooks versus Beto.
Abe Fortas: So they have to investigate their race?
E. Freeman Leverett: Yes sir.
Abe Fortas: For what?
E. Freeman Leverett: The Fifth Circuit has said that it is incumbent upon jury commissioners to investigate the race of the jurors to be sure that they don't effectuate any discrimination because of their lack of knowledge or familiarity with the total element of the community. Secondly, we say that the origin of the statute refutes the fact that there was any discriminatory purpose. Now, we recognize that the Ham case has held in a direct suit for injunction, challenging a state law that requires complete separation of names on a poll tax or tax record that such statute would be stricken down. However, that was made in the context of a case which was a direct challenge. That is not true here. There could not be a direct challenge here because the statute was repealed in the 1966 General Assembly. There was prior to that, prior to 1965, there was a practice whereby the return sheets upon which the taxpayer actually, each individual taxpayer makes the return of his taxes, they were put on yellow for the Negro taxpayers and white for White taxpayers. That practice was voluntarily abandoned in the first part of 1965 by the State Revenue Department which furnishes these return sheets. Now, the digest is a consolidation of the returns. A return has just one taxpayer's name on it, but the digest is a consolidation. It has maybe 15 to 20 names on it and it is from the digest that the jurors are selected. Now, the digest itself heretofore has been divided into two parts. The first part would be white or perhaps vice versa and the other part would be the Negro.
Abe Fortas: What's the percentage of Negroes are taxpayers as compared with the White people are taxpayers?
E. Freeman Leverett: In this particular county?
Abe Fortas: Yeah.
E. Freeman Leverett: Give me the figures. 27.1%, our jury commissioner estimated it between 25% and 30%. That is a matter of record.
Abe Fortas: What do you mean by that? What are those figures mean? 25% to 30% of the taxpayers --
E. Freeman Leverett: Total taxpayers were Negroes. He estimated --
Abe Fortas: Compared with about 45% of the population?
E. Freeman Leverett: That's right sir. Now, we can assume, but not concede that the Georgia statute would have been declared on the constitutionally challenge in a direct suit but we do not think that that necessarily carries with it the proposition that the jurors selected with reference to that statute are thereby unconstitutionally constituted.
Byron R. White: [Inaudible]
E. Freeman Leverett: No sir. That was Brooks versus Beto in 366 F.2d, I believe -- 366 F.2d 1. that's also spelled out in Davis versus Davis in about 361 F.2d 770. Now of course there is some discussion that is relevant in the Rabinowitz case involving federal juries.
Hugo L. Black: 361 F.2d what with Davis and Davis?
E. Freeman Leverett: Davis, Mr. Justice Black is 361 F.2d 770. Our position as far as this disposition of this case is that since this involved the deliberative stage of jury selection that the fact that the tax digest were separate, it does not invalidate the panels that were constituted pursuant to that reference. If the -- under the decisions of this Court, particularly the Cassell case, this Court have said that there is a responsibility on jury commissioners to investigate and to apprise themselves of all elements of the community so that they can be sure that they do not limit the selection of jurors to people whom they personally know. We submit that because of the deliberative stage at which this racial identification entered the picture that this did not give these jury commissioners any information that they didn't already either have or that the decisions of this Court imposed upon them to find out in the first instance.
Abe Fortas: I don't suppose the state takes a position that in the past tax digest were used by the jury commissioners in this county to make sure that there was a goodly number of Negroes on the jury box?
E. Freeman Leverett: Not prior to the Fifth Circuit decision Mr. Justice Fortas because the Courts adjudicated that, there's not much we can say where the court has adjudicated that you're precluded by it. The case of Avery versus Georgia which this Court decided, and Williams versus Georgia, involved racial identification at the second stage of the jury selection process that is the stage that by law is intended to be by chance. It is intended to be unselected when the judge simply sticks his hand in the aperture and box and pulls out the ticket and hands it to the clerk. Now, at that stage racial identification could serve only one purpose and that would be discrimination because that is -- that selection is supposed to be with that regard to the individualized considerations. As far as the origin of this statute this 936307 that's just been repealed, we have set that forth rather extensively in our brief. In elections held in Georgia in 1892 and 1894, there were widespread charges of fraud both on the standpoint of the Populist Party, the standpoint of the Democratic Party. An election for congressman in 1894 in the City of Augusta, twice as many people voted as were even eligible to vote in that city. Consequently during the last months of 1894, the Atlanta newspapers were campaigning vigorously for a Voter Registration Law. Georgia had no Voter Registration Law at that time to ensure that people would not be voting at more than folding place and being hold over the county and some over in Augusta will hold in from South Carolina. Governor Northen addressed the legislature in October or November of 1894 and called for a Voter Registration Law. Such an act was introduced. On the same day that the Voter Registration Law was introduced, Representative Rawlings from I believe it was Washington County, introduced a law that was reported by the Atlanta Constitution under by having registration and elections. That was the forerunner of this tax digest statute. He explained this to a reporter. Unfortunately, it was written down in the paper in his own record. And he stated that the practice in the past had been for Negro property owners to be listed on the tax digest following their employer. Apparently, a hold over from the days of slavery when they were simply listed under the name of their master as property that that made it difficult to find out whether any given Negro was qualified to vote or not for the reason that you couldn't locate him. You had to know who he worked for. He was not listed alphabetically. And since Georgia law at this time required as a condition of the right to vote that a person have paid all taxes that he owed, that it was necessary always to go to the tax records to determine whether any particular person was eligible to vote. Now, the registration law that was passed this year, I hasten to add was purely objective. The literacy test did not occur until 14 years later in 1908. It was purely objective. It was in every sentence was directed toward the question of identification and what is necessary to determine whether a particular person was qualified to vote. The tax digest statute then dog tailed in with the registration statute. I also would like to point out that the poll tax was not in effect at this time. The poll tax was not passed until 1927.
Byron R. White: How many -- 27% of the population are taxpayers or 27% of the Negroes are taxpayers?
E. Freeman Leverett: 27.1% is the actual figure that's on [Voice Overlap] of the total taxpayers in Mitchell County are Negro, but where there is a thousand taxpayers, 271 would be Negro.
Byron R. White: And yet 47% of the population aren't --
E. Freeman Leverett: 45% or 42% it's in the brief -- 45%.
Byron R. White: What kind of tax rolls are these?
E. Freeman Leverett: These are ad valorem tax rolls.
Byron R. White: Just personal property in the --
E. Freeman Leverett: Both.
Byron R. White: So that if anyone who does not have property is automatically excluded from jury service?
E. Freeman Leverett: That is correct sir. There has been no challenge on economic grounds in this case that I point out.
Byron R. White: Well, what you have, would you say that that -- you would say that Georgia can put on a property qualification for jury service?
E. Freeman Leverett: The decisions of this Court up to this time have so upheld it. I recall that there is one I think that explicitly says that. It's not challenged in this case. I anticipate that we will probably be faced with that challenge.
Byron R. White: They didn't raise it?
E. Freeman Leverett: No sir, it's not. This is direct appeal.
Hugo L. Black: [Inaudible]
E. Freeman Leverett: How's that sir?
Hugo L. Black: [Inaudible]
E. Freeman Leverett: I do not know sir (Inaudible) I read. I did not undertake as counsel and I did not make a compendium of different state qualifications.
Earl Warren: I just been looking at the transcript, and I'm reading the testimony of your tax receiver and as I read it, I understand that when they changed the system of having white and yellow tags and having both white and colored, use the same colored cards that they then went to the practice of marking a “C” on each one of them for the colored and a “W” on the White.
E. Freeman Leverett: That was on the digest, I mean on the returns I believe wasn't it Mr. Chief Justice? And that is not uniform in the State of Georgia if I do recall something.
Earl Warren: This is the testimony of Mr. Campbell who is the tax receiver. He maintains the tax records he says. Before the taxes, I put this tax digest to taxpayers required to come to your office and make return and the it goes on and tells how -- this year, they've changed this so they no longer use yellow cards for the Negro --
E. Freeman Leverett: Return sheets to where they had reference to.
Earl Warren: Yes, what's that for?
E. Freeman Leverett: The return sheet -- the jury selection is not made up from there. The jury selection is made up on the digest which is a consolidation of the --
Earl Warren: Why do they start of in this manner? I don't know what they do later but if they start with this “C” and “W” why did they do it?
E. Freeman Leverett: I suspect this simply as a matter of identification for the tax commissioner. In my town alone, we have three John Baileys, two colored and one white and he did not say why I presume that's the reason that used it but that part of it does not enter into the jury selection. That is a matter of the tax return that the tax digest is what is used in jury selection.
Speaker: [Inaudible]
E. Freeman Leverett: Not any longer. It's not supposed to have.
Speaker: [Inaudible]
E. Freeman Leverett: Yes sir.
Abe Fortas: What are the other uses of the digest now?
E. Freeman Leverett: As I recall, that is substantially all as --
Abe Fortas: It's used only for this jury purposes, isn't it?
E. Freeman Leverett: That's right and the statute was never designed for that purpose. The separate one released the statute that required them to be separate as I have attempted to point out. It was passed in the context of a Voter Registration Act that was aimed at both frauds, in which voters or people would be holding two horse wagons.
Abe Fortas: So then actually, you have here a book called a tax digest that has its purpose, the designation of the names of the people who have a property qualification and might serve as jurors with a racial designation.
E. Freeman Leverett: We had that until 1966.
Abe Fortas: Which license --
E. Freeman Leverett: We have that until this year.
Abe Fortas: What do you have now?
E. Freeman Leverett: The statute was repealed and they are not supposed to have any separation in the digest.
Abe Fortas: Or any designation?
E. Freeman Leverett: That is correct sir. If they're putting these low 'Cs' and 'Ws' it's not authorized by law. I would also point out that the effect of the reversal on this question would mean that about close to 4900 people in the prison system of Georgia would be subject to habeas corpus because the Fifth Circuit has said that this question can't be raised substantially so in the Fifth Circuit.
Earl Warren: Mr. Morgan.
Charles Morgan, Jr.: Mr. Chief Justice and may it please the Court. With respect to the last statement regarding the number of people that will be automatically released in the event the court reverses on the question of tax digest recall for page 10 of the brief in the Gideon case, the statement or decision referring to the present case of retroactive to allow over 5,000 hardened criminals in Florida to be set free. Our only response -- that was in the Gideon case with the state contended there in brief. Here, the state contends that we're going to turn loose over 4,000 Negro prisoners from the state penitentiaries in the event of a reversal here. That argument was not successful in the Gideon case where (Inaudible) had been a specific case which was approved with the law of that case until the Gideon case and our response to that last contention is that if they're in jail wrongfully, they ought to be out. Now, regarding the historical questions on the statute, we've had historical research done by many in the field. There seems to be a split of opinion of -- as to exactly when the anti-Negro voter registration pushed -- came in the south whether it was 1896, 1894 exactly and what year did it take place. There is very little with respect to this particular statute which was proposed as an amendment to the Voter Registration Bill that came along in 1894. There are no racial reference is in the publications in Georgia, the original sources that we've looked to. The Atlanta Constitution of December 8, 1894 on page 4, column 3 in an editorial, stated that after it admits that it's agitated the reform, it says, “The Populist Party dividing the Bill as a body for what purposes, we do not know.” From some of these purposes -- that time in Georgia, the Populist Party was quite a threat. The Populist Party had not yet attached to itself the doctrines of racism. In Georgia between 1888 and 1903, there were 241 Negroes that were lynched, this is the second state, second only to Mississippi in the south. The problems of race, the problems of voting, the problems of the rise of a new political party in the south which was aligning the interest of Negroes with pro white fractions at that time. All were en-captured by this legislation that was proposed to the Georgia General Assembly at that time. I can't give anything specific though with respect to mention of race in the publications that had done. The Bill, Senate Bill number 130 reports to be retriever of the Georgia Statute requiring segregation on tax digest. I don't quite read it that way. That statute says, it purports to repeal the statute but then it goes on to say that several tax receivers or tax commissioners shall accumulate such statistical information in regard to taxpayers of such nature as they shall deem to be a benefit to the state revenue commissioner. So it does reveal the statute and then goes on to talk about statistical information and the compilation of statistical data. Referring to statements made regarding the use of the old list, in the compilation of the new list, as the old condemned jury list, in the record in case number 650 on page 28, has contained the statement that they did use the old list to go through it then they got the -- and then used the tax digest also. On this page 28 reference I'm talking about now is -- Solicitor Hand asked the question, “Were you present when the jury list was revised in February 1965?” I think there's a difference between revisions of the list of course and an actual throwing out of the old list, it was started anew from scratch. He -- and one of the references is that there is a denial that the old list was actually used. They just said they went through it and checked of the names and then they came back and I really don't know what the purpose of going through it were if they didn't use -- they seem reports that they didn't. Now, in the record on page 48 of 253 under examination by Mr. Jones of the city clerk tax collector, let's see. The statement is made there, what record have you make use in making this jury list. Well, we used the old list and of course we used the digest. You used the old list and the digest and that was all that you did used? Your Honor, I submit the counsel is leading the witness again and that's typically it.
Abe Fortas: And your adversary says that 1966, the law was changed. Is that in any of these briefs if you recall?
Charles Morgan, Jr.: I think it's mentioned in the brief, but the law itself was not contained in brief. I do have a copy of the statute.
Abe Fortas: Were you reading from law of --
Charles Morgan, Jr.: Yes sir. This is the photocopy of Senate Bill number 130 as passed in state.
Abe Fortas: Is that available in the published report -- statutes of state now?
Charles Morgan, Jr.: Yes it is. This would be the Acts for 1966. Regarding the statistical breakdown of the number of names there, we do have the 500 to 600 names we do in one instance have 90 names drawn out of the box apparently at random. We have the names of three Negroes being drawn there. We have 90, the second time being drawn at random apparently from the box. We have seven names there and no statistical studies were prepared for this Court. Of course, we would offer to have such studies prepared in light of the Finkelstein article in the Harvard Law review based on Bernoulli's test and laws of probability. If the Court so desired, we'd be happy to submit them to the Court in a separate memorandum in a later time. The Fifth Circuit -- United States Court of Appeals for the Fifth Circuit, did call forward seven cases to be argued and back before the Fifth Circuit of which Brooks versus Beto was one and Davis versus Davis Governor was another. Also Rabinowitz versus United States was argued back at that time. The Rabinowitz case as I understand with regarding discretionary questions and the question of the use of discretion by federal jury commissioners, says that those federal standards are maximum standards. You can oppose other standards over the able to read, write and understand the English language provisions. As I understand the thrust of these cases, it is somewhat difficult. We had the case of Billingsley versus Clayton there. We attempted to bring that to this Court, the cert was denied. In order to review it along this field in the Fifth Circuit which is I think the most of the field -- the Circuit most concerned with the problem. As I understand the thrust of these cases, it is the jury commissioners must be aware of the racial makeup of the entire community in which they operate and they must be aware of this in order to find a cross section as to the -- and the cross section is what is required -- it's required from that list and as I understand the Swain case, it's the list that you've got to have. We can prove the list pretty well statistically by taking the number of names drawn at random from it and moving right straight down to the racial breakdown that we have. Now, the statement that was made an argument, I do want to question one statement about the jury commissioners themselves. I didn't quite understand that these jury commissioners knew about it personally that was put on there. As a matter of fact, some of the jury commissioners hardly seem to know very much about anything much that was going on there. The percentage figure that we were talking about earlier with Mr. Justice Fortas under the cross-examination by Mr. Hand, he said, “Mr. Grovin (ph) this is just a wild guess by you.” “Yes sir.” Could it be as high as 80% or 60%?” “Well, it could possibly be different. You just don't really know, do you?” “I don't know.” “You don't know what the percentages, do you?” “No, I'm not sure.” That's page 25 of the record in 650.
Potter Stewart: There were how many jury commissioners, six?
Charles Morgan, Jr.: Six, all White.
Potter Stewart: And you cross-examine three of them?
Charles Morgan, Jr.: Three.
Potter Stewart: I think the theory was about the – your opposing counsel about the personal acquaintanceship was that these six came from various parts of the county. Two from the two small towns and the other four from the rural areas and that they didn't all know all the people in county but adding up the acquaintanceship of each of the six -- they're pretty good with the acquaintanceship of the county. Wasn't that the argument or did I completely misunderstand it?
Charles Morgan, Jr.: I think that that would generally out as the argument not as the fact that the jury commissioners did testify that in their particular areas, they knew folks and they took them and they also testified that their word was pretty much law as to who they would take now or temporary. If they recommended somebody to the whole commission, the whole commission would say, yes, we will go ahead and take them.
William J. Brennan, Jr.: Mr. Morgan.
Charles Morgan, Jr.: Yes sir.
William J. Brennan, Jr.: Did I understand that someone from the state say that the Fifth Circuit decision held that there should be any inquiry into race?
Charles Morgan, Jr.: It was talking about the case of Brooks versus Beto and this is one of the seven cases argued en banc on December the 16, 1965. As I see the thrust of those cases, it is that the jury commissioner does have to have knowledge of the community and he is the state official and neither -- I really haven't read these cases you know for the purpose of this argument and this is recollection but in this case or in Scott versus Walker or Davis versus Davis Governor, these were all in that set, a jury commissioner came on much as in this case and had access to racial records there in the county. The jurors names weren't drawn from those records, but he had access to the records, yet he didn't seem to know anything about the records. He couldn't testify as to who is a Negro and who is not a Negro. And of course there are difficult problems for plaintiffs in civil actions or the defendants in criminal actions in the techniques approved here. I think that perhaps the comment went to that but the jury commissioner himself should have knowledge of this and I think there is a thrust in those cases that the jury commissioner should have knowledge of the entire community, about individual jurors, though I don't recall that, it could be in the case.
William J. Brennan, Jr.: Well, you think the jury commissioner should have any knowledge about --
Charles Morgan, Jr.: Well sir, I would go about selecting the juries is totally different but we will do it anyway. So --
William J. Brennan, Jr.: This is the way they select it?
Charles Morgan, Jr.: Yes.
William J. Brennan, Jr.: Under the Georgia system do you suppose it would be appropriate for them to have some access to information that bears on race?
Charles Morgan, Jr.: Well, I think Mr. Justice Black pointed out that it would be difficult in a small county, a rural county of this nature, for them not to have some knowledge anyway. People work on the farm. If your jury commissioner happens to have a store that has a charge business, he pretty well knows who isn't there.
William J. Brennan, Jr.: [Inaudible] I guess --
Charles Morgan, Jr.: Do I think that they should have that knowledge?
William J. Brennan, Jr.: Yes.
Charles Morgan, Jr.: Not at the time of selection. I think the knowledge should come from some sort of a list. If it comes from a list, it ought to come in a random selection just straight down the line. Now as far as techniques and modes of proof at a later time that you might have in a case, in a city like Birmingham or a city like Atlanta where you have a very large population, the problem of proof is just a tremendous problem and it could very well be that there is -- that there might be some record for that purpose at some place but I don't think the jury commissioner should have that as a consideration in their mind certainly not by state law and certainly not tacked on in a judicial system such as we have where it's just thrust at them. It's like the Andersen case. This maybe told to the jury commissioner, it's almost like saying to him, this is a relevant consideration somehow. If the counsel on both sides are trying to find out why we've got segregated tax digest to begin with and we don't know then what in the world would a jury commissioner think. There must be some reason. There's a reason for everything. I suppose ordinary man think and that reason must be the racial distinction. To conclude, we would simply say this, a jury was cast upon these defendants. That jury came from fluted Wellspring. We didn't -- we know that over a period of years, this Court has condemned systematic exclusion of Negroes from juries. We also know that for period of years, Negroes continued to be excluded from juries in the South. The remedy that we propose under this case is that the state was given eight months to try these defendants fairly. The conviction is unconstitutional based first on the tax digest segregation question as a matter of law. Secondly, the record discloses systematic exclusion as a matter of fact. The state under the law did nothing, the state under the facts did nothing and it seems to me that the State of Georgia and any other jurisdiction which excludes Negroes from jury as a matter of practice should be advised that you try them fairly and rapidly or they'll go free. We think that these defendants should now be cast out of jail. Thank you sir.